QUESTION: The Mishnah discusses the case of a man who dies and leaves money in the hands of a borrower, or a deposit (Pikadon) in the hands of a guardian (Shomer). The man's heirs want to collect the loan or the Pikadon as their inheritance, his widow wants to collect the money or object as her Kesuvah, and a creditor wants to collect the money or object as repayment for his loan to the deceased man.

Rebbi Tarfon rules that the loan or Pikadon is not given to the heirs but "to the weaker of them," which the Gemara explains is either the widow (Rebbi Yochanan and Rebbi Elazar) or whoever's document of debt has the latest date written in it (Rebbi Yosi bar'Rebbi Chanina and Rebbi Binyamin).

Rebbi Akiva disagrees with Rebbi Tarfon and says that the heirs receive the loan or Pikadon.

The Gemara earlier (81b) records a Machlokes between Rebbi Meir and the Rabanan about whether Metaltelin (mobile property) may be collected as the payment for a Kesuvah. Rebbi Meir maintains that a woman may collect Metaltelin for her Kesuvah. Since the Mishnah here refers to a loan of money or a Pikadon of an item which are obviously items of Metaltelin, and Rebbi Tarfon says that the woman may be eligible to collect it as her Kesuvah, the Mishnah must be following the opinion of Rebbi Meir.

By default, the heirs should inherit all of the property of their father, and the lender should not be able to collect from the heirs without making a Shevu'ah (and even with a Shevu'ah, he should be able to collect only land and not Metaltelin). The reason why Rebbi Tarfon gives the property to the lender or the widow is that since they were in possession (Tefisah) of the item before it reached the hands of the heirs, they may keep it. Rebbi Akiva argues that physical possession (Tefisah) of the Metaltelin which the heirs are entitled to inherit does not effect acquisition of the item (RASHI DH Yinasnu l'Yorshim), even if the heirs have not yet taken possession of the Metaltelin; Tefisah works only when the lender or widow took possession of the item while the man was still alive (84b).

Why does Rebbi Tarfon consider the property to be already in the possession (with Tefisah) of the lender or the widow? The heirs are in possession of it ("Muchzak"), because the person who borrowed money from their father now owes the money to his heirs. The person who guards the Pikadon guards it for the father of the heirs; now that the father has died, he is guarding it for the heirs. It should be no less in their possession than an object placed in a Simta (an alleyway, which is considered the domain of everyone) where the lender and widow cannot take possession of the item because it has already come into the possession of the heirs (Rashi 84b, DH Aval b'Simta).

The simple answer seems to be that the lender and widow are considered to be in possession of the object only through the principle of "Shibuda d'Rebbi Nasan" (82a). Rebbi Nasan states that when Reuven owes money to Shimon, and Shimon owes money to Levi, Reuven is considered to owe money to Levi. In this case, too, the person holding the money or object must return it to the father who died, and the father then must give the money to the lender or widow, and thus it is considered as though the person who has the money now is holding it for the lender or widow (for he will owe it to them as soon as the father dies).

However, if it is true that Rebbi Tarfon's ruling is based on the view of Rebbi Nasan, Rebbi Tarfon is following the views of both Rebbi Meir (that a woman may collect her Kesuvah from Metaltelin) and Rebbi Nasan (that a woman may collect her Kesuvah from someone who owes money to the deceased husband). The Gemara earlier (82a), however, states that there is no Tana who follows both the opinion of Rebbi Meir and the opinion of Rebbi Nasan! If the Tana of the Mishnah here does not follow Rebbi Nasan, in what way are the lender and the widow considered to have possession of the item?

(a) The RITVA (82a) explains that the lender and the widow are indeed not considered to be in possession as long as the money is in the hands of the borrower, or the Pikadon is in the hands of the Shomer. However, when the borrower approaches Beis Din and asks to whom he should give the money, he is asking whether or not he should give the money to the lender or widow and thereby give them possession. Beis Din tells him that it is a Mitzvah (that is, it is preferable) to give it to the weaker person, since that person otherwise will not be able to collect what is owed to him or her. Rebbi Akiva argues and says that "we do not have mercy" on the weaker party at the expense of the orphans.

(b) However, TOSFOS (82a, DH Lo) cites this explanation but does not want to say conclusively that the Mishnah teaches merely what is more preferable to do.

Rather, he says that perhaps the Mishnah means that the borrower must give the money or item to the lender or widow and not to the heirs, even though the lender or widow is not considered to be in possession of the item. Even if the borrower does not want to give it to the lender or widow, he is forced to give it -- not because it is considered as if they are in possession, but because the heirs are not in possession, for they do not have the money or the item in their domain.

Rebbi Tarfon maintains that the Metaltelin of heirs indeed are Meshubad to a lender, as long as the property has not yet come into the domain of the heirs. (See also Tosfos to Bechoros 52a, DH v'Lo b'Ra'uy).