English translation — משפטים א

1.

At the conclusion of tractate Bava Basra — in the last Mishnah¹

— it stands: A guarantor who goes out after the sealing of documents collects from unencumbered property.

A case came before Rabbi Yishmael and he said: He collects from unencumbered property,

Ben Nannas said to him: He does not collect neither from encumbered property nor from unencumbered property.

He said to him: Why? He said to him: Behold, one who strangles another in the marketplace and his friend found him and said to him: Release him

is exempt,

because not on his trust did he lend to him,

But which is a guarantor that is liable?

Lend to him and I will give to you — liable,

for on his trust did he lend to him.

And the Mishnah concludes: And Rabbi Yishmael said: Whoever wants to become wise should engage in monetary laws, for there is no greater branch in the Torah than them³

and they are like a flowing spring; and whoever wants to engage in monetary laws should serve Shimon ben Nannas.

On the dispute in the Mishnah, the Gemara says⁴,

And this is its language: Said Rabbah bar bar Chanah said Rabbi Yochanan: Even though Rabbi Yishmael praised ben Nannes — the halachah is like him

(like Rabbi Yishmael).

Afterwards the Gemara continues: They inquired: In the case of a strangled person, what did Rabbi Yishmael say?

(Perhaps because of the pain of his fellow, that he is strangled, he also fully intends and transfers ownership,

or perhaps he intends to save him from strangulation and it is a mitzvah that he is doing?

And he lacks nothing, and he is not a guarantor.

Rashbam).

Come hear, for Rabbi Yaakov said Rabbi Yochanan said: Rabbi Yishmael disagreed even regarding a strangled one.

(The Gemara asks)

The halacha is like him

(regarding a strangled one)

or the halacha is not like him,

Come hear, for when Ravin came he said Rabbi Yochanan said: Rabbi Yishmael disagreed even regarding a strangled one,

and the halacha is like him even regarding a strangled one.

The Gemara, however, concludes: "Rav Yehuda said Shmuel said: A strangled one and they made a kinyan from him, he is obligated,

implying that a guarantor in general does not require a kinyan...

And the halacha is: A guarantor at the time of giving the money does not require a kinyan,

after the giving of the money requires a kinyan"<sup>5</sup>.

That means,

that regarding a strangled one, the one who said "leave it" becomes obligated specifically with a kinyan.

Thus far the words of the Gemara

(in the Babylonian).

2.

In the Yerushalmi there the Gemara says: R. Yissa in the name of R. Yochanan said: Even though R. Yishmael praised Ben Nannes — it was for his exposition that he praised him.

But it is not

(the law)

like Ben Nannes.

Shimon bar Vah in the name of R. Yochanan: Even in the case of a strangled one, the law is like Rabbi

(Yishmael<sup>6</sup>).

But in the Yerushalmi the statement of Shmuel is not brought that specifically a strangled one <b>and acquired from his hand </b>is obligated,

and also not the further continuation until "and the halacha: in the evening at the time of giving money etc., after giving money requires an acquisition etc." — and instead of this the Yerushalmi concludes: R. Yosi said: And you hear

from him: A person who was hunting his friend in the marketplace, one came and said: Leave him and he did not give,

from this one he collects and from this one he does not collect.

learns the Pnei Moshe that the words of R' Yosi are "like one who is perfect": if one will accept "even in the strangled one the halacha is like R' Yishmael" it must come out,

that when someone is "hunts for his friend in the market

(from the language<sup>7</sup>

hunt to take his soul)

" and a second comes and says "leave him and I will give to you" — the creditor must collect <b>not </b>from the borrower,

but from the one who "said leave him" — how can one say so?

! Because — "in what did this one become his creditor since he did not intend except to save this one and he thinks he is doing a mitzvah"<sup>8</sup>.

According to his explanation it comes out,

that the conclusion in the Yerushalmi regarding this matter is like the conclusion in the Bavli

(as he says in Mar'eh HaPanim there)

that in the strangled one the halacha is <b>not </b>like R' Yishmael who says that one obligates himself without a kinyan<sup>9</sup>.

