OPINIONS: The Mishnah (45a) teaches that the orphans of a creditor to whom a debt is owed may collect the debt owed to their father only by taking an oath. The Gemara explains that the Mishnah refers to a case in which the orphans of a lender are trying to collect money from the orphans of a borrower. In such a case, the orphans may collect (when they have a Shtar or witnesses attesting to the debt) by making a Shevu'ah that their father never told them that the debt was paid, and that they never saw a document stating that the debt was paid.

Rav and Shmuel rule that this is the law in a case in which the lender died first. When the borrower died before the lender, the loan is no longer collectable. The Halachah states that a person does not bequeath to his heirs the rights to collect a debt which he could collect only by taking an oath. Since a person may collect a debt from orphans only by taking an oath, he cannot bequeath the collection of that debt to his children. In contrast, when the lender died first, his heirs do not need to take an oath in order to collect directly from the borrower, and therefore even when the borrower dies they retain the ability to collect the debt from his heirs.

What is the Halachah in a case in which the orphans of the lender themselves die before they collect the debt from the orphans of the borrower? Do their heirs have the right to collect the debt that their fathers (the first generation of heirs) could have collected, or, since their fathers could have collected the debt only by taking an oath, they cannot collect the debt?

(a) The RAMBAN quotes RAV AL'BARGILONI who rules that the third generation of creditors may not collect the debt. This is understandable, since they cannot take the oath that their fathers needed to take in order to collect. Their fathers needed to swear that the original lender (their grandfather) never indicated in any way that this debt was paid back to him. As mentioned above, a person cannot bequeath a debt which is collectable only with an oath. Rav Al'bargiloni says that all of the Chachamim of his time agreed that this was the Halachah. Indeed, the RIF and RA'AVAD both rule this way in their responsa.

The SEFER HA'TERUMOS explains the logic of this opinion further. Why does a person not bequeath such a debt to his children? It is reasonable to assume that a person bequeaths to his children only that which he has in his possession, or that which is going to come into his possession by itself. Money which can be collected only by taking an oath is not considered his money until he swears. Consequently, the third generation of heirs cannot inherit the collection of a debt for which their fathers had to swear in order to collect. This also appears to be the RAN's understanding of the ruling of Rav Al'bargiloni.

(b) The RAMBAN writes that if the other Rishonim indeed agreed with the ruling of Rav Al'bargiloni, then we must accept this ruling. The Ramban says, however, that there is reason to question this ruling. There is a different logic for why a person cannot bequeath such a debt to his children. While the creditor himself can swear with certainty that he is owed the money, his children cannot swear with certainty that their father was owed the money. In a case in which the lender died first, the children do not have to take an oath in order to collect directly from the borrower, and therefore they retain the ability to collect that debt even when the borrower dies. However, in a case in which the son of the creditor (the first generation of heirs) was able to swear only that he does not recall his father saying that the debt was paid back, why can he not bequeath that oath to his son? The oath that he needed to take would be the same oath that his son would need to take! The Ramban therefore states that, theoretically, the third-generation heirs also have the right to collect their grandfather's debt with an oath.

The RITVA writes that his Rebbi, the RE'AH, ruled in accordance with the reasoning of the Ramban. Moreover, he ruled that even though Rav Al'bargiloni said that the Chachamim of his time agreed with him, the Halachah is that the third generation of heirs may take the same oath as their fathers would have taken and they may collect from the second generation of debtors. The Re'ah said that this is the proper way to rule, and the Ritva adds that he indeed saw that the Re'ah ruled this way in practice. This is also the opinion of the BA'AL HA'ITUR.

(See, however, the ROSH here (7:16), who refutes the ruling of Rav Al'bargiloni ("ha'Rav ha'Barceloni") and sides with the reasoning of the Ramban, and the Rosh in Teshuvos (86:4), who explains the logic of not bequeathing a debt that requires an oath in the same manner as the Sefer ha'Terumos.) (Y. MONTROSE)

OPINIONS: The Mishnah (45a) teaches that the heirs of a lender may collect money from the heirs of the borrower (with witnesses or with a Shtar) only by taking an oath that their father never told them that the debt was paid. Rav and Shmuel rule that this is the law in a case in which the lender died first. When the borrower died before the lender, the loan is no longer collectable (see previous Insight). Rebbi Elazar argues that even when the borrower died first, the heirs of the lender may collect with the oath mentioned in the Mishnah.

Rav Chama says that since the Rabanan did not state that the Halachah follows either the view of Rav and Shmuel or the view of Rebbi Elazar, a Dayan who conducts himself in accordance with the view of Rav and Shmuel is acting appropriately, and a Dayan who conducts himself in accordance with the view of Rebbi Elazar is also acting accordingly. Rav Papa adds that in practice, the heirs of the lender may not collect with their Shtar, because perhaps the Halachah follows the view of Rav and Shmuel. On the other hand, the Shtar that the heirs of the lender are holding is not torn up or discarded, because the heirs might find a Dayan who rules like Rebbi Elazar.

