KIDUSHIN 48 (20 Nisan) - sponsored by Mr. Martin Fogel of Carlsbad, California, in memory of his father, Yaakov ben Shlomo Fogel, on the day of his Yahrzeit.
12th CYCLE DEDICATION
KIDUSHIN 48 - Sponsored by a generous grant from an anonymous donor. Kollel Iyun Hadaf is indebted to him for his encouragement and support and prays that Hashem will repay him in kind.
1) CANCELING SOMEONE ELSE'S LOAN
QUESTION: The Gemara teaches that when a lender sells a Shtar Chov (document of debt) to his friend and then forgives the debt, the debt is canceled. Moreover, even if the lender dies after he sells the Shtar Chov, his heir may forgive the debt.
If it is possible to sell a Shtar Chov (as the Gemara assumes), once the Shtar is sold the debt should be in the absolute possession of the buyer. Why may the original lender effectively forgive and cancel the debt? Once he sells the deed of debt he has no rights over it anymore, and thus he should be no different from anyone else who has no power to affect the debt in any way.
(a) TOSFOS (DH ha'Mocher) maintains that the entire institution of Kinyan for a Shtar is mid'Rabanan. A Shtar has no inherent worth (other than its ability to be used as proof for a transaction), and thus mid'Oraisa it cannot be transferred through a Kinyan. Since the Kinyan of a Shtar is only mid'Rabanan, selling the Shtar does not remove the lender's power absolutely, and he retains the ability to forgive and cancel the debt.
(b) The RITVA cites RABEINU TAM who distinguishes between two types of Shibud which occur with every loan. One type of Shibud is a "Shibud ha'Guf." The other type is a "Shibud Nechasim." When a loan takes place, the borrower becomes obligated to ensure that the money is paid back. This obligation is called his "Shibud ha'Guf."
In addition to this Shibud, all of the possessions of the borrower become security for the loan. His possessions are considered like an Arev (guarantor) for the loan and thus become Meshubad to the loan. This is the "Shibud Nechasim."
The Shibud on the possessions (Shibud Nechasim) may be transferred through the normal means of a Kinyan (just as the possessions themselves may be transferred through a Kinyan). In contrast, the Shibud ha'Guf is not a tangible asset and thus cannot be acquired or transferred through a Kinyan. Consequently, the sale of a Shtar Chov affects only the Shibud Nechasim of that loan; only the ownership of that Shibud is transferred to the buyer. The Shibud ha'Guf remains in the possession of the original lender since a Kinyan cannot take effect on such a Shibud. The lender, therefore, has the ability to cancel that Shibud, since it is still in his possession. Once he cancels the Shibud ha'Guf and it no longer exists, the Shibud Nechasim disappears automatically. Since the possessions serve only as an Arev to the Shibud ha'Guf, once the Shibud ha'Guf no longer exists there is no Shibud for which the possessions can serve as an Arev. (See KETZOS HA'CHOSHEN 66:37.)
(c) The RA'AVAD (Hilchos Mechirah 6) has a different understanding of why the original lender is able to cancel the debt after he has sold the Shtar Chov to a third party. The Ra'avad explains that when the buyer comes to collect the loan written in the Shtar, he is not collecting his own personal loan as though the borrower had borrowed money directly from him. Rather, he is utilizing the rights of the original lender to collect (and keep) the lender's money, whose power (to collect this loan) he has acquired. Accordingly, the buyer may collect the loan only as long as the original lender still retains his power. If the lender forgives the loan, the buyer cannot collect based on the lender's right to collect, but rather he collects by virtue of his own right which he acquired through the purchase of the debt. However, the borrower is entitled to claim that he never obligated himself to pay back the loan to the buyer and that he is willing to deal only with the party to whom he was Meshabed himself. (This also appears to be the view of RASHI (DH Mochel) here.)
The explanations of the Ra'avad and Rabeinu Tam shed light on the Gemara's distinction between two types of loans. When the Gemara discusses a Milvah b'Shtar, a debt written in a contract, it suggests that everyone agrees that "words can be acquired through Mesirah," and the dispute revolves around Shmuel's ruling -- whether Mechilah may be done after the sale of a Shtar.