It is however a great difficulty to explain in this manner in the words of R' Yosi in the Yerushalmi: Let's say that "even in a strangling case the halacha is like him" and the one who says "leave him" is obligating himself,

but from where does he derive that this means that he obligates himself until becoming the

"<b>creditor</b>"

(that one collects from him and not from the borrower,

as the Pnei Moshe explains the wonderment of R' Yosi)

and not as is implied from the sugya,

that his lien is in the capacity of <b>guarantor</b>,

namely that the debt also continues to lie upon the borrower

(as explained in the Mishnah¹⁰

the details of the laws regarding this)].

Moreover: according to the explanation of the Pnei Moshe, the question of R' Yosi is based on the reason that "he did not intend except to save this one" — it is then the very same reason of Ben Nanas in the Mishnah: "Behold, one who strangles another in the marketplace, etc." — and wherein is his novelty?

And therefore it is more plausible to say,

that the words of R' Yosi in the Yerushalmi are a continuation to earlier,

"Even in the case of the strangled one, the halacha is like R' Yishmael"¹¹,

R' Yosi comes to explain his reason why also by a strangled one is obligated without a kinyan

(as follows).

And this is,

that in Yerushalmi the conclusion is

(<b>not</b> like in Bavli)

—that by a strangled one the "omer shavki" obligates himself also without a kinyan.

And one could say,

that the dispute between Bavli and Yerushalmi — whether an areiv after giving of money requires a kinyan — is a general dispute in the definition and cause of the obligation of an areiv.

3.

Regarding a guarantor at the time of giving money, Rav Ashi says¹²

"By that benefit that he trusts him, he resolves and obligates himself" — and simply it means

(and as implied from several poskim¹³),

that the benefit which he

receives from his being trusted — is sufficient to effect the "obligates himself"¹⁴.

But the Nimukei Yosef at the end of the tractate

(regarding a guarantor at the time of giving money)

says,

that that which "he becomes obligated without a kinyan" is "since by his word he removed his money from his possession."

And with more explanation he says this in an earlier sugya¹⁵

: "And even though there is no kinyan, but by mere speech he becomes obligated to him,

for the creditor can say to him, 'If not for you, I would not have lent him at all'"

(And similarly it stands in Rabbeinu Gershom at the end of the tractate: "for he can say to him, 'If not for you, the money would not have left my hand'").

And that which Rav Ashi says "by this benefit that he trusts him, he resolves and obligates himself" the Nimukei Yosef says¹⁶

that this is a reason for that which "it is not an asmachta"¹⁷.

And accordingly it turns out,

that the reason why the guarantor obligates himself without a kinyan,

can be explained in two ways¹⁸

a)

The lien of the guarantor is primarily

(not because he receives a benefit and the like,

but)

because of that which "on his word he laid out his money",

that the guarantor caused a monetary loss to the lender — and of course from the plain sense of the Gemara,

that this does not mean that the obligation of the guarantor is from the laws of damages and the like

(as if to say that the very causing of a monetary loss creates upon him an obligation¹⁹),

rather this is a cause to effect the personal lien of the guarantor: that which the lender laid out money on the basis of the guarantor's words — which shows that the lender relies his mind on that person — this itself works upon the guarantor that he should obligate himself.

b)

The lien of the guarantor comes about "by that benefit that he trusts him",

from the aspect of that which <b>the guarantor</b> <b>receives</b> a benefit,

and consequently this itself is in the manner of an acquisition²⁰,

because of which "he concludes and obligates himself".

From the practical differences between them is regarding strangulation: if lacking money is the cause of the subjugation,

it must follow that with "he said 'leave him'" by strangulation,

where "he does not lack anything"

(because the lender did not give money on his word),

there is not

(to that extent)

the trust and reliance of the lender upon him,

and consequently he is <b>not</b> "he finishes and obligates himself"

If, however, the subjugation is connected with his receiving benefit — it can be said that also by strangulation the "he said 'leave him'" is he finishes and obligates himself,

as said earlier,

because also that which he removes the distress of his fellow who was strangled²¹

is a benefit that he receives,

and he finishes and obligates himself²².

