Selling a Shtar - Rav Ofer Livnat

Publicized in the weekly leaflet Hemdat Yamim - Eretz Hemdah

 
This week in the Daf Yomi the Gemara (147b) states that a lender who sells the shtar for a loan can still forgive the debt to the borrower, and the buyer of the shtar will not be able to collect the debt from the borrower. However, the buyer will be able to sue the lender for the damage he caused him (Ketuvot 85a). The question is, why can the lender forgive the debt even after he sells the shtar?

According to the Rif (Ketuvot 44b in the pages of the Rif) and the Rambam (Mechira 6, 12), the reason is that, according to the original Torah laws, a shtar cannot be sold. Only an item of intrinsic value ("gufo mammon") can be sold. A shtar is only proof of a debt, and does not have intrinsic value, and thus cannot be sold. Although the Sages instituted the sale of shtarot, still, even after their institution, the sale is not a complete one, and thus the lender can forgive the debt and void the shtar.

Rabbeinu Tam (quoted by the Rosh 9, 10) disagrees with the Rif and the Rambam. He claims that a shtar can be sold even according to Torah law, but, nevertheless, the seller can forgive the debt. He explains that every loan contains two liens. The first is "shiabud haguf," which is the obligation of the borrower himself to repay the debt. The second is "shiabud nechasim," which is the lien on all the assets belonging to the borrower, through which the lender can collect his debt. When a lender sells a shtar, he sells only the shiabud nechasim, but the shiabud haguf cannot be sold. Therefore, even though the lien on the assets now belongs to the buyer of the shtar, the original obligation on the borrower himself to pay, still belongs to the lender. If the lender forgives the shiabud haguf, the lien on the assets is void, as the validity of the lien on the assets is dependent on the existence of the debt on the borrower's guf.

:Summary and Ruling

A lender who sells a shtar, can still forgive the debt, thus nullifying the shtar. According to the Rif and the Rambam, the reason for this is that a shtar can be sold only by a special institution of the Sages, and, even after this institution, the sale is not considered to be a complete one. According to Rabbeinu Tam, a shtar can be sold by Torah law as well, but only the lien on the assets can be sold. The debt itself remains under the control of the lender, thus enabling him to forgive the debt, which in turn makes the lien on the borrower's possessions void. 

 

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