Bava Basra, Chapter 10, Mishnah 8 - the final Mishnah of the tractate. This Mishnah includes at least two separate topics. The first topic deals with the lender's ability to collect from encumbered property, a matter we already touched upon in the previous Mishnah.
Introduction: Encumbered property and unencumbered property:
When Shimon borrows money from Reuven, all of the borrower's real property - land and things attached to the land - are called "encumbered property" or "property that bears responsibility." These properties stand ready under a lien, like a sort of mortgage, and serve as a guarantee for the debt: if the borrower does not pay his debt, the lender may collect from them. Furthermore, even if the borrower sold the land to a third party, the lender can come to the buyer and tell him: At the time I gave the loan, a lien took effect on this property, and I have priority in it like a bank holding a first mortgage, and therefore I am collecting from it.
How is this fair to the buyer? The answer is that everything depends on the publicity of the loan: The basic premise is that it was in the buyer's power to know that the seller borrowed money and that his property is encumbered. In our times, checks are run in the land registry; in the times of the Mishnah, a loan written in an official document and signed by two witnesses fell under the category of a "public loan" - the matter becomes public, word gets out, and the public knows about it. Hence, the responsibility rests on the buyer to clarify things before purchasing.
In contrast, regarding a loan made as a private matter between the borrower and lender alone, without witnesses and without an official document, the buyer has no way of knowing about it, and therefore no lien will take effect on the property he purchased. Even a written document without witnesses is insufficient, and similarly witnesses without a written document are insufficient, as in both of these situations there is not enough publicity for word to get out.
The language of the Mishnah:
"Hamalveh es chavero bishtar, goveh minechasim meshubadim" - when Reuven lent to Shimon with a document signed by witnesses, and the debt was not paid, the lender may collect from the properties that were owned by the borrower at the time of the loan, even if they are currently in the hands of a third party.
"Al yedei eidim, goveh minechasim benei chorin" - a loan given in front of two witnesses but without a document, meaning an oral loan, is not a public event, and therefore the lender only collects from unencumbered property. It is worth being precise with the language: "encumbered" is related to the word for slave, and "unencumbered" is related to freedom - properties that are not subject to a lien and are still free and clear in the borrower's possession.
"Hotzi alav kesav yado shehu chayav lo, goveh minechasim benei chorin" - when the lender produces a promissory note written and signed by the borrower himself, but there are no witnesses signed on it. Although we have a written contract before us, it is not considered a loan with a document, but rather a private matter, and exactly like an oral loan. Therefore, the lender only collects from the property of the borrower himself, and not from a third party who bought from him.
A guarantor who signed after the signing of the documents:
From here the Mishnah moves to a matter related to the previous one: What is the law of a guarantor whose guarantee was written in a document, but "hayah le'achar chitum shetaros" - it was after the signatures of the witnesses that validated the document. Usually, the guarantee is included in the body of the document: Reuven lent one hundred to Shimon, Shimon will repay on such-and-such day, and Levi is a guarantor for the debt, and after all this the witnesses sign. Here, in contrast, it was written in the document only that Reuven lent to Shimon, without any mention of a guarantor, the two witnesses signed, and beneath their signatures Levi added and signed: If Shimon does not pay, I will pay.
The Mishnah says: "Goveh minechasim benei chorin". It goes without saying that the guarantor is obligated, since he made an official commitment and he must pay in the event that the borrower does not pay, but collection from him is only made from his available property. The reason for this is: since he signed beneath the signatures of the witnesses, his commitment as a guarantor is like a private matter that people do not know about. Therefore, when the guarantor sells his property to another, the buyer has no way of knowing that a commitment preceded this which imposes a lien on those properties, and for this reason the lender collects from the guarantor only from unencumbered property, and not from property he already sold.
The Mishnah brings an incident that actually occurred: "Ma'aseh" - such a case came before Rabbi Yishmael, in which the guarantor signed beneath the witnesses, and now the lender seeks to collect from him. Rabbi Yishmael ruled: "Goveh minechasim benei chorin" - the lender only collects from properties currently in the guarantor's possession, and not from properties he already sold to another, for the reasons explained.
Ben Nannas disagreed with this. Shimon ben Nannas is a Tanna, and since he did not have ordination he is not called "Rabbi." Ben Nannas said to him: "Eino goveh lo minechasim meshubadim velo minechasim benei chorin". In his opinion, if a lender gave a loan with a document signed by witnesses without the guarantor being mentioned in it, and the guarantor signed afterward beneath the signatures of the witnesses, the lender cannot collect from the guarantor at all: not from his sold properties and not even from the properties currently in his possession.
