QUESTIONS: The Gemara teaches that when Reuven owes money to a lender and his property is Meshubad to that lender, and then he sells all of his fields to Shimon, and then Levi buys from Shimon the Idis and Ziburis fields, the lender may not collect his debt (owed to him by Reuven) from Reuven's Idis and Ziburis fields that are now in Levi's possession. The reason is that Levi may claim that he was particularly careful to purchase only the Idis and Ziburis and not the Beinonis -- from which the Malveh normally collects -- because "I did not want to be responsible for the lien on the property." Therefore, the Malveh must collect his debt from the Beinonis land that is in the possession of Shimon, and not from the fields that Levi bought from Shimon.

There are a number of questions on this Gemara.

(a) Why does the Gemara not say that the reason why the Malveh must collect from the property in the hands of Shimon is that it is "Bnei Chorin," and the rule is that the Malveh may collect only from "Bnei Chorin" and not from "Meshubadim" (he must collect from property that was not sold instead of collecting from property that was sold)? (TOSFOS DH Ratzah)

(b) Aside from the fact that the property in the hands of Shimon is "Bnei Chorin" compared with the property in the hands of Levi, the Malveh should collect from Shimon because the Malveh's Shibud is on the Beinonis land and not on the Idis or Ziburis! Why does Levi need to present an argument that he was careful not to purchase the Beinonis and therefore the Shibud cannot be collected from his fields? He should simply say that there is no Shibud on the lands that he purchased. (TOSFOS DH Aval)

(c) If there is some reason for why the two arguments mentioned above do not apply in this case, then what is the logic of the argument presented by the Gemara to explain why the Malveh cannot collect from Levi? What is the difference if Levi was careful to avoid Beinonis or not? If there is a Shibud on the land he purchased (because the arguments mentioned above do not apply), the Malveh should be able to collect from the fields of Levi whether or not Levi wanted the Shibud to be on his property! The Shibud is already on the land; Levi's intentions at the time of the Kinyan should not affect the Shibud. (NACHALAS DAVID; see SHITAH MEKUBETZES to Kesuvos 92a, in the name of TALMIDEI RABEINU YONAH.)

(a) TOSFOS explains that the rule of collecting from "Bnei Chorin" applies only to property that was never sold and is still in the hands of the borrower. Once property is sold it is no longer called "Bnei Chorin," even in comparison to land that was sold a second time. Therefore, the Malveh has the right to collect from Levi just as he has the right to collect from Shimon.

(b) TOSFOS explains that the Shibud on land for a debt applies not only to Beinonis, but to land of lower quality (Ziburis) as well. If the Malveh insists that he prefers to receive Ziburis rather than Beinonis, he may take Ziburis, as the Gemara says earlier (7b). Accordingly, the Malveh would have been able to collect the Ziburis which Levi bought if not for the fact that Levi may present the argument recorded in the Gemara (that he went out of his way not to purchase Beinonis so that the Malveh would not be able to collect from him).

Although Tosfos' opinion is accepted by most of the Rishonim, the Rosh here disagrees and rules that the Malveh is not entitled to choose between Beinonis and Ziburis; the borrower may insist on paying Beinonis and keeping the Ziburis. According to the Rosh, the question returns: why does the second buyer need to say that he was careful not to purchase Beinonis? Let him say that the Malveh has no right to collect from Ziburis from the first buyer (Shimon), and therefore the second buyer (Levi) may say that he purchased from Shimon all of the rights that Shimon had, and thus Levi has the right to refuse to pay Ziburis!

The NACHALAS DAVID answers that when the buyer does something to show that he is not interested in Ziburis, the Malveh may force him to pay with Ziburis even according to the Rosh. Since the first buyer sold the Ziburis, he has done an action showing his lack of interest in it, and therefore he no longer may force the Malveh to collect Beinonis. Since the first buyer cannot force the Malveh to collect Beinonis, if the second buyer's rights are based on those of the first buyer, he also cannot force the Malveh to collect Beinonis. That is why Levi needs a new argument.

Others explain that according to the Rosh, the case of the Gemara is where the Malveh has no option to collect from the Beinonis of the first buyer, either because the land was washed away or because the first buyer never had any Beinonis -- even though the second buyer thought that he was leaving behind Beinonis. (See TOSFOS DH Aval, and RAMBAN to Kesuvos 92a.)