4.

Based on this, it can be said that in this consists the difference between the conclusion of the Bavli that a choked person requires a kinyan and the conclusion of the Yerushalmi that he does not need any kinyan:

The method of the Bavli is — according to the commentary of Rabbeinu Gershom and the Nemukei Yosef — that "due to the benefit that he trusts him" is not a sufficient reason that the guarantor should be "determined and obligates himself"

(it is only enough to accomplish that it should not be considered an asmachta),

because such a benefit

(that he trusts him)

does not have sufficient power to create the obligation upon the guarantor&lt;sup&gt;23&lt;/sup&gt;

; and the cause of the obligation is that which he expended money on his word and actually loses money.

And therefore, regarding a choked person,

since "he does not lack anything",

there is no cause that should create the obligation,

and consequently — one must have a kinyan.

But the method of the Yerushalmi is,

that the reason for the lien of the guarantor

(at the time of giving the money)

is not the lack of money of the lender,

rather the <b>receipt of benefit</b> of

the guarantor,

because he trusts him,

and therefore it is

(similar to this)

also by a guarantor in a case of strangulation after the giving of money.

And one could say,

that this comes R. Yosi in the Yerushalmi to explain: "And you shall hear from it: a person who was hunting his friend in the market, one came and said 'Leave him and give,'

from this one he collects and from this one he does not collect":

That which R. Yosi says "from this one he collects and from this one he does not collect",

is not a conclusion — that he demands from that which "said 'Leave him'" and from the borrower he does not collect at all&lt;sup&gt;24&lt;/sup&gt;

— rather&lt;sup&gt;25&lt;/sup&gt;

this is a reason and cause for the guarantee of the guarantor: since that with his statement "Leave him and give",

he effects that the lender should no longer demand

(and be distressed)

the borrower,

and instead of that he demands from the guarantor

(at least at this time),

he thereby himself receives a benefit and with that benefit he is final and obligates himself.

5.

And we must sweeten and explain the above — that this is connected with the general difference between the people of Bavel and the people of Eretz Yisrael:

The Gemara "and he enslaves his soul" by an evening is obviously connected with the knowledge and conduct of people

(and as we find in halacha that "if the merchants have the custom to obligate themselves without a kinyan even not at the time of giving money, their custom is binding"²⁶)

— and based on this we can say,

that the above difference between Bavli and Yerushalmi depends on "the knowledge of people" and in accordance with the differences in the places — Bavel and Eretz Yisrael:

The Gemara²⁷

says that the main concept of the mutual responsibility of Jews

(that which Jews are guarantors one for the other)

came into being at the time when Bnei Yisrael crossed the Jordan,

and in Eretz Yisrael they became intermingled and united.

Therefore "He does not²⁸

punish for hidden sins until Bnei Yisrael crossed the Jordan"²⁹.

And as the Rogatchover³⁰

explains that since "all of Israel is like a single individual...

not in the category of separate...

therefore mutual responsibility is effective",

but not so when they are not a single entity there is no mutual responsibility.

And this is the difference between Eretz Yisrael and Bavel: the Gemara³¹

says "There is no populous multitude in Bavel",

"and the meaning is that there is no joining"³⁰

and "There is no public fast day in Bavel"³²

; but not so in Eretz Yisrael there Jews became a

The reality of one public,

"And therefore&lt;sup&gt;33&lt;/sup&gt;

Only when they crossed the Jordan,

Then it was like one reality,

And responsibility fell upon them"&lt;sup&gt;34&lt;/sup&gt;.

