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Kesuvos, 92

KESUVOS 92 - dedicated by Rav Mordechai Rabin (London/Har Nof) for the Yahrzeit of his mother (28 Sivan).


QUESTION: Rami bar Chama discusses a case where Reuven sold a field to Shimon, letting Shimon keep the money he owes for the field as a loan. Reuven passed away, and his property was inherited by his children. When Reuven's own creditor later came to collect the field from Shimon, Shimon did not give the field itself to the creditor, but instead he gave him the *value* of the field (in cash). Shimon then went to Reuven's heirs to demand repayment for paying off their father's debt. Reuven's heirs rightfully claimed that they were exempt from reimbursing Shimon, because only *land* that heirs inherit is Meshubad (earmarked) for the payment of their father's debt, but not mobile property or cash that they inherit. Shimon, therefore, lost his money.

Rava comments that if Shimon is cunning, he can avoid a loss by paying back his own debt to Reuven by giving back the land to Reuven's heirs. Once the heirs have land that belonged to Reuven, Shimon can collect that land as repayment for Reuven's debt to *him*!

Why does the Gemara mention that Shimon gave specifically *money* to Reuven's creditor? What difference does it make if Shimon gave to the creditor the land or if he gave him money? In either case, Reuven now has the responsibility to reimburse Shimon for the debt that Shimon paid for him! Whether Shimon gave land or cash, a mutual debt is created with Shimon owing money to Reuven and Reuven owing money to Shimon, and Rava's statement -- as to how Shimon can avoid a capital loss -- applies just the same!


(a) TOSFOS (DH u'Payesei) explains that Rami bar Chama is teaching an additional Chidush. If he would have taught that when Shimon paid Reuven's creditor with *land* he is not entitled to be compensated by Reuven's children (because they do not have any land to give to him), that would have been obvious -- Shimon cannot collect the "Achrayus" from Reuven's children if they did not inherit land! Shimon's debt to Reuven, on the other hand, remains and he is obligated to pay the children the value of the field.

However, now that he pays the creditor with the *value* of the field (i.e. cash), we might have thought that he is not relying on being reimbursed due to the "Achrayus" on his field, but rather he is giving the *original money* that he kept back when he purchased the field, which is Reuven's own money that Shimon happens to be holding in his hands. That is, he is paying Reuven's money to Reuven's creditor on Reuven's behalf, like a Shali'ach. Therefore, we might have thought that Shimon is exempt from paying his old debt to the children, since he just passed that money on to Reuven's creditors, as a middleman for Reuven, instead of giving it to the children, and he thus comes out even.

In fact, TOSFOS (91b, DH Reuven; Pesachim 31a, DH b'Achrayus) and other Rishonim point out that if -- at the time of the purchase of the land -- Shimon had not kept the money owed for the land as a loan (i.e. he had not *set a later time* for payment), but he had merely delayed paying Reuven, then the money which he would be holding would actually belong to Reuven, and the above ruling would then be true. After Reuven's death, he could give that money straight to the creditor as a way of giving the money to Reuven. However, now that he made the money owed for the field into a loan, he can no longer say that he has Reuven's money in his hands. Rather, he has a *debt* to Reuven. Therefore, Reuven's children can say to Shimon, "We hereby demand the money that you owe us. You gave your own money to our father's creditor, and not our father's money, and we are not obligated to cover the guarantee for you, because we do not have any land."

This also seems to be the intention of RASHI.

(b) The MAHARAM CHALAVAH (Pesachim 31a) says that if the money for the land was not made into a loan, but Shimon merely delayed paying Reuven, then the reason why Shimon could pay the creditor and thereby exempt himself from paying Reuven's children is *not* because he is simply holding on to Reuven's money, but because he still has the option to *withdraw* from the entire deal since he has not yet paid for the land and thus the deal has not been consummated. Shimon could say to Reuven's children, "I do not have to pay you the value of the field anymore, because I am withdrawing from the deal and am not buying the land." He keeps the land, though, as reimbursement for Reuven's debt that he paid to the creditor.

If so, the Gemara mentions that he paid money to the creditor instead of giving the field itself only to show what the Halachah would have been had he *not* made the money he was keeping back for the field into a loan. If it was not a loan, then not only could Shimon go back on the deal and give the field to the creditor and not pay Reuven for the field, but he could even give the *value* of the field (in cash) to the creditor and claim that he never bought the field from Reuven, and that he thus owes nothing to the children. (Why, then, is he keeping the field? He states that when he paid Reuven's money to the creditor, it is as if he gave the field to the creditor and then bought it back.) This is what the Gemara is teaching when it says that Shimon paid Reuven's creditor with money; it is teaching what the Halachah would be if the Shimon had *not* made the value of the field into a loan.

QUESTION: Rava says that if Shimon is clever, he will pay back the debt he owes to the children of Reuven with land and not with money, and then they will have land with which to pay their debt to Shimon. What right does Shimon have to choose to pay back with land? The Gemara earlier (86a) says that when repaying a loan, one is not allowed to pay back with land but must give back cash, if he has any. If so, how can Shimon insist on paying back with land?


(a) RASHI (Pesachim 31a, DH Iy Pike'ach) says that he could *claim* that he has no money but only land.

(b) TOSFOS (DH Iy, see also MAGID MISHNAH, Hilchos Malveh v'Loveh 11:10) writes that if paying back one's debt with cash will cause the lender to incur a loss, then he *may* insist on paying back with land. Only when he will not suffer a loss by it, he must pay back with cash.

(c) The RA'AVAD, cited by MAHARAM CHALAVAH (Pesachim 31a) and others, explains that Rava holds that if Shimon gives back the *very land* that Reuven sold to him, even though he already made the money for the land into a loan, he may cancel the entire deal. Consequently, by returning the land he has canceled the loan and does not have to pay cash for any purchase; he merely gives back the land which he decided not to buy. By doing so, Shimon gets to take reclaim the land as reimbursement for paying money on Reuven's behalf to Reuven's creditor.


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