May the merit of the Talmud Bavli edition and audio series be for Shemuel, Avraham, and Shaul, and for the parents who have given them life. May they find favor in the eyes of people and of God, and may the Holy Spirit fill their hearts with good deeds. Amen and amen.
We are beginning by reminding ourselves that we are in the discussion concerning orphans and the assets they inherited from their father. We said that, in certain circumstances, the court may take property belonging to the orphans and sell it in order to pay their father’s debts. This may be a debt that their father owed, or it may be the marriage settlement that he owed his wife.
We discussed different opinions concerning how many days real estate must be advertised before it is sold. Is it thirty days or sixty days? We also discussed the reason for waiting thirty or sixty days and why the announcement is made in the morning and in the evening. These are all details of the law.
Now the Gemara continues. Rava says that the reason we generally do not go down to the assets of orphans is concern that there may be a receipt. We previously said that sometimes we do take property from the orphans when there is a loss involved—for example, when the debt is accruing interest. Since interest is being paid continually, it is better to pay the debt immediately. We also said that the widow is entitled to continue receiving support as long as her marriage settlement has not been paid from the estate. Therefore, it is better to pay her so that the estate will not continue losing money.
For ordinary loans, however, we do not take property from minor orphans. We wait until they become adults, and then they can settle the matter themselves. When the orphans are minors, we do not take any of their assets.
Rava now gives a new reason for this rule: it is because there may be a receipt. Perhaps the father already paid the debt, and perhaps he has a receipt somewhere among his papers. If there is a receipt showing that the debt was paid in full, the orphans should not be made to pay a second time. Therefore, we wait until they become adults. Once they are adults, they can properly investigate whether a receipt exists. But minors cannot be expected to know all of their father’s papers. We are therefore concerned that there may be a receipt showing that the father already took care of the debt.
Rashi explains this at length. The creditor is coming with a document establishing the debt, but we do not know why the document is still in his possession. Perhaps the reason is that the father wrote a receipt. If the creditor presents the original document, the orphans may be unable to produce the receipt showing that the debt was paid. That is why we do not collect from minors. We suspect that a receipt may exist.
Do we normally have this concern? Consider the case of a woman who wishes to collect her marriage settlement from her husband’s estate without appearing before her husband. For example, her husband sent her a bill of divorce while she was in another country. After receiving it, she goes to a court and says, “I received the bill of divorce, and I want to collect my marriage settlement from my husband’s estate.” The court permits her to collect, but she must take an oath that she has not already collected the marriage settlement.
There was an incident involving a woman who came before Rabbi Yitzhak Nappa in Antioch. He said that the rule we had learned—that a woman may collect her marriage settlement without appearing before her husband—applies only to a marriage settlement. It is permitted because of the woman’s welfare. We want to make it easier for women to collect their marriage settlements; otherwise, they may be reluctant to marry. If a woman is told that she cannot collect her marriage settlement unless she returns to wherever her husband is and makes a claim directly before him, that creates a major obstacle.
Therefore, the rabbis permitted collection without the husband’s presence in the case of a marriage settlement. But with an ordinary creditor, one may not enter the borrower’s assets without his knowledge, even if the creditor takes an oath. Rather, the creditor must wait until the borrower returns and then proceed in his presence.
Another rabbi said that even an ordinary creditor may enter the borrower’s property without his knowledge, provided that the creditor takes an oath. But if we are concerned that there may be a receipt, why do we not have the same concern here? The creditor is swearing that he was not paid and is asking to collect his money. Perhaps the borrower has a receipt showing that the debt was already paid. Why do we allow the creditor to take property without the borrower being present?
The answer is that otherwise people would stop lending money. A person could borrow money and then disappear. He could move to China, and the lender would never be able to recover the debt. Therefore, the rabbis enacted a provision allowing the creditor to collect from the borrower’s assets even without the borrower’s presence. Although there is a concern that the borrower may possess a receipt, the rabbis did not allow that concern to prevent collection, because otherwise people would stop lending money. This enactment was made for the benefit of the borrower as well, because we want people to be willing to lend him money.
Thus, even if the borrower is in China and the lender appears before a court, the lender may swear that he was not paid and collect from the borrower’s property. We do not suspect the existence of a receipt in this case because of the danger that people will stop lending money. That is the straightforward explanation.
We said that, generally speaking, one does not go down to the property of orphans to pay their father’s debts. However, if the father said before his death, “Pay this debt,” then the debt is paid. Once the father himself says that the debt must be paid, the matter is clear.
If he specified a particular field and said, “Pay the debt from this field,” then that field is taken and given to the creditor. An administrator is not appointed for this purpose, and the court does not need to conduct the entire process of evaluating and selling the property. The specified field is simply given to the creditor.