(c) What difference, though, does Levi's intention make? The Shibud takes effect on the land because "the property of a person serves as his guarantor (Arev)" (Rashi, Bava Metzia 67b, DH Ein Ba'al Chov). Accordingly, the intention of Levi when he buys the fields from Shimon should not be able to remove the Shibud from the property!

1. The NACHALAS DAVID answers that when Levi avoids buying Beinonis from Shimon, the rule that a Malveh cannot collect from "Meshubadim" when there are "Bnei Chorin" applies. As long as Shimon still has land that was not sold, it is considered "Bnei Chorin" with regard to Levi and the Malveh must collect from that land and not from the Ziburis in the possession of the second buyer (Levi).

How can this be reconciled with what the principle mentioned earlier (in (a) above), that land that is in the hands of the first buyer is not called "Bnei Chorin," and therefore if the second buyer buys Beinonis the Malveh may collect from him? The Nachalas David explains that the land of the first buyer is not true "Bnei Chorin," but is similar to "Bnei Chorin," and therefore the Malveh is allowed to collect from Levi only when Levi knowingly bought land that was reserved for the Malveh.

The Nachalas David's approach is easier to understand according to the opinion of RAV HAI GA'ON and RASHI, as explained by the Shitah Mekubetzes in Kesuvos (92a). They rule that since the first buyer purchased all of the property of the borrower, he takes the place of the borrower with regard to collecting the loan. Rav Hai Ga'on rules for this reason that if the first buyer bought Idis and Beinonis from the borrower and sold Beinonis to a second buyer, the Malveh may choose to collect from the Idis which is in the hands of the first buyer, just as he may collect from "Bnei Chorin" if the Loveh would still have property left unsold. Clearly, Rav Hai Ga'on treats the property of the first buyer as though it were "Bnei Chorin."

2. The RITVA (Kesuvos 92a) writes that although the Malveh usually may defer the Takanah that entitles him to collect Beinonis and choose to collect Ziburis instead -- since the Takanah was made solely for his benefit in the first place, nevertheless he may not do so at the expense of the second buyer. When all of the property is in the hands of the first buyer, he may defer the Takanah since the first buyer bought all of the property of the borrower knowing that the Malveh will come to him to collect the debt. The second buyer, however, did not expect the Malveh to be interested in the Ziburis, since creditors almost always prefer to collect Beinonis. Since he did not anticipate that the Malveh would want Ziburis, the Malveh cannot collect from his Ziburis.

It is not completely clear why the rights of the Malveh are compromised by what the second buyer anticipated. It seems that the Chachamim did not want their Takanah to cause a loss to an unsuspecting second buyer, and therefore they revoked the rights of the Malveh to collect from Ziburis in this case. This is similar to the Takanah d'Rabanan not to collect a "Milvah Al Peh" from land that buyers purchased from the borrower (see Bava Basra 175b), according to the opinion that "Shibuda d'Oraisa"; the Chachamim did not want the unsuspecting purchasers to lose their property to the seller's creditor, and therefore they revoked the Malveh's rights to collect from that property.

QUESTION: The Gemara says that if Reuven sells a field to Shimon with Achrayus, and then Reuven's creditor comes and tries to take the field from Shimon, Reuven may defend Shimon's case in court in order to stop the Malveh from collecting the land from Shimon, since Shimon's loss ultimately will affect Reuven.

What difference does it make whether Reuven comes to court or not? If there is a valid claim which can prevent the Malveh from collecting, why does Shimon not use that claim himself, without bringing Reuven to court? (Reuven could always tell Shimon the claim out of court and let Shimon make the claim himself in court.)

(a) RASHI here (and in Kesuvos and Bava Metzia) explains that the reason why Reuven would have to come to court is that he has a claim of certainty ("Bari") that he makes against the Malveh's Shtar. Shimon, who does not know the details first-hand, at best can make only a tentative claim ("Shema") and say, "I think that the Shtar is not valid (because Reuven paid you or because you owed money to Reuven for some other reason and therefore the debts canceled each other out)." A claim of "Shema" has no validity against the Shtar. Reuven, in contrast, presents a claim of certainty ("Ta'anas Vadai") which carries weight against the Shtar because the Rabanan instituted a Shevu'as Heses whenever someone challenges a claimant who has a "Ta'anas Vadai." Therefore, only Reuven can cause the Malveh to swear a Shevu'as Heses in court.