Rabbi Yishmael asked: "Lamah?" Ben Nanas answered him with a parable: "Hachonek es echad bashuk" - Reuven is choking Shimon in the market for not paying off his debt, and is ready to kill him. "Umatza chavero" - Shimon sees his friend Levi walking by, and asks him to tell Reuven that he will pay off the loan. Levi says to Reuven: "Hanach lo" - leave Shimon alone, and I will take care of the debt. The halachah is "patur" - Levi is not obligated at all, because no formal kinyan was made here and no obligation was created that binds him to pay; his entire intent was only to save Shimon.
And here lies the fundamental analytical principle: "Shelo al emunaso hilvahu" - the loan that Reuven gave to Shimon was never conditional on the guarantor's guarantee, his honesty, his reliability, or his promises. Reuven gave his money to Shimon, and only afterward did the guarantor enter the picture - whether in the market while the borrower was being choked, or on a document after the loan was already executed and the witnesses had signed it, for everything was already a done deal. In such a case, there is no official obligation on the part of the guarantor and there is no possibility of collecting from him.
"Ela eizehu arev shehu chayav?" - "Halvehu va'ani nosen lach". If before the loan was given the guarantor says to Reuven: Lend money to Shimon and I will be a guarantor for you - then he is "chayav", and the guarantor is obligated to pay in the event that the borrower does not pay. And the reason for this: "She'al emunaso hilvahu" - the loan was given based on the guarantor's promise and based on it alone, and had he not given his guarantee to secure the loan, Reuven would not have lent to Shimon in the first place.
Conclusion of the Tractate: "Harotzeh sheyachkim":
The words of Rabbi Yishmael at the end of the Mishnah are the conclusion of the entire tractate. It is fitting to remember that Bava Basra was originally part of one large tractate - Tractate Nezikin - which began with Bava Kamma. This comprises thirty chapters that encompass all the laws of monetary matters and damages, the laws between a person and his fellow and financial laws, and now we are looking back at all those thirty chapters.
Rabbi Yishmael said: "Harotzeh sheyachkim - ya'asok bedinei mamonos, she'ein lecha mikotzoa baTorah gadol mehen, shehen kema'ayan hanoveia". One who wants to become wise should invest his efforts in mastering monetary laws and damages, the subjects of Seder Nezikin, for there is no area in the Torah greater than them. In explaining the comparison to a flowing spring, two approaches have been suggested:
A well or a cistern may dry up, whereas a spring flows and does not cease - water is drawn from it continuously and its waters always continue to flow. So too with monetary laws: human ingenuity is vast and almost infinite in its creativity, and new 'what if' questions, new structures, new transactions and arrangements, and unforeseen circumstances are always arising. It turns out that monetary laws open up unlimited possibilities that must be taken into account, which is not the case in other areas of halachah.
The Tiferes Yisrael explains in another direction: in questions of Yoreh Deah or Orach Chaim, whether a certain item is kosher, or if one must repeat a blessing, the respondent, even if he is not sufficiently expert or does not delve deeply enough, can rule strictly: he should bless again, or throw away the food. It is easy to be strict, and one who rules strictly is not required to exert himself and get to the root of the law. But in monetary laws, two litigants stand before you, and there is no possibility of stringency here, since any right you grant to Reuven comes out of Shimon's pocket and vice versa. Therefore, there is no liberty to rule out of doubt, and it is incumbent upon the judge to delve into the depths of the halachah and clarify it completely. This unique obligation, which exists only in monetary laws, is what makes a person wise and sharpens his mind to clarify every single detail.
Rabbi Yishmael adds words of praise for Ben Nanas: "Veharotzeh sheya'asok bedinei mamonos - yeshamesh es Shimon ben Nanas". It is fitting for a person to attend and learn from Shimon ben Nanas, who was the great expert in everything regarding monetary laws. Nevertheless, the practical halachah is not like Ben Nanas but like Rabbi Yishmael: a guarantor who accepted upon himself a complete kinyan, even if the matter was done after the loan was already given, obligates himself with a formal obligation. Therefore, when the lender claims his money and is unable to collect from the borrower, and comes to the guarantor - the guarantor is obligated to pay the debt.
And with this we conclude, with heavenly assistance, Tractate Bava Basra. The next tractate, God willing, is Tractate Sanhedrin.