1) A "SHIBUD" TO COLLECT A LOAN FROM LAND
QUESTION: The Amora'im disagree about the law in the case of a Shtar Chov (deed of debt) in which a borrower wrote explicitly that he permits the lender to collect the debt from his Idis (high quality) property, even though a debt normally is collected only from Beinonis (middle quality). Abaye and Mar Zutra rule that in such a case, if the borrower dies and the lender comes to collect the debt from the heirs (Yesomim), he may collect only from the Ziburis and not from the Idis, as is the law in any case of one who collects a debt from Yesomim.
Rava disagrees and says that whenever one collects from Yesomim, mid'Oraisa the Yesomim need to pay only from Ziburis because, mid'Oraisa, when a loan is granted only Ziburis land becomes Meshubad (collateralized) to the repayment of the loan. It was the Rabanan who required that the borrower pay back with Beinonis land. Thus, when the borrower has died and the obligation to pay back the loan falls upon the Yesomim, the Rabanan suspended their requirement that a loan must be paid back with Beinonis and they allowed the Yesomim to pay with Ziburis, in accordance with the d'Oraisa requirement. However, when the borrower wrote explicitly in the Shtar that he agrees to pay from Idis, his Idis becomes Meshubad mid'Oraisa to the repayment of the loan. Since this Shibud on the Idis property is a Shibud d'Oraisa, even when the Yesomim pay back the loan they must pay back with Idis. This is the view of Rava.
Why, though, should the Yesomim need 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 obligate only him to pay from Idis, and not his Yesomim. Why does Rava assume that even after the borrower dies and the responsibility to pay back the loan falls to the Yesomim, that the Yesomim must also pay from Idis mid'Oraisa? The Gemara in the end of Bava Basra records a dispute about whether a Shibud is d'Oraisa or not (that is, whether a Shibud -- the obligation of Yesomim to pay the debts of their father from the land they inherited -- is mid'Oraisa or mid'Rabanan). The opinion which maintains that the Shibud is only mid'Rabanan asserts that there is absolutely no obligation mid'Oraisa for the Yesomim to pay the debt from the property they inherit, because there is no concept of Shibud in the Torah itself. Why, then, in a case in which the Yesomim inherit the loan after the borrower dies, should Rava maintain that their obligation to pay Idis is mid'Oraisa? If a Shibud is not mid'Oraisa, any obligation that they have is only mid'Rabanan! (TOSFOS DH Keivan)
ANSWERS:
(a) RASHI (DH Keivan d'Dinei) explains the concept of Shibud of one's property in a new light. The Gemara earlier teaches that there is a concept of "Arvus," whereby 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 as 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. That is, the land itself becomes an Arev, as the obligation to repay the debt falls upon the person's property in the event that the person cannot repay it himself (for example, he dies or has no money). Rashi explains that since Arvus is a Torah concept, land can also become an Arev mid'Oraisa, and therefore it is clear that if one specifies a Shibud on his property the Shibud takes effect and his property becomes obligated to pay back the loan in the event that the person does not.
The obvious extension of this logic is that according to Rashi, a person can obligate his property (by making a Shibud on his property) to pay back the loan, even if the Halachah is "Shibuda Lav d'Oraisa," the Shibud that comes automatically with every loan is not mid'Oraisa. Rashi in fact writes this in Kidushin (13b, DH Lav d'Oraisa), according to the RASHBA's explanation of Rashi's words. What, then, does "Shibuda Lav d'Oraisa" mean? It means that no Shibud is created automatically when a person borrows money, whether or not the loan is executed with a Shtar. If a person specifies that he wants to create a Shibud and make his property into an Arev, he may do so, and his property becomes obligated to repay the loan.
Hence, according to Rashi, a person may make a Shibud 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 writes that a person may create an obligation on his property for his Yesomim to pay back the debt, even if the Halachah is "Shibuda Lav d'Oraisa," by specifying in the conditions of the loan that he wants to make his property Meshubad. As the SEFER HA'MIKNEH in Kidushin points out, these two points are related, and Rashi here is consistent with his opinion in Kidushin.
This explains why Rashi here maintains that when a person specifies that he wants his Idis to become Meshubad, it becomes Meshubad even for his heirs to pay back with Idis. Since he made his property an Arev, it is Meshubad to the loan even if the Halachah is "Shibuda Lav d'Oraisa."
This is also the view of the RASHBA here who agrees with Rashi both here and in Kidushin and writes that a person may make a Shibud mid'Oraisa by specifying the Shibud, even though normally a Shibud 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 d'Oraisa to pay for Nezikin (damages) with Idis, the Yesomim also are obligated to pay back with Idis. This is because of the same logic: even though the Shibud is mid'Rabanan, nevertheless once a Shibud takes effect on property (such as in the case of Nezikin, where there certainly is a Shibud d'Oraisa to pay from Idis), the land becomes an Arev. Consequently, even the Yesomim are obligated to pay from those fields. (See PNEI YEHOSHUA.)
