1)

COLLECTING METALTELIM OF ORPHANS [liens:Metaltelim:orphans]

(a)

Gemara

1.

Kesuvos 67a (R. Shmuel bar Nachmani): A woman collects her Kesuvah from camels of Arabia.

2.

(Rav Papi): A woman collects her Kesuvah from garments of Bei Michsi, sacks of Rodiya and ropes of Kimchoniya.

3.

(Rava): I used to say that women collect the Kesuvah from a wallet full of coins in Mechuza, because they rely on them, Once I saw that they use the money to buy land, I realized that they rely on land, so they may collect only from land.

4.

84a (Mishnah - R. Tarfon): If Levi died, leaving a widow, a creditor and heirs, and David had a deposit from Levi or owed a loan to him, it is given to the weakest of the widow, creditor and heirs (Normally, a Kesuvah or debt is not collected from inherited Metaltelim. Here is different, because they are not in the heir's Reshus.)

5.

R. Akiva says, the heirs get it, since they collect without an oath.

6.

If he left detached Peros, whoever seizes them first keeps them.

7.

92a (Rami bar Chama): Reuven sold a field to Shimon with Acharayos, and Shimon wrote a document saying that he owes the money. Reuven died, and Reuven's creditor took the field from Shimon. Shimon persuaded him to take the money owed in place of the field.

8.

Reuven's children can say 'our father left Metaltelim by you (a debt), and a creditor cannot take Metaltelim of orphans.' (You did not pay our debt, therefore you still owe to us. Also, you cannot collect the Acharayos from us.)

(b)

Rishonim

1.

Rif (Kesuvos 42b): Nowadays a creditor has a lien on Metaltelim, so he collects from orphans' Metaltelim whether or not he seized them.

i.

Ran (DH d'Tafas mi'Chayim): Now that latter Rabanan enacted that a creditor has a lien on Metaltelim, seizure helps everywhere, even after death. Even seizure of a latter creditor helps, for there is no precedence in Metaltelim.

2.

Rosh (Bava Kama 1:19): According to the Gemara's ruling, nowadays, Metaltelim are like land in every aspect of Shi'abud without an enactment.

i.

Rashba (2:163 DH ume'Atah): The Ge'onim enacted that nowadays, Metaltelim are like land. This is even regarding gifts. Normally, there is no lien on Metaltelim for a person does not expect to collect from them. Nowadays, most of our business is with Metaltelim and merchandise, so they are like land. If one wrote to his wife or creditor 'land and Metaltelim', even if he did not write Agav, according to Gemara law he can collect from Metaltelim or orphans. He showed that he relies on the Metaltelim. If an ox was made an Apotiki (designated for payment), a creditor cannot take it from the buyer, because there is no Kol (publicity). This applies to buyers, but regarding orphans we are not concerned about a Kol.

ii.

Ro'oh (cited by Ran in Shitah Mekubetzes Bava Basra 44b): Even though a Kol does not affect orphans, when there is no Kol the lender does not rely on collecting because he expects that the Metaltelim will be sold, since buyers do not know about the lien. Therefore, according to Gemara law, an Apotiki on an ox does not help to collect from orphans.

3.

Rosh (Kesuvos 6:5): Women collect the Kesuvah from camels of Arabia, because they rely on them, like full wallets in Mechuza. Poskim learn from here that there is a lien on our Metaltelim to pay a Kesuvah, for our business is mostly with coins and Metaltelim. They are like camels of Arabia. R. Tam disagrees. If Metaltelim were like land, one could collect from one who bought them! Takanas ha'Shuk would be Batel (people would be afraid to buy things)! Rather, men write in the Kesuvah a lien on Metaltelim Agav (along with) land.

i.

Shiltei ha'Giborim (Bava Kama 6a:1): R. Tam holds that there was no enactment for a creditor, only for a Kesuvah. Rav Shrirah Gaon enacted only for a Kesuvah.

4.

Tumim (107:4): The Rosh cites R. Tam. This is unlike he wrote in Bava Kama, that nowadays Metaltelim are like land without an enactment. Why should Takanas ha'Shuk override a lender's right to collect? It seems that no one wants to borrow if he will be unable to sell Metaltelim. Also, if the lender did not write a Shi'abud of Metaltelim Agav land, this shows that he does not rely on Metaltelim; he caused his own loss. Therefore, we are concerned for Takanas ha'Shuk. The Tur (CM 419) brings the Rosh's reasoning regarding damages, for they do not depend on the damager's acceptance, and the victim did not pardon any rights.

