If there were two brothers, one poor and one rich, and their father left them a bathhouse and an olive press — If he made them for profit, the profit falls between them; if he made them for personal use, the rich brother may tell the poor one: "Get yourself bondsmen and let them bathe in the bathhouse; get yourself olives, and come and press them in the olive press." [("Get yourself bondsmen": to heat the bathhouse for you. For just as our father left it, so will it be forever. And though it was taught in the first chapter that with something for which there is no law of division, one can say: "You sell me" (your share) "or I will sell you" (my share), it is different here, for the poor brother cannot say that he will buy the other's share, having nothing with which to buy it.] If there were two men in one city called "Yosef ben Shimon," they cannot issue a bill of indebtedness against each other, [for each can claim: "This bill in your hand — I returned it to you when you paid me the money that I lent you."], and another cannot issue a bill of indebtedness against them. [For each can "shunt him off" to the other.] If among one's bills there were found a paid bill of "Yosef ben Shimon," the bills of both are (accounted) paid. What can they do? (to avoid this confusion)? They "third." [i.e., they write the name of the grandfather.] And if they were "thirded"? [i.e., if their names, their fathers' names, and their grandfathers' names were the same], they write a sign, [e.g., "the one who is red-spotted," or "long," or "short."] And if they were alike in their signs, they write "Cohein" [if one were a Cohein, and the other, an Israelite.] If one says to his son: "A bill among my bills is paid, and I do not know which one," the bills of all (his debtors) are paid. If there were found for one (borrower) two (bills, from two loans that he made of him), the larger is (considered) paid, and the smaller, not paid. [For he said "one bill" among his bills, and not two.] If one lends his neighbor through a guarantor (arev), he does not exact payment from the guarantor [first] [before claiming (payment) from the borrower first and having him declared liable in beth-din, after which — if he has nothing to pay with — he exacts from the guarantor.] And if he said: "on condition that I exact payment from whom I wish," he exacts payment form the guarantor. R. Shimon b. Gamliel says: If the borrower has property, in either event, he does not exact payment from the guarantor. [Not that the first tanna says that if the borrower has property he does exact payment from the guarantor. But the Mishnah is defective, and this is what was taught: "If one lends his neighbor through a guarantor, he does not exact payment from the guarantor. And if he said: 'On condition that I exact payment from whom I wish,' he exacts payment from the guarantor. When is this so, when the borrower has no property; but if the borrower has property, he does not exact payment from the guarantor. And a kablan (one who undertakes to pay a debt for another) — Even though the borrower has property, he exacts payment from the kablan. R. Shimon b. Gamliel says: Both with a guarantor and a kablan — If the borrower has property, he does not exact payment from them." The halachah is not in accordance with R. Shimon b. Gamliel. ("arev" - a guarantor, one who says: "Give him (a loan) and I guarantee for him." "kablan": one who says: "Give him and I will give you.")] And, likewise, R. Shimon said: If one were a guarantor for a woman's kethubah, and her husband divorced her [and he had no property, and the guarantor has to pay for the kethubah], he (the husband) should vow to withhold benefit from her, lest they (the man and his wife) scheme against this one's property and he take back his wife. [He (the guarantor) should not pay for the kethubah until her husband vows to withhold benefit from her on public cognizance, a vow from which there is no release, so that he not be able to take her back. For we fear that he might have the intention of taking her back and eating from (the property she received for) her kethubah after having collected it from the guarantor. As to the halachah: The guarantor for a kethubah, does not commit himself and he is not bound to pay, even if the husband has no property. Why so? For he did a mitzvah, and caused her no loss. And if he guaranteed for the kethubah of his son, he does commit himself, a father "binding" himself for the sake of his son. And a kablan for a kethubah does commit himself (for payment), and the woman may claim it from him first, even if the husband has property — this, on condition that the husband first vows to withhold benefit from her on public cognizance.]
Bartenura on Mishnah Bava Batra
קח לך עבדים – that they should warm up for you the bathhouse that it is like what our father left us, so it shall be forever, and even though that we have in the first chapter (Tractate Bava Batra, Chapter 1, Mishnayot 1 and 6), concerning something where there isn’t the law of division. One can say, “I will make a wall or I will divide it,” meaning to say, “sell me your part or I will sell [to you] my part. But it is different here because the poor person cannot say, “I will divide it” because he has nothing with which to buy.”
