Bava Batra Chapter Ten Mishnah Seven

 

Introduction

Mishnah seven deals with various subjects such as brothers who share an inheritance and the recognition of documents in a case where two people in a city have the same.  The final section of the mishnah deals with loan guarantors.

 

Mishnah Seven

1)                     If there were two brothers, one poor and one rich, and their father left them a bath house or an olive press, if the father had made them for hire, the profit is split equally.

a)                                           But if he made them for his own use alone, the rich brother may say to the poor brother, “Buy for yourself slaves and they can wash in the bath house” or “Buy for yourself olives and prepare them in the olive press.”

2)                     If there were two in the same town, and one’s name was Joseph the son of Shimon and other’s name was Joseph the son of Shimon, neither can bring forth a debt document on the other, and another person cannot bring forth a debt document against them.

a)                                           And if some person finds amongst his documents a document that states, “The [debt] document of Joseph ben Shimon is paid”, both of their [debt] documents are paid.

b)                                          What should they do?  They should write their names to the third generation.

i)                                                       And if the names are the same through the third generation, they should give themselves a sign.

ii)                                                      And if their signs are the same, they should write “Cohen”.

3)                     If a man said to his son, “One of my debt documents is paid and I do not know which one”, then all are deemed to be paid.

a)                                           If two documents were found [amongst his documents] written to the same debtor, then the large one is paid and the small one is not paid.

4)                     If a man lent money to his fellow on a guarantor’s security, he may not exact payment from the guarantor. 

a)                                           But if he had said, “On the condition that I may exact payment from whom I wish”, then he may exact payment from the guarantor.

b)                                          Rabban Shimon ben Gamaliel says: “If the borrower had property, in neither case can he exact payment from the guarantor.”

c)                                           Moreover, Rabban Shimon ben Gamaliel used to say:  “If a man was a guarantor for a woman’s ketubah and her husband divorced her, the husband must vow to derive no further benefit from her, lest he make a conspiracy against the property of the guarantor and take his wife back again.”

 

Explanation—Mishnah Seven

Section one:  A bath house and an olive press could either be owned for personal usage or as a rental.  If two sons, one rich and one poor, inherited either a bath house or an olive press, the poor son will want to rent them out to others and collect the money and the rich son, who doesn’t need the money and may be able to make personal use of a bath house and an olive press, may want to use them for personal usage.  According to the mishnah, the determining factor is what the father had done with them.  If he had used them for rent, then the poor son can force the rich son to continue to use them in such a manner.  If they had been used for personal needs the rich son can say to the poor son, use them as much as you like, buy slaves to bathe in the bath house or olives to press, but you may not rent them out to others.

Section two:  If two people in a city have the same name, it will problematic for them to collect debts from each other and for others to collect debts against them. Neither of them will be able to claim against the other for the other could claim that he is actually the creditor and not the debtor.  Nor will others be able to claim from them for each of them may claim that the other Joseph ben Shimon is the debtor.  If a third party who had loaned them both money should find amongst his documents a document that says that Joseph ben Shimon paid back his debt, both of their debts are cancelled. 

The way to remedy this problem is to write a third generation with their names, Joseph the son of Shimon the son of Jacob, or a sign that would designate the person’s profession, i.e. a saw for a carpenter, or a fish for a fisherman, or to write Cohen, Levi, depending on the person’s status.

Section three:  If a dying person told his son that one of the debt documents that he held (containing what other people owe him), was paid off but he didn’t know which one, the son will not be able to collect any of the debts.  If amongst his documents were two different loans to the same person, we can be sure that only one of them is paid off.  In such a case the son may collect on the smaller loan.

Section four:  If a debtor used a guarantor to secure his loan the creditor may not exact payment from the guarantor, unless, of course, the debtor did not have property with which to pay back the loan.  If, however, the creditor had stated at the outset that he was going to exact payment from whomever he wishes, then he may exact payment from the guarantor even if the debtor had property.  Rabban Shimon ben Gamaliel holds that in any case, if the debtor had property, the creditor cannot collect from the guarantor.  Rabban Shimon ben Gamaliel holds a similar opinion with regards to a woman’s ketubah.  If a woman had a guarantor on her ketubah, in other words someone guaranteed to pay her ketubah should her husband not be able to, and then the husband divorced her and the woman collected from the guarantor, the husband must swear to never receive benefit from her again.  The fear is that the husband will make a deal with his wife, that he will divorce, she will collect her ketubah from the guarantor and then be remarried to him, and give him the money that she collected from the guarantor. 

 

Questions for Further Thought:

·                      Section three:  Why can he only collect on the smaller loan?  What is the halachic principle governing this law and indeed most of the laws contained in this mishnah?

·                      Section four:  What is similar about Rabban Shimon ben Gamaliel’s two statements in this section? 

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