(b) TOSFOS (DH Keivan), however, explains that the reason why 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 that Rava maintains that "Shibuda d'Oraisa." If a Shibud would be mid'Rabanan, there indeed be no obligation for the Yesomim to pay back from Idis!
Tosfos seems to follow this opinion in the end of Bava Basra (175b, DH Devar Torah) where he writes that even if one specifies in the Shtar that he accepts upon himself Achrayus, he has no responsibility of Achrayus according to the view that a Shibud is not mid'Oraisa. This is also the opinion of the RITVA in Kidushin (13b) who explains that according to the opinion that "Shibuda Lav d'Oraisa," a Shibud -- which is an act of Kinyan to obligate oneself 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 the person does not actually give anything over to the lender at the time of the loan. He merely says that if he does not have money of his own to pay back, 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 has no binding effect.
This is the reasoning of the opinion that "Shibuda Lav d'Oraisa." Since that opinion maintains that it is impossible to make a Kinyan of Shibud because it is a "Kinyan l'Chatza'in," even if the borrower specifies in his Shtar that he wants a Shibud, there will be no Shibud. This is because a Shibud 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 with regard to whether the concept of Shibud is mid'Oraisa or mid'Rabanan. According to the opinion that it is mid'Oraisa, a Shibud is not a half-Kinyan but rather a full Kinyan which is "Mitla Tali v'Kai" -- it is "hanging" and waiting to take effect (either from this point on ("mi'Kan ul'Haba"), 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. In contrast, according to the opinion that the concept of Shibud is not mid'Oraisa, a Shibud is not a Kinyan and cannot be created even if the borrower specifies a Shibud in a Shtar.
It is clear from the words of the Ritva and Tosfos that they maintain that land cannot become an Arev. Only a person can become an Arev, not property. Hence, the only question is whether or not there was a Kinyan.
This opinion of the Ritva in Kidushin does not contradict what the Ritva mentions here. The Ritva here (Kesav Yad) cites the RAMAH and RAMBAN who explain that if the borrower specifies in the Shtar that he will pay back with Idis and that even his heirs will have to pay back with Idis, 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 dispute 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 his death. If his intention was to be Meshabed his Idis for after his death, certainly his heirs 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 the Gemara in Kesuvos (87a) which states 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; the husband's edict overrides the Rabanan's enactment that she must make a Shevu'ah in order to collect her Kesuvah from Yesomim.
The wording of the Ritva here is that when the father specifies that he wants his heirs to pay from Idis, his statement is a "Tenai b'Davar sheb'Mamon," a stipulation regarding a monetary matter. The law is that such a condition is binding and it overrides the normal Halachah. This does not contradict the Ritva's view that a person cannot create a Shibud on himself. The Ritva here does not mean that if the concept of Shibud is not mid'Oraisa, then when the borrower specifies that the debt should be collected from the Idis of his heirs after his death he creates a Shibud on them mid'Oraisa. Rather, the same Shibud he creates on himself he can create on the Yesomim: If Shibud is not mid'Oraisa, he can create only a Shibud mid'Rabanan on his Yesomim; if Shibud is mid'Oraisa, he can create a Shibud mid'Oraisa on his Yesomim. Although the Ritva in Kidushin explains that Shibud is a type of a Kinyan according to the opinion that "Shibuda d'Oraisa," presumably also the Shibud d'Rabanan which the Rabanan created (according to the opinion that Shibud 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 here does not really mean that it is literally a Tenai that the borrower stipulated. Rather, he means that it is a Kinyan of Shibud, but since the Kinyan is not fully effective it is hanging and waiting until 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, the borrower would not be able to 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 Shibud is not mid'Oraisa, the borrower can create a Shibud 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 Shibud.
The Me'iri's words are very difficult to understand. How can a Tenai obligate those who purchase land from the borrower, or those who inherit land from the borrower, to pay back his loan? They cannot be bound by his Tenai! If Shibud is not mid'Oraisa, why does the Me'iri write that the borrower can create a Shibud d'Oraisa (by writing his desire to do so in the Shtar) because of the concept of Tenai?
Perhaps 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 his land from Lekuchos, later -- when the borrower sells his land -- it is as if he makes a condition in the sale that his creditor is entitled to collect this property as payment for his loan. When the borrower sells his property, he does not sell it with regard to the Shibud that the lender has on it. The Me'iri may understand that there is such a thing as a "Kinyan Peros" on land, whereby one may own the land only with regard to its Shibud (that is, for the right to collect from it if the borrower has no money). This is similar to the Gemara's discussion earlier concerning whether a person may sell his Eved only for the right to receive the Kenas that might come in case the Eved is killed by an ox. In the same way, a person may sell his property with regard to its Shibud. That is what a person does when he makes a Tenai that his creditor may collect from his land. It is like he gives 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 receive 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.

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