Gittin 14aגיטין י״ד א
The William Davidson Talmudתלמוד מהדורת ויליאם דוידסון
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14aי״ד א

בההיא הנאה דקא משתניא ליה בין מלוה ישנה למלוה חדשה גמר ומשעביד נפשיה

With that benefit that the borrower receives when his debt changes from an old debt to a new debt, he fully pledges himself to the new lender. The borrower prefers to have a new lender from whom he can ask for an extension of the deadline for the repayment of his debt.

א"ל הונא מר בריה דרב נחמיה לרב אשי אלא מעתה כגון הני דבי בר אלישיב דכפתי ושקלי לאלתר ה"נ דלא קנו

Huna Mar, son of Rav Neḥemya, said to Rav Ashi: If that is so, what about a case where the debt is transferred to these members of the house of bar Elyashiv? As, those implacable people bind debtors with handcuffs and take their money immediately when the time for repayment arrives. They certainly would not add to the time that the borrower has to repay the first loan, and he would not willingly pledge himself to them. So too, will you say that they do not acquire the money in the presence of all three parties, as the borrower would not agree to this arrangement?

וכי תימא ה"נ א"כ נתת דבריך לשיעורין

And if you would say that indeed this method is not effective in a case of this kind, if so you have rendered your statement subject to circumstances. In other words, the application of the acquisition in the presence of all three parties is not absolute, and instead depends on whether in this particular case the borrower agrees to transfer his debt from one person to another.

אלא אמר מר זוטרא הני תלת מילי שוינהו רבנן כהלכתא בלא טעמא חדא הא ואידך דאמר רב יהודה אמר שמואל הכותב כל נכסיו לאשתו לא עשאה אלא אפיטרופיא ואידך דאמר רב חנניא המשיא אשה לבנו גדול בבית קנאו

Rather, the Gemara retracts the previous explanation in favor of that which Mar Zutra said: These three matters were instituted by the Sages as a halakha without a reason, i.e., they instituted these ordinances despite the fact that the logical mechanism by which they function is unclear: One is this case of an acquisition in the presence of all three parties. And another is that which Rav Yehuda says that Shmuel says: One who writes over all of his property to his wife as a gift has rendered her only a steward [eppitrofeya], but she does not become the owner. And another is that which Rav Ḥananya says: With regard to one who marries a woman to his eldest son, and the wedding takes place in his house, the son has acquired that house.

א"ל רב לרב אחא ברדלא קבא דמוריקא אית לי גבך יהביה לפלוני באפיה קאמינא לך דלא הדרנא בי

With regard to acquisition in the presence of all three parties, the Gemara relates: Rav said to Rav Aḥa Bardela: I have a kav of saffron [morika] with you that you owe me; give it to so-and-so. Rav added: I say this to you in his presence so that I will not retract from this statement.

מכלל דאי בעי הדר ביה מצי הדר ביה ה"ק דברים הללו לא ניתנו לחזרה

The Gemara asks: Can one learn by inference that if he had not stipulated in this manner and wished to retract his statement he could in fact retract it? This would mean that a standard acquisition in the presence of all three parties is not fully effective. The Gemara answers that this is what Rav said: I am saying this to you in his presence because these types of statements issued in the presence of all three parties cannot be retracted, i.e., Rav was not adding a condition but explaining the halakha.

הא אמר רב חדא זימנא דאמר רב הונא אמר רב מנה לי בידך תנהו לו לפלוני במעמד שלשתן קנה

The Gemara asks: But why is this statement of Rav recorded at all? Rav already said this halakha once. As Rav Huna says that Rav says: With regard to one who says to another: I have one hundred dinars in your possession, give it to so-and-so, if this occurred in the presence of all three parties that third person has acquired it.

אי מההיא הוה אמינא הני מילי מתנה מרובה אבל מתנה מועטת לא ליבעי בפניו קמ"ל:

The Gemara explains: If the method of acquisition in the presence of all three parties was derived from that halakha alone, I would say that this matter, i.e., the need for the presence of the third party, applies only for the transfer of a large gift. However, in the case of a small gift one does not need to do this in the presence of the recipient. Instead, the giver can simply provide instructions and thereby transfer the gift to the other person, as there is no reason to think that he would retract. Therefore, Rav teaches us that this is not the case, as in all cases the transfer takes effect only in the presence of all three parties.

הנהו גינאי דעביד חושבנא בהדי הדדי פש חמש איסתרי זוזי גבי חד מנייהו אמרי ליה יהבינהו ניהליה למרי ארעא באפי מרי ארעא וקנה מיניה

The Gemara relates: There were certain gardeners who made a calculation of money owed to each other, and there remained with one of them five isterei zuzei more than he should have received. The others said to him: Give the money to the owner of the land, and they said this in the presence of the owner of the land, and the owner of the land acquired the money from him. In other words, the owner of the land performed a proper act of acquisition obligating the gardener to pay that amount.

לסוף אזל עבד חושבנא בין דיליה לנפשיה לא פש גביה ולא מידי אתא לקמיה דרב נחמן א"ל מאי איעביד לך חדא דאמר רב הונא אמר רב ועוד הא קנו מינך

Ultimately, that gardener went and performed a calculation on his own and concluded that nothing extra had been left over with him. He came before Rav Naḥman to ask what to do. Rav Naḥman said to him: What can I do for you? The first issue is that Rav Huna said that Rav said that an acquisition in the presence of all three parties takes effect immediately, and therefore the owner of the land has already acquired the money. And additionally, he performed an actual act of acquisition and thereby acquired the money from you.