What, according to Rav Papa, are the heirs supposed to do with the Shtar? How should the managers of the estate of the orphans pursue the case? Should they try to find a Dayan who rules like Rebbi Elazar?

(a) The ROSH writes that despite the statements of Rav Chama and Rav Papa, the Halachah follows the view of Rav and Shmuel, and, therefore, if such a Shtar is brought before a Dayan, he should tear it up. This is evident from the words of the Amora'im in the Gemara who state that Rav and Shmuel's ruling is not applied to other, similar cases. The words of these Amora'im imply that in the specific case which Rav and Shmuel discuss, the Halachah does follow their opinion. Rav Chama's statement is relevant only when a Dayan happens to rule like Rebbi Elazar; b'Di'eved, his ruling is binding. L'Chatchilah, however, every Dayan should judge the case like Rav and Shmuel. This is the Halachah as recorded by the TUR and SHULCHAN ARUCH (CM 108:11).

The AYELES HA'SHACHAR questions the explanation of the Rosh. TOSFOS in Bava Basra (62b) writes that if a Dayan reasons that the Halachah should follow one of the opinions, he may follow that opinion and rule accordingly. The Rosh in Sanhedrin (4:6) also states that when there are two viable opinions in a Halachic argument, a Dayan may not choose to do whatever he wants (for if he does so, his ruling is a "Din Sheker," a dishonest ruling). Only when the Dayan states that according to his understanding, one of the opinions is more logical and correct, may he rule in accordance with that opinion. If, however, he is unsure, then he may not take money away from the party holding it. If, however, the Dayan rules without knowing about the dispute at all, then his ruling is valid and we may rely on the opinion that his ruling followed.

These guidelines seem applicable only when there is an argument among the Rabanan concerning the Halachah. A Talmid Chacham may assert that he is certain that one of the opinions is correct. However, if the Gemara itself expresses a doubt about which opinion to follow, it seems that a later Dayan is not entitled to say that he does know how to rule. Accordingly, how can any Dayan rule like Rebbi Elazar (and take money away from someone) when the Gemara itself expresses a doubt about which opinion to follow?

The Ayeles ha'Shachar answers that it must be that the Rosh's ruling that a Dayan may rule like Rebbi Elazar is pertinent only in the other case which the Rosh mentions in Sanhedrin, the case in which the judge is unaware of the dispute. In such a case, the Dayan indeed may rule as he sees fit.

However, the Ayeles ha'Shachar is not satisfied with this answer. The Rosh's ruling there applies only when a Dayan is unaware of a dispute among earlier authorities who preceded him. However, the Rosh's ruling certainly should not apply to a Dayan who does not know the explicit Gemara here which states that "we do not collect with this Shtar," for such a Dayan is simply an ignoramus whose judgment should have no validity! The Ayeles ha'Shachar leaves this question unanswered.

(b) RABEINU YEHOSEF HA'LEVI writes in the name of RAV HAI GA'ON that the custom of the "Rishonim" (the generations before him) was to rule like Rav and Shmuel. In contrast to the view of the Rosh, he adds that if a Dayan rules like Rebbi Elazar, his ruling is not valid at all.

The RAN expresses uncertainty about why such a Dayan's ruling should be totally disregarded. His question may be answered with the words of the Ayeles ha'Shachar. The Ayeles ha'Shachar asked (on the opinion of the Rosh) that the ruling of a Dayan who rules like Rebbi Elazar should not be accepted, because the Gemara itself expresses a doubt about how to rule. This seems to be the reasoning behind the ruling of Rav Hai Ga'on (and the answer to the Ran's question), who says that if a Dayan rules like Rebbi Elazar, his ruling is not accepted.

(c) The RITVA and the RAN (in the name of "Ketzas me'Raboseinu ha'Tzarfasim") state that a Dayan should not tear up the Shtar, because it is serves a purpose. If the orphans seize the money which they claim is owed to them, Beis Din may not take it away from them out of doubt because perhaps the Halachah follows the view of Rebbi Elazar.

The Ayeles ha'Shachar questions this view from the Gemara itself. Rav Papa states that Beis Din does not tear up the Shtar since the orphans might find a Dayan who rules in accordance with the view of Rebbi Elazar. If Rav Papa maintains that the orphans may keep the money if they seize it, then why does he not give that as the reason for why Beis Din does not tear up the Shtar? (That is, in the event that the orphans seize the money, they will need the Shtar as proof that they may keep the money.)

The Ayeles ha'Shachar answers this question based on the Rosh's explanation of the principle of "Avid Inish Dina l'Nafshei" in Bava Kama (1:20) -- a person may make a judgment for himself (in certain situations) and seize money that is owed to him without a ruling of Beis Din. The Rosh explains that in such a situation the person essentially becomes a Dayan himself. According to this explanation, when the Gemara says that Beis Din does not tear up the Shtar because the heirs might find a Dayan who rules like Rebbi Elazar, it refers to a case in which the orphans seize the money that is owed to them by choosing to become their own "Dayan" through the principle of "Avid Inish Dina l'Nafshei"!