Bava Basra - Daf 176

• If a handwritten note which was certified by Beis Din can be used to collect נכסים משועבדים

The Mishnah on the previous Daf taught that if a lender presents a note written by the borrower admitting to the debt, he can collect from נכסים בני חורין, but not from נכסים משועבדים. Rabbah bar Nassan asked Rebbe Yochanan: הוחזק כתב ידו בבית דין מאי – if his handwritten note was certified by Beis Din, what is the halachah? Does it become like a full-fledged שטר, and may be used to collect properties the borrower sold afterwards? Rebbe Yochanan responded that he can still only collect בני חורין. This is challenged from a Mishnah in which Rebbe Elazar says that a get written by the husband is valid, provided it is delivered before witnesses, and similarly, any שטר חוב, without signatures, can be collected from נכסים משועבדים if it was given before witnesses. Certainly, the same should apply to a handwritten note which was certified by Beis Din!? The Gemara answers that that case is different, דמשעת כתיבה הוא דשעבד נפשיה – because from the time of writing [the borrower] obligated [his property] to the lien, as opposed to a handwritten note, which is intended only to prove the debt.

• An ערב’s commitment which was written before the עדים’s signatures

The Mishnah on the previous Daf taught that if an ערב’s commitment is written in the שטר after the signatures, only נכסים בני חורין may be collected, since the עדים did not sign onto it (and it is merely his own handwritten note). Rav said: קודם חיתום שטרות – if the ערב’s commitment appears before the document’s signatures, גובה מנכסים משועבדים – [the lender] may collect from משועבד properties, because the עדים are also signed onto the ערב’s commitment. However, other times Rav ruled he can only collect from בני חורין, and the Gemara explains that this second ruling is where they wrote only “Ploni is an ערב,” which is an independent statement from the loan. Therefore, the עדים may have only signed on the loan, and not the ערב’s pledge. Rav’s first ruling is where they wrote "ופלוני ערב" – and Ploni is an ערב, connecting it to the rest of the שטר, so the עדים are signed onto both. Rebbe Yochanan was quoted as disagreeing, but Rava objected that Rebbe Yochanan made the same distinction by a get, that if a get concludes with the words "שאילו" – “inquire about Ploni’s welfare,” the get is invalid because the signatures may be only on this greeting, but if it says "ושאילו" – and inquire etc., it is valid as one continuous document. The Gemara concludes that Rebbe Yochanan agrees with Rav.

• When does an ערב require a kinyan to be binding

The Gemara infers that Shmuel holds an ערב does not require a kinyan to be bound to his commitment. This disagrees with Rav Nachman, who said that an ערב of Beis Din does not require a kinyan, which implies that an ordinary ערב does require a kinyan. The Gemara concludes with the halachah: ערב בשעת מתן מעות – an ערב who commits himself at the time the money is given to the borrower does not require a kinyan, but an ערב who commits himself after the money was already loaned does require a kinyan (since the loan was made without his guaranteeing repayment). An ערב of Beis Din does not require a kinyan (even if he was appointed after the money was given), because בההיא הנאה דמהימן ליה – based on the benefit the ערב derives from being trusted by Beis Din, גמר ומשעבד ליה – he decides to obligate himself, even absent a kinyan.