Kiddushin, Daf Yod Gimmel, Part 5

 

Introduction

Today s section continues with another of the sayings of R. Assi.

 

הדור יתבי וקאמרי הא דתנן האשה שהביאה חטאתה ומתה יביאו יורשין עולתה

אמר רב יהודה אמר שמואל והוא שהפרישתה מחיים אבל לא הפרישתה מחיים לא אלמא קסבר שיעבודא לאו דאורייתא

 

Again they sat and said: That which we taught: If a woman brought her sin-offering [after childbirth] and then died, her heirs must bring her burnt-offering,

Rav Judah said in the name of Shmuel: As long as she had separated it during her lifetime, but if she did not separate it during her lifetime, [they do not need to bring it].

Thus he holds that debt obligation is not from the Torah.

 

If a woman gives birth she must she must bring a sin-offering. If she dies, her heirs must bring it on her behalf. According to Rav Judah this is so only if she already set the sacrifice aside. If she did not, her heirs do not need to bring it.

From here we can see that the mere fact that she is obligated to bring the offering is not enough to make her heirs obligated. Debt obligation, thus, is not from the Torah such that it should pass from one generation to the other.

 

אמר רב אסי א"ר יוחנן אע"ג שלא הפרישה מחיים אלמא קסבר שיעבודא הוה דאורייתא

 

[But] R. Assi said in the name of R. Yohanan: Even if she did not separate it during her lifetime.

Thus he holds that debt obligation is from the Torah.

 

R. Assi holds that even if she did not already set aside the sacrifice before she died, the heirs must bring it.

 

והא פליגי בה חדא זימנא דרב ושמואל דאמרי תרוייהו מלוה על פה אינה גובה מן היורשין ולא מן הלקוחות ור’ יוחנן ור"ל דאמרי תרוייהו מלוה על פה גובה בין מן היורשין בין מן הלקוחות

 

But have they not already disputed this matter once. For Rav and Shmuel both said: A debt [contracted] by word of mouth cannot be collected from heirs or purchasers; while R. Yohanan and Resh Lakish both say: A debt [contracted] by word of mouth can be collected both from heirs and purchasers.

 

The same dispute between Shmuel and R. Yohanan exists elsewhere. The case here is where one s father (or someone else from whom one inherits) incurs a debt without a written contract. According to Rav and Shmuel, the heirs cannot collect. They hold, therefore, that debt is not from the Torah such that it can be bequeathed to an inheritor. In contrast, Resh Lakish and R. Yohanan hold that the heirs can collect the debt. Thus debt must be from the Torah.

The question the Talmud asks is why we need two cases to illustrate the same principle. Once we know the principle that debt is or is not from the Torah shouldn t we be able to figure out the particulars?

 

צריכא דאי איתמר בהא בהך קאמר שמואל משום דלא מלוה כתובה בתורה היא אבל בהך אימא מודה להו לרבי יוחנן ולר"ל

 

Both are necessary. For if it were stated in the latter case [alone], in that case [I would say] that Shmuel holds [thus] because it is not a debt written in the Torah; but in the other case, I might say that he agrees with R. Yohanan and Resh Lakish.

 

If we had only known the case of the debt incurred without a written contract, I might have thought that in that case only Shmuel holds that the heirs cannot collect, because such a debt is not mandated by the Torah. But in the case of the woman and the sacrifice that she owes, I might say that Shmuel would hold that her heirs must bring the sacrifice because such a debt is mandated by the Torah. Therefore, we need to learn that they do not. Debt is never bequeathed.

 

ואי אשמעינן בהא בהא קאמר ר’ יוחנן דמלוה כתובה בתורה ככתובה בשטר דמיא אבל בהך אימא מודה ליה לשמואל צריכא

 

And if we were taught this case only, only here, [would I say,] that R. Yohanan ruled [thus], because a debt decreed in the Torah is as like one written in a document; but in the latter case, I might say that he agrees with Shmuel. Hence both are necessary.

 

This is basically the opposite of above. Had only the case of the sacrifice been taught, I might have thought that in a case of a debt not written in the Torah, R. Yohanan would agree that the debt is not bequeathed to the inheritors. Therefore we need both cases.

 

אמר רב פפא הילכתא מלוה על פה גובה מן היורשין ואינו גובה מן הלקוחות גובה מן היורשין שיעבודא דאורייתא ואינו גובה מן הלקוחות דלית ליה קלא :

 

R. Papa said: The halakhah is: A debt [contracted] by word of mouth can be collected from heirs, but not from purchasers.

It can be collected from heirs: debt obligation is from the Torah.

And it cannot be collected from the purchasers: because it [the debt] is not generally known.

 

R. Papa mediates between Shmuel and R. Yohanan. On the one hand, if an heir inherits a debt incurred by a verbal contract, he must pay it off. Debt obligation is from the Torah. On the other hand, if a purchaser buys land from someone not knowing that the seller had some debt because the debt was incurred by a verbal contract, he need not pay off the debt. Since the debt was oral, he would have no way of doing due diligence and therefore he need not pay back the creditor.