Talmud - Bava Batra 174b בבא בתרא קע״ד ב׳

The Gemara asks: What is the difference between the opinion of Rav Pappa and that of Rav Huna, son of Yehoshua, as both agree that the orphans are exempt from repaying the debt until they reach majority?

The Gemara answers: The difference between them is in a case where the one who owed the money, i.e., the deceased, admits explicitly just before his death that he did not yet repay any of his loan. Alternatively, there is a difference between them in a case where the court excommunicated the deceased for not cooperating with the court in repaying his debt, and he died while still in a state of excommunication, which demonstrates that the debt had not been repaid prior to his death. In both of these cases Rav Pappa would exempt the minor orphans from payment, as minors are not obligated to perform mitzvot, while Rav Huna, son of Yehoshua, would require them to repay the debt immediately, as there is no possibility that their father had repaid the debt.

The Sages of Eretz Yisrael sent a ruling from there to Babylonia: In a case where the court had excommunicated a debtor for not cooperating in repaying his debt, and the debtor died while still in a state of excommunication, the halakha is in accordance with the opinion of Rav Huna, son of Rav Yehoshua, and the orphans must repay the debt immediately.

The Gemara raises an objection from a baraita (Tosefta 11:15): A guarantor for a debt who has the promissory note for that debt in his possession, indicating that he has repaid the debt, and now seeks reimbursement from the debtor, cannot collect if the debtor has died and the obligation for the debt has fallen to his minor heirs. But if it is written by the creditor in the promissory note: I received repayment from you, the guarantor, then the guarantor can collect the debt from the minor heirs.

The Gemara explains the objection: Granted, according to the opinion of Rav Huna, son of Rav Yehoshua, you find a case where the minor heirs would be required to repay the debt, such as when the one who owed the money, i.e., the deceased, admits explicitly just before his death that he did not yet repay the loan. But according to the opinion of Rav Pappa, who maintains that minor heirs never have to repay their father’s debts, it is difficult. What is the case discussed in the baraita?

The Gemara answers: It is different there, as it is for this reason that the creditor troubled himself and wrote for the guarantor: I received repayment from you. Once the creditor writes this in the promissory note, it attains the status of a promissory note of the guarantor held directly against the debtor, and even Rav Pappa agrees that a debt that is recorded in a promissory note can be collected from the deceased’s property immediately, even from the minor heirs.

The Gemara relates: There was a certain guarantor who had guaranteed a loan given by a gentile, who repaid the gentile creditor before the gentile creditor claimed repayment from the orphans who survived the debtor. The guarantor now sought reimbursement from the orphans. Rav Mordekhai said to Rav Ashi: This is what Avimi of Hagronya said in the name of Rava: Even according to the one who says that we are concerned for the possibility that the deceased may have given bundles of money to the creditor before his death, this statement applies only in the case of a Jewish creditor. But in the case of a gentile creditor, since according to gentile law he is entitled to go directly to a guarantor, we are not concerned for the possibility that the deceased may have given bundles of money. The debtor would not repay the gentile before the loan is due, as the latter has the right to collect directly from the guarantor, and would thereby receive double payment.

Rav Ashi said to Rav Mordekhai: On the contrary, even according to the one who says that we are not concerned for the possibility that the deceased may have given bundles of money, this statement applies only in the case of a Jewish creditor. But in the case of a gentile creditor, since according to gentile law they are entitled to go directly to a guarantor, no guarantor would accept upon himself to guarantee such a loan if the debtor had not given bundles of money as collateral to the gentile creditor from the outset.

§ The mishna teaches: And so Rabban Shimon ben Gamliel would say: If there is a guarantor for a woman for her marriage contract, and her husband is divorcing her, the husband must take a vow prohibiting himself from deriving any benefit from her so that he can never remarry her. The Gemara relates an incident pertaining to this ruling: Someone named Moshe bar Atzari was a guarantor for the marriage contract of his daughter-in-law, guaranteeing the money promised by his son in the event of death or divorce. His son, named Rav Huna, was a young Torah scholar, and was in financial straits. Abaye said: Is there no one who will go advise Rav Huna that he should divorce his wife, and she will go and collect her marriage contract from Rav Huna’s father, and then Rav Huna should remarry her?

Rava said to Abaye: But didn’t we learn in the mishna that when a husband divorces his wife in such circumstances he must take a vow prohibiting himself from deriving any benefit from her, thereby precluding the possibility of remarriage? Abaye said to him: Is that to say that everyone who divorces his wife divorces her in a court? Rav Huna could be advised to divorce his wife outside the court, in which case he could do so without being forced to take the prescribed vow.

Ultimately, it was revealed that this Rav Huna was a priest, who may not marry a divorcée, even his own ex-wife. Abaye’s suggestion was therefore not an option for him. Upon hearing this, Abaye said: This is in accordance with the adage that people say: Poverty follows the poor.