If the father said that he owed money but did not specify which field should be used, then the court appoints an administrator and carries out the regular procedure of assessing the property and protecting the interests of the orphans.
The scholars of Nehardea said that in all these cases, even when the father specified a particular field, an administrator is appointed. The administrator goes down to the property and ensures that all the advantages belonging to the orphans are preserved. However, there is one exception. If witnesses come and testify that the field was stolen—that the father himself had stolen it—then no administrator is appointed. Once two witnesses testify that the field was stolen, we accept their testimony and take the field away.
Normally, we do not say that witnesses are lying. Witnesses are presumed to be telling the truth. The only case in which, according to the scholars of Nehardea, we do not appoint an administrator is when two witnesses testify that the field was stolen. Since we accept the testimony, there is no reason to begin negotiating, evaluating, or protecting the orphans’ possession of the field.
In other words, we generally do not go down to the fields of the orphans to pay debts unless there is a significant loss. When we do go down to the property, we follow the position of the scholars of Nehardea and appoint an administrator. The exception is the case in which two witnesses testify that the property was stolen. Then there is no administrator, because the witnesses’ testimony removes the property immediately.
Rashi, in the final commentary on the page, explains that even when the father said, “Take this field and pay this debt,” an administrator is normally appointed to protect the orphans. The administrator comes from outside the family and ensures that the orphans’ interests are properly defended. But once witnesses testify that the property was stolen, there is nothing left to defend. Two witnesses provide a strong presumption, and we do not call them liars merely to protect the orphans.
We now begin the next Mishnah, which presents an interesting case. A person says, “All my assets are consecrated property.” His assets also include the obligation created by his marriage settlement. When a man marries, the marriage settlement creates a lien on his assets. Those assets are designated to provide the money that will eventually be paid to his wife.
He cannot consecrate assets that are subject to the marriage settlement, because those assets already belong, in a certain sense, to his wife from the moment he signs the marriage settlement. What does he do? He consecrates all of his assets, then divorces his wife. She collects the marriage settlement, and afterward he remarries her. In this way, she brings the money back into the marriage, and he has recovered money from the consecrated assets.
Suppose the marriage settlement was one hundred thousand dollars. The marriage settlement is not affected by the consecration because, ultimately, it belongs to the wife. The man therefore divorces his wife, she receives the one hundred thousand dollars, and then she brings that money back when they remarry.
We do not allow this form of trickery. Therefore, when he divorces his wife, he must make a vow that she is forbidden to him and that he will never remarry her. If he does not make that vow, the divorce appears to have been carried out for the purpose of recovering the money. The rabbis do not allow a divorce that is based on such a scheme to accomplish that purpose.
If he does not wish to divorce his wife, of course he may remain married to her. But if he divorces her, we suspect that his intention is to use the divorce to recover the money. Therefore, the court requires him to vow that she will never again be his wife.
There is a similar case involving a guarantor. The husband does not have enough money to pay the marriage settlement. He has someone who guarantees that the marriage settlement will be paid. The husband now wishes to divorce his wife. He could arrange for the guarantor to pay the one hundred thousand dollars, then remarry his wife. He would then continue living with her while the guarantor had paid the marriage settlement.
That too is considered a scheme. The husband cannot divorce his wife, collect the money from the guarantor, and then remarry her. He must make a vow that he will never take her back. Otherwise, we suspect that the divorce was performed only to transfer the money to his wife and then bring the money back into the marriage.
The word for this type of arrangement refers to trickery, collusion, or a conspiracy. The question is what the disagreement between Rabbi Eliezer and Rabbi Yehoshua is. At first glance, the disagreement seems to be whether we suspect that a person is engaging in such collusion. One rabbi suspects it, while the other rabbi does not.
Rabbi Eliezer says that a person does engage in such a scheme even with consecrated property. The first case concerns a person who consecrated all his assets and then attempted to protect the marriage settlement so that he could recover the money. Rabbi Eliezer maintains that one cannot trust people even with regard to consecrated property. A person may still try to manipulate the situation.
Rabbi Yehoshua says that a person does not engage in such a scheme with consecrated property. The Mishnah also discusses a person who consecrated all his assets and then claimed that he owed money to someone else. Since that money actually belongs to the creditor, it is not included in the consecration. Rabbi Yehoshua says that the man is believed when he makes that claim.
Why should we believe him? Perhaps he is on his deathbed and has already consecrated all his assets. He may think, “Perhaps I will survive. I need some money for myself. I owe this person one hundred thousand dollars, so let the money be given to him. If I survive, I will go back to him and recover the money.” We nevertheless believe him and allow the debt to be paid. We say that a person does not employ this scheme with consecrated property.
