[173a - 41 lines; 173b - 48 lines]

1)[line 3] OSIYOS NIKNOS B'MESIRAH

A Shtar (document of debt) is acquired by handing it over ("Mesirah") to the buyer (or, if it is a gift, to the recipient) [and a deed of sale or a document recording the gift is not needed to transfer ownership]. The Gemara here asserts that the Tana of our Mishnah - who says that either one of the two men named Yosef ben Shimon may present a Shtar Chov against another party (and we are not concerned that it fell from the other Yosef ben Shimon and this one found it) - maintains that Mesirah is a valid way of transferring the debt. Therefore, even if the Shtar Chov was written for the other Yosef ben Shimon, the only way that the second Yosef ben Shimon is holding it is if the first one gave it to him (Mesirah), and since Mesirah is a valid form of Kinyan of a debt, he (the second Yosef ben Shimon) is entitled to collect with it.

2)[line 5] TANA VARA- the Tana of the Beraisa

3)[line 5] EIN OSIYOS NIKNOS B'MESIRAH- a Shtar (document of debt) is not acquired by handing it over ("Mesirah") to the buyer (see above, entry #1). The Gemara here asserts that the Tana of the Beraisa - who says that neither one of the two men named Yosef ben Shimon may present a Shtar Chov against another party - maintains that Mesirah is not a valid way of transferring the debt. Therefore, although we are not concerned that the Shtar fell from one Yosef ben Shimon and was found by the other, we are concerned that the Shtar was written for the first Yosef ben Shimon, and he handed it over (Mesirah) to the second. Since Mesirah is not a valid form of Kinyan of a debt, he (the second Yosef ben Shimon) is not entitled to collect with it.

4)[line 7] TZARICH L'HAVI RE'AYAH- he must bring a proof [that the Shtar was handed over to him for the sake of giving him ownership of the debt, and not that it was handed to him merely for him to guard]

5)[line 16] SHAMTU ME'HADADEI- they slip it away from each other

6)[line 21] MIZDAHER ZEHIREI- they are extra cautious

7)[line 27] NEKITA LEI- he will hold on to it [and present it as a debt owed to him]

8)[line 28] D'YAZFAS MINA'I- that you borrowed from me

9)[line 30] HA LO NIMTZA- but if it was not found [a note stating that "Yosef ben Shimon's debt has been repaid" among the documents of the lender]

10)[line 31]BI'MESHULASHIN- when three generations (i.e. the names of the grandfathers of each Yosef ben Shimon) are mentioned in the two documents of debt (attesting to the debts owed to one lender by both men named Yosef ben Shimon)

11)[line 31] ()V'NECHEZEI TAVRA BI'SHEMA D'MAN (DI')CHESIV- and let us look at the receipt, [to see] in whose name in was written (DIKDUKEI SOFRIM #30)

12)[line 35] YICHTEVU DOROS- they shall write the names of previous generations

13)[line 40] YAD BA'AL HA'SHTAR AL HA'TACHTONAH

Yad Ba'al ha'Shtar Al ha'Tachtonah means that the bearer of the Shtar has the lower hand (and may collect only the smaller amount). This is because of the principle, "ha'Motzi me'Chaveiro Alav ha'Re'ayah" - the general rule in monetary claims is that the burden of proof rests with the one who wishes to extract payment or other items of value from the other person. Hence, in the case of the seller and buyer, the buyer - who is the one holding the Shtar Mecher (deed of sale) - gets the smallest of the seller's fields until he can prove that the seller meant to sell him a large field. In the case of the lender and the borrower, the lender - who is the one holding the multiple Shtarei Chov (deeds of debt) - may collect only the smallest debt.

14)[last line]AREV - a guarantor of a loan

(a)An Arev is a guarantor for a loan who accepts upon himself to pay back the loan instead of the borrower, under certain circumstances.

(b)There are different levels of guarantors, as the Gemara here will discuss. A normal guarantor only has to pay back the loan if the borrower cannot pay. In the case of an Arev Kablan, the lender may approach the Arev Kablan to pay even if the lender has not yet asked the borrower to pay.

