Babylonian Talmud: Tractate Baba Kamma

Folio 8a

If, however, the estate consists only of the best and of the worst qualities, creditors for damages are paid out of the best whereas those for loans and marriage contracts are paid out of the worst quality. Now¹  the intermediate clause states that if the estate consists only of the medium and the worst qualities, creditors for either damages or loans are paid out of the medium quality whereas marriage contracts will be paid out of the worst quality. If, therefore, you still maintain that the calculation is based only upon the qualities of the defendant's estate, is not the medium [when there is no better with him] his best? Why then should not the creditors for loans be thrown back on the worst quality? — This [intermediate clause] deals with a case where the defendant originally possessed²  property of a better quality but has meanwhile disposed of it. And R. Hisda likewise explained this [intermediate clause] to deal with a case where the defendant originally possessed²  property of a better quality but has meanwhile disposed of it. This explanation stands to reason, for it is taught elsewhere: If the estate consisted of the medium and the worst qualities, creditors for damages are paid out of the medium quality whereas those for loans and marriage contracts will be paid out of the worst quality. Now these [two Baraithas] do not contradict each other, unless we accept [the explanation that] the one deals with a case where the defendant originally owned property of a better quality but which he has meanwhile disposed of, while the other states the law for a case where he did not have³  property of a quality better than the medium in his possession. It may, however, on the other hand be suggested that both [Baraithas] state the law when a better quality was not disposed of⁴  and there is yet no contradiction, as the second [Baraitha] presents a case where the defendant's medium quality is as good as the best quality of the general public,⁵  whereas in the first [Baraitha] the medium quality was not so good as the best of the public.⁶  It may again be suggested that both [Baraithas] present a case where the defendant's medium quality was not better than the medium quality of the general public and the point at issue is this: the second [Baraitha] bases the calculation upon the qualities of the defendant's estate,⁷  but the first bases it upon those of the general public.⁸

Rabina said: The point at issue is the view expressed by 'Ulla.⁹  For 'Ulla said: Creditors for loans may, according to Pentateuchal Law, be paid out of the worst, as it is said, Thou shalt stand without, and the man to whom thou dost lend shall bring forth the pledge without unto thee.¹⁰  Now it is certainly in the nature of man [debtor] to bring out the worst of his chattels. Why then is it laid down that creditors for loans are paid out of the medium quality?¹¹  This is a Rabbinic enactment made in order that prospective borrowers should not find the door of their benefactors locked before them. Now this enactment referred to by 'Ulla is accepted by the first [Baraitha] whereas the second disapproves of this enactment.¹²

Our Rabbis taught: If a defendant¹³  disposed of all his land¹⁴  to one or to three persons at one and the same time, they all have stepped into the place of the original owner.¹⁵  [If, however, the three sales took place] one after another, creditors of all descriptions will be paid out of the [property purchased] last;¹⁶  if this property does not cover [the liability], the last but one purchased estate is resorted to [for the balance]; if this estate again does not meet [the whole obligation], the very first purchased estate is resorted to [for the outstanding balance].

'If the defendant disposed of all his land to one' — under what circumstances [was it disposed of]? It could hardly be suggested [that it was effected] by one and the same deed, for if in the case of three persons whose purchases may have been after one another,¹⁷  you state that, 'They all have stepped into the place of the original owner,' what need is there to mention one person purchasing all the estate by one and the same deed? It therefore seems pretty certain [that the estate disposed of to one person was effected by] deeds of different dates. But [then] why such a distinction?¹⁸  Just as in the case of three purchasers [in succession] each can [in the first instance] refer any creditor [to the very last purchased property], saying, '[When I bought my estate] I was careful to leave [with the defendant] plenty for you to be paid out of,'¹⁹  why should not also one purchaser [by deeds of different dates] be entitled to throw the burden of payment on to the very last purchased property, saying, '[When I acquired title to the former purchases] I was very careful to leave for you plenty to be paid out of'? — We are dealing here with a case where the property purchased last was of the best quality;²⁰  also R. Shesheth stated that [this law applies] when the property purchased last was of the best quality. If this be the case, why [on the other hand] should not creditors of all kinds come and be paid out of the best quality [as this was the property purchased last]? — Because the defendant may say to the creditors: 'If you acquiesce and agree to be paid out of the qualities respectively allotted to you by law, you may be paid accordingly, otherwise I will transfer the deed of the worst property back to the original owner — in which case you will all be paid out of the worst.'²¹  If so,

1. Here begins R. Samuel's argument.
2. I.e., at the time when the loan took place, in which case the creditors then obtained a claim on the medium quality by the process of law.
3. At the time when the loan took place, in which case the medium (in the absence of a better quality) was relatively the best, and therefore not available to creditors for loans.
4. But was either retained, as is the case in the second Baraitha, or on the other hand not owned at all at the time of the loan as is the case in the first Baraitha.
5. In such a case it is considered the best quality to all intents and purposes, as the calculation is based upon the general standard of quality.
6. It is thus termed only medium and creditors for loans have access to it.
7. Hence in the absence of a better quality in his own estate, that property which is termed medium in comparison to the general standard is the best in the eye of the law.
8. According to which it is but medium.
9. Git. 50a.
10. Deut XXIV, 11.
11. Git. V, 1.
12. Maintaining that creditors for loans will always he paid out the worst quality.
13. I.e., a debtor for damages, loans and marriage-settlements.
14. Consisting of best, medium and worst qualities.
15. So that creditors for damages, for loans and for marriage-settlements will he paid according to their respective rights.
16. Whether it be best, medium or worst.
17. Though on one and the same day; cf, Keth. 94a.
18. I.e., why should the legal position of one purchaser be worse than that of three?
19. As, according to a Mishnaic enactment (Git. V, 1), 'Property disposed of by a debtor could not he resorted to by his creditors so long as there are with him available possessions undisposed of.'
20. In which case it is not in the interest of the purchaser that the last purchase should he available to any one of the creditors.
21. At the hands of the debtor, according to the Mishnaic enactment, Git. V, 1.