At first, this seems to mean that the teacher who stated this law was choosing one side in the dispute between the Tannaim. We generally do not want an Amora to make a statement that applies only according to one of two Tannaitic opinions unless that is made clear. The Gemara therefore says that this is not the correct explanation of the Mishnah.
The Gemara first suggests that the disagreement may be limited to the case of a healthy person. Does a healthy person engage in such a scheme with consecrated property? Since he expects to live, perhaps he thinks that he will eventually recover the money and benefit from it. But in the case of a person who is dangerously ill, everyone may agree that he does not make such a scheme.
A dangerously ill person does not expect to survive. Who will benefit from the money? His children. He is not likely to commit a sin in order to arrange for someone else to benefit. If he says, “I owe this person one hundred thousand dollars,” and wants the money paid, he is not doing so to recover it for himself. He is trying to arrange matters for his children, and we do not suspect that he will create such a scheme merely so that they can benefit after his death.
According to this explanation, the dispute concerns a healthy person. A healthy person may have consecrated his assets two years earlier and now be thinking, “What can I do to recover some money?” He may then use the debt as a way of recovering money from the consecration. But a dangerously ill person does not have the same motive.
There is another version of the discussion. Perhaps everyone agrees that a healthy person will employ such a scheme. The disagreement concerns the vow that he makes publicly. In the case before us, the man divorces his wife and vows in public that he will never take her back. What is the disagreement? Can such a vow be annulled?
If one holds that the vow can be annulled, then the vow does not solve the problem. The man can make the vow, divorce his wife, and later have the vow annulled. He can then remarry her. Rabbi Yehoshua, who is more stringent in this matter, says that the vow does not help if it can be annulled.
The first opinion says that the man should make the vow publicly, before many people. Since it is made publicly, it is considered binding and cannot be annulled. That will prevent him from remarrying his wife and will solve the problem of the scheme. Everyone may suspect that the man is engaging in such collusion; the disagreement is whether a public vow is strong enough to prevent him from carrying it out.
A vow made publicly does not merely mean that a person said the words in front of one hundred people in a synagogue. It means that he makes the vow before the people involved, with the intention that they know about it and that the vow is made with their consent. The issue is whether a vow made in the presence of the public can be annulled.
Rashi offers another explanation: perhaps everyone agrees that even a public vow can be annulled. If so, that does not solve the issue. The disagreement would then be whether making the vow is effective at all. One opinion says that making a public vow provides a solution to the collusion, while Rabbi Yehoshua says that it does not, because the vow can still be annulled.
According to this explanation, Rabbi Eliezer says that there is a solution to the scheme: the man makes a vow in the presence of the public, and he is considered bound by it. Rabbi Yehoshua says that the public vow does not help. Therefore, the court cannot prevent the scheme by requiring the vow. The man divorces his wife, and there is no effective way to ensure that he will not remarry her.
The wording of the Mishnah must then be understood carefully. It should not be understood as saying that the man does not have to make the vow. Rather, the issue is that the vow does not accomplish anything according to Rabbi Yehoshua. The expression should be understood as “it is not effective,” not as “he does not need to make it.”
The Gemara offers a third explanation: the disagreement concerns whether a vow involving consecrated property can be released by a sage. If a person makes a vow concerning consecrated property, can he later go to a sage and ask to be released from it? Perhaps a vow involving consecrated property is stronger, and there is no way to release it. Alternatively, perhaps even such a vow can be released.
If a person made a vow concerning consecrated property and later tells a sage, “Had I known that this vow would leave me without food or make me a poor man, I never would have made it,” perhaps the sage can release him from the vow. But according to the stricter view, there is no sage who can release him. A vow involving consecrated property is binding, and the man has no way out.
Now the matter becomes clear. The man consecrated his assets and cannot release the consecration by going to a sage. He therefore looks for another way to recover money. He may attempt to divorce his wife, have her collect the marriage settlement, and then remarry her. Rabbi Eliezer says that this is a concern, because the man has no other option. Rabbi Yehoshua says that we do not have to suspect such a scheme, because the man could have gone to a sage and asked to be released from the consecration. Since another option was available, we do not assume that he is using the divorce as a scheme.
This is the disagreement: is it possible to obtain a release from a vow involving consecrated property? If a release is possible, then the man has another way to obtain money, and we do not necessarily suspect collusion. If no release is possible, then divorce and remarriage may be his only option, and we suspect that he is using the divorce as a scheme.
