Bava Basra, Chapter 10, Mishnah 7. This mishnah includes no fewer than five different topics, and in the version of the mishnayos in the Babylonian Talmud it is divided into four separate mishnayos. The first topic is not related to the matters of documents in our chapter, but rather to the earlier chapters dealing with the laws of inheritance. The reason it is brought here is, apparently, that in the previous mishnah we dealt with an impoverished borrower who got into a complication - left with a debt after partial repayment and exposed to the loss of the receipt. Our mishnah as well presents another scenario where a person's lack of means limits his options and exposes him to a loss.
Two brothers, poor and rich, who inherited a bathhouse and an olive press:
The mishnah opens: "Shnei achim, echad ani ve'echad ashir, vehiniach lahen avihen merchatz uveis bad" - The father passed away and bequeathed to his two sons a bathhouse or an olive press, which is the press for extracting oil from olives. Here two positions clash:
The rich brother: Wishes to keep the property for his private use, and is of course willing to share it with his brother - but not beyond that.
The poor brother: Wishes to turn the property into a source of income - to rent out the olive press or to operate the bathhouse as a business - since he needs the money.
To whom do we listen?
It must be said that we are dealing with a bathhouse or an olive press that is too small to divide into two, for if it could be divided, each would take his share and do with it as he pleases. With a property that does not have the law of division - as it is too small for its two halves to remain economically viable - the rule is that the one demanding the division may say "gud o agud" (buy or I will buy): either you buy my share from me, or I will buy your share from you, and thus one of us will remain the sole owner, and this is a fair law. However, a person cannot demand "gud o agud" when he does not have the money to buy his partner's share, and in our case his brother's share - and the poor brother does not have this money, and therefore he cannot raise this demand.
Therefore, the mishnah establishes that the manner in which the property was used during the father's lifetime is what will continue:
"Asan lasachar - hasachar la'emtza" - If they were previously used for rental income, they will continue to rent them out, and the profits go to the middle and are divided between the two brothers according to the laws of inheritance - half and half, assuming there is no firstborn here.
"Asan le'atzman" - If they were used for private needs. The version "le'atzman" (for themselves) is somewhat puzzling, and in the Babylonian Talmud, as well as in many Rishonim, the version is "asan le'atzmo" (he made them for himself) - that the father used the bathhouse or the olive press for his own private use. In this case, they will not rent out the property, but rather "harei he'ashir omer le'ani: kach lecha avadim veyirchatzu bamerchatz, kach lecha zeisim uvo va'asem b'veis habad" - buy yourself slaves who will heat the ovens and operate the bathhouse, and bring olives and press them in the olive press. Meaning: this is a private resource; you want to use it - please do, and if you cannot afford it, that is not the rich brother's problem. The property remains private, and it is the full right of the rich brother to insist on this, since this is how it was always used.
Regarding linguistic nuances: The word "va'asem" in the mishnah is not from the root of making and creating, but is rather closer to the word for "massage" in modern Hebrew - pressing the olives and squeezing them in the press of the olive press.
Two people in one city whose names are identical:
Here the mishnah returns to the matters of documents, and presents an unusual case: a city in which two residents bear completely identical names. Since the period of the Mishnah, it was customary to identify the parties to a document by their name and their father's name - so-and-so the son of so-and-so, Yosef the son of Shimon. What will be the law when there are two people named "Yosef the son of Shimon"? The mishnah's answer in short: a vague document, in which there are two possible people with an identical name from the same city, is unenforceable. The solution is to add identifying details to the name, so that it will be known which Yosef the son of Shimon is being referred to.
The language of the mishnah: "Shnayim shehayu be'ir achas, shem echad Yosef ben Shimon veshem acher Yosef ben Shimon" - Two who were in one city, one named Yosef ben Shimon and another named Yosef ben Shimon. From here arise two laws:
"Ein yachol lehotzi shtar chov zeh al zeh" - if one person lent to his fellow, the lender cannot collect in court, since the document states that Yosef ben Shimon owes Yosef ben Shimon, and the defendant can deflect the claim and say: "What are you talking about? I am the lender and not the borrower." This claim is accepted in court, since there is nothing in the document proving otherwise. It is possible the borrower is acting as a swindler, and it is possible that specifically the supposed lender is the swindler - in any case, the two are litigating between themselves, and there are no witnesses who can verify which is which.
"Nimtza leachad bein shetarotav: shtaro shel Yosef ben Shimon parua - shitrei sheneihem pruin" - a third party found in his drawer a note testifying that the loan he gave to Yosef ben Shimon was already paid. Since he lent to both men and does not know which of them paid, he must treat both loans as if they were paid. This is not merely a measure of piety, but based on the letter of the law: he is not permitted to collect unlawfully, lest the one from whom he is collecting has already paid. We are dealing with someone who does not remember who paid, and therefore he must exercise extra caution and not collect from anyone.
