(1) We have a lender, borrower, one buyer of a field from the borrower after the loan; and then a second buyer. If there is default the lender gets the field and the first buyer gets the second field for the price of the field and for his improvement to the field he gets free property of the borrower.. גובה את הקרן ממשועבדים ואת השבח ממחוררין Tosphot asks in Bava Batra 157 why is there free property? In Bava Metzia he asks why is there a second field?
I want to claim the question of Tosphot why is there a second field can be divided into two meanings.
One is the order of collection. That is we know his שיעבוד came first so he can get either field. So why specifically does he go after the first field? The other way is the second field was bought after the first field was collected and so Tosphot is asking what stops the lender from getting the second field.
(2) I tried to write a few paragraphs on what the Rambam would hold here. I tied this law to the law of לווה ולווה וקנה [borrowed and borrowed and bought] based on an idea of Chaim Soloveitchik. But this ideas needs to be explored based on an idea of Rav Eleazar Menachem Shach.
First of all there are two scenarios in Tosphot. One is where the second field was bought after the collection. If this is our case then there is a clear parallel to the law of לווה ולווה וקנה. In our case there is a lender and a buyer and the lender obviously has first rights. But if the second field was bought after the collection then the rights of both come at the same time. It is almost the same case But we know what the Rambam says in לווה ולווה וקנה. That they split the field. If this is the same principle at work then why would the law here not be the same?
But there is another scenario in Tosphot. That is when the second field was owned at the time of the collection by either the borrower or the second buyer. Here it is possible the Rambam holds like either opinion of Tosphot that the lender must go after the first field or the second. We don't really know from the language of the Rambam. All we know is the Rambam does not hold it is a case of an אפותיקי guarantee for the loan.
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We have a מלווה, לווה, one לוקח of a field from the לווה after the הלוואה and then a second buyer. If there is default the lender gets the שדה and the first buyer gets the second field for the price of the field and for his improvement to the שדה he gets free property מחוררים of the borrower.. גובה את הקרן ממשועבדים ואת השבח ממחוררין. תוספות asks in בבא בתרא 157 why is there free property? In בבא מציעא he asks why is there a second שדה?
I want to claim the question of תוספות why is there a second שדה can be divided into two meanings.
One is the order of collection. That is we know his שיעבוד came first so he can get either field. So why specifically does he go after the first שדה? The other way is the second שדה was bought after the גבייה and so תוספות is asking what stops the מלווה from getting the second שדה.
I tried to write a few paragraphs on what the רמב''ם would hold here. I tied this law to the law of לווה ולווה וקנה based on an idea of רב חיים הלוי. But this idea needs to be explored based on an idea of רב שך.
First of all there are two scenarios in תוספות. One is where the second שדה was bought after the גבייה. If this is our case then there is a clear parallel to the law of לווה ולווה וקנה. In our case there is a lender and a buyer and the מלווה obviously has first שיעבוד. But if the second field was bought after the collection then the שיעבוד of both come at the same time. It is almost the same case. But we know what the רמב''ם says in לווה ולווה וקנה. That they split the field. If this is the same principle at work then why would the law here not be the same?
But there is another scenario in תוספות. That is when the second field was owned at the time of the collection by either the לווה or the לוקח שני. Here it is possible the רמב''ם holds like either opinion of תוספות that the מלווה must go after the first field or the second. We don't really know from the language of the רמב''ם. All we know is the רמב''ם does not hold it is a case of an אפותיקי guarantee משכון for the loan.
I want to claim the question of Tosphot why is there a second field can be divided into two meanings.
One is the order of collection. That is we know his שיעבוד came first so he can get either field. So why specifically does he go after the first field? The other way is the second field was bought after the first field was collected and so Tosphot is asking what stops the lender from getting the second field.
(2) I tried to write a few paragraphs on what the Rambam would hold here. I tied this law to the law of לווה ולווה וקנה [borrowed and borrowed and bought] based on an idea of Chaim Soloveitchik. But this ideas needs to be explored based on an idea of Rav Eleazar Menachem Shach.
First of all there are two scenarios in Tosphot. One is where the second field was bought after the collection. If this is our case then there is a clear parallel to the law of לווה ולווה וקנה. In our case there is a lender and a buyer and the lender obviously has first rights. But if the second field was bought after the collection then the rights of both come at the same time. It is almost the same case But we know what the Rambam says in לווה ולווה וקנה. That they split the field. If this is the same principle at work then why would the law here not be the same?
But there is another scenario in Tosphot. That is when the second field was owned at the time of the collection by either the borrower or the second buyer. Here it is possible the Rambam holds like either opinion of Tosphot that the lender must go after the first field or the second. We don't really know from the language of the Rambam. All we know is the Rambam does not hold it is a case of an אפותיקי guarantee for the loan.
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We have a מלווה, לווה, one לוקח of a field from the לווה after the הלוואה and then a second buyer. If there is default the lender gets the שדה and the first buyer gets the second field for the price of the field and for his improvement to the שדה he gets free property מחוררים of the borrower.. גובה את הקרן ממשועבדים ואת השבח ממחוררין. תוספות asks in בבא בתרא 157 why is there free property? In בבא מציעא he asks why is there a second שדה?
I want to claim the question of תוספות why is there a second שדה can be divided into two meanings.
One is the order of collection. That is we know his שיעבוד came first so he can get either field. So why specifically does he go after the first שדה? The other way is the second שדה was bought after the גבייה and so תוספות is asking what stops the מלווה from getting the second שדה.
I tried to write a few paragraphs on what the רמב''ם would hold here. I tied this law to the law of לווה ולווה וקנה based on an idea of רב חיים הלוי. But this idea needs to be explored based on an idea of רב שך.
First of all there are two scenarios in תוספות. One is where the second שדה was bought after the גבייה. If this is our case then there is a clear parallel to the law of לווה ולווה וקנה. In our case there is a lender and a buyer and the מלווה obviously has first שיעבוד. But if the second field was bought after the collection then the שיעבוד of both come at the same time. It is almost the same case. But we know what the רמב''ם says in לווה ולווה וקנה. That they split the field. If this is the same principle at work then why would the law here not be the same?
But there is another scenario in תוספות. That is when the second field was owned at the time of the collection by either the לווה or the לוקח שני. Here it is possible the רמב''ם holds like either opinion of תוספות that the מלווה must go after the first field or the second. We don't really know from the language of the רמב''ם. All we know is the רמב''ם does not hold it is a case of an אפותיקי guarantee משכון for the loan.
