OUTLINES OF HALACHOS FROM THE DAF
Prepared by Rabbi P. Feldman
of Kollel Iyun Hadaf, Yerushalayim
BAVA BASRA 5 (6 Elul) - Dedicated in memory of Rivka bas Yechezkel Pinker on the occasion of her second Yahrzeit, by her daughters, grandchildren and great-grandchildren, all of whom live in Eretz Yisrael.
1) MUST MINOR ORPHANS PAY A DEBT THAT WAS NOT DUE YET?
1. (Mishnah): If the wall of a Chatzer fell, they must
rebuild it to four Amos. (If Reuven built it
himself,) we assume that Shimon paid, unless Reuven
can prove that Shimon did not pay.
2. (Reish Lakish): If Levi fixed a time to pay his debt
to Yehudah, and claims that he paid within the time,
he is not believed. We are happy if people pay on
time. We do not believe that he paid early!
3. (Abaye and Rava): He is believed. Sometimes one gets
the money and is eager to pay, lest he lose the
4. Question: The Mishnah says that we assume that
Shimon paid, unless Reuven proves otherwise. If he
says that he paid in the proper time, surely we
assume that he did! Rather, he says that he paid
early, and that one is believed to say that he pays
before the proper time!
5. Answer: This case is different, because he cannot
wait to pay. The payment is due for each row of
bricks when it is built!
6. In practice, Rav Papa and Rav Huna brei d'Rav
Yehoshua ruled like Abaye and Rava. Mar bar Rav Ashi
ruled like Reish Lakish.
7. The Halachah follows Reish Lakish,
8. We apply the Chazakah even against orphans. (If a man
died before the time to pay his debt, the lender
collects from the orphans without swearing.)
9. Even though (normally) one collects from orphans
only through an oath, here is different, for the
Chazakah is that one does not pay before the time.
10. 33a - Rava bar Sharshom: I took land for Mashkanta
from Ploni. He owed me also other money as well; he
died. After the Mashkanta ended, I did not return
the land, lest I need to swear to collect from
orphans. I hid the Mashkanta document, to eat the
Peros until I collect the other loan as well. Migo I
could claim that I bought the land, I am believed to
say that they owe me the money.
11. Abaye: You have no Migo, for people know that it the
orphans'. You must return the land. When they grow
up, you will claim your debt from them.
12. Erchin 22a (Rav Asi): Beis Din collects from minor
orphans' property only to pay off a loan (from a
Nochri) on Ribis.
13. (R. Yochanan): They collect also to pay a widow's
Kesuvah (to exempt the orphans from feeding her).
14. Question (against Rav Asi - Mishnah): We auction off
orphans' property for 30 days. (A Nochri creditor
would not consent to wait 30 days!)
15. Answer: The case is, the Nochri agreed to follow the
laws of Yisrael regarding auction, but not regarding
1. Rif and Rosh (1:9): The Halachah follows Reish
Lakish, even against orphans. Normally, one does not
collect from orphans without swearing. This is an
exception, for one does not pay before the time.
2. Rosh: This is even from minor orphans.
3. Tosfos (5b DH v'Afilu): We can bring a proof from
Erchin 22a, which strained to find a case when Beis
Din collects from minor orphans' property, to answer
for Rav Asi. It did not say that we collect from
them within the time! Presumably, he and R.
Yochanan, who adds only a Kesuvah, hold like the
Halachah, i.e. like Reish Lakish. Also, Rava said
that we rule like Reish Lakish against R. Yochanan
in only three (other) places! Even though Rava rules
unlike Reish Lakish, the Gemara often cites Rava's
teaching (for it is true).
4. Rebuttal (Gra CM 78:3): The Gemara did not want to
give an answer unlike Abaye, Rava, Rav Papa and Rav
Huna. We often rely on Rava's rule, but not where
the Gemara explicitly says that the Halachah follows
5. Hagahos Maimoniyos (Hilchos Malveh 12:2): We collect
from minor orphans' property through a Migo (33a.
