I mentioned yesterday that there is a discussion whether the machlokes r"y and reish lakish is speaking of a case where someone admits to a previous debt by writing a statement in a document (rashi), or is it speaking of a case where he is creating a new debt by being mesha'bed himself (Rabbeinu tam in tosafos and Ran both learn that once we conclude that we are speaking about writing a statement in a document, it is speaking about creating a new shi'bud through the document).
When the gemara tries to make the machlokes r"y and r"l dependent on the machlokes R' Yishmael and Ben Nanas by areiv, the gemara concludes that even reish lakish who holds that when one writes a statement in a document he is patur, can agree with R' Yishmael who says that an areiv who writes that he is willing to be an areiv is chayev, because an areiv is "shayach to shi'bud d'oraysa". According to Rabbeinu Tam's understanding of the sugya that the issue is when he is trying to create a new shi'bud upon himself, it is more likely that one can do such a thing when he is trying to model after a known shi'bud d'oraysa such as areiv. Therefore, even r"l can agree that when one creates a shi'bud by declaring himself as an areiv, he will be chayev. However, according to rashi, where the whole sugya discusses someone admitting to a preexisting debt, what is the difference if he claims he is a borrower who owes, or an areiv who owes, one way or the other it should be the same? Why is an areiv considered more "shayach" to shi'bud d'oraysa than a borrower?
Perhaps the answer is based on Tosafos 56a d.h. harei, that a borrower is not considered a milveh ha'kesuva b'torah since the ikar chiyuv is common sense, that if you borrow you must repay your debt. An areiv obligation is explicitly mentioned in the Torah (as rashi quotes from "anochi a'arvenu - see baba basra 173b where this is a hava amina for how we know areiv in the torah), but the obligation of a borrower is primarily m'svara. Therefore, when admitting to a preexisting debt, the chiyuv is more easily established by admitting to be an "areiv" which the torah recognizes as one who is chayev through the matan ma'os of the loan, rather than a "borrower" who is chayev m'svara and not from the torah being mechayev him.
I am open for other suggestions as to what the distinction of the gemara is - Any suggestions?
1 comment:
It is possible that by the areiv, he is piggybacking an existing known shibud d'oraysa that is spelled out in the shtar, whereas our case is not related to any other known shibud but stands alone.
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