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English Explanation of Mishnah Bava Batra
Introduction
Mishnah seven deals with various subjects such as brothers who share an inheritance and the recognition of documents in a case where two people in a city have the same. The final section of the mishnah deals with loan guarantors.
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Bartenura on Mishnah Bava Batra
אינן יכולין להוציא שטר חוב זה על זה – because each one can claim that this document that is in your hands, I returned to you when I paid you repaid me the monies that I lent to you.
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English Explanation of Mishnah Bava Batra
If there were two brothers, one poor and one rich, and their father left them a bath house or an olive press, if the father had made them for hire, the profit is split equally. But if he made them for his own use alone, the rich brother may say to the poor brother, “Buy for yourself slaves and they can wash in the bath house” or “Buy for yourself olives and prepare them in the olive press.” A bath house and an olive press could either be owned for personal usage or as a rental. If two sons, one rich and one poor, inherited either a bath house or an olive press, the poor son will want to rent them out to others and collect the money and the rich son, who doesn’t need the money and may be able to make personal use of a bath house and an olive press, may want to use them for personal usage. According to the mishnah, the determining factor is what the father had done with them. If he had used them for rent, then the poor son can force the rich son to continue to use them in such a manner. If they had been used for personal needs the rich son can say to the poor son, use them as much as you like, buy slaves to bathe in the bath house or olives to press, but you may not rent them out to others.
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Bartenura on Mishnah Bava Batra
ולא אחד יכול להוציא שטר חוב עליהם – because each one can supersede him regarding his fellow.
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English Explanation of Mishnah Bava Batra
If there were two in the same town, and one’s name was Joseph the son of Shimon and other’s name was Joseph the son of Shimon, neither can bring forth a debt document on the other, and another person cannot bring forth a debt document against them. And if some person finds amongst his documents a document that states, “The [debt] document of Joseph ben Shimon is paid”, both of their [debt] documents are paid. What should they do? They should write their names to the third generation. And if the names are the same through the third generation, they should give themselves a sign. And if their signs are the same, they should write “Cohen”. If two people in a city have the same name, it will problematic for them to collect debts from each other and for others to collect debts against them. Neither of them will be able to claim against the other for the other could claim that he is actually the creditor and not the debtor. Nor will others be able to claim from them for each of them may claim that the other Joseph ben Shimon is the debtor. If a third party who had loaned them both money should find amongst his documents a document that says that Joseph ben Shimon paid back his debt, both of their debts are cancelled. The way to remedy this problem is to write a third generation with their names, Joseph the son of Shimon the son of Jacob, or a sign that would designate the person’s profession, i.e. a saw for a carpenter, or a fish for a fisherman, or to write Cohen, Levi, depending on the person’s status.
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Bartenura on Mishnah Bava Batra
ישלשו – he will write the name of his father’s father.
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English Explanation of Mishnah Bava Batra
If a man said to his son, “One of my debt documents is paid and I do not know which one”, then all are deemed to be paid. If two documents were found [amongst his documents] written to the same debtor, then the large one is paid and the small one is not paid. If a dying person told his son that one of the debt documents that he held (containing what other people owe him), was paid off but he didn’t know which one, the son will not be able to collect any of the debts. If amongst his documents were two different loans to the same person, we can be sure that only one of them is paid off. In such a case the son may collect on the smaller loan.
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Bartenura on Mishnah Bava Batra
ואם היו משולשים – that their names and the names of their fathers and the names of their father’s fathers are the same.
