Kesubos - Daf 86
- המוכר שטר חוב לחבירו וחזר ומחלו מחול
Shmuel said: המוכר שטר חוב לחבירו וחזר ומחלו מחול – If a creditor sells a loan document to another, and afterwards, he forgives the debt, the debt is forgiven, and the buyer of the shtar can no longer collect it. Rashi explains on the previous Daf, that the borrower can refuse to pay on the grounds that he is not his litigant. ואפילו יורש מחול – Moreover, after the seller’s death, even his heir can forgive the debt. Rav Huna brei d’Rav Yehoshua said: ואי פקח הוא מקרקש ליה זוזי וכתב ליה שטרא בשמיה – If the purchaser of the debt is clever, he should rattle some coins in front of him, meaning, offer the borrower some money before the seller forgives the loan, and have the borrower write a new shtar in his own name. Rashi explains that this prevents the lender and debtor from depriving the purchaser of the loan by forgiving it, since he has a direct claim now against the debtor. Ameimar said: מאן דדאין דינא דרגמי מגבי ביה דמי שטרא מעליא – The one who judges the law of garmi, which Rashi explains is the view that one is chayav for a causing a loss to another even without physically damaging his property, will make the seller pay on account of voiding the shtar, the value within the shtar, whereas the one who does not judge the din of garmi, will make the seller pay the value of the paper it was written on, which is another way of saying, he pays nothing.
- What if debtor does not want to pay according to Rav Pappa, who holdsפריעת בעל חוב מצוה ?
Rav Kahana said to Rav Pappa: According to your opinion that פריעת בעל חוב מצוה – that paying a creditor is merely a mitzvah, what is the law if the debtor says he does not want to do the mitzvah? Rav Pappa holds that mid’Oraysa, a debtor’s properties are not automatically mortgaged to his creditor. Rather, as Rashi explains, the debtor is obligated to pay his creditor only because the Torah obligates him to keep his word. Rav Pappa replied, that we learned in a Baraisa: In what regard is this ruling that one receives forty lashes for violating a d’Oraysa? במצות לא תעשה – In regard to violating a negative mitzvah. But with regard to a mitzvas aseh, such as where we tell someone, “Make a succah,” and he does not make one, or “Make a lulav,” and he does not make one, מכין אותו עד שתצא נפשו – we beat him until his soul leaves. Rashi explains that we do not let him violate the mitzvah but beat him while he still has time to fulfill it. Similarly, we force the debtor to fulfill the mitzvah to repay the loan. The Rishonim explain that we coerce him by confiscating the amount he owes.
- המושיב את אשתו חנוונית או שמינה אפוטרופיא
The next Mishnah states: המושיב את אשתו חנוונית או שמינה אפוטרופיא – If one sets up his wife as a storekeeper, or he appointed her as an administrator of his business, הרי זה משביעה כל זמן שירצה – He may impose an oath on her whenever he wants. Rebbe Eliezer says: אפילו על פילכה ועל עיסתה – Even concerning her spindle or her dough he may impose on oath. The Gemara asks if Rebbe Eliezer said he may impose an oath regarding her spindle or dough, as a גלגול שבועה – an oath that is rolled onto another oath, but could not be made independently, or even לכתחלה, that a person could make such an oath initially? The Gemara sought to be bring a proof from a Baraisa, where they said to Rebbe Eliezer: אין אדם דר עם נחש בכפיפה – A person cannot live with a snake in a basket. It makes sense that they said this if he holds that he can make her swear לכתחלה, but if not, why should it bother her? The Gemara answers, that even as part of a גלגול שבועה she could say, “Since you check after me to such an extent, I am unable to live with you.” The Gemara brings another Baraisa to prove that Rebbe Eliezer holds that the oath can be made לכתחלה.