However, when the Gemara discusses a Milvah Al Peh (a debt based on verbal agreement and not written in a contract), it says that the dispute between Rebbi and the Chachamim depends merely on whether "Ma'amad Sheloshtan" applies to a loan or not. The Rishonim (Tosfos, Ritva, and others) infer from the Gemara that although Mechilah can be done after the sale of a Shtar, it cannot be done after a Kinyan of "Ma'amad Sheloshtan" (see Insights to Gitin 13:2
According to the explanations of the Ra'avad and Rabeinu Tam, the difference between the two types of loans is clear. As explained above, the sale of a Shtar is a transaction between the lender and the buyer exclusively; the borrower has no role in the Kinyan at all. The sale is merely a transfer of power from the lender to the buyer. Therefore, according to Rabeinu Tam, only a Shibud Nechasim exists as a result of the sale, and, according to the reasoning of the Ra'avad, the borrower has no direct Shibud to the buyer. The Kinyan of "Ma'amad Sheloshtan," in contrast, includes the direct involvement of the borrower. Since his presence is necessary for the Kinyan to take effect, it as though he now directly obligates himself -- with a Shibud ha'Guf -- to the buyer of the loan. Consequently, when the original lender forgives the loan, he cancels only the Shibud ha'Guf to himself. His forgiving of the loan does not free the borrower from his obligation to the buyer, since the borrower now has a new, direct Shibud ha'Guf to the new owner of the loan. Moreover, as a result of the Kinyan of "Ma'amad Sheloshtan," the new owner of the loan does not act merely in the place of the original lender when he collects the loan, but he acts independently, on his own behalf, when he collects what is now considered his own loan to the borrower. (See RITVA.)
How, though, does Tosfos understand the difference between selling a loan and a Kinyan of "Ma'amad Sheloshtan"? Tosfos explains that the ability of the original lender to forgive the debt is based on the fact that the sale of a Shtar is valid only mid'Rabanan. The Gemara in Gitin (14a), however, states that the Kinyan of "Ma'amad Sheloshtan" is also only mid'Rabanan. Why, then, is there a difference between selling a loan and a Kinyan of "Ma'amad Sheloshtan"?
The PNEI YEHOSHUA explains that since the Kinyan of "Ma'amad Sheloshtan" is executed in the presence of the borrower and with his consent, it has the power of a Kinyan d'Oraisa. (A. KRONENGOLD)
2) KIDUSHIN MADE WITH A DEBT OF WAGES OWED
QUESTION: The Gemara cites a Beraisa in which Rebbi Meir and the Rabanan disagree about the law in a case in which a woman gives gold to a man and asks him to make jewelry for her, and in return for his labor she will become Mekudeshes to him. Rebbi Meir states that as soon as he has made the jewelry she becomes Mekudeshes to him. The Rabanan state that she is not Mekudeshes until he gives the jewelry to her.
The Gemara suggests that their dispute is based on whether or not a loan may be used to effect Kidushin. In this case, the loan is the wage the woman owes to the man for the labor he did for her.
If this is the basis for their dispute, why do the Rabanan maintain that the man must give the actual jewelry to her in order for the Kidushin to take effect? The gold itself belongs to the woman and not to him. The only asset of his which he gives to her is his entitlement to collect money from her for his labor. However, this "asset" -- the debt that he forgives -- seems to have no connection with the object itself. His right to payment for his labor is entirely independent of the object. Why, then, do the Rabanan maintain that the Kidushin takes effect only when he gives her the jewelry?
ANSWER: The RASHBA explains that although the money of Kidushin is not the gold but the value of the debt which she owes him, the debt does not take effect until the gold is returned to her. The original obligation of the woman to pay for the labor was conditional on the return of her gold. Until she receives her gold back, the debt (her obligation to pay his wage) does not take effect. At the moment he returns the gold to her, the debt takes effect retroactively from the time he began his work, and therefore it is considered a loan.
The Rabanan maintain that the Kidushin takes effect only when he gives her the jewelry not because of the gold's value, but rather because the debt with which he is Mekadesh her (by forgiving it) takes effect only at that moment. (See PNEI YEHOSHUA who uses this explanation to explain the words of RASHI, DH Ela d'Havi Milvah l'Mafrei'a.)