173b----------------------------------------173b

15)[line 5] YEDIRENAH HANA'AH- the husband must make a Neder prohibiting her from deriving any benefit from him (this is in order to ensure that the man and woman are not conspiring to collect the Kesuvah money from the Arev and then remarry each other)

16)[line 6]KINUNYA- a conspiracy

17a)[line 8] GAVRA ASHLIMAS LI- you deposited a man with me, i.e. you made me responsible for the borrower, such that if he flees or dies then I would have to pay his debt

b)[line 9] GAVRA ASHLIMI LACH- I have paid a man to you, i.e. the borrower is here and alive and thus you should collect the debt from him and not from me

18)[line 10] HAI DINA D'FARSA'EI- this is the law of the Persians (i.e. who baselessly exempt borrowers and guarantors from paying their debts)

19)[line 10] BASAR ARVA AZLEI- they go after the guarantor

20)[line 11]() [] (BEI) [KI] DINA D'FARSA'EI- [rather,] it is like the law of the Persians [who give no reasons for their rulings]

21)[line 17]MISHTA'ABED- he is obligated to pay [the loan that the borrower took]

22)[line 18]" , ""ANOCHI E'ERVENU, MI'YADI TEVAKSHENU"- "I will guarantee him, from my hand you can demand him." (Bereishis 43:9) - In this verse, Yehudah is committing himself to be an Arev for the return of Binyamin to his father, Yakov.

23)[line 19]" , ""TENAH OSO AL YADI VA'ANI ASHIVENU ELECHA"- "Give him into the care of my hand, and I will return him to you." (Bereishis 42:37) In this verse, Reuven is committing himself to be an Arev for the return of Binyamin to his father, Yakov (see Insights). Since he uses the words, "Give... and I will return...," he clearly is making himself an Arev Kablan, because this is the phrase used by an Arev Kablan to commit himself, as the Gemara teaches later (174a).

24)[line 19] !HA KABLANUS HI! - this is Kablanus! (AREV KABLAN)

(a)Kablanus, or an Arev Kablan, is a form of guarantee for a loan in which the guarantor obligates himself to a much greater degree than a normal Arev. In the case of an Arev Kablan, the lender may approach the Arev Kablan to pay even if the lender has not yet asked the borrower to pay, while a normal guarantor only has to pay back the loan if the borrower cannot pay. (For other Halachic differences, see SHULCHAN ARUCH CM 129:16-22.)

(b)Since the degree of obligation to which an Arev Kablan commits himself is so great, the Arev Kablan is able to obligate himself through his word alone, without any act of Kinyan.

(c)See Insights to Bava Basra 174a.

25)[line 21]" , ""LEKACH BIGDO KI ARAV ZAR, UVE'AD NOCHRIYAH CHAVLEHU"- "Take his garment for he has co-signed for a stranger, or he has offered a security for an alien woman." (Mishlei 20:16)

26)[line 22]" , . , . , ; ""BENI, IM ARAVTA L'RE'ECHA, TAKA'TA LA'ZAR KAPECHA. NOKASHTA V'IMREI FICHA, NILKADTA B'IMREI FICHA. ASEH ZOS EFO BENI V'HINATZEL, KI VASA V'CHAF RE'ECHA: LECH HISRAPES U'RHAV RE'ECHA"- "My son, if you have become a guarantor for your friend, or you have clasped your hand for a stranger. You have become trapped by the words of your mouth. Do this, therefore, my son, and be saved, because you have come into the hands of your friend: go humble yourself and appease your friend." (Mishlei 6:1-3)

27)[line 26] HATER LO PISAS YAD- open up for him the palm of your hand, i.e. pay him back. (These four words are the result of using Notrikon for the word "Hisrapeis.")

28)[line 27] HARBAH ALAV REI'IM- have many friends appease him

29)[line 29]ASMACHTA

(a)Asmachta refers to "reliance" upon a particular eventuality or a conditional [monetary] obligation which the party or parties involved undertake without full commitment. The reason that the party involved does not commit himself fully is because his obligation is contingent upon the fulfillment of a condition that he anticipates will not be fulfilled. (An example of this is when gamblers place wagers, where neither of them expects to lose the wager.)

(b)The Tana'im, Rebbi Yosi and Rebbi Yehudah, argue as to whether such a commitment is binding or not.

30)[line 34] B'HA'HU HANA'AH D'KA MEHEIMAN LEI- with the pleasure [that he gets from the fact] that they trust him

31)[line 34] GAMAR U'MISHTA'ABED NAFSHEI- he resolves [to accept the responsibility] and obligates himself

32)[line 47]KABLAN

See above, entry #24, and Insights to Bava Basra 174a.

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