1)

MAY A DAMAGER GIVE METALTELIM IF HE HAS MONEY? [Nezikin: payment]

(a)

Gemara

1.

7a (Abaye) Contradiction: "From the best of his field and vineyard he will pay" teaches that only Idis may be paid. A Beraisa learns from "he will return" that Shavah Kesef (something worth money) may be given, even bran!

2.

Answer (Rav Papa): All Metaltelim are considered Meitav. If they can't be sold here, they can be sold elsewhere. Land cannot be sold elsewhere. Therefore, one who pays with land must give Idis, so it will be easy to sell.

3.

9a (Rav Huna): Damages are paid with money or Idis.

4.

Question (Rav Nachman - Beraisa): "He will return" teaches that (anything) worth money may be given, even bran.

5.

Answer: The Beraisa discusses when the damager has no money or land. It teaches that he need not sell his things in order to pay with money.

6.

10b - Question (Rav Kahana, to Rav): Without "the carcass will be to him", could we really think that the damager must keep the Neveilah?! A Beraisa learns from "he will return" that any Shavah Kesef may be given, even bran. The damager can pay with any carcass if he wants, all the more so with the victim's carcass!

7.

14b (Beraisa): 'Shavah Kesef' (in the Mishnah) teaches that Beis Din collects only if the damager has land.

8.

(Rav Ashi): 'Shavah Kesef' connotes that is not actual money. Everything except land is considered money, for it can be taken elsewhere and sold.

9.

Question (Rav Yehudah bar Chinena - Beraisa): "He will return" includes anything worth money, even bran (even if the damager has no land)!

10.

Answer (Rav Huna brei d'Rav Yehoshua): We collect from orphans only if they inherited land. (From the damager himself, we collect from anything.)

(b)

Rishonim

1.

Rif (2a): All Metaltelim are considered Meitav, for they can be sold elsewhere. A Beraisa learns from "he will return" that any Shavah Kesef may be given, even bran. Even though Rav Huna disagrees, we hold like Rav Papa, who is Basra.

i.

Nimukei Yosef: The Meforshim rule like Rav Papa, that all Metaltelim are Meitav. The Ramah says that only one without money may pay bran. The same applies to a borrower or one who must return money of a mistaken sale, who is like a robber, who is one of the 24 Avos Nezikin. One may give Metaltelim because they can be sold anywhere. We seek to enable the victim to get the money of his damage. Therefore, if the damager has money, he must pay money. The same applies to a creditor. A creditor collects only Beinonis land lest he lend with intent to collect Idis. This applies only to land, for a lender is sure to collect it (even if the borrower sells it). It does not apply to Metaltelim and money, so a lender has the upper hand regarding them.

ii.

Question (Chidushei Anshei Shem 4): Rav Papa says that one may give bran, i.e. even if he has money!

iii.

Shach (CM 419:3): The Ramah holds that money is different (than other Metaltelim). However, if so, we should need a verse to permit paying with the carcass, even if the damager has money!

2.

Rosh (1:5): Rashi explains that Rav Huna teaches that one with land or money may not pay with Metaltelim. Also the Rif says that Rav Papa argues with Rav Huna. R. Tam rules like Rav Huna. If he has money or Meitav, he pays with it. If not, all Metaltelim are Meitav. If R. Tam held that Rav Papa argues with Rav Huna, he would rule like him, for he is Basra. Rather, he holds that Rav Papa just answered the contradiction. He explains the verses simply; they discuss paying with Meitav or money. Alternatively, Rav Papa argues with Rav Huna. Rav Ashi (the Gemara) put Rav Huna's answer last, even though Rav Huna preceded Rav Papa, to shows that the Halachah follows Rav Huna. The Rif's opinion is primary. Rav Kahana was a Talmid of Rava; he is Basra, and he and Rava hold like Rav Papa. If he held like Rav Huna, the verse must teach that he can pay with the carcass even if he has money! The primary text of Rav Huna says 'money or Meitav.' He explains that the Mishnah requires Meitav, but money is like Meitav.

i.

Question (Shach CM 419:3): Rav Kahana was a Talmid of Rav! Rav Papa was later than Rava and Rav Kahana! Surely, Rav Papa argues with Rav Huna. Rav Kahana holds that no verse is needed to teach that he may pay with the carcass, even if the damager has money!

ii.

R. Akiva Eiger: There was another Rav Kahana in the days of Rava. Surely he asked the question, for above Rav Kahana learned from "Ed ha'Tereifah"!

iii.

Note: Perhaps the Shach held that the first Rav Kahana asked the question, for in our text, Rav Kahana asked Rav. (In the Rosh's text, he asked Rava.)

3.

Rambam (Hilchos Nizkei Mamon 8:9): Beis Din first collects for the victim from the damager's Metaltelim. If this does not suffice, the rest is collected from his best land. As long as Metaltelim are found, even bran, we do not take land.

i.

(Gra CM 419:1): He holds that Rav Huna teaches that the damager may give what he wants; 'money' includes Metaltelim. He and Rav Papa do not argue.

4.

Rosh (ibid.): If a borrower has Metaltelim and land, he must give Metaltelim if the creditor wants. Since he lent money, he collects whatever is closest to money, i.e. Metaltelim. If they cannot be sold here, they can be sold elsewhere. Even so, we evaluate them only for what the lender can sell them for immediately in his house, without need to go to cities or markets. If not, people would be loathe to lend.

i.

Beis Yosef (CM 389 DH keshe'Ba'in...): The Tur holds that the same applies to damages. Even though these reasons (he lent money, and lest people be loathe to lend) do not apply to damages, Chachamim did not distinguish.

(c)

Poskim

1.

Shulchan Aruch (419:1): Beis Din first collects Metaltelim for a victim of damage. As long as Metaltelim are found, even bran, we do not take land. Even if he has money, he may pay with bran, for all Metaltelim are Meitav.

i.

Gra (1,3): This is unlike R. Tam, who rules like Rav Huna (that one must pay with money or Meitav). We hold like Rav Papa (who allows paying with bran). The Ramah holds that one who has money may not give Metaltelim. The Rambam holds that Rav Huna includes Metaltelim in 'money', and teaches that the damager may give what he wants. He and Rav Papa do not argue.

ii.

Shach (1): A victim has better collection power than a creditor, who may demand Metaltelim. A victim is worse only regarding money (the damager may pay Metaltelim even if he has money) because it says "Yashiv". It does not say so regarding a creditor, so he must return money, like he borrowed.

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