יְתוֹמִין שֶׁאָמְרוּ – גְּדוֹלִים, וְאֵין צָרִיךְ לוֹמַר קְטַנִּים, בֵּין לִשְׁבוּעָה בֵּין לְזִיבּוּרִית.

With regard to the orphans of which the Sages spoke, the phrase is referring to adults, and needless to say it is referring also to minors, whether with regard to the halakha that a debt can be collected from the property of orphans only with an oath, or whether with regard to the halakha that a debt can be collected from the property of orphans only from inferior-quality land.

״אֵין נִפְרָעִין מִנְּכָסִים מְשׁוּעְבָּדִים בְּמָקוֹם שֶׁיֵּשׁ בְּנֵי חוֹרִין״. בָּעֵי רַב אַחַדְבוֹי בַּר אַמִי: בְּמַתָּנָה הֵיאָךְ?

§ The mishna teaches: Payment of a debt or other obligation is not collected from liened property that has been sold to a third party when the debtor still has unsold property, even when this unsold property is inferior-quality land. Rav Aḥadevoi bar Ami raised a dilemma: What is the halakha with regard to liened property that the debtor gave to another person as a gift? Is it the halakha that the debt is not collected from liened property that has been given as a gift to a third party when the debtor still has property?

תַּקַּנְתָּא הוּא דַּעֲבוּד רַבָּנַן מִשּׁוּם פְּסֵידָא דְּלָקוֹחוֹת, אֲבָל מַתָּנָה דְּלֵיכָּא פְּסֵידָא דְּלָקוֹחוֹת – לָא, אוֹ דִּלְמָא מַתָּנָה נַמִי, אִי לָאו דְּאִית לֵיהּ הֲנָאָה מִינֵּיהּ לָא יָהֵיב לֵיהּ מַתָּנָה, וְהִלְכָּךְ כִּי פְּסֵידָא דְּלָקוֹחוֹת דָּמֵי?

The Gemara presents the two sides to this dilemma: Is the halakha that payment is not collected from liened property that has been sold an ordinance that the Sages instituted due to the loss of the buyers, who would lose the money that they had paid for the property? But in the case of a gift, where there is no issue of loss to the buyers, i.e., the recipients, as the recipients paid nothing for the property, the halakha does not apply. Or perhaps the halakha applies to a gift as well, as, were it not for some benefit that the donor derives from the recipient, he would not have given him the gift. And therefore this loss to the recipient is considered to be like the loss to buyers and payment of the debt is not collected from the recipient of the gift when the debtor still has property in his possession.

אֲמַר לֵיהּ מָר קַשִּׁישָׁא בְּרֵיהּ דְּרַב חִסְדָּא לְרַב אַשִׁי, תָּא שְׁמַע: שְׁכִיב מְרַע שֶׁאָמַר ״תְּנוּ מָאתַיִם זוּז לִפְלוֹנִי וּשְׁלֹשׁ מֵאוֹת לִפְלוֹנִי וְאַרְבַּע מֵאוֹת לִפְלוֹנִי״ – אֵין אוֹמְרִים: כָּל הַקּוֹדֵם בַּשְּׁטָר זָכָה. לְפִיכָךְ, יָצָא עָלָיו שְׁטַר חוֹב – גּוֹבֶה מִכּוּלָּן.

Mar Kashisha, son of Rav Ḥisda, said to Rav Ashi: Come and hear what was taught in a baraita ( Tosefta , Bava Batra 9:6): If a person on his deathbed said: Give two hundred dinars to so-and-so, and three hundred to so-and-so, and four hundred to so-and-so, in this case one does not say that whoever appears first in the deed acquires his money first. Therefore, if a promissory note emerged against the one who gave the gifts, and it becomes clear that the money given was pledged to a creditor, then the creditor collects from all of them.

אֲבָל אִם אָמַר ״תְּנוּ מָאתַיִם זוּז לִפְלוֹנִי, וְאַחֲרָיו לִפְלוֹנִי, וְאַחֲרָיו לִפְלוֹנִי״ – אוֹמְרִים: כָּל הַקּוֹדֵם בַּשְּׁטָר זָכָה. לְפִיכָךְ, יָצָא עָלָיו שְׁטַר חוֹב – גּוֹבֶה מִן הָאַחֲרוֹן, אֵין לוֹ – גּוֹבֶה מִשֶּׁלְּפָנָיו, אֵין לוֹ – גּוֹבֶה מִשֶּׁלִּפְנֵי פָנָיו.

