Wednesday, September 19, 2007

Kesubos 19a - Being Mochel a Contract that has been sold

Tosafos compares the din that a seller retains the ability to be mochel a contract and exempt the borrower, even after the rights of collection with this contract have already been sold to someone else, with the din of our gemara that when reuven owes to shimon and shimon to levi, shimon may not be able to be mochel and exempt reuven from paying back since it will have an inevitable negative impact on levi (who through shi'buda d'rabi nosson can collect directly from reuven). Tosafos suggests that acquisition made on a contract purchased from a lender would only be Rabbinic, but on a Torah level the original lender retains full rights to this contract and therefore retains rights to be mochek. Whereas in the case of Reuven owing Shimon and Shimon owing Levi, the right of collection that Levi has from Reuven is d'oraysa, therefore Shimon looses the ability to be mochel and exempt Reuven.
However, based on Rabbeinu Tam (brought in Ran 44b b'dapei harif), the question doesn't even begin. Rabbeinu Tam writes that every loan creates 2 independent leans: 1. on the borrower himself. 2. on the property of the borrower. When one sells a contract they do not have any ability to sell the lean on the borrower himself (he is not a slave, so this kind of right is non-transferable), and can only sell the lean on the borrowers assets. The lean on the assets of the borrower exists merely as a result of the lean on the borrower himself (meaning lean 2 is absolutely dependent on lean 1). Therefore, the original lender will always retain rights to be mochel the contracts since he is in "possession" of the lean on the borrower himself, and his mechila will result in an automatic nullification of the lean that the buyer has on the borrower's assets. But, when Reuven owes shimon who owes levi, Levi really has a lean on Reuven himself, not just the assets of Reuven, therefore shimon cannot be mochel the loan that will negatively impact Levi (since levi's rights are not limited to a lean on the assets which are dependent on shimon's lean on reuven himself, rather levi has a direct lean on reuven himself).

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