48b----------------------------------------48b

1)

HEIRS WHO DID NOT LEAVE BNEI CHORIN [loans: collection: heirs]

(a)

Gemara

1.

(Mishnah): A debt is not collected from Meshubadim (i.e. property that was sold to someone else) if the debtor has Bnei Chorin (property that he did not sell), even if it is Ziburis (lowest quality land). This is an enactment for Tikun ha'Olam.

2.

Bava Basra 139b: (If a man died and left little property, the daughters are fed and the sons beg for their food.) Little property is not enough to feed all the children until the girls mature (some say, for 12 months).

3.

140a Question: If there was little property, and it became 'much', what is the law?

i.

Does the profit go to the heirs (the girls are fed until Bagrus, and the boys get the rest)? Or, perhaps inheritance does not apply here? (We calculate each child's proper share at the time of death. The current estate is divided proportionally. The girls keep the excess above what they will eat.)

4.

Answer (R. Asi): If there was little property and the boys sold it, the sale stands.

5.

Kesuvos 69a (Rav Minyomi): A woman came to Ameimar to claim Parnasah (a 10th of her father's estate when she marries). The brothers said 'If we had money, we could force you to take it instead of the land', and Ameimar was silent.

6.

This shows that Ameimar agrees that they could force her to accept money.

7.

Bava Kama 8a (Beraisa): If a debtor sold Idis and Beinonis (high and middle quality land) and Ziburis to one person (even at three times), or to three people at once, they are all are in place of the seller. (Damagees, creditors and ex-wives collect from what they are entitled to, i.e. Idis, Beinonis and Ziburis, respectively.)

i.

If they bought at different times, all collect from the last buyer.

8.

Question: When three buy at different times, all collect from the last. Surely, this is because the previous buyers can say 'I left you room to collect from (the seller).' Also one person can say, I first bought the Idis and Beinonis, leaving you room to collect from the Ziburis!

9.

Answer: The case is, the last land he bought was Idis.

10.

Question: If so, everyone should collect from Idis!

11.

Answer: The buyer threatens them 'take what you are entitled to. If not, I will return the document of sale of Ziburis to the seller, and you will all collect Ziburis!'

12.

Objection: If so, he can also threaten the damagee (to accept Beinonis). Why does the damagee get Idis?

13.

Answer: The case is, the seller died. Orphans have no Mitzvah to pay their father's obligation (from their own property. Even if the buyer will return the Ziburis, this is like land the orphans bought, so the damagee does not collect from it.) The damagee's lien is against the buyer.

14.

Objection: This is no reason why he cannot threaten the damagee!

15.

Sotah 21b (Rav Asi): A crafty Rasha is one who counsels sons to sell a small estate.

(b)

Rishonim

1.

Rosh (Bava Basra 9:2): Do not ask why the girls are fed from property (that their father left), but not from money the boys received for it. A widow and daughters are fed only from land. When the land was sold, its value became Metaltelim. This is like orphans who sold their father's property. They are not obligated to pay their father's debt from the money. Rav Hai Gaon says that after it was enacted that they are fed from Metaltelim, they are fed from the money from the sale. This implies that before the enactment, they were not fed. This is astounding. The girls' lien is only on the father's property, not on this money! Once it was sold, and the girls cannot be Toref, they lost! This is like a Milveh Al Peh (a loan without a document) claimed against the heirs, and they sold the property. The creditor cannot collect from the money, for their father did not bequeath it to them. Surely, girls are not fed from money the boys received for selling a small estate. If they were fed, how did we prove from Rav Asi that boys have rights in a small estate? Perhaps the sale stands, and the girls are fed from the money! Also, Sotah 21b says that a crafty Rasha is one who counsels sons to sell a small estate. If the girls are fed from the money, his counsel accomplishes nothing!

(c)

Poskim

1.

Shulchan Aruch (CM 103:3): If (David lent to Yakov, and) the heir (Yosef) sold all Yakov's property, David can be Toref from buyers even if Yosef has his own property, for there is no lien on Yosef's property to pay Yakov's debt. If Yakov left Ziburis and Yosef has Idis, he cannot force David to accept the Idis in place of Yakov's property. However, Yosef can pay the debt with money, even if he did not inherit it, to prevent David from taking the property, unless the property was an explicit Apotiki (Yakov specified that the loan will be paid only from it).

i.

Beis Yosef (DH u'Mah she'Chosav Aval): Heirs can force a creditor to take money (and not be Toref), but they cannot force him to accept their land or Metaltelim. Similarly, if they have land and Metaltelim, they pay Metaltelim, for they have no more rights than the one they inherited from.

ii.

Rebuttal (Prishah 6 DH v'Im): The Tur said that an heir can make a creditor accept money. This does not exclude Metaltelim. The Tur says that if the heir has no money or Metaltelim, he cannot make the creditor accept his own land. This shows that he could make the creditor accept Metaltelim. One can take Metaltelim anywhere and sell them, so they are like money. Perhaps the Tur mentioned money because when he has money and Metaltelim, he cannot force a creditor to accept Metaltelim.

iii.

Defense (Ketzos ha'Choshen 4): The Beis Yosef (102) says that a creditor need not accept their Metaltelim, for they were not the borrower's and there was no lien on them. Even though there was no lien on their money, since there is no Siman on coins, we do not distinguish when the borrower left money from when he did not. Also, the heirs may sell the land and pay the money. I say that we do not need this reason (that money has no Siman). Heirs are no worse than buyers, who can force the creditor to accept money!

iv.

Beis Yosef (DH u'Mah she'Chosav Yachol): Sefer ha'Terumos (4:4:2) cites two opinions about whether or not heirs can force a creditor to accept their land. Presumably, they cannot. The Ramban (Teshuvah 20) agrees. Orphans need not pay their father's debt (from their own property - Bava Kama 8a). Even if a buyer returns the Ziburis, this is like land that orphans bought. Therefore, orphans cannot force a creditor to accept it in place of his lien. The Ge'onim taught this. They have no proof, but the law is true.

v.

Prishah (6 DH she'Ein): Sefer ha'Terumos explains that heirs cannot force a creditor to accept their land in place of their father's property, for perhaps their land was stolen. They can force him to accept money, for there is no such concern with money. The Tur omitted this reason, for they can make a creditor take Metaltelim, even though it is possible that they were stolen. Some hold that heirs can force a creditor to accept their land, for if it was stolen, he is Toref from buyers, but if a creditor was Toref and the land was found to be stolen, he cannot collect from anyone. The Ramban holds that Beis Din does not collect orphans' land for a lender, lest this harm him, e.g. there was no Acharayos and he will lose it and not be compensated, and he will complain that Beis Din harmed him.

vi.

Bach (DH Yoresh): We hold that one does not collect from Meshubadim if he could collect from Bnei Chorin. Here, the heir has nothing from his father. Even if he has his own property sufficient to pay the loan, the buyers cannot force the creditor to collect from the heirs. The creditor has the right to collect from the seller only (due to Garmi, a fine for ruining the lien) when the seller made it impossible to collect from the property, e.g. he sold it to Nochrim.

vii.

Gra (19): Yosef can pay the debt with money, unless the property was an explicit Apotiki, because heirs are like buyers.

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