WEEKLY DAFootnotes #41

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The Weekly Daf by Rav Mendel Weinbach

Bava Batra 44-50; Issue #41
22-28 Iyar 5762 / May 4-10, 2002

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THE RIGHTEOUS BORROWER

"The wicked man borrows and does not repay; the righteous one is gracious and gives." (Tehillim 37:21)

The identity of the "wicked man" is unquestionably the borrower who fails to honor his obligation to repay his loan. As regards the "righteous one" there are varying approaches in the commentaries.

Rashi identified him as the "Righteous One of the Universe" Who graciously compensates the lender for the loss he has suffered because of the borrower's defaulting.

Other commentaries identify him as the lender himself. Metsudot defines his righteousness in that, upon seeing that the borrower refuses to pay, the lender forgives the loan and turns it into a gift so that he should not be cause for the wicked borrower to be punished. Malbim sees in this passage three virtues of the righteous one in contrast with the wicked man. Not only does he repay the money which he himself has borrowed but also lends money to others and even gives gifts of charity.

In our gemara the focus is not on the role of the righteous lender but on the righteous borrower. A man sold a field to another and specified that he assumes no responsibility for compensating the buyer should the field be confiscated by a claimant. When such a claim arises the seller wishes to testify in court on behalf of the purchaser and to provide information on his ownership of the field which can help the buyer win the case and retain the field. The Sage Shmuel rules that he is disqualified as a witness because he has a vested interest in assuring that the field he sold is not taken from his buyer.

But what vested interest can he possibly have if he has no responsibility to compensate the buyer? The answer is that when the seller borrowed money from someone the lender automatically had a lien on this field which entitles him to confiscate it for the unpaid loan even if it is subsequently sold. Since this borrower sold that field and was left with nothing to repay his loan, he indeed has a vested interest in testifying that the field he sold was truly his so that the lender can exercise his lien, something he cannot do if the claimant proves that the field never belonged to him. Even though his testimony will not actually result in any monetary gain at this stage when he has nothing with which to repay the loan, he has a vested interest in seeing his lender receive payment.

Bava Batra 45a



THE RELUCTANT OFFERING

If a man is coerced into selling property and finally submits to pressure, accepts payment and declares that he consents to the sale, the transaction, rules Rabbi Huna, is valid. Induced consent, when no loss is involved is logically considered valid consent.

This reasoning, which finds legal expression in halacha (Shulchan Aruch Choshen Mishpat 151:3 and 205:1) raises a problem in regard to a completely different issue of induced consent.

If a Jew makes a vow to offer a voluntary sacrifice he is obligated to fulfill that vow. Should he default the court can coerce him to supply the animal for the sacrifice. In regard to the nature of this coercion, we seem to get conflicting signals from a passage in the Torah. In speaking of the animal which he is obligated to bring, the command is "he shall bring it to the entrance of the Tent of Assembly (the Sanctuary as it was termed in the midbar), there he shall bring it, according to his will, before Hashem." (Vayikra 1:3).

The repetition of the phrase "he shall bring it" is interpreted by our Sages as a directive that if he fails to bring it on his own he can be compelled to fulfill his vow. But only one word later we are informed that this offering must be "according to his will" which seems to rule out coercion! The resolution of this apparent conflict is that he may be coerced until he actually declares that he is willing to fulfill his vow and provide the animal.

Tosefot raises an interesting question. If Rabbi Huna has posited that it is a matter of pure logic that induced consent in a transaction is considered valid consent, why is it then necessary for the Torah to repeat a phrase in order to teach us that the induced consent of the reluctant vow maker makes his sacrifice valid? (His challenge is obviously based on considering the spiritual atonement one receives from offering a sacrifice equivalent to the monetary payment one receives in an induced sale.)

The answer, writes Tosefot, is that without the Torah sanctioning such a sacrifice we would have considered a Jew who had to be coerced into bringing the sacrifice he owes to be a rasha (a sinner) and disqualified his offering on the basis of the passage (Mishlei 21:27) which declares that "the sacrifice of a rasha is an abomination."

Bava Batra 48a


General Editor: Rabbi Moshe Newman
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