Why, though, should the Yesomim have to pay back the loan with land of Idis?
When a person writes in his Shtar that he agrees to pay back his loan with
Idis, such a commitment should only obligate *him* to pay from Idis, and not
his Yesomim! Why does Rava assume that even after the borrower dies, and the
Yesomim have to pay the loan, that the Yesomim must also pay from Idis
*mid'Oraisa*? After all, there is a Machlokes (in the end of Bava Basra)
whether "Shibuda d'Oraisa" or not - whether a Shi'abud (the obligation of
Yesomim to pay the debts of their father from the land they inherited) is
mid'Oraisa or mid'Rabanan. The opinion that holds that the Shi'abud is only
mid'Rabanan asserts that there is absolutely no obligation, mid'Oraisa, for
the Yesomim to pay the debt from the property that they inherited, because
there is no concept of Shi'abud in the Torah itself. Why, then, in a case
where the Yesomim inherit the loan after the borrower dies, should Rava
maintain that their obligation to pay Idis is mid'Oraisa? If we hold that a
Shi'abud is *not* mid'Oraisa, then any obligation that they have is only
mid'Rabanan! (TOSFOS DH Keivan)
(a) RASHI (DH Keivan d'Dinei) explains the concept of Shi'abud of one's
property in a new light. We learned earlier on the Daf that there is a
concept of "Arvus," where one person becomes an "Arev" and obligates himself
to pay back the debts of another person. This is a d'Oraisa obligation, as
the Gemara says in Bava Basra (173b). Rashi explains that just like a person
can become obligated to repay someone else's debts, *land* itself can become
obligated, so to speak, to pay the debts of its owner, through the concept
of Arvus; the land itself becomes an Arev. In other words, the obligation to
repay the debt falls upon the land itself, the property of a person, in the
event that the person himself cannot pay it (for example, he dies or has no
money). Since Arvus is a Torah concept, Rashi says, land can also become an
Arev mid'Oraisa, and therefore it is clear that if one specifies a Shi'abud
on his property, the Shi'abud will take effect and his property will be
obligated to pay back the loan in the event that the person does not.
Following this line of logic, the obvious extention is that Rashi would hold
that a person can obligate his property (by making a Shi'abud on his
property) to pay back the loan, even if we rule that "Shibuda Lav d'Oraisa,"
that the Shi'abud that comes automatically with every loan is not
mid'Oraisa. Rashi, in fact, says this in Kidushin (13b, DH Lav d'Oraisa), as
the RASHBA there explains Rashi's words. What, then, does it mean to say
that "Shibuda Lav d'Oraisa?" It means that no Shi'abud is created
*automatically* when a person borrows money, whether through a Shtar or not.
If a person does specify that he wants to create a Shi'abud and make his
property into an Arev, then he may do so, and his property does become
obligated to repay the loan.
Hence, according to Rashi, a person may make a Shi'abud on property of Idis
even though mid'Oraisa only his Beinonis or Ziburis is obligated to repay
the loan, because the property can become an Arev. In the same vein, Rashi
in Kidushin says that a person may create an obligation on his property for
his Yesomim to pay back the debt, even if we hold that "Shibuda Lav
d'Oraisa," by specifying in the conditions of the loan that he wants to make
his property Meshu'abad. As the SEFER HA'MIKNEH in Kidushin points out,
these two points are related, and Rashi here is following his own view in
Kidushin.
This explains why, in our Sugya, Rashi will hold that when a person
specifies that he wants his Idis to become Meshu'abad, it will become
Meshu'abad even for his heirs to pay back with Idis, since he made his
property an Arev and it is Meshu'abad to the loan - even if we hold that
"Shibuda Lav d'Oraisa."
This is also the view of the RASHBA here who agrees with Rashi both here and
in Kidushin and says that a person can make a Shi'abud mid'Oraisa by
specifying the Shi'abud, even though normally a Shi'abud is not mid'Oraisa.