5.

Rambam (Hilchos Malveh 11:11): All the latter Ge'onim enacted that a creditor can collect Metaltelim of heirs. Yisraelim in the entire world rule like this. However, in the west they write in loan documents that he can collect 'from land and Metaltelim, in his lifetime and after death, so he collects due to his Tnai in addition to the enactment. This is a great fence, lest the borrower not know about the enactment and orphans' money be taken improperly. The enactment of latter Chachamim cannot obligate orphans.

i.

Magid Mishneh: Clearly, every monetary stipulation is valid. The custom was not to write a lien Agav land, for then there would be a Kol and the creditor would be able to collect from buyers. Even so, it enables collecting from orphans.

ii.

Rivash (392, cited in Kesef Mishneh and Mishneh l'Melech): The Rambam agrees that we collect even if it is not written. Writing avoids the need to rely on the enactment, and avoids the problem of one who did not know about the enactment and did not intend to put a lien on his Metaltelim. Also, writing enables collecting from Metaltelim even if the orphans have land. There was no enactment in this case, for the lender does not lose. The Rambam (Hilchos Ishus 16:9) says that if one did not write a lien on Metaltelim in the Kesuvah, it is not as if he wrote it. This is where it is the custom to write it. Since he did not write it, he put a lien on his property only according to Gemara law. Alternatively, in the days of the Rambam the enactment regarding Kesuvah spread through most of Yisrael, not all of Yisrael, like the enactment for loans spread. Nowadays everyone knows that we collect even from Metaltelim of orphans; not everyone knows the law according to the Gemara. The enactment was only for Metaltelim that the borrower had at the time of the loan. Metaltelim were made like land, but not better than it.

iii.

SMA (CM 107:3): According to the Rosh (above), nowadays there is no need to write this in documents.

iv.

Milchamos Hash-m (Bava Kama 4a): Some say that the Ge'onim enacted to collect from orphans' Metaltelim only when there is no land. I am unsure. One collects only from Metaltelim the father owned at the time of the loan.

v.

Mordechai (Bava Kama 201): Now that a creditor collects Metaltelim of orphans, a Milveh Al Peh is like a loan with a document, so seizure of Metaltelim helps even for this, even after death.

(c)

Poskim

1.

Shulchan Aruch (CM 107:1): The Ge'onim enacted that a creditor collects Metaltelim that the father left. Therefore, nowadays we force them to pay even a Milveh Al Peh, even from Metaltelim that the father acquired after he borrowed, even if he did not write 'd'Ikni' (there is a lien on what I will acquire). An heir is in place of his father.

i.

Shach (2): In Kidushin (3:14), the Rosh says that one does not collect from Metaltelim that were given for a gift. Surely one cannot collect from buyers (or one who received a gift), for there is no precedence in Metaltelim. Tosfos (Kesuvos 67a DH Gemalim) said that if they are like land, one should collect from buyers. In truth, this is not difficult. A lender does not rely on collecting them from buyers, for there is no Kol (when Metaltelim are sold) and the borrower can easily sell them to evade paying from them.

ii.

Hafla'ah (Kuntres Acharon on Kesuvos 100:2): Tosfos did not ask why they cannot collect from buyers. Surely, this is no better than an Apotiki on Metaltelim! Tosfos asked oppositely: since a man can sell the property, women do not rely on it! They do rely when an Apotiki is made, or when the document puts a lien on Metaltelim, even without Agav.

iii.

Hagahas R. Akiva Eiger (brought in Sefer on Kesuvos 67a): We can still ask why she cannot collect from a gift. Tosfos (49b DH Hu) says that an Apotiki helps to collect from a gift.

iv.

Beis Yosef (DH v'Yesh): Some say that the Ge'onim enacted only when there is a document.

v.

Nimukei Yosef (Bava Basra 70b DH Omar ha'Mechaber, brought in Beis Yosef DH Kosav Nimukei): The enactment helps only for Metaltelim by the orphans, but not if they were given or sold. The enactment is no better than if he put on a lien on them without 'Agav'.

See also:

OTHER D.A.F. RESOURCES
ON THIS DAF