The discussion brings a proof from a Baraita. The case is that a person consecrated his assets. Rabbi Eliezer says that he must make the vow, while Rabbi Yehoshua says that he does not need to make it. Rabbi Shimon says that these are the words of the Land of Israel and that these are the words of the Temple. This is a disagreement between Rabbi Eliezer and Rabbi Yehoshua concerning the status of consecrated property.
How can one say that consecrated property is subject to the same rules as ordinary property? Consecrated property is sacred. Even if it was consecrated on the basis of an erroneous premise, perhaps the consecration remains valid. Alternatively, perhaps an erroneous consecration is not a consecration, and if a vow can be annulled, then we see that the disagreement concerns whether a release can be obtained.
The discussion then turns to the case of the guarantor. A man guarantees payment of the marriage settlement, and the husband and wife arrange that the husband will divorce her, she will collect the marriage settlement from the guarantor, and then he will remarry her. In such a case, we require the husband to make a vow that he will not remarry her.
The Gemara tells the story of Moshe bar Atzri, who was the guarantor for a marriage settlement. His son was Rav Huna, a Torah scholar who was having difficulty earning a living. The father was wealthy, but he was not supporting his son adequately.
Abaye said that perhaps someone could advise Rav Huna to divorce his wife. The plan was that she would collect the marriage settlement from Moshe bar Atzri, who had guaranteed it, and then she would remarry Rav Huna. In that way, Rav Huna would obtain money from his wealthy but stingy father.
What kind of advice was this? The father had guaranteed payment of the marriage settlement. The wife would collect the money from him, and then Rav Huna would remarry her. Abaye suggested that this might provide Rav Huna with a way to obtain support.
The answer is that the husband would have to make a vow that he would never remarry his wife. But perhaps that was not a problem, because this type of case might not involve the same concern of collusion. The Gemara asks whether this was really the advice of Abaye.
There is a teaching concerning the “clever wicked person.” Who is a clever wicked person? It is someone who advises another person to sell his assets. The case is that a man says before his death, “My property should belong to so-and-so, and after him it should belong to so-and-so.” The first recipient may then sell the property, leaving nothing for the second recipient.
Rashi explains that the man is attempting to place one person before his son in the chain of inheritance. If the first recipient sells the property, the son will receive nothing. The person who gives such advice is called a clever wicked person because he is advising someone how to move property away from the person who would otherwise inherit it.
If Abaye advised Rav Huna to divorce his wife, collect the marriage settlement, and remarry her, why is that not also considered using the law in a dishonest way? Just as one should not advise a person to sell property in order to prevent his child from receiving it, one should not advise a man to use divorce and remarriage as a way to obtain money.
The answer is that Rav Huna was both the father’s son and a Torah scholar. The father had an obligation to support his son, particularly because he was a Torah scholar. Therefore, although such arrangements are generally discouraged, this case was different. Here, the father was wrongfully failing to support his son, and the advice was intended to obtain the support that the father should have been providing.
Another question is raised. Let us assume that Rav Huna was not a priest and could therefore remarry his wife. He still could not collect the money from the guarantor, because an ordinary guarantor does not necessarily have a lien that obligates him to pay the marriage settlement. The fact that he said, “I will pay,” does not automatically make him liable in the same way as the husband.
The Gemara answers that Moshe bar Atzri was not an ordinary guarantor. He was a guarantor who accepted direct responsibility for the debt. There is a regular guarantor, and there is a guarantor who becomes directly liable. The latter is responsible in a stronger manner.
In the case of an ordinary guarantor, the creditor must first pursue the borrower. If the borrower says that he has no money, the creditor can then proceed against the guarantor. But a directly liable guarantor may be approached immediately. The creditor does not need to go through the entire process of first establishing that the borrower cannot pay.
This is similar to the discussion in Bava Batra. If one person tells another, “Give money to a third person, and I will repay you,” that may be an ordinary guarantee. But if he says, “Give the money to him, and I will be responsible for it,” he is treating the other person as his agent. It is as though he himself received the money and instructed his agent to deliver it. In that case, the creditor can proceed directly against him.
Therefore, in this case, since Moshe bar Atzri was a directly liable guarantor, Rav Huna could go directly to him. There was no need to begin with the borrower or to go through the ordinary court procedure.
The Gemara nevertheless points out that this matter is not so simple. There is a disagreement concerning whether the guarantor must have assets at the time the loan or marriage settlement is created. Some say that the guarantor becomes directly liable only if he had assets at that time. If he had nothing then, his acceptance may not create the same level of obligation.
Rashi explains that if the guarantor had no assets when the marriage settlement was created, he did not truly accept the responsibility in the strong manner required for this type of guarantee. Therefore, even though he later became wealthy, it might not be certain that Rav Huna could collect from him.