The same logic also explains the case of Avram Choza'a, in which the Gemara
assumes that since there is a Chiyuv mid'Oraisa to pay for Nezikin, damages,
with Idis, the Yesomim also have a Chiyuv to pay back with Idis. This is
because of the same logic: even though Shibuda is mid'Rabanan, nevertheless,
once a Shi'abud takes effect on property, such as in the case of Nezikin
where there certainly is a Shi'abud mid'Oraisa to pay from Idis, that means
that the land is an Arev. Consequently, even the Yesomim will have to pay
from those fields. (See PNEI YEHOSHUA)
(b) TOSFOS (DH Keivan), however, explains that the reason Rava assumes that
when a person specifies Idis in the Shtar, the Yesomim are obligated
mid'Oraisa to pay back the loan with Idis, is because Rava holds that
"Shibuda mid'Oraisa." If a Shi'abud would be mid'Rabanan, then there indeed
would *not* be a Chiyuv for the Yesomim to pay back from Idis!
Tosfos seems to be following this opinion in the end of Bava Basra (175b, DH
Dvar Torah) where he writes that even if one specifies in the Shtar that he
accepts upon himself Acharayos, according to the opinion that holds Shibuda
is not mid'Oraisa, no Acharayos is created. This is also the opinion of the
RITVA in Kidushin (13b) who explains that the opinion that holds "Shibuda
Lav d'Oraisa" maintains that a Shi'abud -- meaning an act of Kinyan to
obligate himself to pay back from a certain property if one does not have
enough money to pay back on his own -- is not a full Kinyan, because he is
not actually giving anything over to the lender at the time of the loan. He
is merely saying that if he does not have money of his own to pay back, then
the lender may come and collect from those who purchased land from him (the
Lekuchos) or from his heirs (the Yesomim). Since a full Kinyan has not been
executed, but rather a "half-Kinyan" ("Kinyan l'Chatza'in"), so to speak, it
therefore has no binding effect.
That is the view of the opinion that holds that "Shibuda Lav d'Oraisa."
Since that opinion maintains that it is impossible to make a Kinyan of
Shi'abud because it is a "Kinyan l'Chatza'in, even if the borrower specifies
in his Shtar that he wants there to be a Shi'abud, there will be no
Shi'abud. The reason is because a Shi'abud is not a Kinyan; it is not
something that represents a transaction of any sort, and therefore it is
meaningless. The RITVA explains that this point is the basis for the
argument among the Amora'im regarding whether Shi'abud is mid'Oraisa or
mid'Rabanan. The opinion which holds that Shi'abud is mid'Oraisa holds that
a Shi'abud is not a half-Kinyan, but that it is a full Kinyan that is "Mitla
Tali v'Kai" - it is "hanging" and waiting to see if it will take effect
(either from this point on ("mi'Kan ul'ha'Ba"), according to Rava in
Pesachim (30b), or retroactively ("l'Mafrei'a"), according to Abaye there).
It is a "hanging" Kinyan, a Kinyan in waiting, and not half of a Kinyan. The
opinion that holds that Shi'abud is not d'Oraisa, on the other hand, holds
that it is not a Kinyan and it cannot be created even if the borrower
specifies such a Shi'abud in a Shtar.
It is clear from the Ritva and Tosfos that they maintain that land cannot
become an Arev. Only a person can become an Arev; property cannot become an
Arev. Hence, the only question is whether or not there has been a Kinyan.
This opinion of the Ritva does not contradict what the Ritva cites in our
Sugya. In our Sugya, the Ritva (K'sav Yad) cites from the RAMAH and RAMBAN
that if the borrower writes specifically in the Shtar that he is going to
pay back with Idis and that even his heirs will have to pay back with Idis,
then the Shtar *does* obligate the heirs to pay back with Idis, even
according to Abaye and Mar Zutra. This is also the opinion of the TOSFOS
RID. According to these Rishonim, the Machlokes between Abaye and Rava is
whether the father's intention was to be Meshabed his Idis only for himself
while he was alive, or even for after he dies. If his intention was to be
Meshabed his Idis for after he dies, then certainly the children must pay
from Idis, because the enactment of the Rabanan to be lenient with Yesomim
and to collect from Ziburis does not override what the father specified
explicitly. These Rishonim learn this from a Sugya in Kesuvos (87a) which
says that when a father specifies that his wife should collect her Kesuvah
after his death without having to make a Shevu'ah, she indeed may collect it
without a Shevu'ah, and the husband's edict overrides the Rabanan's
enactment that she must make a Shevu'ah before collecting her Kesuvah from
Yesomim.
