THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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KESUVOS 92 - dedicated by Rav Mordechai Rabin (London/Har Nof) for the
Yahrzeit of his mother (28 Sivan).
1) PAYING OFF THE DEBT OF ONE'S OWN CREDITOR
QUESTION: Rami bar Chama discusses a case where Reuven sold a field to
Shimon, letting Shimon keep the money he owes for the field as a loan. Reuven
passed away, and his property was inherited by his children. When Reuven's
own creditor later came to collect the field from Shimon, Shimon did not give
the field itself to the creditor, but instead he gave him the *value* of the
field (in cash). Shimon then went to Reuven's heirs to demand repayment for
paying off their father's debt. Reuven's heirs rightfully claimed that they
were exempt from reimbursing Shimon, because only *land* that heirs inherit
is Meshubad (earmarked) for the payment of their father's debt, but not
mobile property or cash that they inherit. Shimon, therefore, lost his money.
2) PAYING BACK A DEBT WITH LAND
Rava comments that if Shimon is cunning, he can avoid a loss by paying back
his own debt to Reuven by giving back the land to Reuven's heirs. Once the
heirs have land that belonged to Reuven, Shimon can collect that land as
repayment for Reuven's debt to *him*!
Why does the Gemara mention that Shimon gave specifically *money* to
Reuven's creditor? What difference does it make if Shimon gave to the
creditor the land or if he gave him money? In either case, Reuven now has the
responsibility to reimburse Shimon for the debt that Shimon paid for him!
Whether Shimon gave land or cash, a mutual debt is created with Shimon owing
money to Reuven and Reuven owing money to Shimon, and Rava's statement -- as
to how Shimon can avoid a capital loss -- applies just the same!
(a) TOSFOS (DH u'Payesei) explains that Rami bar Chama is teaching an
additional Chidush. If he would have taught that when Shimon paid Reuven's
creditor with *land* he is not entitled to be compensated by Reuven's
children (because they do not have any land to give to him), that would have
been obvious -- Shimon cannot collect the "Achrayus" from Reuven's children
if they did not inherit land! Shimon's debt to Reuven, on the other hand,
remains and he is obligated to pay the children the value of the field.
However, now that he pays the creditor with the *value* of the field (i.e.
cash), we might have thought that he is not relying on being reimbursed due
to the "Achrayus" on his field, but rather he is giving the *original money*
that he kept back when he purchased the field, which is Reuven's own money
that Shimon happens to be holding in his hands. That is, he is paying
Reuven's money to Reuven's creditor on Reuven's behalf, like a Shali'ach.
Therefore, we might have thought that Shimon is exempt from paying his old
debt to the children, since he just passed that money on to Reuven's
creditors, as a middleman for Reuven, instead of giving it to the children,
and he thus comes out even.
In fact, TOSFOS (91b, DH Reuven; Pesachim 31a, DH b'Achrayus) and other
Rishonim point out that if -- at the time of the purchase of the land --
Shimon had not kept the money owed for the land as a loan (i.e. he had not
*set a later time* for payment), but he had merely delayed paying Reuven,
then the money which he would be holding would actually belong to Reuven, and
the above ruling would then be true. After Reuven's death, he could give that
money straight to the creditor as a way of giving the money to Reuven.
However, now that he made the money owed for the field into a loan, he can no
longer say that he has Reuven's money in his hands. Rather, he has a *debt*
to Reuven. Therefore, Reuven's children can say to Shimon, "We hereby demand
the money that you owe us. You gave your own money to our father's creditor,
and not our father's money, and we are not obligated to cover the guarantee
for you, because we do not have any land."
This also seems to be the intention of RASHI.
(b) The MAHARAM CHALAVAH (Pesachim 31a) says that if the money for the land
was not made into a loan, but Shimon merely delayed paying Reuven, then the
reason why Shimon could pay the creditor and thereby exempt himself from
paying Reuven's children is *not* because he is simply holding on to Reuven's
money, but because he still has the option to *withdraw* from the entire deal
since he has not yet paid for the land and thus the deal has not been
consummated. Shimon could say to Reuven's children, "I do not have to pay you
the value of the field anymore, because I am withdrawing from the deal and am
not buying the land." He keeps the land, though, as reimbursement for
Reuven's debt that he paid to the creditor.
If so, the Gemara mentions that he paid money to the creditor instead of
giving the field itself only to show what the Halachah would have been had he
*not* made the money he was keeping back for the field into a loan. If it was
not a loan, then not only could Shimon go back on the deal and give the field
to the creditor and not pay Reuven for the field, but he could even give the
*value* of the field (in cash) to the creditor and claim that he never bought
the field from Reuven, and that he thus owes nothing to the children. (Why,
then, is he keeping the field? He states that when he paid Reuven's money to
the creditor, it is as if he gave the field to the creditor and then bought
it back.) This is what the Gemara is teaching when it says that Shimon paid
Reuven's creditor with money; it is teaching what the Halachah would be if
the Shimon had *not* made the value of the field into a loan.
QUESTION: Rava says that if Shimon is clever, he will pay back the debt he
owes to the children of Reuven with land and not with money, and then they
will have land with which to pay their debt to Shimon. What right does Shimon
have to choose to pay back with land? The Gemara earlier (86a) says that when
repaying a loan, one is not allowed to pay back with land but must give back
cash, if he has any. If so, how can Shimon insist on paying back with land?
(a) RASHI (Pesachim 31a, DH Iy Pike'ach) says that he could *claim* that he
has no money but only land.
(b) TOSFOS (DH Iy, see also MAGID MISHNAH, Hilchos Malveh v'Loveh 11:10)
writes that if paying back one's debt with cash will cause the lender to
incur a loss, then he *may* insist on paying back with land. Only when he
will not suffer a loss by it, he must pay back with cash.
(c) The RA'AVAD, cited by MAHARAM CHALAVAH (Pesachim 31a) and others,
explains that Rava holds that if Shimon gives back the *very land* that
Reuven sold to him, even though he already made the money for the land into a
loan, he may cancel the entire deal. Consequently, by returning the land he
has canceled the loan and does not have to pay cash for any purchase; he
merely gives back the land which he decided not to buy. By doing so, Shimon
gets to take reclaim the land as reimbursement for paying money on Reuven's
behalf to Reuven's creditor.