why should the same not be said regarding creditors for damages?¹  It must therefore he surmised that we deal with [a case where the vendor has meanwhile died, and, as his] heirs are not personally liable to pay,²  the original liability [which accompanied the purchased properties] must always remain upon the purchaser;³  who could consequently no longer [threaten the creditors and] say this: ['If you acquiesce …'?]⁴  — But the reason the creditors cannot be paid out of the best is that the vendee may [repudiate their demand and] say to them: 'On what account have the Rabbis enacted that "property disposed of by a debtor can not be attached by his creditors so long as there are available possessions still not disposed of"5 if not for the sake of protecting my interests? In the present instance I have no interest in availing myself of this enactment.' Exactly as Raba, for Raba elsewhere said: Whoever asserts, 'I have no desire to avail myself of a Rabbinical enactment' such as this is listened to.⁶  To what does 'such as this' refer? — To R. Huna, for R. Huna said: A woman is entitled to say to her husband, 'I don't expect any maintenance from you⁷  and I do not want to work for you.'⁸

It is quite certain that if the vendee⁹  has sold the medium and worst qualities and retained the best, creditors of all descriptions may come along and collect out of the best quality. For this property was acquired by him last; and, since the medium and worst qualities are no more in his possession, he is not in a position to say to the creditors: 'Take payment out of the medium and worst properties, as I have no interest in availing myself of the Rabbinic enactment.'¹⁰  But what is the law when the vendee disposed of the best quality and retained the medium and the worst? — Abaye at first was inclined to say: Creditors of all descriptions are entitled to come and collect out of the best.¹¹  But Raba said to him.¹²  Does not a vendee selling [property] to a sub-vendee assign to him all the rights [connected] therewith] that may accrue to him?¹³  Hence just as when the creditors come to claim from the vendee, he is entitled to pay them out of the medium and the worst [respectively], irrespective of the fact that when the medium and the worst qualities were purchased by him, the best property still remained free with the original vendor, and in spite of the enactment that properties disposed of cannot be distrained on [at the hands of the vendee] so long as there is available [with the debtor] property undisposed of,¹⁴  the reason of the exception being that the vendee is entitled to say that he has no interest in availing himself of this enactment, so is the subvendee similarly entitled to say to the creditors: 'Take payment out of the medium and the worst.'¹⁵  For the sub-vendee entered into the sale only upon the understanding that any right that his vendor may possess in connection with the purchase should also be assigned to him.

Raba said:¹⁶  If Reuben disposed of all his lands to Simeon who in his turn sold one of the fields to Levi, Reuben's creditor may come and collect out of the land which is in the possession either of Simeon or Levi. This law applies only when Levi bought medium quality; but if he purchased either the best or the worst the law is otherwise, as Levi may lawfully contend: 'I have purposely been careful to buy the best or the worst, that is, property which is not available for you.'¹⁷  Again, even when he bought medium quality the creditor will not have this option unless Levi did not leave [with Simeon] medium quality of a similar nature, in which case he is unable to plead, 'l have left for you ample land with Simeon;' but if Levi did leave with Simeon medium quality of a similar nature the creditor is not entitled to distrain on Levi who may lawfully contend, 'I have left for you ample land [with Simeon] to satisfy your claim from it.

Abaye said:¹⁸  If Reuben had disposed of a field to Simeon with a warranty [of indemnity],¹⁹  and an alleged creditor of Reuben came to distrain on it from Simeon, Reuben is entitled by law to come forward and litigate with the creditor, nor can the latter say to him: 'You [Reuben] are no party to me;'²⁰  for Reuben will surely say to him: 'If you will deprive Simeon of the field purchased by him from me, he will turn on me.'²¹  There are some who say: Even if there were no warranty there the same law applies, as Reuben may say to the alleged creditor: 'I don't want Simeon to have any grievance against me.'

And Abaye further said:²²  If Reuben sold a field to Simeon without a warranty [for indemnity]

1. I.e., they also should thus not he paid out of the best; like creditors for loans they would still he paid out of the medium quality, as the worst quality they could never lose.
2. I.e., when no land was left in the inherited estate.
3. For even by transferring the worst quality to the heirs he would not escape any liability affecting him.
4. Since the liability upon him will thereby not be affected, why then should they, in such circumstances, not resort to the very best property purchased?
5. Git. V, 1.
6. Keth. 83a.
7. Maintenance is a Rabbinical enactment for married women in exchange for their domestic work; cf. Keth. 47b.
8. Keth. 58b.
9. Who at successive sales purchased the whole estate of a debtor, and the last purchase was property of the best quality.
10. As supra p. 31.
11. At the hands of the sub-vendee, since nothing else of the same estate is with him to be offered to the creditors
12. Cf. 'Ar. 31b.
13. I.e., the vendee.
14. Git. V, 1.
15. At the hands of the vendee.
16. Cf. Keth. 92b.
17. Cf. supra p. 29.
18. Cf. Keth. 92b and B.M. 14a.
19. In case it is distrained on by the vendor's creditors.
20. For he who has no personal interest in a litigation can be no pleader in it; cf. infra 70a.
21. To be indemnified for the warranty.
22. Keth. 92b-93a.