1) The Gemara
The Gemara in Kesubos (85b – 86a) relates the following intriguing story: a female relative of Rav Nachman’s had sold her kesubah with tova’as hana’ah. This woman was later divorced by her husband, and she eventually passed away. The people who had purchased her kesubah came to collect the money from the woman’s daughter (her estate inheritor), who herself had been planning to collect it from her mother’s husband (i.e. her father), on account of the divorce prior to the death. The Gemara tells us how Rav Nachman remarked in shock that there was no one to advise the girl to instead be mochel the chov to her father (again, her dead mother’s husband), thereby stiff-arming these lekuchos and obtaining for herself (upon her father’s death one day) the kesubah money. Upon hearing of Rav Nachman’s “advice,” the daughter did exactly that — at which point, we are informed, Rav Nachman bemoaned the fact that he had acted similar to one who “sets” the cases before the judges. To explain the tzadik‘s thought processes, the Gemara clarifies that while at first Rav Nachman thought that assisting his relative would be in line with a pasuk in Yeshayahu[i] — he later reconsidered, and deemed such conduct inappropriate for an important individual.[ii]
2) Tosfos – the Ri and the Rashba
The Ri (in Tosfos on the spot, d”h “Teizel”) is bothered why Rav Nachman’s advice — leaving its political savviness aside for a moment — was monetarily beneficial for the woman’s daughter at all. As the Gemara itself goes on to say, according to the one who holds of the din of garmi, someone who is mochel a shtar chov they had sold is obligated to pay the buyer for their loss! So what did this girl in the story stand to gain by following Rav Nachman’s advice — either way, wasn’t she going to have to hand over the same value of money to these lekuchos?!
In answer to this question, Tosfos first suggests that the case here was where the girl was only a ketana, yet old enough to be above the age of p’utos (thereby rendering her mechila a legitimate mechila). A ketana cannot be made chayiv for garmi, and therefore she would actually gain quite a lot by being mochel the kesubah to her father.
Nevertheless, the Ri had a different approach.[iii] Based on the power of this question, the Ri determined that the obligation generated through garmi in such a case is merely to pay back the buyer of the shtar for the amount they had initially doled out for it. To illustrate, imagine the shtar was written for a debt of 200 zuz; for a variety of factors, the price it can be sold for its collection value is a smaller amount, perhaps 100 zuz. The Ri therefore held that while the daughter would be paying the lekuchos the 100 zuz she had cost them by being mochel the kesubah collection rights her mother had sold them, she herself would still gain on the 200 zuz kesubah she’d one day inherit from her father. There would be an 100 zuz net gain according to the Ri‘s thinking, effectively solving his initial quandary.
However, the Rashba (i.e. the Rash M’Shantz, also brought in Tosfos here) disagrees. The upcoming Gemara about garmi states that the value of a “shtar ma’alyah” is collected, which sounds like the full value that was actually written in the shtar is what the damager owes the buyer. Rashi on the daf here in Kesubos indicates the same.
The Ri brings a proof to his idea though. The Gemara in Kedushin (on 47b) records an argument between Rabbi Meir and the Chachamim over whether a man can betroth a woman by giving her a shtar chov he is owed: Rabbi Meir holds he can, whereas the Chachamim say he cannot. The Gemara there concludes that the dispute can be explained by saying that the two sides argue over whether a person can be mochel a shtar they were owed and then had sold: Rabbi Meir holds he cannot, and therefore the woman can comfortably rely on the fact that she has gained those owed monies (the chov cannot be nimchal against her will), whereas the Chachamim say he can indeed be mochel it (and thus, no kedushin, since the woman will not rely on such a gift). Now, if the woman were to be collecting the full value of the shtar from her future husband through the din of garmi were he to be mochel it, then why would the Chachamim possibly say she wouldn’t rely on the shtar chov as a kedushin item — the value is the same! Therefore, the Ri reasoned, it must be that the amount owed for garmi is less than the actual collection value written in the shtar (i.e. it is only the cheaper sale value; in our illustration above, 100 zuz instead of 200), and the woman wouldn’t have semichas da’as.
(An insertion from kisvei yad in Tosfos adds in a few more words, that according to the Ri‘s explanation we now understand how Rav Nachman would possibly instruct a relative to cause damage to others; to the Ri, it wasn’t “real” damage, as she would still have to pay back the money they had used to buy the kesubah collection rights in the first place).[iv]
Despite the Ri‘s proof though, Tosfos concludes that it isn’t ironclad; there is still what to wonder about.[v]
3) In defense of the Ri
We are left with the Rashba’s question on the Ri though. Perhaps the following can be suggested in his defense:
This is not the only place where the upcoming lines of the Gemara about garmi which the Ri and Rashba are dealing with is quoted. The same passage can be found in Bava Kamma (on 98b). In both instances, the Gemara tersely quotes Ameimar as stating that the one who holds of garmi believes that the value of a “shtar ma’alyah” is collected, and it brings a story with Rav Ashi and Rafram as apparent proof to this. However, what is not at all clear from the Gemara is what case this passage is talking about — the mechila of a shtar which was sold, or else the burning of someone else’s shtar. The context of the Gemara in Kesubos may be the former, but the context of the Gemara in Bava Kamma is most certainly the latter. In fact, Rashi there in Bava Kamma “contradicts” his explanation here in Kesubos, explaining this statement and even the story of Rav Ashi and Rafram to be about burning shtaros, not being mochel them. To explain this, I would simply say Rashi was explaining each quotation according to its simplest meaning (i.e. its local context in this case), as was his wont. The Rashba clearly understood the Gemara as using the words “shtar ma’alyah” quite literally; thus, his question on the Ri. The Ri himself, however, might have believed that the actual source of this statement was the Gemara in Bava Kamma, and the quote of “shtar ma’alyah” was really referring to a burnt shtar (which even he would agree would generate a garmi obligation of the full value written within — there is no “sale” value relevant there!).[vi] We quoted it here to say the same concept is relevant — that a garmi obligation exists here too, by a case of mechila of a sold shtar — but nonetheless, the wording of the statement is simply borrowed from that Gemara, and therefore the “misleading” language of “shtar ma’alyah.”[vii]
4) Underlying machlokes
We’ve now seen what, based on the text of the Gemara itself, the Ri and the Rashba each think the seller will owe the buyer, the victim, upon his being mochel the chov he sold. What might be the rationale behind either opinion; what is the logic, the “why,” to explain each shita?
