Yesterday, on the penultimate page of Bava Batra, we encountered the final mishnah of the tractate, in which Rabbi Yishmael stated that if a guarantor comes on board after a loan is made, the creditor cannot collect from the guarantor’s liened property. Rabbi Shimon ben Nannas insisted the law is in fact more stringent: The creditor cannot collect anything from the late-signing guarantor; it’s as if the guarantor said nothing. Ben Nannas explained why: Imagine a creditor strangles someone who owes them money and a bystander steps in with an offer to guarantee the loan. This offer is obviously made only to save the debtor’s life and so the guarantee is not regarded as binding — and, by extension, every guarantee that comes after the ink on the loan dries is also not binding.
The mishnah ended with exuberant praise for Ben Nannas and the entire project of studying monetary damages:
One who wants to become wise should engage in the study of monetary law, as there is no greater discipline in the Torah, and it is like a flowing spring. And one who wants to engage in the study of monetary law should attend to Shimon ben Nannas.
This has the makings of a beautiful end to the entire tractate — a surprise ruling followed by an ode to subject matter and teacher. Leave it to the Gemara to slip in a final word that reverses it:
Rabba bar bar Hana says that Rabbi Yohanan says: Although Rabbi Yishmael praised Ben Nannas after hearing his dissenting opinion, the halakhah is actually in accordance with Rabbi Yishmael’s opinion.
Rabbi Yishmael praised Ben Nannas for his brilliant analysis. But in truth, his hypothetical scenario does not prove his position. In Ben Nannas’ example, since the bystander had reason to believe the creditor would kill the debtor, the guarantee was made under extreme duress. Of course, in that case, the courts will not hold the guarantor to his word! But in most cases, a late guarantee is not a heroic, spontaneous salvo to save a stranger’s life. Most cases are more mundane, so when someone simply comes to guarantee a loan after the money has already been lent, Rabbi Yishmael still considers the guarantee binding.
But what would Rabbi Yishmael say about the rather extraordinary case Ben Nannas dreamed up?
Come and hear, as Rabbi Yaakov says that Rabbi Yohanan says: Rabbi Yishmael disagreed with Ben Nannas also in the case of the debtor being strangled.
Even in the case of a debtor being strangled and a good Samaritan guarantor reaching out with his wallet to save a life, Rabbi Yishmael thinks the debt can be collected from him. But can he really believe this? Rabbi Yehuda steps in to explain, citing Shmuel:
If the debtor was being strangled, and in addition an act of acquisition was performed with the guarantor, the guarantor becomes obligated to repay the debt.
Rabbi Yishmael holds the good Samaritan guarantor accountable for the loan if he not only verbally makes the guarantee but also performs an act of acquisition. From here, we learn that in most cases guarantors do not have to perform an act of acquisition. This gives us the final lines of the tractate:
And the halakhah is that a guarantor who accepts responsibility for the loan at the time of the giving of the money does not require an act of acquisition; but if he accepts responsibility after the giving of the money, he requires an act of acquisition.
Moreover, a guarantor who undertakes a loan guarantee in the presence of a court does not require an act of acquisition, as in return for that gratification that he experiences in that the court trusts him, he resolves to obligate himself.
After a loan has already been made, a would-be guarantor must do more than verbally promise to make good on the debt. He must also perform an act of acquisition or make his declaration in the presence of a court. This formal setting and the company of legal expert minds impresses the situation with seriousness and formality, and confers binding status on the words of the guarantor.
This is a subtle but fitting close to the last 410 pages of what used to be called Tractate Nezikin and is now called Tractates Bava Kamma, Bava Metzia and Bava Batra. Taken together, these tractates form the foundation for Jewish civil law, offering an in-depth exploration of how injured parties are made whole after accidental or intentional harm, as well as the ins and outs of renting, loaning, care-taking, borrowing, inheriting and returning lost objects. A great deal of attention is also given to making sales and contracts proper and legally binding.
Through it all, the court plays an important role — much larger than we’ve seen in other tractates so far. In all these cases, stakes and emotions are high and it is likely that people will not be able to resolve their differences on their own. To run properly, the community needs a trusted arbiter to solve conflict. It is the court, and therefore the rabbis, who fill that role.
Read all of Bava Batra 176 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 18, 2024. If you are interested in receiving the newsletter, sign up here.
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