QUESTION: The Mishnah discusses the case of a man who dies, leaving money
that he lent in the hands of a borrower, or a Pikadon in the hands of a
Shomer. The man's heirs would like to collect the loan or the Pikadon as
their inheritance, while the man's widow would also like to collect the money
or the object as her Kesuvah, and a debtor would like to collect the money or
the object as repayment for his loan to the deceased man.
Rebbi Tarfon rules that we give the loan or Pikadon not to the heirs, but "to
the weaker of them," which the Gemara explains to mean 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 argues with Rebbi Tarfon and says that the heirs receive the loan
We find earlier (81b) a Machlokes between Rebbi Meir and the Rabanan whether
Metaltelin (mobile property) may be collected as the payment for a Kesuvah.
Rebbi Meir is of the opinion that a woman *may* collect Metaltelin for her
Kesuvah. Since the Mishnah here is discussing a loan of money or a Pikadon of
an item, which are obviously items that are Metaltelin, and Rebbi Tarfon says
that the woman may be eligible to collect it as her Kesuvah, our Mishnah must
be following the opinion of Rebbi Meir.
Even though the heirs should automatically inherit all of the property of
their father, and the lender should not be able to collect from them without
making a Shevu'ah (and even with a Shevu'ah, he should only be able to
collect land and not Metaltelin). The reason Rebbi Tarfon gives the property
to the lender or the widow is because he holds 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 work to
effect acquisition of the item (RASHI DH Yinasnu l'Yorshim), even if the
heirs have not yet taken possession of the Metaltelin; Tefisah only works
when the lender or widow took possession of the item while the man was still
Why does Rebbi Tarfon consider the property to be already in the possession
(with Tefisah) of the lender or the widow? If anything, the Yorshim are in
possession of it ("Muchzak"), because the person who borrowed money from
their father now owes the money to the man's heirs. The person who is
guarding the object was guarding it for the father of the heirs and now that
the father died, he is guarding it for the heirs! It should be no less in
their possession than an object that is placed in a Simta (alleyway), which
is considered to be the domain of everyone, and 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 would seem to be that the lender and widow are considered
to be holding the object through the principle of "Shibuda d'Rebbi Nasan"
(82a). Rebbi Nasan states that in a case where Reuven owes Shimon money, and
Shimon owes Levi money, Reuven is considered to owe Levi money. 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 that 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 is following the view of Rebbi
Nasan, then 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), though, states that there is no Tana who holds of
*both* the opinion of Rebbi Meir *and* the opinion of Rebbi Nasan! If our
Tana does not hold like Rebbi Nasan, then 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 and thus we
have mercy on the weaker party. 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
conclusively say that the Mishnah is merely teaching what is more preferable
Rather, he says that perhaps our 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 holds that the Metaltelin of heirs are indeed Meshubad to a
lender, as long as the property has not yet come into the domain of the
*heirs*. (See also Tosfos Bechoros, 52a, DH v'Lo b'Ra'uy).