TOSFOS RABEINU PERETZ asks what difference does it make if Reuven can cause the Malveh to swear a Shevu'as Heses? The Malveh must swear to Shimon, anyway, before he collects from him, because the Rabanan instituted another Shevu'ah which requires anyone who collects a debt from Yesomim or Lekuchos to swear that he was not paid already for the debt. (The Rabanan enacted that Beis Din speaks up for the Lekuchos, who are not expected to know how to counter the claim.)

TOSFOS in Kesuvos (92b) answers that the difference which Rashi gives for when Reuven makes the claim instead of Shimon (i.e. the ability to make the Malveh swear a Shevu'as Heses) applies where Shimon pardoned to the Malveh the Shevu'ah of Lekuchos. In such a case, only Reuven can make the Malveh swear through a "Ta'anas Vadai" and a Shevu'as Heses.

(b) TOSFOS himself explains that the difference might be in a case in which Shimon announces in court that he has no evidence to disprove the claim of the Malveh. If afterwards he changes his mind and tries to bring testimony, Beis Din may not accept it (Sanhedrin 31a). Reuven, who never announced that he had no witnesses, may still bring witnesses to court to disprove the Malveh.

(c) The RASHBA and NIMUKEI YOSEF explain that Shimon might need Reuven to make the claim for him in court because of a case in which the land that Shimon bought is an Apotiki for the loan. The Halachah is that a buyer cannot redeem land that is an Apotiki for a loan; the Malveh is entitled the take the land itself. The borrower, however, may redeem the Apotiki by paying back, with money, the loan that he received, and thereby prevent the Malveh from collecting the Apotiki. Therefore, if Reuven comes to court and says that he will pay back the loan to the Malveh, he can prevent Shimon from losing the property.

However, if this is the case, then why is Reuven, the borrower, permitted to become involved in the case for the benefit of Shimon? Reuven is permitted to become involved only if Shimon's loss affects Reuven, since Reuven will need to reimburse Shimon if he loses the land. If Reuven agrees to pay the loan, it should make no difference to him whether Shimon wins the case or the Malveh wins; in either case he will have to pay someone back (either the Malveh or Shimon)!

They answer that Reuven still stands to benefit by preventing Shimon's land from being seized. When the Malveh collects the land as repayment for his loan, he prices the land at the value it was worth at the time Shimon purchased it. If it naturally rose in value (without Shimon investing anything into it) before the time the Malveh confiscates it from Shimon, the Malveh keeps the rise in value. Shimon, however, may claim from Reuven, the borrower, full reimbursement of his loss, including the increase in the land's value. Therefore, if Shimon loses his field, Reuven will have to pay more than he would have to pay if merely pays back the original loan.

(d) TOSFOS (Bava Metzia 14a) suggests that there would be a difference in the case of a Gilgul Shevu'ah. If the Malveh needs to make a Shevu'ah d'Oraisa to Reuven, the borrower, because of a different dispute they have, Reuven may demand that the Malveh make a Shevu'ah d'Oraisa that he did not yet receive the loan repayment through the Halachah d'Oraisa of "Gilgul Shevu'ah." This will make the Shevu'ah more severe than a Shevu'ah d'Rabanan, and therefore it is to Shimon's benefit for Reuven to come to court.

The ME'IRI cites others who suggest, in a similar vein, that the practical difference would be in a case in which Reuven has other claims for which he wants to make the Malveh swear. If Reuven represents this case for Shimon, he may make the Malveh swear to his other claims as well through the Halachah of Gilgul Shevu'ah (d'Rabanan). (According to the Me'iri, Reuven comes to court for his own benefit, and not for Shimon's benefit as the Gemara implies.)

(e) TOSFOS RABEINU PERETZ and TOSFOS (in Bava Metzia, in another answer) explain that it is beneficial for Reuven to come to court simply because he is more knowledgeable than Shimon and he might think of a claim that Shimon would not have thought to claim. Why, though, does Reuven need to come to court? Let Reuven simply make suggestions to Shimon and Shimon can make the claims for himself!

Perhaps the court would not let Reuven advise Shimon in the middle of the case, because the Mishnah in Avos (1:8; cited in Kesuvos 52b) teaches that a person should not act like "Orchei ha'Dayanim."

Tosfos here suggests further that a person may insist that his opponent come with him to a greater Beis Din. If Reuven has the strength to go to a greater Beis Din but Shimon does not have the strength, Reuven may insist that the Malveh go with him to a greater Beis Din.