Babylonian Talmud: Tractate Gittin

Folio 37a

Buli means the rich, as it is written, And I will break the pride of your power,¹  and R. Joseph explained: These are the bula'oth²  in Judah. Buti means the poor, as it is written, Thou shalt surely lend him sufficient.³  Raba asked a certain foreigner,⁴  What is the meaning of prosbul? He replied: The porsa⁵  of the matter.

Rab Judah said in the name of Samuel: Orphans do not require a prosbul. So too Rami b. Hama learnt: Orphans do not require a prosbul, because Rabban Gamaliel⁶  and his Beth din are the parents of orphans.

We have learnt elsewhere: A prosbul is not made out unless [the debtor has] some land. If he has none, the creditor can present him with a spot from his own.⁷  How much is a 'spot'? — R. Hiyya b. Ashi said in the name of Rab: Even a stalk of a carob [is enough]. Rab Judah said: Even if he only lends him a space sufficient for his stove and oven, a prosbul may be made out on the strength of it. Is this so? Has not Hillel⁸  learnt: 'A prosbul may be made out only [if the debtor] has a flowerpot with a hole in it', that is, if it has a hole, a prosbul may be made out,⁹  but otherwise not. Now why should this be, seeing that the place it occupies [belongs to the debtor]?¹⁰  — This rule applies only where the pot rests on some sticks.¹¹  R. Ashi would transfer to the debtor the trunk¹²  of a date tree and then write a prosbul for the creditor. The Rabbis of the Academy of R. Ashi used to transfer their debts¹³  to one another.¹⁴  R. Jonathan transferred his debt to R. Hiyya b. Abba. Do I require anything more? he asked him. You do not, he replied.

Our Rabbis taught; If the debtor has no land but one who is security for him has land, a prosbul may be made out for him. If neither he nor his security has land but a man who owes him money has land, a prosbul may be made out for him. [This is based] on the ruling of R. Nathan, as it has been taught: R. Nathan says: If a man lends another a maneh, and this one lends to a third, how do we know that the Beth din can take from the last [named] and give to the first [creditor]? Because it says, And he shall give it unto him in respect of whom he has been guilty.¹⁵

We have learnt elsewhere: The seventh year brings release from a debt, whether contracted with a bond or without a bond.¹⁶  Both Rab and Samuel explain that 'with a bond' here means that the debtor has given a lien on his property [for the debt] and 'without a bond' means that he has given no lien. A fortiori then does the seventh year release from a debt contracted verbally. R. Johanan and R. Simeon b. Lakish, however, explain that 'with a bond' means a bond that does not contain a lien clause,¹⁷  and 'without a bond' means a debt contracted verbally. A bond which secures a lien, however, is not cancelled.¹⁸  It has been taught in agreement with R. Johanan and R. Simeon b. Lakish: A bond for a debt is cancelled [by the seventh year], but if it contains a lien clause it is not cancelled. It has further been taught: If the debtor has specified a certain field to the lender [as security] for his loans, it is not cancelled. Nay more: Even if he writes [only] 'All my property is security and guarantee for you,' it is not cancelled.

A relative of R. Assi had a bond containing a lien clause. He came before R. Assi and said to him: Is this cancelled [by the seventh year] or not? — He replied: It is not cancelled. He left him and went to R. Johanan [and asked the same question]. [R. Johanan] replied: It is cancelled. R. Assi went to R. Johanan and asked him: Is it cancelled or not cancelled? — He replied: It is cancelled. But you yourself [once] said¹⁹  that such a bond is not cancelled? — He replied: Because we have an opinion of our own [different from what we have learnt], are we to act on it? Said R. Assi: But there is a Baraitha in support of your opinion? — He replied: perhaps that follows Beth Shammai, who said²⁰  that a bond which is perfectly in order²¹  is like one which has already been put into operation.

We have learnt elsewhere: If a man lends another money on a pledge or if he hands his bonds to the Beth din, the debts are not cancelled [by the seventh year].²²  That this should be so in the latter case we understand, because it is the Beth din which seizes the debtor's property.²³  But why should it be so in the case of a loan given on a pledge? — Raba replied: Because [the lender] is already in possession of it.²⁴  Said Abaye to him: If that is so, suppose a man lends another money²⁵  and lives in his courtyard, in which case he is also in possession, is the debt in this case too not cancelled?²⁶  — He replied: A pledge²⁷  is different, because the holder becomes also its owner, according to the dictum of R. Isaac, who said, How do we know that a creditor becomes the owner of a pledge [given for the debt]? Because it says, And it shall be righteousness unto thee.²⁸  If he is not the owner, what righteousness is there [in restoring the pledge]? Hence we learn that a creditor becomes owner of the pledge.

