Gittin, Daf Yod Gimmel, Part 6

 

Introduction

Today s section continues from yesterday s concerning transactions done in the presence of all three parties. Amemar had said that at the time of the loan, the borrower agreed to give to a third party, should the creditor request. Rav Ashi questions this line of reasoning.

 

אֲמַר לֵיהּ רַב אָשֵׁי לְאַמֵּימָר אֶלָּא מֵעַתָּה הִקְנָה לַנּוֹלָדִים דְּלָא הֲווֹ בִּשְׁעַת מַתַּן מָעוֹת הָכִי נָמֵי דְּלָא קָנוּ

דַּאֲפִילּוּ לְרַבִּי מֵאִיר דְּאָמַר אָדָם מַקְנֶה דָּבָר שֶׁלֹּא בָּא לָעוֹלָם הָנֵי מִילֵּי לְדָבָר שֶׁיֶּשְׁנוֹ בְּעוֹלָם אֲבָל לְדָבָר שֶׁאֵינוֹ בָּעוֹלָם לָא

 

Rav Ashi said to Amemar: If so, then one who transfers the money to those who were just born, who were not there at the time of the giving of the coins, then they should not acquire, for even Rabbi Meir, who said that one can transfer something that is not yet in existence, this is true only to someone that is in existence, but not to someone that is not yet in existence.

 

Rav Ashi points out a problem with Amemar s logic. If the creditor wants to transfer the loan to someone not yet born at the time of the original loan, he cannot do so. The problem is that one cannot transfer something to someone not yet born. While Rabbi Meir allows for the transfer of a thing that has not yet been created, it has to be to a person who is already in existence. Thus Amemar s explanation of the mechanism in Rav s statement about transfer in front of all three parties does not work.

 

אֶלָּא אָמַר רַב אָשֵׁי בְּהַהִיא הֲנָאָה דְּקָא מִשְׁתַּנְּיָא לֵיהּ בֵּין מִלְוָה יְשָׁנָה לְמִלְוָה חֲדָשָׁה גָּמַר וּמְשַׁעְבֵּיד נַפְשֵׁיהּ

 

Rather Rav Ashi said: Through the benefit he gains from turning an old loan into a new loan he conclusively pledges himself [to the new lender].

 

Rav Ashi explains a different mechanism that allows the transfer of the debt to the new person. By transferring the debt from himself to a different person, the original creditor has turned an old loan, with an assumedly closer date at which it must be repaid, into a new loan, one that has a longer extension. The borrower is obviously happier not to have to pay his debts back so quickly. Therefore, the borrower makes a decision that he will pay the debt to the new creditor. And thus, this type of transaction works.

 

אֲמַר לֵיהּ הוּנָא מָר בְּרֵיהּ דְּרַב נְחֶמְיָה לְרַב אָשֵׁי אֶלָּא מֵעַתָּה כְּגוֹן הָנֵי דְּבֵי בַּר אֶלְיָשִׁיב דְּכָפְתִי וְשָׁקְלִי לְאַלְתַּר הָכִי נָמֵי דְּלָא קָנוּ

וְכִי תֵּימָא הָכִי נָמֵי אִם כֵּן נָתַתָּ דְּבָרֶיךָ לְשִׁיעוּרִין

 

Huna Mar son of R. Nehemia said to R. Ashi: If so, those who are like the house of Elyashiv who bind and take the money [from debtors] immediately, then they would not acquire.

And if you say that this is so, then you have made your words different [in different circumstances].

 

Huna raises a difficulty against R. Ashi. The people of the house of Elyashiv always take their loans back as soon as the date is due. They even do so with force. They certainly would not extend a loan just because it had been transferred to another person. So, for such people, if the original creditor would change the debt to someone else, it should not work because the original debtor is not getting an extension.

And Huna notes, either this type of transaction works all the time, or it does not work at all. One cannot say it works some of the time.

 

אֶלָּא אָמַר מָר זוּטְרָא הָנֵי תְּלָת מִילֵּי שַׁוִּינְהוּ רַבָּנַן כְּהִלְכְתָא בְּלָא טַעְמָא חֲדָא הָא וְאִידַּךְ דְּאָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל הַכּוֹתֵב כׇּל נְכָסָיו לְאִשְׁתּוֹ לֹא עֲשָׂאָהּ אֶלָּא אַפִּיטְרוֹפְּיָא וְאִידַּךְ דְּאָמַר רַב חֲנַנְיָא הַמַּשִּׂיא אִשָּׁה לִבְנוֹ גָּדוֹל בַּבַּיִת קְנָאוֹ

 

Rather Mar Zutra said: These three things the rabbis made as halakhah without a reason: One is this, the other is that which R. Yehudah said in the name of Shmuel: One who assigns all of his property to his wife has only made her a guardian. And the other is what R. Hananya said: One who marries his daughter to his oldest son in the house, the son has acquired that house.

 

Mar Zutra sort of gives up on explaining why transactions done in the presence of all three parties work even without documentation. It is a halakhah that has no reason. Mar Zutra presents two other halakhot that have no reason. The first is that a husband who gives all of his property to his wife has not made her into his inheritor. She is only the guardian of his property. The second is that if one marries off his oldest son in his house, the son gets the house. So be careful about where you marry off your children!