The Gemara gives two answers. First, Rav Huna did have assets at the time he married. Later, those assets were lost. Since he had assets when the guarantee was accepted, the guarantee was valid. The fact that the assets were subsequently lost does not invalidate the guarantee.
The second answer is that even if Rav Huna did not have assets when he married, the relationship between a father and son is different. A father may assume responsibility for his son even when the son has no assets. The father is willing to undertake the obligation because the borrower is his son. Although Moshe bar Atzri was not properly supporting Rav Huna, the father’s relationship to his son could still create the necessary responsibility.
Normally, a person may not accept such a strong guarantee if the borrower has nothing. He does not wish to take the risk of having to pay a large amount. But a father may accept that responsibility for his son even when the son has no money. That is why the guarantee may be valid in this case.
The first question of the Gemara was how Rav Huna could collect from his father at all, since Rav Huna was poor. The answer was that the guarantor had assets at the time of the marriage, so the guarantee was valid, and he lost those assets only afterward. The second answer was that the father’s relationship to his son itself creates a greater level of responsibility.
There is a further discussion concerning the nature of the guarantee for a marriage settlement. Does the guarantor become fully obligated in the same way as a guarantor for an ordinary loan? Some say that if the husband had assets at the time of the marriage, the guarantor becomes obligated. If the husband had no assets at that time, the guarantor does not become obligated.
Others say that even if the husband had no assets at the time of the marriage, the guarantor becomes obligated. According to this opinion, the guarantor for a marriage settlement is obligated even when the husband had no property when the marriage settlement was created.
There is also an opinion that the guarantor for a marriage settlement does not become fully obligated at all. He is only helping the couple get married. The woman might otherwise not agree to marry because the husband does not have enough money for a marriage settlement. The guarantor says, “I will guarantee it,” so that the marriage can take place. He does not necessarily intend to lose money.
With an ordinary loan, if the borrower has assets, the guarantor may become strongly obligated. But with a marriage settlement, the guarantor may be acting only for the sake of the mitzvah of helping the woman get married. He does not necessarily intend to assume the same financial responsibility as a guarantor for a loan.
The guarantor says, in effect, “This woman will not get married unless someone guarantees her marriage settlement. I will take responsibility so that the marriage can happen.” After the wedding, however, he may say that he did not intend to pay the marriage settlement himself. This is why the nature of the guarantee for a marriage settlement is debated.
We return to the cases of collusion. In the earlier examples, the husband sold his assets or consecrated them and then divorced his wife. Even though nothing remained in his possession from which to pay the marriage settlement, there was still a lien on the assets. The wife therefore sought to collect the marriage settlement from the buyer of the property.
A question was sent to Rav Papa. The Mishnah teaches that when the wife collects the money, the husband must make a vow because we are concerned that the guarantor will pay the marriage settlement, the husband will remarry his wife, and the money will return to him. We also learned the case in which the husband consecrated all his assets and then divorced his wife so that she would collect the money and bring it back when they remarried.
What about a person who sold his assets to another person? Perhaps he now wants to recover those assets. He could divorce his wife, have her collect the marriage settlement from the buyer, and then remarry her. Must he also make the same vow in that case?
The first answer is that the Mishnah gives only examples. It mentions two of the three possible cases, but it does not need to mention every case. The same rule applies to the case of property that was sold. The husband must also vow that he will not remarry his wife.
Another answer is that the Mishnah is specifically limited to the cases it mentions. When the Mishnah says that the husband must make the vow, the rule applies. When it does not mention a case, the rule does not necessarily apply.
Why would the law be limited in that way? In the case of consecrated property, we are protecting the consecrated property. The husband may be a clever person who is trying to use his wife to remove money from the consecrated property and then bring it back into the marriage. Therefore, we require him to make the vow.
The same is true of the guarantor. The guarantor acted for the sake of the mitzvah of helping the couple marry, and we want to protect him from being made to pay through a scheme involving divorce and remarriage.
But in the case of the buyer, the buyer knew what he was doing. He purchased property from a married man, knowing that the man had a marriage settlement and that the wife had a lien on the property. The buyer therefore placed himself in that situation. He took the risk of purchasing property from a man whose wife might later collect her marriage settlement from it.
Consequently, we do not protect the buyer in the same way. The consecrated property did nothing wrong, and the guarantor acted for the sake of the mitzvah. But the buyer knowingly entered into the transaction. Therefore, we do not require the husband to make a vow to prevent the possibility that the husband and wife will use the divorce to recover the property.
That concludes the discussion. Amen.