Friday, January 29, 2010

Bava Basra 147

Being Moichel a Shtar Chov that was Previously Sold

The Gemora states that a lender who sold a shtar chov (a document stating that the borrower owes x amount of money to the lender) to a third party, which would mean that the borrower would have to repay the loan to the third party, and then the lender forgives the payment (in the Gemora’s vernacular - he was moichel the shtar), it is valid and the borrower does not have to pay back the loan to neither the lender, nor the third party. The rationale for this halachah varies, and there are many halachos that pertain to this complex concept. We will discuss a few of them.

For starters let’s understand the problem. Of all the various types of sales that we have learned about, this is the only one that is seemingly not final. This means that although the sale of this shtar was completely valid, and the previous owner should have absolutely no say in the matter at all, he can easily cause the third party to hold a worthless piece of paper by being moichel the shtar. Furthermore, the lender’s mechilah can take effect even if the third party bought the shtar on the condition that the lender would not be moichel it! Another issue is that even an inheritor can be moichel. How does the lender have such broad powers?

Before we answer these questions, it is important to note that the third party is remunerated. Although logically he cannot collect the money from the borrower via this shtar, the lender must reimburse the third party because of the concept of dina di’garmi, which basically means that a person that inadvertently harmed someone has to pay his damages.

There is a machlokes in the Rishonim if the ability to sell a shtar is of Biblical origin or merely a Rabbinic enactment. The Rif and Rambam hold that it’s a Rabbinic enactment, while Rabbeinu Tam maintains that it is Biblical.

The Drishah (Choshen Mishpat 66:23) explains that according to the Rishonim that hold it’s Rabbinical, the rationale why the lender is able to forgive the payment even though he had already sold the shtar, is because the shtar is not intrinsically valuable. All other types of sales revolve around an item which has monetary value, as opposed to a shtar chov, which is only worth money in theory. Therefore the sale was never Biblically valid, and can be accepted by the Rabbis according to their terms.

Rabbeinu Tam, however, holds that the ability to sell a shtar chov is recognized by the Torah. If so, a shtar should be no different than any other sale where the previous owner is completely cut off from the item?

The Ran explains that in fact there is a huge difference. When Reuven borrowed from Shimon, two things take place: 1) A shibud haguf - the onus is placed on Reuven to repay Shimon. 2) A shibud nichasim - an onus is placed on Reuven’s money to repay the loan, which means that if Reuven doesn’t repay the loan, then his money serves as a guarantor. A shibud haguf cannot be sold, since Reuven’s shibud is exclusively to Shimon. On the other hand, a shibud nichasim can be sold, which would mean that Reuven’s money is paid to the third party, since this shibud is to repay the loan and not necessarily to the person who lent it.

Now let’s work this out logically. Since; a) the shibud haguf never left the lender, and b) the shibud nichasim is only in place if the borrower defaults on his loan, or in other words - if there would not be a shibud haguf, then there wouldn’t be a shibud nichasim, then we must come to the conclusion that if the lender is moichel the shibud haguf, then the borrower does not have to repay the loan to either of them.