And even though that after they crossed the Jordan and accepted responsibility upon themselves,

The responsibility has since then become upon Jews permanently&lt;sup&gt;35&lt;/sup&gt;

And &lt;b&gt;everywhere&lt;/b&gt;,

Wherever they may find themselves

(Because of which a Jew can fulfill the obligation for another at any time and in any place with the blessing of the commandments&lt;sup&gt;36&lt;/sup&gt;)

— Nevertheless,

From that which "there is no T"Z in Babylon",

Since there is not there any

(Completeness of)

Definition of public,

It is understood,

That the main

(Completeness)

The responsibility is specifically among Jews who are in Eretz Yisrael&lt;sup&gt;37&lt;/sup&gt;.

And therefore: in the Talmud of Babylonia

(where the mutual responsibility and unity of Jews is not as much in force³⁸),

one is more inclined to say that in order to fulfill the mutual responsibility of one Jew for another, an actual deed is required³⁹

— whether

at the time of giving the money that the guarantor does by his saying that the lender should actually be lacking,

or after the giving of the money,

when it is not a matter of lacking,

when the guarantor can obligate himself only through an actual <b>kinyan</b> literally.

Not so among the Amoraim of the Talmud Yerushalmi,

the Torah of the Land of Israel

(where there Jews are a

(definition)

community,

and consequently in mutual responsibility and unity&lt;sup&gt;38&lt;/sup&gt;)

it follows that the subjugation of the guarantor need not specifically be through an action that has the force of a physical deed,

it is sufficient for this the benefit that he receives.

6.

And regarding the ethical teaching

(and continuing from the above section d)

When Jews are in their place and in their dwelling,

in Eretz Yisrael — in the place where their form as one complete entity⁴⁰,

one

(whole)

community,

is revealed among them — then⁴¹

it is in a manner that every thing that touches one Jew,

even only a pain and the like⁴²,

is enough to effect that another Jew should give himself over and subjugate himself in order to remove the pain,

until that this becomes <b>his</b>

pleasure — he receives pleasure from that which he removes a pain from another Jew,

because he with the other Jew are

(not two separate ones,

but)

one thing.

And as it is stated in <b>Yerushalmi </b>

(in another place)⁴³,

that this is like two hands of <b>one body</b>.

In Babylon however,

where the unity of Jews as one public,

is not so much in the open — so that there one Jew should subjugate himself and give himself over to another Jew,

this is specifically when by the other Jew there is a deficiency,

something is lacking by him.

In a case however when "not a matter of lacking",

then there must be by the Jew an actual deed in the open

(the act of acquisition),

which should show that he intends to subjugate himself for another Jew.

And specifically then there is the final decision of the creditor to accept the guarantee of the guarantor for the borrower.

7.

The matter in spiritual service:

It is known the principle regarding the three Bava's — Bava Kama, Bava Metzia, and Bava Basra — that all of Nezikin is one tractate⁴⁴,

they are all — three Bava's of one tractate.

The concept of "Nezikin" in spirituality

(in general)

points to <b>exile</b>; then the "damagers" rule

(from the other side)

which hinder a Jew in and from the service of God⁴⁵.

And <b>tractate </b>"Nezikin" — the laws of Nezikin <b>in the Torah </b>— is the study which

It <b>nullifies</b> the harmful forces⁴⁶,

and consequently through this the exile ends and the redemption comes.

And it can be said that this is the inner reason that Nezikin is arranged in <b>three</b> tractates — because they are

(as understood from Zohar⁴⁷)

corresponding to the “<b>three</b> redemptions”⁴⁸,

connected with the three Holy Temples⁴⁹.

And therefore the entire [tractate] Nezikin is <b>one</b> tractate — because,

as discussed several times⁵⁰,

the three Holy Temples are not separate Temples,

rather it is the <b>same</b> Temple that became “lost” and the Supreme One returns <b>it</b>

"These are the accounts of the Tabernacle, the Tabernacle of Testimony" — "a hint to the Temple that was &lt;b&gt;pledged &lt;/b&gt;in two destructions": the matter of the "destructions" is not that the Temple becomes, G-d forbid, &lt;b&gt;nullified&lt;/b&gt;,

but it is only in a manner of "&lt;b&gt;pledge&lt;/b&gt;",

which remains intact,

but it is temporarily in the possession of the creditor&lt;sup&gt;52&lt;/sup&gt;].

