DOES A CREDITOR COLLECT SHEVACH FROM ORPHANS? [loans: collection: Shevach]
(Rav Papa): Even the opinion that Chatas Tzibur she'Kipru Ba'aleha must die, agrees that Chatas Tzibur she'Mesu Ba'aleha need not die, for the Tzibur never dies.
Suggestion: He learns from "Tachas Avosecha Yihyeh Vanecha" (it is as if the fathers are alive).
Rejection: If so, the same should apply to an individual (but all agree that Chatas Yachid she'Mesu Ba'aleha must die)!
Bechoros 51b (Mishnah): The following do not receive Shevach: a Bechor, a woman collecting a Kesuvah, daughters being fed from their father's estate, and a Yavam (who inherits his brother's share).
Bava Metzi'a 110a - Question: Reuven died, leaving land and a creditor (Shimon). His orphans claim that they improved the land (and Shimon can only collect from the value of what they inherited). Shimon claims that Reuven improved the land. Who must bring proof?
Answer #1 (R. Chanina): The land is in the Chazakah of the orphans. Shimon must bring proof.
Answer #2: R. Yochanan said that the orphans must bring proof.
110b (Shmuel): In three cases we evaluate the Shevach (increased value) and (the one who took the land) pays for it with money: a firstborn (he gets an extra share of the land, but not an extra share of the Shevach), a creditor or widow collecting (a debt or Kesuvah) from orphans, and a creditor collecting from one who bought the borrower's land after the loan.
Contradiction (Shmuel): A creditor collects the Shevach. (He does not pay for it!)
Answer: A creditor collects the Shevach if he is owed the value of the land and the Shevach;
If not, he must return the value of the Shevach. Shmuel taught that he may return money.
Question: This is like the opinion that the creditor may take the land even if the buyer has money and wants to pay the debt and keep the land;
According to the opinion that if the buyer has money he may pay the debt and keep the land, the buyer can say, if I had money, you would not get any land. The Shevach is like partial payment, so I may keep its value in land!
Answer: The case is, the land was made an Apotiki. The loan will be collected only from it.
Bava Basra 159a: If Reuven sold his father's property in Yakov's lifetime, and Reuven died, after Yakov dies, Reuven's son (Chanoch) takes from the buyers.
Question: Why can't the buyers say 'you do not inherit what your father sold!'?
Answer: Chanoch can say 'I do not take because I inherit Reuven, rather, because I inherit Yakov';
Support: "Tachas Avosecha Yihyu Vanecha" (your sons will be in your father's stead, i.e. one directly inherits his grandfather if his father died first).
Rif (Bava Metzi'a 67b): A creditor pays the orphans for Shevach if the land was an Apotiki, and he was owed only the amount of the land. If it was not an Apotiki, he does not receive Shevach due to the orphans or buyer. He leaves them a remnant in the land equal to the Shevach if he wants, or they pay him (his debt) and remove him from the land. However, if the land was an Apotiki, it is as if the creditor acquired it, and the orphans or buyer improved another's land. Therefore, the creditor takes the entire land and pays them only the Shevach.
Rambam (Hilchos Malveh 21:4): If orphans improved the property, a creditor does not collect from the Shevach. If the property increased in value by itself, a creditor collects all the Shevach.
Rebuttal (Ra'avad): This is an individual's opinion. We have a different approach when the orphans say 'we improved it'.
Magid Mishneh: The Rambam holds that the orphans are like one who received a gift. It seems that the Rif and Ramban agree. This is primary; some disagree.
Tosfos (Bechoros 52a DH veha'Amar): It is a leniency of a Kesuvah that she does not collect Shevach, i.e. from orphans. A creditor collects Shevach from orphans. We say in Bava Kama (15a) that a creditor collects Shevach from buyers because the seller wrote to the buyer that he will compensate him for Shevach taken by creditors, but he does not collect Shevach from a gift recipient, since the receiver will not be compensated, just like we say that for this reason he does not collect Shevach from orphans. However, we can distinguish heirs from a gift recipient. An heir is like the leg (continuation of) his father. A creditor collects Shevach from him, just like he would have collected from his father. Due to Ne'ilas Delet (concern lest people be reluctant to lend money), we must enact that he can collect Shevach from heirs more than from a gift recipient, who has no connection to the father. In Bava Metzi'a, we say that if the orphans improved the land, the creditor does not collect Shevach. This is when it was not an Apotiki. Then, he does not collect Shevach even from buyers, like Shmuel taught that we evaluate Shevach that a creditor took from buyers. When it was an Apotiki, when the payment date came, it is as if he collected it and it is his field, and they (orphans or buyers) improved it without permission. Making it an Apotiki weakens the creditor, and obligates him to pay Shevach to heirs or buyers. Initially, the Gemara distinguished between whether or not he was owed the value of the land and Shevach. In the conclusion, it depends only on whether it was an Apotiki. The case in which the orphans claim that they improved must be when the creditor was owed also the Shevach. If not, even if the father improved it, he receives only the value of the land! Even so, if the orphans improved it, the creditor does not collect Shevach, i.e. when it was an Apotiki. The distinction about how much he was owed was used only to answer the contradiction in Shmuel.