The Mishnah asks: "Keitzad yaasu?" - how are we to deal with a situation where two people in the same city bear an identical name? The Mishnah suggests an order of solutions:
"Yeshalshu" - they should add a third name: not just "Yosef ben Shimon", but "Yosef ben Shimon ben Yaakov" - the grandfather's name on the father's side.
"Ve'im hayu meshulashim - yichtevu siman" - if both men are tripled, meaning even the grandfather's name is identical in both of them (Yosef ben Shimon ben Yaakov), the owner of the document must be described with a distinguishing sign: "short Yosef ben Shimon, with the big nose", and so forth.
"Ve'im hayu mesumanim - yichtevu kohen" - if even the signs are identical in both of them, another detail must be noted, such as their tribe - kohen; and if there is no such detail, we go another generation back, to the fourth generation. This solution is even more difficult, since not everyone knows who their great-grandfather and great-grandmother were.
The rule is that one must do the best of his ability, and if there is no way to distinguish between them - we are left with a contract that is not enforceable. Today, of course, this would not arise, since we use unique identifiers, like an identity card number, to verify which of the two is the party to the document.
"Ha'omer leveno: shtar bein shetarotai parua":
A person lying on his deathbed says to his son: "Shtar bein shetarotai parua ve'eini yodea eizehu" - in my drawer lies a stack of promissory notes, and one of them has already been paid, but I do not know which. Now the son holds ten documents, and although nine of them are valid, he cannot execute any of them, since he does not know which was paid and he does not want to steal; and therefore, from anyone who does not pay willingly, he is not permitted to collect, lest this be a second collection. Therefore the Mishnah says: "Shetarot kulan pruin".
"Nimtza leachad sham shenayim - hagadol parua vehakatan eino parua" - if among the documents there is one borrower who borrowed twice, fifty in one week and a hundred in the second week, and he holds two promissory notes for him. Since the father said that one document was paid - only one was paid and not the second. The son must assume the scenario most convenient for the borrower: the large debt, the hundred, is considered paid, and the small debt, the fifty, is not paid. He is permitted to collect the fifty; he does not collect the hundred, lest it was already paid. And it is understood that if the borrower says he never paid - he pays what he owes.
The law of the guarantor:
A completely new topic: a guarantor, who provides a guarantee for a loan. Shimon wants to borrow money from Reuven, and Reuven is worried that he will not return it to him. A third person approaches - a wealthy neighbor, let us call him Warren - and Reuven says to him: "If you agree to cover the loan in case Shimon defaults on it, I will lend to him." Warren replies: "If Shimon does not return it to you, I will return it." This is a classic guarantor, as he enters the contract in this manner.
In this scenario the Mishnah says: "Hamalveh et chavero al yedei arev - lo yipara min ha'arev" - the lender is not permitted to demand his money from the guarantor. The meaning of this is that he is not permitted to do so before he has exhausted his legal rights against Shimon the borrower. He cannot say: "Warren, Shimon is not paying me and I do not have the energy to deal with it, you pay now." Warren is permitted to reply: "Sue Shimon in court and they will put pressure on him to pay; and if he is held liable there and still refuses - then it is understood that I am the guarantor and I will pay." But first you must exhaust the options and obtain a judgment against him.
"Ve'im amar: al menat she'epara mimiy she'ertzeh - yipara min ha'arev" - if at the time of giving the loan the lender stipulated that he could collect from whomever he chooses, from the borrower or from the guarantor, he is permitted to collect from the guarantor even without suing the borrower in court. First he must ask the borrower to pay; and if the latter replies that he cannot or is not willing, the lender can skip the court stage, turn directly to Warren the guarantor and say: "Your friend the borrower is not returning my money to me, you must pay" - and indeed Warren will be required to pay.
Chisurei mechsara - the approach of the Tanna Kamma:
The Mishnah is missing some words. The Gemara establishes here the principle of "chisuri michasra vehachi katani", meaning words must be added into the Mishnah so that it can be understood properly. This introduces a completely different opinion, which we will call the opinion of the Tanna Kamma, since Rabban Shimon ben Gamliel will argue with it later on.
The missing words are: "Bameh devarim amurim - beshein nechasim laloveh" - when do these words apply? When the borrower has no property. That is, the law that a lender who stipulated "on condition that I may collect from whomever I wish" is not required to summon the borrower to beis din, applies specifically when the borrower has no known real estate property from which to collect.