— It follows accordingly,

that tractate Bava &lt;b&gt;Batra &lt;/b&gt;is corresponding to this last exile.

And this is the difference of the beginning of the tractate and the end of the tractate:

The beginning of the tractate is "the partners who wanted to make a partition in the courtyard": In spirituality they are "partners" — as it were,

the Above with Jews — and the matter of

Galus is,

that one sets up a &lt;b&gt;partition&lt;/b&gt; between the partners&lt;sup&gt;53&lt;/sup&gt;,

there is a thing that interposes "between you and your G-d"&lt;sup&gt;54&lt;/sup&gt;

But the &lt;b&gt;conclusion&lt;/b&gt; of the tractate — the &lt;b&gt;conclusion&lt;/b&gt; of Galus — is in the laws of &lt;b&gt;guarantor&lt;/b&gt;,

which hints at the &lt;b&gt;unity&lt;/b&gt; that will then

(also)

&lt;b&gt;be revealed&lt;/b&gt; between the Above One with Yidden: through the undesirable conduct during the time of Galus, Yidden become enslaved, may G-d spare us, to the opposing side,

but from the aspect that Yidden are a nation close to Him,

the Above One becomes a "guarantor" for Yidden,

and takes also upon Himself the enslavement, as it were,

to give Yidden the necessary powers to become exempt from that enslavement, may it be removed from upon us.

8.

And this is the explanation

(inner)

in the aforementioned dispute between the Babylonian [Talmud] and the Jerusalem [Talmud]:

As is known,

specifically at the end of the time of the exile,

at the heels of the Mashiach,

the darkness of the exile is in a manner of double and multiplied darkness,

as the Gemara describes at length

(at the end of tractate Sotah)

the spiritual darkness and physical darkness at the end of the time of the exile.

And this is the hint,

that the conclusion of tractate Bava Basra is about the law of "strangled" — which is the situation, G-d forbid, of Jews at the end of the time of exile,

that the darkness of exile is so strong that one feels oneself completely choked, G-d forbid, by the darkness of exile.

About this the Gemara says,

that it is clear — both according to the Bavli and according to the Yerushalmi — that "even in the case of a strangled person, the halacha is like Rabbi Yishmael,"

that the guarantor becomes obligated

And one collects from the guarantor.

What this means in spirituality: Not looking that from the side of the attribute of judgment there is a place to say that Jews must themselves pay the "debt",

is the halacha like Rabbi Yishmael — Kohen

(Gadol)⁵⁵,

Ish HaChesed⁵⁶

— that the Above One obligates Himself to Jews and "pays" as it were our debts.

The difference is only in what manner the "obligation" comes about:

From the Babylonian side,

where the darkness of the exile rules with force,

and consequently also the unity and mutual responsibility between the Above and Jews is not so much revealed,

it requires a "kinyan": Jews must, as it were, demand from the Above that He should "enter into" the situation of Israel and, as it were, become "enslaved";

But not so from the side

(study)

of the Jerusalem [Talmud],

a state of <b>light</b>—the "partnership" of the Above with Jews is in a more luminous manner,

consequently one only needs to "remind" the Above of

"&lt;b&gt;Tzara deChavrei&lt;/b&gt;"&lt;sup&gt;57&lt;/sup&gt;,

the pain that Jews go through in the straits and captivity of exile

!" and as one says in Selichot&lt;sup&gt;58&lt;/sup&gt;

"Give no rest to Him until He establishes and makes Jerusalem a praise in the earth"]

— and this is already enough that the Almighty binds Himself to His people&lt;sup&gt;59&lt;/sup&gt;,

and brings immediately the redemption through Mashiach our righteousness,

who will build the Temple

(the third and the "final")

in its place&lt;sup&gt;60&lt;/sup&gt;

— and "Great&lt;sup&gt;61&lt;/sup&gt;

will be the glory of this latter house more than the first"&lt;sup&gt;62&lt;/sup&gt;

— and speedily in our days, literally.

(From the talk of Tu B'Shvat 5745)