I believe that the answer lies in the fact that the Ri might be going lishitaso. On the previous amud in Kesubos (on 85b), the Ri writes (in Tosfos there) that the whole concept of selling shtaros is only m’d’rabbanan. You can’t actually sell the inherent obligation to repay the chov itself. Therefore, according to the Ri‘s own thinking, all that the seller has made the buyer lose in this case is merely the physical shtar and a d’rabbanan collection ability which was granted it. It follows, therefore, that the Ri would consider the damage done only the sale value, not the collection value.
On the other hand, the Rashba might argue.[viii] If he were to view the sale as a full-fledged d’oraisa one, the actual intrinsic chov itself was what was “damaged” by the old owner, the seller, when he was mochel it, and that is what he must therefore repay.
Thus, the machlokes here might boil down to what they each viewed as being destroyed here: a non-fundamentally existent sales construct, or else the essential chov itself.
[i] The insertion from kisvei yad in Tosfos quoted below implies that this idea is only true if it won’t cause an actual loss to the other party.
[ii] Why was such conduct only inappropriate for a person of great stature, but not somebody average?
Rashi here (on 86a) explains the reason: people will wrongly extrapolate from such a man’s example to other similar (but actually assur) actions, like advising non-relatives.
Tosfos above (on 54b) seems to have a different take. Tosfos there says the issue at hand was some sort of potential disgrace (perhaps referring to the comments ignorant bystanders might likely make concerning the involved Rav’s “wrongly” proffered advice, which would cause a chillul Hashem — a major issue in its own right — as well as an impingement of the talmid chacham’s personal honor, and maybe even lower his esteem in the eyes of the local populace).
[iii] See Tosfos in Bava Basra (on 147b) at length for a fuller exploration and defense of the opinion of the Ri.
[iv] I don’t understand; this insertion in Tosfos sounds like it is going within the Ri‘s explanation in specific. Yet why would this be an issue any more for the shita of the Rashba than for the Ri? For the Rashba too there is no “real” loss for the lekuchim because of Rav Nachman’s advice — just the opposite, she even has to pay them back more!
Consider what we will write at the end of this article, about the Ri‘s shita concerning the selling of shtaros in general. Taking that into account, it makes perfect sense to say that the degree to which this “damaging action” is viewed as truly damaging (and thereby perhaps making the pasuk quoted in the Gemara inapplicable; see Note 1 above) would be softened. If the sold item was only existent on a d’rabbanan level, then why advice to make it be lost wouldn’t fall outside the limits of this pasuk in Yeshayahu can be more easily understood. This helps deal with our question: to the Ri, it wasn’t “damage” to the degree that it’d violate our sensibilities that Rav Nachman would think to suggest it; whereas to the Rashba, it was perhaps more “harmful.”
[v] Why not? See Tosfos in Bava Basra (on 147b), who elaborates on this point. Tosfos there thinks that the woman won’t rely on this kedushin item because it if her husband actually is mochel the debt in the end, then she might be too embarrassed to be claim the damage from him in court. Aside from this explanation found in Tosfos there, of the few other possible reasons I came up with, I like the following two:
Firstly, the very fact that the woman would not have a shtar to collect her new garmi chov (and thus it would be somewhat more difficult to prove and thereby collect in court) might be a reason she’d shy away from relying on such a kedushin item, despite it “officially” having a stated value equal to the amount written in the shtar itself.
Additionally, who is it that argues on Rabbi Meir there in Kedushin? The Chachamim. We might not know who that refers to, but we do know who it is that holds of the din of garmi — Rabbi Meir himself (see, for example, in Bava Kamma on 100a). If these Chachamim don’t hold of garmi, as they very well might not, then the Ri has no proof — the woman won’t rely on the shtar because it might be made worthless without even generating a commensurate garmi obligation! But the obligation might, in fact, be commensurate according to the opinion which does hold of garmi.
[vi] Why there is any garmi obligation there, however, is actually unclear to me. Maybe the loveh will be honest, and just still pay the malveh back anyhow, despite his lack of an extant shtar; if so how can we obligate the fellow who burned it before we know damage has been done?! The only thing which is actually lost at that moment is the shibud karkaos, and that certainly doesn’t seem to be the value of a “shtar ma’alyah” we refer to in the Gemara there… V’tzaruch li iyun.
[vii] In Tosfos in Bava Basra (on 147b), a similar — perhaps even the same — answer is suggested to explain the Ri’s read in our Gemara here.
[viii] The only other Rishon quoted in Tosfos here as holding like the Ri is Rabbeinu Tam (which itself is extremely problematic, as it seems to outright contradict another famous opinion of his, the basis of which is that the selling of shtaros is actually d’oraisa).