The Gemara asks: But did Abaye really say this? Would he really encourage giving such advice? But doesn’t Abaye himself say: Who is a cunning, wicked person? This is one who provides advice to sell property in accordance with the ruling of Rabban Shimon ben Gamliel. As taught elsewhere (Ketubot 95b), if one says: My property is hereby bequeathed to you, and after you die it will pass to so-and-so, Rabban Shimon ben Gamliel rules that the first recipient can sell the property, which would thereby deprive the second recipient from receiving it. Abaye said that giving advice to someone to pursue such action, though it is legally sound, is considered wicked. Here as well, why would he give advice to Rav Huna to divorce his wife only in order to force his father to pay the marriage contract?

The Gemara answers: When dealing with one’s son it is different. It is not considered wickedness to force a father to give money to his own son. Moreover, when dealing with a Torah scholar it is different. It is not considered wickedness to procure money for a Torah scholar, because the money enables him to pursue his studies.

The Gemara asks another question with regard to this incident: But wasn’t Moshe bar Atzari a guarantor? And we maintain, as the Gemara will soon note, that a guarantor for a marriage contract does not become obligated to pay. The Gemara answers: He was an unconditional guarantor.

The Gemara objects: This works out well according to the one who says that an unconditional guarantor for a marriage contract becomes obligated to pay it even if the husband has no property of his own at the time of the marriage. According to this opinion all is well. But according to the one who says: If the husband has his own property the unconditional guarantor becomes obligated to pay, but if the husband does not have his own property he does not become obligated, what is there to say? Rav Huna obviously did not have any property of his own. Why, then, was his father held responsible for paying his marriage contract according to this latter opinion?

The Gemara answers: If you wish, say that Rav Huna had property when he got married, so that his father’s guarantee took effect, but it became blighted, i.e., it was ruined or lost in the interim. And if you wish, say instead: A father, vis-à-vis his son, sincerely obligates himself to guarantee his marriage contract, even when the son has no property of his own.

The Gemara elaborates on the issue under discussion. This is as it was stated: Everyone agrees that a standard guarantor for a marriage contract does not become obligated to pay the marriage contract, and everyone agrees that an unconditional guarantor for a creditor, i.e., for a loan, becomes obligated to repay the loan. With regard to an unconditional guarantor for a marriage contract and a standard guarantor for a creditor, the Sages disagree. One Sage holds that if the debtor or husband has his own property, these guarantors become obligated for the guarantees they have undertaken, but if he does not have his own property the guarantor does not become obligated. And one Sage holds that whether the debtor or husband has property or does not have property, the guarantor becomes obligated to pay it.

And the halakha is that a guarantor becomes obligated to pay, whether the debtor has his own property or does not have property. This is to the exclusion of a guarantor for a marriage contract, in which case even if the husband has his own property he does not become obligated to pay. What is the reason for this? The intention of the guarantor is to perform the mitzva of facilitating a marriage by encouraging the woman to consent to the marriage as a result of his involvement, but he does not truly intend to obligate himself. And furthermore, in contrast to a guarantor for a loan, where the creditor stands to suffer a loss if he is not repaid, the woman does not suffer any concrete loss, as the husband does not borrow money from the woman. Therefore, the level of commitment of the guarantor in this case is lower. Accordingly, the Sages instituted that the guarantor does not become responsible for payment of the marriage contract from his own property.

§ Rav Huna says that a person on his deathbed who consecrated all his property to the Temple treasury, and then says: So-and-so has one hundred dinars in my possession, i.e., I owe one hundred dinars to so-and-so, is deemed credible, and the money is to be repaid to that person. The reason for this is that there is a presumption that a person does not collude against the Temple treasury. He would not lie about owing money to someone, thereby causing a loss to the Temple treasury.

Rav Naḥman objects to this ruling: And does a person collude against his children? Of course not. Yet, as Rav and Shmuel both say that in the case of a person on his deathbed who says: So-and-so has one hundred dinars in my possession, only if he says explicitly: Give him the money, the children give it, but if he did not say explicitly: Give him the money, the children do not give it. The person on his deathbed is not assumed to be telling the truth about owing the money unless he explicitly instructs that the money be given. Apparently, then, it is assumed that a person is prone to make false statements so as not to make his sons appear sated, i.e., wealthy. A person on his deathbed may falsely claim that he is in debt in order to dispel the notion that his children are wealthy heirs.

Traduction : The William Davidson digital edition of the Koren Noé Talmud, with commentary by Rabbi Adin Even-Israel Steinsaltz.

BavaBatra 174b examines whether orphaned minors must immediately repay a father's debt when he died excommunicated or after admitting nonpayment.