SHI'BUDA DE-RABBI NATHAN

SHI'BUDA DE-RABBI NATHAN (Aram. "Rabbi Nathan's Lien"), a rule of law attributed to R. Nathan, a tanna of the second century, and cited in the Babylonian Talmud as follows: "Whence is the rule derived that if one man [A] claims a maneh [100 zuz] from his neighbor [B], and his neighbor [B] [claims a like sum] from another neighbor [C], that we collect from the one [C] and give it to the other [A]? From the verse, '… and he shall give it unto him to whom he is indebted'" (Num. 5:7 – Pes. 31a). The Bible does not state, "unto him who lent him the money" [B], but rather "unto him to whom he is indebted," i.e., to whom the principal rightfully belongs now [A] (Rashi, ad loc.).

The Substantive Law

In the Shulḥan Arukh the rule reads as follows: Reuben claims 100 from Simeon, and Simeon from Levi; we collect from Levi and give it to Reuben. No distinction is made as to whether Levi was already obligated to Simeon when the latter borrowed from Reuben or whether Levi had become obligated thereafter. Nor is any distinction made between a loan (see *Loans) having documentary attestation and one having only oral attestation (about these definitions see *Obligation, Law of). As long as both debtors acknowledge indebtedness, each to his respective creditor, we collect from Levi and give it to Reuben. This holds true for every type of obligation which Levi incurs toward Simeon, whether it be through loan, *sale, *lease, or hiring (see *Lease and Hire; Ḥm 86:1). Indeed, the liabilities may have arisen from *torts, *damages, bailments (see *Shomerim), and larceny (see *Theft and Robbery) as well. Nor need the two debts, i.e., of Simeon and Levi, have been of the same kind. For example, Simeon's indebtedness to Reuben may have arisen as the result of a loan, whereas Levi's indebtedness to Simeon may have been incurred through purchase. Similarly, Simeon's liability may be according to biblical law and Levi's according to rabbinic law (Siftei Kohen, Ḥm 86:1). Reuben's ability to collect from Levi is limited to the circumstance that Simeon is insolvent (Sh. Ar., Ḥm 86:2), although a dissenting opinion, which considers Levi virtually a debtor of Reuben, would extend the said liability even to those cases where Simeon was solvent (Siftei Kohen, Ḥm 86:2).

According to most commentators, Shi'buda de-Rabbi Nathan differs from an ordinary *lien in being essentially a procedural device for the collection of debts rather than a substantive incumbrance on the property of the debtor. Thus, an ordinary lien attaches only to those properties of the debtor which were in his possession at the time he incurred the debt. Moreover, the indebtedness created through an ordinary lien may be discharged by the payment of money even in the case where the indebtedness arose through the delivery of a deposit or a pledge. R. Nathan's Lien, however, attaches to those properties the debtor acquired after he had incurred the debt as well, and the debtor could be compelled to deliver the object itself to his creditor's creditor. Yet, in the case where a debtor subsequent to his loan sold his property, Rabbi Nathan's Lien is ineffectual, for inasmuch as the debtor himself has no claim against the purchaser, his creditor also may have no claim against the purchaser. Under such circumstances, however, an ordinary lien is effective, and in the case of nonpayment the creditor may seize the property from the purchaser for the satisfaction of his (earlier) claim (Keẓot ha-Ḥoshen, Ḥm 86).

Legal Analysis

Privity of contract is expressed in talmudic literature in the form of the refusal of a debtor to enter into litigation with his opponent on the ground that lav ba'al devarim didi at ("You have no claim against me," or "You are not my plaintiff"). Shi'buda de-Rabbi Nathan is a method of *assignment which Jewish law makes available in order to overcome, when necessary, the limitations created by the principle of privity. Rabbi Nathan's Lien differs from the other methods of assigning rights, such as: ma'amad sheloshtan (see *Assignment; *Obligation, Law of), which is a kind of assignment by substitution and requires the physical presence of the debtor, the assignor, and the assignee; mesirat shetarot (see *Acquisition), which effectuates assignment through the delivery of the bonds or notes of indebtedness to the assignee accompanied by a deed of assignment; and harsha'ah (see *Agency, Law of), which creates a power of attorney under the form of assignment. These three methods of assignment depend upon the initiative and consent of the assignor, whereas Shi'buda de-Rabbi Nathan creates what is essentially an automatically transferred obligation. In contrast with the other methods, however, Shi'buda de-Rabbi Nathan is limited to circumstances in which the assignee is a creditor of or claimant against the assignor. Shi'buda de-Rabbi Nathan finds its closest parallel in the statutory proceeding of garnishment in American law (see Herzog, Instit, 2 (1939), 214, n. 2).

Historical Development

Asher Gulak (Ha-Ḥiyyuv ve-Shi'budav, bibl.) maintains that Shi'buda de-Rabbi Nathan underwent a series of developments in talmudic times whereby it received a progressively wider application. The original statement of R. Nathan is to be found in Sifrei Numbers 3, and merely provides for the right of a creditor to collect his debt from monies which have been awarded to the debtor in court but which the latter has as yet not collected. The text of R. Nathan's statement as it appears in the Babylonian Talmud (e.g., Pes. 31a) represents, according to Gulak, a further development whereby debts owed to the debtor are construed as property of the latter and subject to collection on behalf of his creditor even before they have been awarded to the debtor in court. Thus, at this point the assignment of rights has been created without any reference, however, to lien. The final development of R. Nathan's statement is to be seen in the construction placed upon it by the Babylonian Talmud, namely, that there is a lien that the creditor has on all the properties of his debtor's debtors. This construction is part of the general tendency which Gulak discerns in the Babylonian Talmud, i.e., to incorporate lien into the very concept of obligation.

bibliography:

N.A. Nobel, in: Sefer… le-David Ẓevi… Hoffmann (1914), 98–105; Gulak, Yesodei, 2 (1922), 101–3; 4 (1922), 193f.; Herzog, Instit, 1 (1936), 201–12; 2 (1939), 209–14; A. Gulak, Toledot ha-Mishpat be-Yisrael bi-Tekufat ha-Talmud, 1 (Ha-Ḥiyyuv ve-Shi'budav, 1939), 150f.; Elon, Mafte'aḥ, 396f. add. bibliography: M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Se-farad u-Ẓefon Afrikah (legal digest) (1986), 533–34; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1997), 358.

[Aaron Kirschenbaum]