א"ל רבא אטו האי מי קאמר לא יהבינא דליכא גבאי קאמר א"ל א"כ קנין בטעות הוא וכל קנין בטעות חוזר

Rava said to Rav Naḥman: Is that to say that the gardener said: I will not give? In other words, he did not refuse to give a sum in which he was obligated. He actually said: Which is not in my possession, as his colleagues told him to give five isterei zuzei that remained in his possession, and he now claims that this money actually belongs to him. Rav Naḥman said to him: If so, it is an acquisition performed in error, and any acquisition performed in error reverts back to the previous owner.

איתמר הולך מנה לפלוני שאני חייב לו אמר רב חייב באחריותו ואם בא לחזור אינו חוזר ושמואל אמר מתוך שחייב באחריותו אם בא לחזור חוזר

§ It was stated that amora’im disagreed with regard to the following dilemma: If someone instructs an agent: Deliver one hundred dinars to so-and-so, as I owe him that sum, Rav says: The person who sends him the money bears financial responsibility for their loss. If the one hundred dinars are lost by the agent, the sender must give another one hundred dinars to repay his debt. But if the sender seeks to retract this repayment after he has given it to the agent, he cannot retract it. And Shmuel says: Since the sender bears financial responsibility for their loss, this indicates that the one hundred dinars are considered to be in his domain, which means that if he seeks to retract he can retract it.

לימא בהא קמיפלגי דמר סבר הולך כזכי דמי ומר סבר הולך לאו כזכי דמי

The Gemara suggests: Let us say that they disagree about this issue, as one Sage, Rav, holds that saying: Deliver, is like saying: Acquire, and therefore the agent immediately acquires the money on behalf of the recipient. For this reason the sender cannot retract. And one Sage, Shmuel, holds that saying: Deliver, is not like saying: Acquire, and as the recipient has not yet acquired the money the sender can retract.

לא דכ"ע הולך כזכי דמי והכא בהא קמיפלגי מ"ס לא אמרינן מיגו ומ"ס אמרינן מיגו

The Gemara rejects this: No; everyone agrees that saying: Deliver, is like saying: Acquire, and here, in this case, they disagree about this: One Sage, Rav, holds that we do not say that since the sender bears financial responsibility for the loss of the money he can retract. Therefore, he cannot retract. And one Sage, Shmuel, holds that we do say that since the sender bears financial responsibility for the loss of the money he can retract.

תניא כוותיה דרב הולך מנה לפלוני שאני חייב לו תן מנה לפלוני שאני חייב לו הולך מנה לפלוני פקדון שיש לו בידי תן מנה לפלוני פקדון שיש לו בידי חייב באחריותו ואם בא לחזור אינו חוזר

The Gemara comments: It is taught in a baraita in accordance with the opinion of Rav (Tosefta 1:6): If one said to another: Deliver one hundred dinars to so-and-so, as I owe him that sum, or if he said: Give one hundred dinars to so-and-so, as I owe him that sum, or if he said: Deliver one hundred dinars to so-and-so, as they are a deposit he has in my possession, or: Give one hundred dinars to so-and-so, as they are a deposit he has in my possession, in all these cases the sender bears financial responsibility for their loss, but if he seeks to retract he cannot retract.

פקדון לימא ליה אין רצונו שיהא פקדונו ביד אחר א"ר זירא כשהוחזק כפרן

The Gemara asks with regard to this baraita: In a case where the agent accepts upon himself to bring a deposit to its owners, let the sender, who is the bailee of the deposit, say to the agent: It is not the will of the owner of the deposit that his deposit will be in the possession of another. Since this transfer is not in the interests of the owner of the deposit, the money should remain fully in the possession of the sender, and therefore he should be able to retract. Rabbi Zeira says: This is referring to a case where the sender, the bailee of the deposit, is established as a denier of financial obligations. For this reason, the owner of the deposit prefers the money to be transferred to someone else, and the sender cannot claim that it is not the will of the owner of the deposit that his deposit will be in the possession of another.

רב ששת הוה ליה אשרתא דסרבלי במחוזא א"ל לרב יוסף בר חמא בהדי דאתית אייתינהו ניהלי אזל יהבינהו ליה אמרי ליה ניקני מינך אמר להו אין

The Gemara relates: Rav Sheshet had a credit [asharta] of cloaks [sarbelei] in the city of Meḥoza, i.e., he had a set agreement with merchants that he would give them cloaks to sell in the city of Meḥoza and they would later reimburse him. Rav Sheshet said to Rav Yosef bar Ḥama: When you come here from Meḥoza, bring me the money. Rav Yosef went and brought the money to him. Those who gave him the money said to him: Let us make an acquisition for what you have received, so that if something happens to the money, you will be responsible. He said to them: Yes.

לסוף אישתמיט להו כי אתא לגביה אמר ליה שפיר עבדת דלא שוית נפשך (משלי כב, ז) עבד לוה לאיש מלוה לישנא אחרינא שפיר עבדת עבד לוה לאיש מלוה

Ultimately, he escaped them and did not perform the act of acquisition. When Rav Yosef came before Rav Sheshet and told him what had occurred, Rav Sheshet said to him: You did well, as you did not render yourself the subject of the verse: “The borrower is a slave to the lender” (Proverbs 22:7), by obligating yourself for no reason. In another version of this incident Rav Sheshet said to Rav Yosef: You did well, as the verse states: “The borrower is a slave to the lender,” i.e., the merchants who borrowed from me must bear responsibility to ensure that the money will reach me.

ר' אחי בר' יאשיה הוה ליה איספקא דכספא בנהרדעא

The Gemara further relates: Rabbi Aḥai, son of Rabbi Yoshiya, had a silver vessel [ispeka] in the city of Neharde’a.