But if the person on his deathbed said: Give two hundred dinars to so-and-so, and after him to so-and-so, and after him to so- and-so, then one says: Anyone who appears first in the deed acquires his money first. Therefore, if a promissory note emerged against him, the creditor first collects from the last one of the recipients. If he does not have enough to repay the debt, he collects from the previous person. If he does not have enough to repay the debt, he collects from the person listed before the previous person.

וְאַף עַל גַּב דְּקַמָּא בֵּינוֹנִית וּבַתְרָא זִיבּוּרִית – מִזִּיבּוּרִית גָּבֵי, מִבֵּינוֹנִית לָא גָּבֵי, שְׁמַע מִינָּהּ, בְּמַתָּנָה נַמִי עֲבוּד רַבָּנַן תַּקַּנְתָּא!

The Gemara infers: And this is the halakha even if the property given to the first recipient is intermediate-quality land and the property given to the last recipient is inferior-quality land. Although a creditor is entitled to collect his debt from intermediate-quality land, the creditor in this case collects from inferior-quality land, as he collects from the last person to receive his gift, and he does not collect from the intermediate-quality land given to the first recipient. Conclude from the baraita that the Sages also instituted this ordinance in the case of a gift, and that payment of a debt is not collected from liened property that has been given as a gift to a third party when the debtor still has property that has not been sold or given away as a gift. The reason is that the second gift is considered to be unsold property in relation to the first gift because, when the first gift was given, the second gift was still in the donor’s possession.

הָכָא בְּמַאי עָסְקִינַן – בְּבַעַל חוֹב. וְהָא ״תְּנוּ״ קָאָמַר! ״תְּנוּ בְּחוֹבִי״.

The Gemara rejects this proof: With what are we dealing here? We are not dealing here with a person on his deathbed who is distributing monetary gifts, but rather with a debtor who is dividing his money between his various creditors. The Gemara raises an objection: But didn’t the person on his deathbed say: Give the money to so-and-so, a formulation that indicates that he is granting a gift? The Gemara answers that what this means is: Give this money as payment for my debt.

וְלֵיחֲזִי שְׁטָרָא דְּמַאן קָדֵים? דְּלֵיכָּא שְׁטָרָא. וְהָא ״כָּל הַקּוֹדֵם בַּשְּׁטָר״ קָאָמַר! בִּשְׁטַר פְּקַדְתָּא.

The Gemara asks: If so, why should the recovery of the debts depend upon the wording of the debtor’s instructions? But let us see whose promissory note was written first, as it is he who collects first. The Gemara answers: We are dealing with a case where there is no promissory note, e.g., where the creditors lost their deeds. The Gemara raises an objection: But didn’t it say in the baraita : Whoever appears first in the deed? This indicates that there is in fact a deed. The Gemara answers: The reference here is not to the promissory notes but to the testamentary deed drawn up by the person on his deathbed.

וְאִיבָּעֵית אֵימָא: אֲפִילּוּ מַתָּנָה נַמִי, וְלָא קַשְׁיָא; מַאי ״גּוֹבֶה מִן הָאַחֲרוֹן״? אֵין נִפְסָד אֶלָּא אַחֲרוֹן.

And if you wish, say: The baraita is referring also to a case of a gift, and even if the mishna’s ordinance does not apply to liened property that had been given away as a gift, the halakha that the creditor collects from the last recipient is not difficult, as what is the meaning of the words: He collects from the last recipient? This means that it is only the last recipient who really loses, as the creditor can collect from intermediate-quality land wherever it is, even if it is in the possession of the first recipient. But after the creditor collects what is due him, the recipients of the gifts distribute the remaining property, in accordance with the order set down in the donor’s testament. Therefore, it will always be the last recipient who loses and no one else.

וְאִיבָּעֵית אֵימָא: דְּשָׁווּ כּוּלְּהוּ לַהֲדָדֵי.

And if you wish, say: The baraita is referring to a case where all of the properties are of equal quality. There is no reason to collect specifically from the first recipient because he has intermediate-quality land as opposed to the last recipient who does not. In such a case, the debt is collected first from the last recipient. Therefore, there is no proof from here that the mishna’s ordinance applies even to liened property that had been given away as a gift.

״אֵין מוֹצִיאִין לַאֲכִילַת פֵּירוֹת״. מַאי טַעְמָא? אָמַר עוּלָּא אָמַר רֵישׁ לָקִישׁ: לְפִי שֶׁאֵין כְּתוּבִין.

