1) A CREDITOR WHO TAKES PROPERTY FROM ONLY ONE HEIR
QUESTION: The Gemara discusses a case in which brothers divided their father's estate after his death, and then a creditor came and took the portion of one of the brothers. Is that brother entitled to compensation from the other brothers? The Gemara records three opinions.
TOSFOS (DH u'Va) asks that the details of the case are unclear. Why does the creditor have the right to take whatever he wants simply because he has a lien on the father's estate? The brothers equally share the responsibility of their father's debt, and thus the creditor should be allowed to take only an equal portion from each brother. This appears to be the implication of the Gemara later (124a) which states that when a creditor shows to the sons of a deceased man a document attesting to the fact that their father owed him money, the firstborn son pays double the portion of the other sons, since he inherits double the portion of the other sons. Why, in this case, does the Gemara accept that the creditor may take the entire amount from one son?
(a) TOSFOS answers that the Gemara here is discussing a case of an "Apotiki," in which the terms of the loan specifically state that a specific field is designated as collateral for the loan.
(b) The RITVA gives a similar answer. He explains that one brother received as his portion "Ziburis" land, land of low quality. The Rabanan enacted that when a creditor collects his debt from the heirs of the deceased borrower, he may collect only from the lowest quality property, "Ziburis."
(c) The CHIDUSHEI HA'RAN suggests that in the case of the Gemara, only one brother has land which is considered "Beinonis" -- "middle grade" land. Since a creditor is normally entitled to take "Beinonis" land, when he collects his debt from the heirs of the borrower he may take all of the Beinonis land, despite the fact that it is all in the hands of one brother (see Gitin 48b).
The Chidushei ha'Ran asks that this answer seems difficult. The Gemara in Bava Kama (9a) teaches that when two brothers divide their father's estate, and one brother takes money and the other takes land, and their father's creditor comes and seizes the land, the brother who took the land has no right to compensation from his brother. The second brother may claim that the very reason why he took the money and not the land was that he did not want to have to deal with any creditors. Why, then, may the brother in the case of the Gemara here demand compensation according to most opinions? Why can the other brothers not tell him that they specifically did not take the "Beinonis" land because they did not want to deal with any creditors?
The Chidushei ha'Ran answers that in the case in Bava Kama, the brother who took money also exposed himself to a risk. Money can be stolen, and if robbers attack him and steal the money he will not be entitled to ask his brother for compensation. Each brother therefore may say that he carefully calculated which object he could take which would expose him to the least risk. However, in the case of the Gemara here, there was a division of land, all of which is subject to a creditor's appropriation. It just happened that the creditor took the "Beinonis" land. It is clear that the brother who took "Beinonis" did not have in mind that it was more likely to be taken away by a creditor than his brothers' lands. (Y. MONTROSE)
2) PLACE FOR A FENCE AND DITCHES
OPINIONS: The Mishnah teaches that when a landowner says to a buyer that he is selling to him the southern half of his field, the property is estimated ("Meshamnin") and the buyer receives the southern half. The Mishnah adds, "And he accepts upon himself the place for the fence, ditch, and the minor ditch (which separates the big ditch from the fence)." To whom does the last statement of the Mishnah refer, the buyer or the seller?
(a) The RASHBAM (DH u'Mekabel Alav) explains that the seller accepts upon himself to set aside space from his field for the fence and ditches that will be situated around the buyer's field in order to ward off wild animals. One who sells a field is expected to provide all the land necessary for the field to be usable. On the other hand, when one sells an entire field, he is not expected to provide any services for the field.
The CHIDUSHIM U'VI'URIM questions the opinion of the Rashbam. Why should the seller be required to give more than half of his land because the buyer needs protection from wild animals? Why is that the seller's responsibility? Moreover, the wording of the Mishnah is "v'Hu Mekabel Alav Makom ha'Geder" -- "and he accepts upon himself the place of the fence." If the Mishnah means that the seller must supply additional room for a fence and a ditch, it should say "v'Hu Nosen" -- "and he gives." Why does it say "and he accepts upon himself"?
(b) The RAMBAM (Hilchos Mechirah 21:22) explains that the Mishnah refers to the buyer. The buyer accepts upon himself to make the fence and ditches in his land. According to both the Rashbam and the Rambam, the fence is built not at the midpoint of the field, but around the edges of the field, in order to ensure that animals do not enter that half of the field. However, the RASHASH explains that according to the Rambam the Mishnah is teaching that it is the seller's right to demand that the buyer not expose his field to wild animals. This applies to the extent that the buyer is obligated to erect the necessary security measures to prevent the entry of animals into his field. (Y. MONTROSE)