We have learnt elsewhere:²⁹

1. Lev. XXVI, 19.
2. City councils, [G].
3. Deut. XV, 8. The Hebrew root for lend is 'abat, which is somewhat fancifully connected with buti. The prosbul benefits the rich because it secures them their loans, and the poor because it enables them to borrow. [Goldschmidt suggests in this connection the derivation from [G] and [G] 'provision against loss'].
4. Heb. la'oza, a man speaking a foreign languages. Possibly we should translate 'linguist'.
5. Cf. [G] 'manner', 'order'.
6. Who was the supreme authority at the time when the Baraitha was first taught.
7. [In which case the debt is regarded as having been refunded to the court who virtually hold the land in payment of the debt on behalf of the creditor, v. p. 148, n. 4.].
8. Not the author of the prosbul.
9. Because the earth-pot is then connected with the soil and so the debtor may be regarded as possessing land.
10. And it is therefore analogous to the stove, on which a prosbul may he made out.
11. It occupies no place on the ground, in which case unless it has a hole to connect it with the soil, it cannot serve as basis for a prosbul.
12. Al. 'branch'.
13. Lit., 'commit their words'; i.e., the verbal instructions relating to the recovery of their debts.
14. I.e., used to appoint one another a Beth din for the receiving of their debts without the formality of writing out a prosbul.
15. Num. V, 7. Hence the land of A's debtor can serve as the basis for a prosbul against A.
16. Sheb. X, 1.
17. I.e., a mortgage on his property.
18. Because it is looked upon as having been already enforced, so that there really is no debt.
19. supra.
20. Sot. 25a.
21. Lit., 'which is ready to be enforced.'
22. Sheb. X, 2.
23. And the Beth din have power to expropriate, and therefore the creditor is not guilty of 'exaction' in recovering after the seventh year.
24. And he does not 'exact' anything from the debtor.
25. On the security of his courtyard. V. Tosaf. [Evidently in the case where the debt was contracted verbally.]
26. [Whereas in B.M. 67b it is stated that the debt in such a case is cancelled, (Tosaf.).]
27. Of movable property (Rashi).
28. Deut. XXIV, 13. The 'righteousness' is in restoring the pledge to the poor man at sunset.
29. Sheb. X, 8.

If a man repays another money which he owes him in the seventh year, the other should say to him, I remit it.¹  If the debtor then says, 'All the same [take it]', he may take it from him. [This rule is based on] the text, Now this is the word²  of the release.³  Rabbah said: The creditor may tie him up⁴  till he says so. Abaye raised an objection [from the following]: When [the debtor] offers him the money he should not say, This is in payment of my debt, but, 'It is my [money] and I make you a present of it'? — Rabbah replied: Yes; he ties him up until he says so.

Abba b. Martha, who was the same as Abba b. Manyumi,⁵  was pressed by Rabbah for repayment of money he had lent him. He brought it to him in the seventh year.⁶  Rabbah said, I remit it. So he took it and went away. Abaye afterwards found Rabbah looking sad. He said to him, Why are you sad? He told him what had happened. So Abaye went [to Abba] and said to him, Did you offer money to Rabbah? I did, he said. And what did he say to you? — I remit it. And did you say to him, Even so take it? — He replied, I did not. Abaye thereupon said to him: If you had said to him, All the same take it, he would have taken it. Now at any rate go and offer it to him and say, All the same take it. He went and offered it to him, saying, All the same take it. He took it from him and said, This rabbinical student did have the sense to see this from the beginning!

Rab Judah said in the name of R. Nahman: We take a man's word if he says, I had a prosbul and lost it. What is the reason? Since the Rabbis have instituted a prosbul, a man would not [as we say] 'leave on one side permitted [food] and eat forbidden.'⁷  When such a man came before Rab, he said to him, Have you had a prosbul and lost it? This is a case for opening thy mouth for the dumb.⁸  We have learnt [in opposition to this]: 'Similarly if a creditor produces a bond for a debt without a prosbul, he cannot recover payment'?⁹  — There is a difference on this point between Tannaim, since it has been taught: If a man produces a bond for a debt [after the seventh year] he must show a prosbul with it. The Sages, however, say that this is not necessary.¹⁰

MISHNAH. SHOULD A [NON-JEWISH] SLAVE [OF A JEW] BE CARRIED OFF BY ROBBERS AND RANSOMED [BY A THIRD PARTY],¹¹  IF [HE IS RANSOMED] AS A SLAVE HE GOES BACK TO SLAVERY, BUT IF [HE IS RANSOMED] AS A FREE MAN HE DOES NOT GO BACK TO SLAVERY. RABBAN SIMEON B. GAMALIEL SAYS THAT IN EITHER CASE HE GOES BACK TO SLAVERY.

