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Gitin, 49

1) RESTITUTION OF LAND FOR DAMAGES

QUESTION: RASHI (DH Hacha b'Mai Askinan) writes that when the Mazik (the person who caused the damage) says that he has no money with which to pay for the damage that he inflicted on another person's property, the Nizak (the one who suffered the damage) may take land from the Mazik in accordance with the value of the damage inflicted. Rashi makes a similar statement earlier (48b, DH Min ha'Idis), where he implies that the Mazik needs to pay with land only when he has no money. If he has money, then he must pay with cash.

What is the source for Rashi's words? Why does the Mazik not have the option to pay with land even when he *does* have money? In addition, even if this principle is true, why does Rashi choose to emphasize it here in Gitin (and not anywhere in Maseches Bava Kama, where it would be more appropriate)? (RASHASH 48b)

ANSWER: The CHASAM SOFER shows that the opinion of the SHACH (Choshen Mishpat 419:1) is indeed that when the Mazik has money or Metaltelin (movable property), he must pay with that and not with land (if the Nizak so desires).

The NETZIV (in MEROMEI SADEH) quotes the RAMAH cited by the Nimukei Yosef (Bava Kama 2a) who says that if a Mazik has money, then he must pay with that rather than with Metaltelin or with land. He explains (in HA'EMEK SHE'EILAH #111) how this can be reconciled with the Gemara in Bava Kama (9a and 10a) that seems to contradict it.

Regarding why Rashi teaches us this here in our Sugya, the Chasam Sofer and Netziv point out that Rashi is saying this in order to answer Tosfos' question (in DH Kegon). Tosfos asks why the Gemara is only able to find a practical difference between Rebbi Yishmael (who says "b'd'Nizak Shaiminan") and Rebbi Akiva (who says "b'd'Mazik Shaiminan") only where the Ziburis (low quality) land of the Mazik is the same quality as the Idis (high quality) land of the Nizak. Why does the Gemara not suggest a practical difference in the opposite scenario -- where the Idis of the Mazik is like the Ziburis of the Nizak? According to Rebbi Akiva, who says that the Mazik pays according to the value of his own fields, it suffices to give his Idis. According to Rebbi Yishmael, who says that the Mazik must pay from a field of his that is as high quality as the Idis of the Nizak. Since the Mazik has no such field he may not pay with land. Instead, he must pay with money (since money is always considered to be as good as the best property; Bava Kama 9a). Tosfos leaves this question unanswered.

According to Rashi, though, the answer is clear. If the Mazik had money, he would not be paying with land in the first place! Since he is trying to pay with land, he obviously has no money with which to pay, and therefore even according to Rebbi Yishmael he has no choice but to pay the best of his lands, regardless of how high quality the Nizak's lands are.

49b

OPINIONS: Mar Zutra rules that the Kesuvah of a woman is collected from the Ziburis (low quality land) of the estate of the husband in a case where the woman collects the Kesuvah after her husband dies. If the husband is alive (and divorces his wife), he must pay the Kesuvah from his Beinonis (medium quality land). Abaye challenges this ruling from our Mishnah which says that a Kesuvas Ishah is paid with Ziburis, Nizakin (damages) are paid with Idis (high quality land), and a Ba'al Chov (a lender) is paid with Beinonis. If the person who is paying in all of these cases is dead, and his Yesomim are the ones who are paying from his estate, then in *all* of these cases, the payment should be rendered from Ziburis!

Rav Acha bar Yakov answers that the Mishnah is discussing a situation in which the father of the Mazik (or debtor, or husband) accepted upon himself to be an Arev to pay the obligations of the son should his son not be able to pay his obligations. In such a case, even after the son dies, the father must pay the son's obligations in the manner described in our Mishnah (Idis for Nizakin, and Beinonis for a Ba'al Chov). However, the Kesuvah is still paid only with Ziburis since the obligation of the Kesuvah takes effect *after* the death of the son, and therefore there was no time during the son's lifetime at which he was obligated to pay the Kesuvah with his Beinonis. Since his son would have been obligated to pay it only with Ziburis (via his Yesomim), the father (who accepted upon himself to pay his son's obligations) also pays it with Ziburis.

The Gemara adds that although a person who accepts Arvus, responsibility, for a man's obligation to pay a Kesuvah does *not* actually become obligated (but rather he accepted the "Arvus" merely for the sake of encouraging the woman to marry the man), here the Mishnah is referring to a father who accepted to be an "Arev *Kablan*" for the Kesuvah-obligation of his son, and thus he indeed becomes obligated to pay the Kesuvah.