Abaye rejected the Migo only because it was known
that it is not his land.) Since we did not resolve
whether or not a Migo helps against a Chazakah, also
Chazakah helps to collect from minor orphans!
6. Rambam (Hilchos Malveh 14:1): One who collects from
a minor or adult heir collects only through an oath
like a mid'Oraisa oath. If the debt was for a time
and he demanded payment before the time, he collects
without an oath. After the time, he collects only
with an oath.
i. Lechem Mishneh: The Rambam (12:1-3) says that
from minor orphans we collect only a Kesuvah.
Indeed, here he means only that a Kesuvah can
be collected from a minor orphan.
7. Rosh (ibid., citing the Ramban): Rav Hai Gaon says
that one must swear to collect a document from
buyers before the time. Perhaps there the concern is
greater than when collecting from orphans, for had
their father paid, he would have said so before he
died. If one says 'I paid within the time', even
though he is not believed, the creditor must swear
Heses, since the borrower has a Vadai claim. Orphans
do not obligate an oath due to Safek.
i. Hagahos Ashri: The creditor needs to swear only
if the borrower demands that he swear.
ii. Magid Mishneh: Admission that a loan was not
paid does not allow collecting from buyers, for
we are concerned lest it is a scheme. We rely
on such admissions to uproot inheritance, for
he has no need to lie. He has other ways to
uproot inheritance! Regarding the Chazakah that
one does not pay within the time, there is no
reason to distinguish buyers from heirs.
iii. Mordechai (467,468): A case occurred in which
Avraham hired a scribe. The scribe did part of
the job, and was killed. His widow claimed food
and her Kesuvah from the wages for what he
wrote. Avraham said that he paid for more than
the scribe wrote. Gedolim ruled that he is
believed. Even though the Halachah follows
Reish Lakish, that one does not pay before the
time, and Sechirus is paid only at the end, the
Gemara said that the money for each row of a
wall is due when it is completed. Here also,
money for each treatise is due when it is
finished, even if he was hired to write many.
There is no difference if he or his heirs
demands his wages. Even if the scribe demanded
his wages, Avraham has a Migo, for he could say
'I stipulated to pay you within the time.' For
every unsettled monetary law, ha'Motzi
mi'Chavero Alav ha'Re'ayah.
1. Shulchan Aruch (CM 78:1): If a time was fixed for a
debt, and Reuven demanded payment before the time,
and Shimon said 'I paid you', he is not believed.
There is a Chazakah that one does not pay before the
time. This is even from orphans. If Shimon died
within the time and left orphans, even minors,
Reuven collects without an oath. This is if there
was a loan document, or even if it was a Milveh Al
Peh and Reuven took Shimon to Din and the testimony
was accepted in front of Shimon.
i. Beis Yosef (DH u'Mah she'Chosav Rabeinu): If
testimony was not accepted in front of their
father, he could not collect until they mature,
for testimony must be in front of the
defendant, and a minor is as if he was not
here. The Rashba (3:200) says that if payment
was not due in their father's lifetime, we
appoint an Apotropos to pay Reuven without an
oath. Even though testimony must be in front of
the defendant, we validate a document in the
borrower's absence. When a document is
validated, it is as if the signatures were
validated from when they signed. If the
property is in a different place than the
orphans, we appoint the Apotropos where the
ii. SMA (4): Chachamim were lenient only about
validation of documents (to allow it in the
defendant's absence), for it is only
mid'Rabanan, but not for acceptance of
iii. Shach (2): Most Poskim say that this is even
for minor orphans. This is primary. They cannot
say 'we hold like Maharshach, who says that we
do not take money from minor orphans, since
Poskim argue about this.' Maharashdam says that
we collect from minor orphans only when the
payment date was set from the beginning, but
not if the date came in the borrower's
lifetime, and the lender graciously pardoned
him and granted an extension. I disagree. Since
it is within the time, in every case he
IS ONE BELIEVED TO SAY THAT HE PAID HIS DEBT EARLY? (Bava Basra 6)
Index to Halachah Outlines for Maseches Bava Basra