The wording of the Ritva here is that when the father specifies that he
wants the Yesomim to pay from Idis, it is a "Tenai b'Davar she'b'Mamon," a
condition stipulated regarding a monetary matter, and such a condition is
binding and it overrides the normal halachah. However, this does not
contradict what the Ritva writes when he writes that a person cannot create
a Shi'abud on himself for the following reason. The Ritva here does not mean
that if Shibuda is not mid'Oraisa, then when the borrower specifies that the
debt should be collected from the Idis of his Yesomim after he dies he
creates a Shi'abud on them mid'Oraisa. Rather, the same Shi'abud that he
can create on himself he can create on the Yesomim: If Shibuda is not
d'Oraisa, then he can create only a Shi'abud mid'Rabanan on his Yesomim, and
if Shibuda is mid'Oraisa, then he can create a Shi'abud mid'Oraisa on his
Yesomim. Although the Ritva in Kidushin explains that Shi'abud is a type of
a Kinyan according to the opinion that Shibuda is d'Oraisa, presumably also
the Shi'abud d'Rabanan that the Rabanan created (according to the opinion
that Shibuda is not mid'Oraisa) is a type of a Kinyan that is hanging. Why,
then, does he write here that it is a Tenai, a condition? It seems that the
Ritva does not really mean here that it is literally a Tenai, a condition,
that the borrower stipulated. Rather he means that it is a *Kinyan* of
Shi'abud, but since the Kinyan is not fully effective, it is hanging and
waiting to see whether the lender collects from it, therefore he refers to
it as a Tenai, rather than as a full-fledged Kinyan. This seems obvious from
the fact that if it would be a Tenai, then how could the borrower obligate
his heirs to pay back with the condition that he makes? He cannot make a
condition that he is borrowing money on condition that his heirs pay back
with Idis, for he cannot tell them what to do!
However, the ME'IRI (Bava Basra 175b, Kidushin 13b) writes that even if
Shibuda is not mid'Oraisa, the borrower can create a Shi'abud if he desires,
because he can make a *Tenai* in the loan saying that the lender can collect
the land from Lekuchos and from Yesomim through a Shi'abud.
This is a very difficult concept to understand. How can a Tenai obligate
those who purchase land from the borrower, or those who inherit land from
the borrower, pay back his loan? They cannot be bound by his Tenai! And if
Shibuda is not mid'Oraisa, then why does the Me'iri write that the borrower
can create a Shi'abud d'Oraisa (by writing his desire to do so in the Shtar)
because of the concept of Tenai?
It is possible that the Me'iri means that when a person makes a Tenai that
he is going to pay back land for his debt if he has no money with which to
pay, and that the lender may collect from Lekuchos, then, later, when the
borrower sells his land, it is as if he makes a condition in the sale that
the creditor is permitted to collected this property as payment for the
loan. When the borrower sells his property, he is not selling it with regard
to the Shi'abud that the lender has on it. The Me'iri might maintain that
there is such a thing as a "Kinyan Peros" on land, that one can own the land
only with regard to its Shi'abud, that is, for the right to collect from it
if the borrower has no money. This is similar to what the Gemara discusses
earlier concerning whether a person may sell his Eved only for the right to
receive the Kenas that might come in case the Eved gets killed by an ox. In
the same way, a person can sell his property with regard to its Shi'abud.
That is what a person does when he makes a Tenai that his creditor may
collect from his land. It is just like giving the land to the creditor only
for the right to collect the loan from it in case there is no money to
collect. Hence, when the Yesomim or Lekuchos get that property (after the
loan), they do not have the right to stop the creditor from collecting from
it, because the creditor already owns the land with regard to the right to
collect from it if the borrower does not have money with which to pay back
his loan.