GEMARA. With what case are we here dealing? Shall we say that the ransom was effected before [the owner of the slave] had given up hopes [of recovering him]? If so, even if [he is ransomed] as a free man, why should he not go back to slavery?¹²  Shall we say then it was after the owner had given up hopes of recovering him? Then even if [he is ransomed] as a slave, why should he go back to slavery?¹³  — Abaye said: The case indeed is one in which [the master] has not yet given up hopes. If then [he is ransomed] as a slave he goes back to slavery to his first master. If [he is ransomed] as a free man, he is no longer enslaved either to the first master or to the second; to the second, because he ransomed him as a free man, to the first because [if people know that he is to go back to slavery] perhaps they will refrain from ransoming him.¹⁴  RABBAN SIMEON B. GAMALIEL SAYS, IN EITHER CASE HE GOES BACK TO SLAVERY, [since] he holds that, as it is a religious duty to ransom free men, so it is a religious duty to ransom slaves.¹⁵  Raba said that the case dealt with is indeed where [the owner] has given up hopes of recovery. If then [he is ransomed] as a slave, he becomes enslaved to the second master. If he [is ransomed] as a free man, he becomes enslaved neither to the first master nor to the second; not to the second, because he ransomed him as a free man, and not to the first either, because he has given up hopes of recovering him. RABBAN SIMEON B. GAMALIEL SAYS, IN EITHER CASE HE GOES BACK TO SLAVERY, adopting in this the view [also] held by Hezekiah, who said: Why was it laid down that in either case he should go back to slavery? So that slaves should not go and throw themselves into the hands of robber bands and so liberate themselves from their masters.

An objection was raised [against Raba from the following]: Rabban Simeon b. Gamaliel said to them, Just as it is a religious duty to redeem free men, so it is a religious duty to redeem slaves. Now if we adopt the view of Abaye that the case dealt with is where [the owner] has not yet given up hope of recovery — we understand why Rabban Simeon b. Gamaliel said, 'Just as etc.'¹⁶  But on the view of Raba, that the case is one where [the owner] has given up hope, why, 'just as'? [Rabban Simeon's reason] is the dictum of Hezekiah! — To which Raba can reply; Rabban Simeon b. Gamaliel was not certain to what the Rabbis were referring, and he argued with them thus: If you are speaking of the case where [the owner] has not yet given up hope, then I say 'just as [etc.]': and if you speak of the case where he has given up hope, then I apply the dictum of Hezekiah.

Now on the view of Raba that the case referred to is where [the owner] has given up hope and that the slave [if ransomed as a slave becomes enslaved] to the second master, [we have to ask], from whom does the second master acquire him? [You must say], From the brigands. Is the brigand himself his rightful owner? — Yes; he was his owner in respect of his labour. For Resh Lakish has said; How do we know that one heathen can own another in respect of his labour? — It says, Moreover of the strangers that shall sojourn among you, of them shall ye acquire.¹⁷  [This indicates that] you may acquire from them,

1. The release of the seventh year, according to the Rabbis, took place only at the end. Hence the word 'seventh year' here is explained to mean 'in the period when the rule of the seventh year is in force,' and the repayment is supposed to be offered after the seventh year (Rashi).
2. Heb. dabar (E.V. 'manner').
3. Deut. XV, 2.
4. Lit., 'hang him'.
5. [Martha was the name of his mother by whose name he was designated, because she it was who once cured him from the bite of a mad dog, v. Yoma 84a].
6. V. supra, n. 4.
7. I.e., he would not have neglected in the first instance to obtain a prosbul, and then afterwards come and claimed the money wrongfully.
8. I.e., where the judges suggest a plea to one of the parties. The expression is taken from Prov, XXXI, 8.
9. Even if he pleads that he lost the prosbul.
10. But he can plead that he lost it.
11. Jews.
12. Because whatever the ransomer may stipulate with the captor, the slave is still the property of his master.
13. Viz., to his first master, seeing that he has ceased to be his property.
14. The implication is that there is some merit in restoring the slave to freedom.
15. I.e., from heathen masters, so that they may resume the performance of certain precepts in the service of their Jewish masters. Hence since it is a religious duty, there is no fear that people will refrain from ransoming him.
16. I.e., it was necessary for R. Simeon to adduce this reason.
17. Lev. XXV, 45.