What is an "Arev Kablan?"

(a) RASHI (DH b'Kablan) and the RASHBAM (Bava Basra, beginning of 47a) explain that the word "Kablan" denotes that the Arev *received* ("Kibel") money or an object on behalf of the borrower. Since the object passed through his hands, he has accepted a greater obligation towards the lender. TOSFOS (DH b'Kablan) explains that according to Rashi this is the meaning of "Kablan" whenever the Gemara discusses the concept.

In the case of a normal loan, it is clear that the Arev can become a Kablan by accepting the money that the lender gives to the borrower. However, in the case of a Kesuvah, the woman has not yet received her Kesuvah, and she is not giving anything to the Arev Kablan in order to obligate him to pay the Kesuvah when the time comes. How, then, can a person become a Kablan for a Kesuvah?

Rashi explains that one can become a Kablan for a Kesuvah in a case where the husband designated certain Metaltelin items in his possession for the payment of the Kesuvah, and he gave them to his wife to hold until the time comes to collect the Kesuvah. If the wife then hands over those Metaltelin to an Arev in order for him to return them to her husband, then the Arev becomes an Arev Kablan.

The Gemara in Bava Basra (174a) gives different criteria for defining the difference between a Kablan and an Arev. The Gemara there says that when a person asks the lender to accept him as a Kablan for the loan, he uses a different wording ("go give him money") than the wording used by an Arev ("lend him money"). Tosfos explains that Rashi understands that a Kablan requires both a different wording, *and* physically accepting the money of the loan for the borrower.

However, Tosfos asks a strong question on Rashi's opinion from the Gemara there in Bava Basra. The Gemara there concludes that "if the Arev accepts and passes on the loan with his own hands, the lender has no claim on the borrower at all (Ein Lo l'Malveh Al ha'Loveh Kelum);" rather he must collect directly from the Arev and not from the borrower. Accordingly, when he accepts the loan directly from the lender, he is not a Kablan at all, since from our Sugya it is clear that in the case of a Kablan the lender may collect from the borrower if he so chooses (see Rashi, DH Is Lei Nichsei).

Tosfos answers that the case in Bava Basra in which the lender cannot collect from the borrower is when the Arev Kablan took money from the lender and gave it to the borrower (which is not the same case as our Gemara; see also Tosfos ha'Rosh).

It is not clear what Tosfos' intention is here (see MAHARSHA, MAHARAM, and PNEI YEHOSHUA). Perhaps Tosfos means that the case in Bava Basra is when the Arev Kablan said, "Lend *me* money," and then he went and lent the money that he received to the borrower. He did not request the money for the borrower, but rather for himself. In this case, the Arev certainly is the only one who is oblgiated to pay back the loan to the lender (see ALIYOS D'RABEINU YONAH in Bava Basra 174a). In our case, however, the father requested from the woman the Metaltelin that were reserved for the Kesuvah in order to "return" them to his son, as Rashi writes.

(b) The RASHBA and RITVA, however, explain that a Kablan becomes a Kablan simply because of the wording that he uses when he accepts the Arvus. This follows the simple reading of the Gemara in Bava Basra. It is not necessary for him to physically accept any money or object. The reason he is called a Kablan is because he has accepted (Kibel") respionsibility to pay back the loan. If he physically accepts the loan itself, then he has a much greater obligation than an Arev Kablan, and the lender may collect *only* from him and not from the borrower (as Tosfos here, quoted above, cites from Bava Basra 174a).

The Rashbam himself (in Bava Basra 173b, DH Kablanus) seems to have retracted what he wrote earlier in Bava Basra and sides with the other Rishonim.

(c) The TOSFOS HA'ROSH and the RASHBA (in the name of Tosfos) compromise and explain that, normally, a person becomes a Kablan based on the wording that he uses, and not because he physically accepts the loan. However, the wording alone is not enough to make a person a Kablan for a *Kesuvah* (because he is not causing the wife any loss by accepting responsibility, since she has not handed over any money as a result of his promise to pay back). Therefore, in order to become an Arev Kablan for a Kesuvah, it is necessary for the wife to have received Metaltelin that were designated for the payment of her Kesuvah and to return them based on the promise of the Arev. Only then does one become an Arev Kablan.