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English Explanation of Mishnah Bava Batra
If a man lent money to his fellow on a guarantor’s security, he may not exact payment from the guarantor. But if he had said, “On the condition that I may exact payment from whom I wish”, then he may exact payment from the guarantor. Rabban Shimon ben Gamaliel says: “If the borrower had property, in neither case can he exact payment from the guarantor.” Moreover, Rabban Shimon ben Gamaliel used to say: “If a man was a guarantor for a woman’s ketubah and her husband divorced her, the husband must vow to derive no further benefit from her, lest he make a conspiracy against the property of the guarantor and take his wife back again.” If a debtor used a guarantor to secure his loan the creditor may not exact payment from the guarantor, unless, of course, the debtor did not have property with which to pay back the loan. If, however, the creditor had stated at the outset that he was going to exact payment from whomever he wishes, then he may exact payment from the guarantor even if the debtor had property. Rabban Shimon ben Gamaliel holds that in any case, if the debtor had property, the creditor cannot collect from the guarantor. Rabban Shimon ben Gamaliel holds a similar opinion with regards to a woman’s ketubah. If a woman had a guarantor on her ketubah, in other words someone guaranteed to pay her ketubah should her husband not be able to, and then the husband divorced her and the woman collected from the guarantor, the husband must swear to never receive benefit from her again. The fear is that the husband will make a deal with his wife, that he will divorce, she will collect her ketubah from the guarantor and then be remarried to him, and give him the money that she collected from the guarantor.
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Bartenura on Mishnah Bava Batra
יכתבו סימן – a certain [sign] that this is red-spotted or long or short and if their signs are the same, they should write, “Kohen,” if one is a Kohen and the other is an Israelite.
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English Explanation of Mishnah Bava Batra
Questions for Further Thought: • Section three: Why can he only collect on the smaller loan? What is the halachic principle governing this law and indeed most of the laws contained in this mishnah? • Section four: What is similar about Rabban Shimon ben Gamaliel’s two statements in this section?
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Bartenura on Mishnah Bava Batra
נמצא – to one borrower there two documents from two loans that he borrowed from him.
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Bartenura on Mishnah Bava Batra
הקטן אינו פרוע – that one document among his documents is spoken of and not two.
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Bartenura on Mishnah Bava Batra
לא יפרע מן הערב – first, until the borrower is brought to court, and the Jewish court makes him liable [to pay it off]; and if he doesn’t have wherewith to pay, then he can collect from the guarantor.
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Bartenura on Mishnah Bava Batra
רבן שמעון בן גמליאל אומר אם יש נכסים ללוה – he should not collect payment from the guarantor, not from the fact that the first Tanna/teacher holds that even if the borrower has property, he should collect payment from the guarantor, but rather, because our Mishnah is deficient, and this is how it should be taught: A person who loans his fellow through a guarantor should not collect payment from the guarantor, but if he said, “on condition that I can collect payment from whomever I desire,” he can collect payment from the guarantor. When is this said? When the borrower lacks property, but if the borrower has property, he should collect payment from the guarantor, or from a person who assumes the other man’s obligations unconditionally (see Talmud Bava Batra 173b and 174a), even though the borrower has property, he should collect from the person who assumes the other man’s obligations unconditionally. Rabban Shimon ben Gamaliel says that both the guarantor and the man who assumes the other person’s obligations unconditionally are the same: if the borrower has property, he (i.e., the creditor) may not collect from them. But the Halakha is not according to Rabban Shimon ben Gamaliel. The guarantor is the person who says [to the creditor]: “Give him and I will be the guarantor [of your repayment].” The קבלן /the person who assumes the other person’s obligations unconditionally who says: “Give him, and I will give it to you.”
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Bartenura on Mishnah Bava Batra
הערב לאשה בכתובתה – and the husband lacks property, and the guarantor needs to pay off her Ketubah/Jewish marriage contract [in event of the husband’s death or a divorce], he should not pay off the Ketubah until the husband first makes her take a vow against deriving any benefit with the knowledge/consent of the public a vow that cannot be revoked, that he cannot restore her [as his wife], for we suspect lest it is his intention to restore her [as his wife] and to consume her Jewish marriage contract settlement after she has collected her settlement from the guarantor and regarding law, the guarantor of a Ketubah is not mortgaged and he is not liable to pay it off [for the husband] and even if the husband lacks property. What is the reason that he has performed a Mitzvah and nothing is missing from it? But if he is mortgaged as a guarantor for the Ketubah of his son, a father regarding his son is himself personally mortgaged, but a קבלן/someone who unconditionally assumes the other man’s obligations when the Jewish marriage contract is mortgaged, the wife can claim the Ketubah from him (i.e., the קבלן ) at first, and even if the husband has property, but the husband forces her to take an vow against benefit first with the consent of the public.
