How could a person forgive a loan that he has already sold and which is no
longer in his possession?
(a) RABEINU CHANANEL (cited anonymously by the RIF, and attributed to Rabeinu
Chananel by the Ran) explains that the person who sells the Shtar Chov can
cancel the debt even after its sale since he can say that he checked his
records and found that the debt had already been paid, or that he is not sure
whether or not the debt was already paid.
The Rif and others reject this approach for a number of reasons. First, from
the Gemara's wording it seems that the debtor did not say that the debt was
paid, but that he is *forgiving* the loan. How can he do that? Second, even
if the debtor does admit that the debt was paid, how can that prevent the
buyer of the Shtar Chov from collecting it? We learned earlier (19a) that a
person's own admission is not believed if it causes a loss to others. If so,
the seller should not be able to cause the buyer of the Shtar Chov a loss by
"admitting" that there is no longer any debt!
(a) TOSFOS (DH ha'Mocher) in the name of the RI explains that mid'Oraisa a
person cannot sell a loan, because it is not an object upon which a Kinyan
can be made.
It is true that if the borrower owns property, there can be a Shibud (lien)
placed upon the real estate. A lien constitutes a partial Kinyan, and thus it
is something that the lender *can* sell. If, however, the borrower has no
real estate, then the lender has nothing of the borrower's to sell, since
there is no such thing as a lien on movable property (Metaltelin). Therefore,
the sale is not valid mid'Oraisa. It is only a rabbinical institution that a
person can sell a loan.
Since mid'Oraisa the debt still belongs to Reuven, he is able to forgive it.
The Mechilah, which is mid'Oraisa uproots the sale of the loan, since the
sale is only mid'Rabanan.
Would the Ri maintain that one *cannot* forgive a debt he has sold if the
borrower has real estate? The Ri does not differentiate between whether the
borrower actually had land at the time of the sale or not. It seems that
since the lender intends to sell the loan alone (and not the Shibud) when the
borrower does not have any land and there is no Shibud to sell, so, too,
anytime the lender sells a Shtar Chov, his intention is to sell the loan and
not the Shibud (even when the borrower does have land).
Tosfos points out that because of this, if a loan is transferred in a manner
that works mid'Oraisa, then the lender cannot forgive the loan once it is no
longer in his possession. Such a transfer that works mid'Oraisa includes,
according to various opinions, a Matnas Shechiv Mera (the gift of a dying
person; see Bava Basra 147b, as cited by Tosfos here), a case of Shibuda
d'Rebbi Nasan (where Reuven owed someone else money before he lent money to
Shimon, he may transfer his loan to his own debtor; see Kesuvos 19a and
Tosfos there, DH u'Chegon), and Ma'amad Shelashtan (where the lender
transfers the loan in the presence of the borrower; see Gitin 13b and Tosfos
there).
(b) Tosfos here writes that RABEINU TAM also rules that the sale of a loan is
mid'Rabanan. However, Rabeinu Tam later retracted this view (TOSFOS SHANTZ)
and decided that the sale of a loan is valid mid'Oraisa. Why, then, can the
lender forgive the loan that is no longer in his possession?
The ROSH (9:10), RAN and other Rishonim write in the name of Rabeinu Tam that
the original lender can forgive the loan for a different reason. A loan
creates two different Shibudim (obligations) upon the borrower. First, there
is a "Shibud ha'Guf" -- the borrower becomes personally obligated to repay
the loan that was given to him. It is a personal obligation, which the Gemara
(86a) refers to when it says, "Peri'as Ba'al Chov Mitzvah" (the repayment to
a debtor is a Mitzvas Aseh). The lender cannot sell this part of the loan.
Second, besides the Shibud ha'Guf, the borrower's property becomes collateral
to the lender, so that the lender has the right to collect from any assets
that the borrower owns at the time that the loan comes due, whether that
property is land or mobile property -- the only requirement is that it be in
the borrower's possession, i.e. he has not sold it. (Rabeinu Tam calls this
is a "Shibud Nechasim," even though it is not what is usually referred to by
the words "Shibud Nechasim." What is usually referred to as "Shibud Nechasim"
allows a person to collect from land even after it leaves the borrower's
possession, and it does not take effect on mobile property.) The right to
collect from the borrower's possessions is based on the principle that "a
person's possessions are his guarantors." (Bava Basra 174a). They take
responsibility for the repayment of any loans that the person himself fails
to repay.
This second Shibud -- the right to collect from the property of the borrower
-- *is* transferable, and that is what the lender sells; this sale is valid
mid'Oraisa. However, if the lender forgives the loan after the sale, then the
Shibud ha'Guf, the first Shibud, which the lender did *not* sell (since it is
not transferable), becomes annulled. Once there is no longer a Shibud ha'Guf
on the borrower, the Shibud Nechasim is annulled too, since borrower's property
is no longer obligated to repay the loan for him if his loan has been
annulled. That is why the buyer of the Shtar can no longer collect the debt.