§ The mishna teaches: The court does not appropriate liened property that has been sold to a third party for the consumption of produce. If one appropriated a field and sold it, and the buyer worked the land, improved it, and grew produce on it, and then the owner came and took back his field together with the produce, the buyer cannot collect the value of the produce from property that the robber sold to another person. The Gemara asks: What is the reason for this? Ulla says that Reish Lakish says: This is because the produce is not written in the deed of sale. The obligation of a seller to reimburse the buyer if the field he sells him is repossessed by a prior owner or creditor is dependent upon the obligation recorded in the deed of sale. His obligation of reimbursement with regard to the produce is therefore treated like a loan by oral agreement, which is not a matter of public knowledge, and those who subsequently purchased land from the robber are not obligated to pay for debt incurred in a loan by oral agreement, as they had no way to know about it at the time of their purchase.

אֲמַר לֵיהּ רַבִּי אַבָּא לְעוּלָּא: וְהָא מְזוֹן הָאִשָּׁה וְהַבָּנוֹת דִּכְמַאן דִּכְתִיבִי דָּמוּ, וְקָתָנֵי: אֵין מוֹצִיאִין!

Rabbi Abba said to Ulla: But isn’t the sustenance of a man’s wife and daughters considered as if it were written, as even if it is not explicitly recorded in the marriage contract it is one of the fixed stipulations of a marriage contract that are imposed by the court? It is known that a man is obligated to provide for the sustenance of his wife and daughters, and yet the mishna teaches: Payment for the sustenance of a man’s wife and daughters cannot be collected from the husband’s liened property.

אֲמַר לֵיהּ: הָתָם מֵעִיקָּרָא הָכִי אַתְקוּן, כְּתוּבִין הֵן אֵצֶל בְּנֵי חוֹרִין, וְאֵין כְּתוּבִין הֵן אֵצֶל מְשׁוּעְבָּדִין.

Ulla said to him: There, with regard to sustenance of a man’s wife and daughters, the Sages instituted it like this from the outset: It is considered as if it were written with regard to unsold property that is still in the man’s possession, so that sustenance can be collected from such property, but it is not considered as if it were written with regard to liened property that has been sold to another party.

וְכֵן אָמַר רַבִּי אַסִי אָמַר רַבִּי יוֹחָנָן: לְפִי שֶׁאֵין כְּתוּבִין. אֲמַר לֵיהּ רַבִּי זֵירָא לְרַב אַסִי: וְהָא מְזוֹן הָאִשָּׁה וְהַבָּנוֹת, דִּכְמַאן דִּכְתִיבִי דָּמוּ, וְקָתָנֵי: אֵין מוֹצִיאִין! אֲמַר לֵיהּ: מֵעִיקָּרָא הָכִי אַתְקוּן, כְּתוּבִין הֵן אֵצֶל בְּנֵי חוֹרִין, וְאֵין כְּתוּבִין הֵן אֵצֶל מְשׁוּעְבָּדִין.

And similarly, Rabbi Asi says that Rabbi Yoḥanan says with regard to the mishna: Why can’t the payment for the consumption of produce be collected from property that the robber sold to another person? It is because the produce is not written in the purchaser’s deed of sale. Rabbi Zeira said to Rav Asi: But isn’t the sustenance of a man’s wife and daughters considered as if it were written in the marriage contract, and yet the mishna teaches: Payment for the sustenance of a man’s wife and daughters cannot be collected from the husband’s liened property? Rav Asi said to him: The Sages instituted it like this from the outset: Sustenance is considered as if it were written with regard to unsold property that is still in the man’s possession, so that sustenance can be collected from such property, but it is not considered as if it were written with regard to liened property that has been sold to another party. This concludes the discussion of one reason for the halakha in the mishna.

רַבִּי חֲנִינָא אָמַר: לְפִי שֶׁאֵין קְצוּבִין.

Rabbi Ḥanina says that it is for a different reason that payment for the consumption of produce cannot be recovered from property that the robber sold to another person: It is because the produce is not of a fixed amount,

אִיבַּעְיָא לְהוּ: לְרַבִּי חֲנִינָא, קְצוּבִין וּכְתוּבִין בָּעֵי

A dilemma was raised before the Sages: According to the opinion of Rabbi Ḥanina, in order to collect from liened property, is it necessary that the obligation be both of a fixed amount and also written? If so, this would indicate that Rabbi Ḥanina adds another requirement in addition to that of Rabbi Yoḥanan.