As we have seen many times already: when a person gives a loan, all of the borrower's real estate property - land and anything attached to it, an apartment, house, or farm - becomes automatically liened to the debt. A lien takes effect on them, like a bank mortgage, and they stand, as it were, as guarantors for the loan. Therefore, throughout the Torah, they are referred to as "nechasim sheyesh lahem acharayus" (property that has responsibility), meaning assets that bear responsibility in the event of non-payment. Even if the borrower sold them to a third party after taking the loan, if he does not pay, the lender can go to the buyer and say: "You bought this house from my borrower after I gave him the loan; you should have checked the records and seen that my document was filed and that there is an attachment and lien on the property - and now I will collect from your property."
Therefore, even though the lender stipulated "on condition that I may collect from whomever I wish" and is permitted to turn to the guarantor without beis din, this applies only when the borrower has no real estate property standing as a guarantee for the loan. The real estate property acts as a sort of guarantor that precedes Warren, the human guarantor. Therefore, the Tanna Kamma says: "Aval yesh nechasim laloveh - lo yippara min ha'arev" - but if the borrower has property, he may not collect from the guarantor. When the borrower has property, the lender must first try to collect from the liened property, and only afterward demand his money from the guarantor.
Arev Kablan:
From here, after additional missing words, the Mishnah moves to a new topic: an arev kablan. This is not a regular guarantor who says, "Lend money to my friend Shimon, and if he does not pay you back - I will pay," but rather one who says: "Lend to Shimon, and I will pay you back." He is like a second borrower, an equal partner to the debt. In such a case, the Tanna Kamma says: "Af al pi sheyesh nechasim laloveh - yippara min hakablan" - even though the borrower has property, he may collect from the kablan. If the borrower does not pay, the lender can turn directly to the guarantor, and he is not required at all to bother extracting value from the borrower's property.
The Opinion of Rabban Shimon ben Gamliel:
"Rabban Shimon ben Gamliel omer: im yesh nechasim laloveh - lo yippara min ha'arev" - Rabban Shimon ben Gamliel says: If the borrower has property, he may not collect from the guarantor. According to his opinion, when the borrower has property, whether it is a regular guarantor who says, "Lend to Shimon, and if he does not pay you - I will pay," or whether it is an arev kablan who says, "Lend to him and I will pay you back," the loan is not collected from the guarantor's pocket except after first summoning the borrower to beis din.
A Guarantor for a Woman's Kesubah:
On a related, although not identical, topic, the Mishnah continues: "Vechen hayah Rabban Shimon ben Gamliel omer: arev le'ishah bichesuvaseh" - and so would Rabban Shimon ben Gamliel say: A guarantor for a woman regarding her kesubah. Reuven marries Leah, and Leah is afraid to marry him because he is a man of limited means: "How will I know that you will pay me my kesubah if you divorce me?" Reuven brings his friend Warren to commit as a guarantor for the kesubah, so that if Reuven does not pay - Warren will pay. This guarantee is, of course, binding.
"Vehayah ba'alah megareshah - yaddirennah hana'ah" - and if her husband divorces her, he must make her vow not to derive benefit from him. As we learned, if Warren took upon himself the guarantee of an arev kablan, Leah can collect from him immediately once Reuven fails to pay. However, when Reuven comes to divorce Leah, prior to her collecting, she must take a vow to no longer derive any benefit from her ex-husband. This is not a regular vow, but rather a severe vow "al da'as rabbim" (dependent on public consent), which no single judge, even an expert, can annul, but only an official beis din - and all of this is "shema ya'asu kenunya" - lest they scheme together, meaning lest the two of them concoct a joint plot and scam.
And what is this conspiracy? Reuven says to Leah: "We can get rich. My friend Warren is very wealthy. I will divorce you and will not pay you your kesubah, you will collect the money from Warren, and afterward we will remarry and fly to Tahiti, rich at his expense." Therefore, the Sages said that this can be prevented in advance by obligating Leah to first take a vow that she will not derive benefit from Reuven - and since they will not be able to remarry each other, the plot is stopped.
As the Mishnah states: "shema yaasu kenonya al nechasav shel zeh" - perhaps Reuven and Leah will concoct a scheme to extract money from Warren the guarantor, "veyachazir et ishto" - and after they receive his money, Reuven will take Leah back and remarry her, and the two of them will walk away rich. True, Warren, who was forced to pay as a guarantor, is entitled to sue Reuven and collect from him, but this does not mean Reuven will actually return his money: Reuven and Leah might flee to Tahiti, and Warren will be left empty-handed, without any way to collect the money that Reuven schemed to steal from him.