023b – שום היתומים – פרק ששי – ערכין, דף כג ע”ב

Granted, according to the one who says that a kablan ^[1] binds himself even though the borrower has no property; but according to the one who says that he binds himself only if the borrower has property, and does not bind himself if he has none, what can be said?

קבלן הוה - that Rav Huna seized movables for her ketubah, and she made up the balance to her father; this is a kablan who deals in hand.

אי לית ליה - at the time of the loan: the guarantor is not bound by his words, since, having nothing to recover from the borrower, he did not commit himself.

Or if you prefer, say: Rav Huna had it, and he was pressed.

Or if you prefer, say: Abba came before him for his son, and one who binds himself, as was stated.

דאיתמר - above: this refers to what we said, 'granted, according to the one who says kablan...'.

A guarantor for a ketubah, all agree, does not bind himself ^[2]; a kablan for a creditor, all agree, does bind himself; a guarantor for a creditor and a kablan for a ketubah are disputed.

ערב דכתובה דברי הכל לא משתעבד - because he does a mitzvah in bringing them together and loses nothing, since no money was given; and we read and she loses nothing.

There is one who says: if the borrower has property he binds himself, and if not he does not; and there is one who says: even if he has none, he binds himself.

The halakha follows all of them: even if he has none, he binds himself, except for a guarantor for a ketubah, who does not bind himself even though he has property.

What is the reason? He does a mitzvah, and he loses nothing.

There was a man who sold his property and divorced his wife; Rav Yosef son of Rava sent the question before Rav Pappa ^[3].

We learned guarantor and we learned hekdesh; what about a buyer?

ערב תנן - lest they make a scheme against him ^[4] and he enjoys the benefit.

לוקח מהו - do we fear a scheme, that after this land is seized from the buyer, he returns it and [the seller] enjoys the benefit?

He said to him: let him reckon [his money] like a peddler and go [buy].

כרוכלא ליחשוב וליזיל - like this merchant who counts his coins; that is, the Tanna taught these, and the same applies to the buyer.

The Nehardeans ^[5] say: 'we learned' — we learned it; 'we did not learn' — we did not learn it.

Rav Mesharshiya said: what is the reason of the Nehardeans?

Granted, in the case of hekdesh: it is because of the benefit of the hekdesh.

A guarantor also does a mitzvah and loses nothing.

But a buyer: since he surely knows that each and every one of these properties carries a ketubah claim on it,

why should he go and buy? He himself caused his own loss.

ניזיל וניזבין - [said] in astonishment: was it right for him to buy?

If a man dedicated his property while a ketubah ^[6] was owed to his wife and a debt to a creditor, the wife cannot collect her ketubah from the hekdesh ^[7], and a creditor cannot collect his debt; but the redeemer redeems on condition that he give the wife her ketubah and the creditor his debt.

מתני' והיתה עליו כתובת אשה - that the divorce came before the hekdesh, so there was no scheme.

אלא הפודה פודה - the owners redeem them from the hekdesh cheaply, for a dinar or a small sum, on condition that they pay [the debts]. Surely no hekdesh takes effect on them, since they are not his; and this small sum is a decree, as the Gemara explains.

If he dedicated ninety maneh and his debt was a hundred maneh, one adds another dinar and redeems these properties ^[8], on condition that he give the wife her ketubah and the creditor his debt.

מוסיף עוד דינר - the creditor adds to lend him another dinar and redeems these properties.

Why do I need to say 'the redeemer redeems'?

גמ' למה לי למימר הפודה פודה - let the wife and the creditor be [considered] without redemption, since no hekdesh took effect on them, and a person does not dedicate what is not his.

Because of R. Abahu ^[9], who said: lest they say that hekdesh goes out without redemption.

דרבי אבהו - that R. Abahu said: lest they say that hekdesh goes out without redemption.

The Mishnah does not follow Rabban Shimon ben Gamliel ^[10].

As it was taught: Rabban Shimon ben Gamliel says: if his debt equals his hekdesh he redeems, and if not, he does not redeem.

אם חובו כנגד הקדישו פודה - for a small sum, as we said. Now one can say: when he originally lent, he lent expecting to collect from these properties; but if his debt exceeded the hekdesh, he did not lend with that expectation, but lent him from his own funds; therefore he does not collect from the hekdesh. Another version: 'and if not, he does not redeem; he takes them without redemption.' The first I heard, and it is the principal view.

And the Sages: up to how much?

ורבנן עד כמה - they hold that he lent with these properties in mind.

Rav Huna bar Yehuda said in the name of Rav Sheshet: up to half ^[11].

עד פלגא - but less than half, no.

Although they said that persons liable for valuation ^[12] may have their property seized, one gives them food for thirty days and clothing for twelve months, a bed made up, and his sandals and tefillin; but not [food and clothing] for his wife and children.

מתני' ממשכנין אותו - the treasurer ^[13] enters their houses and takes [pledges] against their will.

מזון וכסות ומטה ותפילין - from all of them we leave him money with which to buy them, if he has none.

If he was a craftsman, one gives him two tools of his craft of each kind; for a craftsman one gives two adzes and two megirot ^[14].

מכל מין ומין - that he has a craft requiring four or five tools.

מעצדין - adzes: the term in Rashi's gloss is unresolved. A megira: a knife full of notches that cuts quickly, like those of comb-makers.

R. Eliezer says: if he was a farmer, one gives him his yoke ^[15] of oxen; if he was a donkey-driver, one gives him his donkey.

צמדו - a yoke of oxen: these are his tools of trade.

If he had one kind in abundance and one kind in a small amount, one does not say: sell the abundant one and buy with it from the scant one; rather one gives him two kinds from the abundant one.

