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Babylonian Talmud: Tractate Baba Bathra
[could it not then be said] here1 also [that] a person is wont to disclaim wealth for himself!2 — R. Huna gave his ruling there1 only when [the creditor] was in possession of a bond of indebtedness.3 [Does this] imply that Rab and Samuel [deal with a case] where the [creditor] is not in possession of a bond?4 [Why, then,] is [the maneh] to be given [where the dying man] said 'Give'? [This, surely,] is [only] a verbal loan, and both Rab and Samuel stated [that] a verbal loan may be recovered neither from the heirs nor from the buyers!5 — But, said R. Nahman, both6 [are cases] where [the creditor] is in possession of a bond, but7 there is no contradiction. The one [is a case of a bond] that was authenticated;8 the other where it was not authenticated. [Consequently,9 if] he said, 'Give,' he [thereby] confirmed10 the bond. [If, however], he did not say, 'Give,' he did not confirm11 the bond.
Rabbah stated: If a dying man said, 'I owe a maneh to X', and the orphans stated, 'We have paid it'< they are believed. [If, however, he said,] 'Give a maneh to X', and the orphans stated, 'We have paid it', they are not believed. Topsy-turvy!12 [Does not] the reverse stand to reason? If he13 said, 'Give a maneh', since their father had given a definite order,14 it might be [justly] assumed that they discharged [the debt]; [if, however, he said.] 'I owe a maneh to X', since their father did not give a definite order, it ought to be assumed that they did not discharge it!15 — If, however, [such a statement] was made, it was made16 in the following terms: If a dying man said, 'I owe a maneh to X', and the orphans declared, 'Our father subsequently told us that he paid',17 they are believed. What is the reason? He might have [subsequently] recalled it18 to his mind. [If, however, he said,] 'Give a maneh to X', and his orphans declared, 'Our father subsequently told us that he paid',17 they are not believed; for had it been the case that he paid it, he would not have used [the word], 'Give'.19
Raba inquired: What [is the law where] a dying man admitted [a debt]? Is it necessary [for him] to say [also] 'Be you my witnesses,20 or is it not necessary to say, 'Be you my witnesses'? [Is it assumed that] a man21 might jest in the hour of his death or that a man does not jest in the hour of his death? Is it necessary [for him] to say. 'Write',22 or is it not necessary to say, 'Write'? — After having raised these questions, he answered them himself:23 No one jests in the hour of [his] death, and the words of a dying man are regarded [legally] as written and delivered.24
MISHNAH. IF A MAN LENT [MONEY] TO AN OTHER ON [THE SECURITY OF] A BOND OF INDEBTEDNESS,25 HE MAY COLLECT [THE DEBT] FROM MORTGAGED PROPERTY.26 [IF, HOWEVER, THE LOAN WAS MADE] BEFORE27 WITNESSES,28 HE29 MAY RECOVER [HIS DEBT] FROM FREE PROPERTY [ONLY].
Baba Bathra 175b
[IF THE GUARANTEE AND SIGNATURE OF] A GUARANTOR APPEAR4 BELOW THE SIGNATURES TO BONDS OF INDEBTEDNESS, [THE CREDITOR] MAY RECOVER [HIS DEBT] FROM [THE GUARANTOR'S] FREE PROPERTY.5 SUCH A CASE ONCE CAME BEFORE R. ISHMAEL, WHO DECIDED THAT [THE DEBT MAY] BE RECOVERED FROM [THE GUARANTOR'S] FREE PROPERTY. BEN NANNUS [HOWEVER] SAID TO HIM, '[THE DEBT MAY] BE REPLIED NEITHER FROM SOLD PROPERTY NOR FROM FREE PROPERTY.' 'WHY?' THE OTHER ASKED HIM. BEHOLD', HE REPLIED TO HIM, 'THIS IS JUST AS IF A CREDITOR] WERE [IN THE ACT (IF] THROTTLING A DEBTOR6 IN THE STREET,7 AND HIS FRIEND FOUND HIM AND SAID, "LEAVE HIM ALONE AND8 WILL PAY YOU", HE WOULD [CERTAINLY] BE EXEMPT [FROM LIABILITY], SINCE THE LOAN WAS NOT MADE THROUGH TRUST IN HIM.8 BUT WHAT MANNER OF GUARANTOR, HOWEVER, IS LIABLE [TO REFUND A DEBT]? [IF THE GUARANTOR SAID], "LEND HIM [A SUM OF MONEY] AND I WILL REPAY [IT] TO YOU", HE IS LIABLE, SINCE THE LOAN WAS MADE THROUGH TRUST IN HIM.
R. ISHMAEL FURTHER STATED: HE WHO WOULD BE WISE SHOULD ENGAGE IN THE STUDY OF CIVIL LAWS,9 FOR THERE IS NO BRANCH IN THE TORAH MORE COMPREHENSIVE10 THAN THEY, AND THEY ARE LIKE A WELLING FOUNTAIN. AND HE THAT WOULD ENGAGE IN THE STUDY OF CIVIL LAWS LET HIM WAIT11 UPON SIMEON BEN NANNUS.
GEMARA. 'Ullah said: [According to] the word of the Torah, either a loan [secured] by a bond or a verbal loan may be recovered from mortgaged property. What is the reason? — The hypothecary obligation [involved] is Biblical.12 Why then has it been said [that] a verbal loan may be collected from free property only? — On account of [possible] loss to the buyers.13 If so,14 [the same law should apply] also [to] a loan [that is secured] by a bond!15 [In this case]16 they have brought the loss upon themselves.17
Rabbah, however, said: [According to] the word of the Torah either a loan [secured] by a bond or a verbal loan may be recovered from free property only. What is the reason? — The hypothecary obligation [involved] is not Biblical.18 Why then has it been said that a loan [secured] by a bond may be recovered from sold property? — In order that doors may not be locked in the face of borrowers.19 If so, [the same law should apply] also [to] a verbal loan! — In that case the loan is not [sufficiently] known.20
Did Rabbah, however, give such [a ruling]?21 Surely, Rabbah said: If land was collected22 he23 receives [a double portion,24 but] if money was collected, he does not, and R. Nahman said: If money was collected he has [a double portion]!25 And if it be suggested that [the statement] of Rabbah should be transposed to 'Ulla and that of 'Ulla to Rabbah,26 surely [it may be pointed out] 'Ulla said: [According to] the word of the Torah a creditor is to receive27 of the worst!28 — Rabbah [only] stated the reason of the Palestinians,29 but he himself does not share [their view].30
Both R. Johanan and R. Simeon b. Lakish stated: A verbal loan may be recovered either from the heirs33 or from the buyers.34 What is the reason? — The hypothecary obligation [involved] is Biblical. An objection was raised: If [a man] was digging a pit in a public domain and an ox falls upon him and kills him, [the owner of the ox] is exempt.35 Moreover, if the ox dies,36 [compensation for] its value must be paid to its owner by the heirs of the owner of the pit!37 — R. Elai replied in the name of Rab: [This law38 is applicable to the case only] where he39 appeared before [a court of] law.40 But, surely, it was stated that it killed him!41 — R. Adda b. Ahabah replied: [This is a case] where he was fatally injured.42 But R. Nahman, surely. said that a tanna43 recited [the statement as follows]: It killed and buried him!44 — That [is a case] where judges sat at the mouth of the Pit and convicted him.45
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