KESUVOS 106-110 - Dedicated in memory of Max (Meir Menachem ben Shlomo ha'Levi) Turkel, by his children Eddie and Lawrence and his wife Jean Turkel/Rafalowicz. Max was a warm and loving husband and father and is missed dearly by his family and friends. His Yahrzeit is 5 Teves.

QUESTION: The Gemara (end of 107b) quotes the Mishnah in Nedarim (33a) which permits one person to pay back a loan on behalf of another person, even though the second person is not allowed to receive any benefit from the first due to a Neder (he is "Mudar Hana'ah"). The Gemara asks why he is permitted to pay back the loan, if the Mudar Hana'ah thereby benefits by being absolved from his debt. The Gemara answers that the Mishnah follows the view of Chanan. In the Mishnah here (107b), Chanan states that when one pays the debt of his friend (in the case of the Mishnah, he provides support for the wife of his friend who traveled abroad) he is entitled to no reimbursement because all he did was "chase away a lion" from his friend's property. Chanan maintains that paying back a debt on behalf of another person is not considered giving him a tangible benefit.
The Rishonim disagree about the nature of the case to which Chanan applies his ruling (see Insights to Nedarim 33:2). TOSFOS maintains that Chanan applies his ruling even in a case of a debt which definitely will be collected, and thus the benefit to the debtor is certain. Even in this case, Chanan considers the benefit as only the prevention of a loss and not a positive, tangible gain.
In contrast, RABEINU TAM maintains that Chanan applies his ruling only in a case in which there is a doubt whether the debt will be collected. In such a case, the benefactor is not entitled to reimbursement because no definite loss was avoided. However, in a case in which the debt definitely will be collected, the benefit provided by the one who pays the debt on behalf of the debtor is considered a positive gain and, therefore, the debtor is obligated to reimburse the benefactor.
The KEREN ORAH in Nedarim asks that Rabeinu Tam's view apparently applies only in the case of the Mishnah here. The husband is not obligated to pay back his wife's benefactor, since that benefactor did not prevent a definite loss from occurring, and the burden of proof is upon him to prove that there would have been a definite loss ("ha'Motzi me'Chaveiro Alav ha'Re'ayah"). The Mishnah in Nedarim, however, discusses a case of Isur (the prohibition against transgressing a Neder). Although there is a doubt whether the debt would have been collected from the debtor, the principle of "Safek d'Oraisa l'Chumra" should prohibit the benefactor from paying the debt for the debtor. Why is he allowed to pay back the debt?
ANSWER: The KEREN ORAH answers that the benefit which is forbidden to the Mudar Hana'ah is not the pleasure of being absolved from his debt to the creditor. This benefit is permitted because it is indirect (a Hana'ah of "Gerama" is not forbidden to a Mudar Hana'ah; see Tosfos here DH Ha Mani). The benefit which is forbidden to give to the Mudar Hana'ah is the forgiving of the new debt which the Mudar Hana'ah now owes to the one who paid back his original debt on his behalf. The forgiving of this new debt is a direct benefit to the Mudar Hana'ah, and thus it is forbidden. In a case in which no new debt is created when the benefactor pays back the debt, such as in the case of a doubt whether that debt ever would have been collected, the Mudar Hana'ah receives no direct benefit from the benefactor because no new debt has been created and forgiven.
The AYELES HA'SHACHAR (Nedarim 33a) infers from here that although an indirect benefit is permitted to a Mudar Hana'ah, an indirect benefit does create a monetary obligation of reimbursement. This is evident from the fact that one may pay a debt (which is not definitely going to be collected by the creditor) on behalf of his Mudar Hana'ah. However, when the debt definitely would have been collected by the creditor, one may not pay the debt on behalf of his Mudar Hana'ah because of the new debt that is created (and forgiven) by this indirect benefit. Hence, an indirect benefit does create an obligation of reimbursement. Apparently, with regard to monetary law (as opposed to Isur), an indirect benefit is the same as a direct benefit, and it obligates the beneficiary to reimburse his benefactor. (Mordechai Zvi Dicker)


OPINIONS: In the Mishnah, Admon and the Chachamim disagree about the law in a case in which one claims that his friend owes him barrels of oil, and his friend admits that he owes barrels but not oil. Admon maintains that the defendant has the status of one who is "Modeh b'Miktzas" and thus he must make a Shevu'ah to back his claim. The Chachamim maintain that he has the status of one who admits that he owes an item which is not the item demanded by the claimant ("To'ano Chitin v'Hodeh Lo b'Se'orim") and is exempt from a Shevu'ah.
