Bava Basra - Daf 157

• נפל הבית עליו ועל אביו

The next Mishnah states: נפל הבית עליו ועל אביו – The house collapsed on [someone] and his father (or anyone he inherits), and there was a kesubah or debt against the son’s assets. The father’s heirs claim הבן מת ראשון ואחר כך מת האב – the son died first, and afterwards the father died. Thus, the son did not inherit the father’s assets, and they cannot be collected for his obligations. The creditors claim the father died first, and the son inherited him before dying, so his debts can be collected from these assets. Beis Shammai says: יחלוקו – [the father’s heirs and son’s creditors] divide the estate. Beis Hillel says: נכסים בחזקתן – the properties remain in the possession of [the father’s heirs]. The Rashbam explains that the father’s heirs have a definite claim to inherit, regardless of who died first, but the creditors’ claim is uncertain, since they can only collect if the father died first. Therefore, Beis Hillel rules אין ספק מוציא מידי ודאי – an uncertain claim cannot extract from a certain claim. Beis Shammai holds that money which stands to be collected with a שטר is considered already possessed, so the creditors are considered to have an equal claim.

• "דאיקני": if property purchased after a loan can become משועבד to the loan

Shmuel asked: דאיקני וקנה מהו – if a borrower writes in the שטר that he is משעבד “whatever properties I will acquire,” and he later acquired property, what is the halachah? Does it become משועבד to the earlier loan? According to Rebbe Meir, that holds one can transfer a דבר שלא בא לעולם – something which has not yet come into the world, it is clear the lender can collect properties acquired later. Shmuel’s question is according to the Rabbonon, who say one cannot normally transfer a דבר שלא בא לעולם.

Rav Yosef quotes a Mishnah in which a lender does collect land which was acquired after the loan. However, Rava says there is no proof from a case where the lender collects land from the borrower himself: מיניה אפילו מגלימא דעל כתפיה – a creditor can collect anything from [the debtor himself], even the cloak on his shoulders! Rather, Shmuel’s inquiry is relevant in the following case: דאיקני קנה ומכר – where he was משעבד “whatever I will acquire,” and later acquired property and subsequently sold it, or דאיקני קנה והוריש – he said, “whatever I will acquire,” and later acquired property and subsequently bequeathed it, so it is not currently in his possession.

• If one borrowed from two people, saying "דאיקני", and then purchased property

The Gemara asks, assuming "דאיקני" is able to be משעבד properties purchased later, לוה ולוה – if someone borrowed from one person, and later borrowed from another person, stipulating "דאיקני" for each loan, וחזר וקנה מהו – and then he bought property, what is the halachah? Is the acquired property משועבד to the first lender, since his loan was first, or to the second lender, because the borrower, by saying "דאיקני" for the second loan, was retracting from the "דאיקני" stipulation in the first loan before it took effect? Rav Nachman said the Sages of Eretz Yisroel ruled that the first lender acquires the lien on the property. Rav Huna and Rabbah bar Avuha say: יחלוקו – they divide the property proportionally according to their loans, because it becomes משועבד to both simultaneously. In Rav Ashi’s first cycle through his learning, he ruled that the first lender acquires it, and in his second cycle, he ruled יחלוקו. The halachah is יחלוקו.