מין אחד הרבה ומין אחד מועט - for example, three adzes and one megira: one gives him two of the abundant kind, and the third goes to the treasurer.

And whatever he has of the scant kind: if he dedicated his property, one brings up his tefillin for him ^[16].

וכל שיש לו מן המועט - however much he has, we do not buy him another; just as it sufficed for him until now, so too it will suffice now.

המקדיש נכסיו - tefillin are included among his property.

מעלין לו תפיליו - and one redeems them.

What is the reason? Because the verse says.

ערב תנן הקדש תנן לוקח מהו - A difficulty for 'Rabbi' (the referent is not clear from the text): does he not know that throughout Shas a wife collects her ketubah from purchasers, and the Nehardeans say she does not collect, so why does she not collect from purchasers? Perhaps one can say: he sold his property and divorced her at once, and therefore one feared a scheme; but if the sale was long before the divorce, one would not fear a scheme.

הפודה פודה - According to Rashi, this seems to refer to what he explains later: he dedicated ninety and his debt was a hundred maneh, and one adds a dinar. But the language does not seem to say so; so it seems to explain that here the case is one where the debt is not equal to the properties, for example he dedicated a hundred and his debt was ninety maneh. In other words: anyone who wants to redeem may redeem from the hekdesh and pay for the surplus by which the properties exceed the debt, and all the properties go out to hullin, since the hekdesh does not take effect against the debt; and it seems he redeemed everything, and we do not say the hekdesh went out without redemption; the redeemer gives the wife her ketubah or the creditor his debt.

מוסיף עוד דינר כו' - Rashi explains: the creditor adds to lend him a dinar and redeems these properties. By his explanation it seems the creditor himself redeems; but the language of the Mishnah does not say so, since it says 'on condition to give...'. So it seems to explain that the borrower adds to borrow another dinar and redeems these properties, in order to give the wife her ketubah and the creditor his debt.

משום דר' אבהו - From here Rashi brings a proof for what Rava said (Ketubot 59b): hekdesh removes the lien only in the case of bodily hekdesh, which is severe, but not monetary hekdesh. For here, by law, hekdesh does not take effect on the properties, since they are mortgaged, and redemption is needed only because of R. Abahu, lest they say that hekdesh goes out without redemption. And the teacher is in doubt: if the borrower has only movables, which is monetary hekdesh, and he dedicated them, whether hekdesh takes effect or not. Surely if he sold them the sale stands, and the lender does not seize from the buyer, since the lender's lien does not apply to movables; but hekdesh is doubtful whether it takes effect on them. And one cannot prove this from Rashi's explanation of Rava (Bava Kamma 33b), 'if he made his ox a pledge and dedicated it, the creditor does not collect from it', that only bodily hekdesh removes the lien: that is not a proof, since it can be established where he transferred movables to the lender together with land, in which case the lender's lien applies to the movables and he collects even from the buyer. And it seems the Mishnah deals with all properties, land and movables, and says that hekdesh does not take effect; redemption is needed only because of R. Abahu.

ואם לאו אינו פודה - Rashi explains: 'and if not', when his debt exceeds the hekdesh he did not lend on that basis, so he does not collect from the hekdesh. Another version: 'and if not, he does not redeem, but takes [the property] without redemption'; and the first I heard, and it is the principal view. But in the Tosefta of Makhshirin the second version is taught explicitly: 'and if not, his hekdesh is nothing.'

עד פלגא - It can be reconciled with both versions: since the property is worth less than half [the debt], surely he did not lend on that basis; and according to the second version, since the debt is more than half, the hekdesh does not take effect on it, so there is no concern that they would say the hekdesh goes out without redemption.

Notes

1. 1. Kablan: one who personally undertakes to pay a debt if the borrower does not (general knowledge). The question is whether his undertaking binds his property when the borrower owns nothing at the time of the loan.
2. 2. A guarantor for a ketubah: he does a mitzvah by helping bring about the marriage and loses no money, so he does not bind his property.
3. 3. Rav Pappa: an Amora of Babylonia (general knowledge).
4. 4. Kinunya: a prearranged collusion aimed at an improper gain. The concern is that the sale is a sham, the property returns to the seller, and he then enjoys its benefit.
5. 5. Nehardea: a major centre of Torah learning in Babylonia, on the Euphrates (general knowledge).
6. 6. Ketubah: the marriage settlement a husband pledges to his wife. It is secured on his property and, like any debt, is paid from it (general knowledge).
7. 7. Hekdesh: property dedicated to the Temple. It cannot be used to pay private debts unless it is redeemed, as the Mishnah goes on to say.
8. 8. Redeeming (pidyon) consecrated property means buying it back from the Temple by paying its value; once redeemed, it can be used to pay the ketubah and the debt.
9. 9. R. Abahu: an Amora of Caesarea in Eretz Yisrael (general knowledge).
10. 10. Rabban Shimon ben Gamliel: a Tanna of the Yavnean generation (general knowledge).
11. 11. Up to half: per Rashi, redemption applies when the debt is at least half the value; if the debt is less than half, no.
12. 12. Persons liable for valuation (arakhin): people who owe the Temple a valuation payment, and from whom the Temple may take pledges (general knowledge; the subject of this tractate).
13. 13. The treasurer (gizbar): an official in charge of the Temple treasury (general knowledge).
14. 14. A megira: a tool; per Rashi, a knife full of notches that cuts quickly, like the knives of comb-makers.
15. 15. A yoke (tzemed) of oxen: a pair of oxen harnessed together for ploughing, the farmer's working equipment (Rashi).
16. 16. Tefillin: per Rashi, they are counted among his property, so they too are redeemed for him, so that they stay in his hand.