Rava explains that Admon understands that the claimant's claim includes the barrels and the oil inside of them, while the Chachamim understand that the claim is only for the oil. When the defendant admits that he owes the barrels, he is "Modeh b'Miktzas" according to Admon. According to the Chachamim, he is admitting to an item (the barrels) which the claimant did not mention. Since the claim and the admission involve two separate items, he is not "Modeh b'Miktzas" and he is exempt from a Shevu'ah.
In his explanation of the dispute between Admon and the Chachamim, Rava says that if the claimant says, "Malei Asarah Kadei Shemen Yesh Li b'Borcha" (lit. "Full ten barrels of oil I have in your pit"), everyone agrees that the claim is only for the oil (and not the barrels).
If the claimant says, "Asarah Kadei Shemen Mele'im Yesh Li Etzlach" (lit. "Ten barrels of oil [that are] full I have by you"), everyone agrees that the claim is for both the oil and the barrels.
If the claimant says, "Asarah Kadei Shemen Yesh Li Etzlach" (lit. "Ten barrels of oil I have by you"), Admon and the Chachamim argue whether the claim is for both the oil and the barrels or only for the oil.
What is the difference between the first two cases which Rava mentions?
(a) THE S'MA (CM 88:32) explains that in the first case the claimant does not include actual barrels in his claim. Rather, he uses the phrase "full ten barrels of oil" as a description of the quantity of the oil in the pit. There is enough oil to fill ten barrels. In the second case, the claimant refers to actual barrels. (This difference is expressed in the words of each claim. In the first claim, the word "full" is mentioned before the word "barrels," and in the second claim the word "full" is mentioned after the word "barrels.")
The RASHASH references other places in the Gemara where this style of phraseology is used, and in one place he even uses this approach to answer a question of the VILNA GA'ON. The Mishnah in Eduyos (1:3) quotes Hillel who rules that "Melo Hin Mayim She'uvim Poslim Es ha'Mikvah" -- "a full Hin of drawn water invalidates a Mikvah" (the Chachamim there argue and maintain that even three Lugim (or 1/4 of a Hin) of Mayim She'uvim invalidate a Mikvah.) The Vilna Ga'on questions why the Mishnah needs to say the word "Melo" when it would suffice to say that a "Hin of drawn water invalidates a Mikvah."
The Rashash answers that in Mikva'os (3:3) the Tana'im disagree about whether three Lugim of Mayim She'uvim (according to the Chachamim) invalidate a Mikvah when poured into the Mikvah from multiple utensils or only when poured from a single utensil. Rebbi Akiva maintains that three Lugim invalidate a Mikvah only when poured from a single utensil. Accordingly, when the Mishnah in Eduyos says "Melo Hin," it teaches that it is the quantity of a Hin of Mayim She'uvim which invalidates a Mikvah, regardless of how many utensils are used to pour the drawn water into the Mikvah, in contrast to the view of Rebbi Akiva in Mikva'os. (Had the Mishnah in Eduyos said only "Hin" and not "Melo Hin," it would have meant the actual container which holds a Hin of water.)
(b) The SHACH (CM 88:37) explains that in the first case the claimant says, "Full ten barrels of oil I have in your pit," which clearly refers only to oil and not to barrels since barrels are not stored in a pit. In the second case, he refers to oil in his friend's domain, and thus his claim also includes the barrels in which the oil is stored.
(c) The ROSH (according to the understanding of the BEIS YOSEF and REMA in CM 88:18) omits the word "full" from the claim in the first case: "Ten barrels of oil I have in your pit." According to the Rosh, the difference between the first case and the second is whether or not the claimant said the word "full." In the first case he did not say the word "full," and thus he referred only to the quantity of oil in the pit and not to the barrels. In the second case he said the word "full," and thus he included in his claim the barrels themselves.
According to the Rosh, what is the difference between the first case (in which everyone agrees that the claimant refers only to the oil) and the third case (in which Admon maintains that the claimant refers to the barrels as well)? In both cases the word "full" is not used.
The answer is that the Rosh understands that the word "barrels" in the phrase, "Asarah Kadei Shemen" -- "ten barrels of oil," describes the oil (i.e. the quantity of the oil) and is not a reference to actual barrels. In the third case, the word "barrels" in the phrase, "Asarah Kadim Shemen" (according to the Rosh's Girsa), stands as an independent noun and refers to actual barrels and is not merely a description of the oil. (In the second case, the words "Kadei Shemen" refer to the barrels and the word "full" refers to the oil, and thus everyone agrees that the claim is for both items.) (Mordechai Zvi Dicker)