Rosh (Bava Metzi'a 1:39): We concluded that Shmuel says that a creditor collects all the Shevach and does not pay the buyer's expenses when he was owed the value of the land and the Shevach. Therefore, his lien was on all of it. Shmuel did not mean that he collects all of the Shevach, for we conclude in Bava Basra (157b) that when he wrote '(you may collect from) d'Akni (what I will acquire)', and borrowed twice and bought land, the creditors share the land, for they both have liens on it. Also here, what the buyer improved is as if the seller bought it and sold it to the buyer, so the buyer and lender both have liens on it. The lender already collected the land, and some of his debt remains against the Shevach. The buyer has a lien on all the land collected for the Shevach. They divide the Shevach proportionally according to their liens. Shmuel merely teaches that a creditor collects Shevach, i.e. he has a lien on it, but not that he gets all of it. The Beraisa teaches that a buyer receives Shevach from a creditor, i.e. when the debt was equal to the land without the Shevach. We asked why the buyer can't demand to keep land equal to the Shevach, and answered that it was an Apotiki. This is even if the seller owed only the value of the land.
Rosh: A creditor collects Shevach from orphans, like it says in Bechoros that a woman collecting a Kesuvah does not get Shevach. This is from orphans, like the cases of Bechor and a daughter taught with it. We say that this is a weakness of Kesuvos. A daughter does not collect because stipulations of the Kesuvah are like the Kesuvah, but a regular creditor would collect Shevach from orphans. It cannot be from buyers, for we do not collect for food for daughters from buyers. This is according to Tosfos
Rebuttal (Rosh): It is difficult to say that we retracted from the distinction between whether or not he owed as much as the land and the Shevach. Rav Ashi gave this answer, and it seems that he did not retract. Rather, one collects from a buyer even if it was an Apotiki, for the seller will compensate the buyer. Bava Metzi'a connotes that if the orphans improved the land, the creditor does not collect it. It is difficult to say that the orphans are stronger when it was an Apotiki, and make orphans somewhat like buyers. Rather, he does not collect Shevach from orphans, for they will not be compensated, just like one does not collect from a gift recipient. Bechoros discusses collecting a Kesuvah from orphans or buyers; the question was regarding buyers. Daughters would have collected Shevach, if not for weaknesses of the Kesuvah, since the primary obligation for their food is on the orphans. Also R. Yonah said that orphans are like a gift recipient regarding Shevach.
Rosh (Bechoros 8:11): The Mishnah said that a Kesuvah is not collected from Shevach. We infer that a creditor collects Shevach. Do not say that the Mishnah did not discuss a (Stam) creditor, because he collects from Ra'uy. We learn in Bava Basra that he does not!
Shulchan Aruch (CM 115:4): If orphans improved the property, a creditor does not collect any of the Shevach. If the property increased in value by itself, a creditor collects all the Shevach.
Shach (31): The Mechaber is like the Rambam, but the Rif, Ramban and other Poskim hold that he collects the excess of the Shevach over the expenses.
Beis Yosef (DH v'Din): The Nimukei Yosef says that the Ramban, Rashba and Ran are like the Rif. In the first Perek of Bava Metzi'a, the Rosh rules like them and rejects Tosfos. Even though in Perek 9 (Sa'if 42) he wrote like Tosfos, he was not concerned for this, since that is not the primary place of this Halachah. However, it seems that he retracted and concluded like he wrote later, in Perek 9. This requires investigation. R. Yerucham wrote like the Rosh in Perek 9, but equated this to what he wrote in Perek 1. This is astounding. According to the Tur we can say that in Perek 9, the Rosh distinguishes between whether or not it was an Apotiki, but not according to the truth. Rather, he says that even those who say that if he did not make it an Apotiki, a creditor collects Shevach even if the orphans improved it, here we can say that it was an Apotiki (and this is why the orphans claim that they improved it). The Rosh's words do not connote like this; he relied on what he wrote in Perek 1. However, the Tur's Kitzur Piskei ha'Rosh in Perek 9 connote that the Tur holds that he collects Shevach from orphans. This requires investigation.
Rema: Some disagree and say that he does not collect from orphans, just like a gift, unless it was made an Apotiki. Then, he collects also Shevach.
SMA (21): The Rambam and Mechaber equate orphans with a gift recipient. They hold that a creditor collects from them Shevach that came by itself. The Rema (Saif 3) said that some, i.e. the Rosh, hold that he does not collect any Shevach. Even though orphans are like their father's leg, the creditor does not collect Shevach from them, like from a stranger who received a gift. When it was an Apotiki, a gift recipient is like orphans. It is obvious that he collects Shevach from orphans then, for they are like their father's leg.
Shach (32): The Mechaber's opinion is primary. This is why the Levush omitted the Rema's opinion.
Gra (19): The dissenting opinion is Tosfos. The Rosh rejected it.