Bava Basra - Daf 173
- If one holding a שטר must prove it is his
A Baraisa states that, in a city of two Yosef ben Shimons, neither can present a שטר to collect from anyone else, because the other Yosef may be the true lender. This disagrees with our Mishnah, which implied they can collect from others with a שטר. The Gemara first explains they argue if אותיות נקנות במסירה – “letters” (i.e., a שטר) can be acquired through handing over to another person. If so, then even if the other Yosef was the lender, the current holder may still collect with it, having acquired it. Alternatively, the Gemara explains that both agree a שטר can be acquired with מסירה, but argue whether צריך להביא ראיה – [the holder] must bring proof that the שטר belongs to him (either as the lender or having acquired it). The Mishnah holds he can collect with the שטר without proof, but the Baraisa holds he must prove it is his to collect. Similarly, Abaye and Rava argued about a שטר which the holder claims to have acquired with מסירה. Abaye says he must prove that he acquired it, but Rava says אינו צריך להביא ראיה.
- Collecting from an ערב – guarantor
The next Mishnah states: המלוה את חבירו על ידי ערב – One who lends money to his friend on the basis of a guarantor, לא יפרע מן הערב – may not collect from the ערב. The Gemara clarifies this means לא יפרע מן הערב תחילה – he may not collect from the ערב first, but must first attempt to collect from the borrower himself. If the lender stipulated: "על מנת שאפרע ממי שארצה" – on condition that I will be able to collect from whomever I want, יפרע מן הערב – then he can collect from the ערב, i.e., even without first attempting to collect from the borrower. Several pesukim are quoted as sources that an ערב becomes obligated by his verbal consent. Ameimar suggests that an ערב is only obligated according to the opinion that אסמכתא – “reliance” is binding, but this is rejected based on common practice. Therefore, Rav Ashi explains: בההוא הנאה דקא מהימן ליה – based on the benefit he enjoys from the fact that he is considered trustworthy by [the lender], גמר ומשתעבד נפשיה – he decides to obligate himself wholeheartedly.
- Collecting from an ערב, or קבלן, where the לוה has property
The Mishnah taught that if the lender stipulated to collect from whomever he wants, he may collect from the ערב without first attempting to collect from the borrower. However, Rebbe Yochanan says this only applies where the borrower has no known property, אבל יש נכסים ללוה – but if the borrower has known property, לא יפרע מן הערב – he may not collect from the ערב. This is challenged from the סיפא of the Mishnah, where Rabban Shimon ben Gamliel says that if the borrower has property, the lender cannot collect from the ערב, which implies that the Tanna Kamma holds he can!? The Gemara inserts an additional case into the Mishnah, in which the Tanna Kamma says that although the lender cannot collect from the ערב if the לוה has known property, but if the guarantor is a קבלן (i.e., a guarantor who accepts a greater obligation than an ערב), then the lender may collect from him even if the לוה has known property. To this, Rabban Shimon ben Gamliel says that even a קבלן cannot be collected from if the לוה has known property. This is one of the three places (ערב וצידון וראיה אחרונה) where Rebbe Yochanan says the halachah does not follow Rabban Shimon ben Gamliel in a Mishnah.
