Siman 101

If he comes to pay, if he has money, he is obligated to pay him with money, and he cannot defer him to land or movable property, for one who ordinarily lends to his fellow lends to him on the condition that he will repay him with money. And if he does not have money, he shall pay him with the equivalent of money. Nevertheless, if it is not known to us whether he has money or not, we do not administer an oath to him. And even if we see that he has money and he says that it is not his but belongs to so-and-so, we do not administer an oath to him, for the sages did not institute an oath regarding this since he pays him with the equivalent of money. However, one may impose a herem stam upon anyone who knows that he has money. And some say that one can impose an explicit prohibition upon the borrower [Taz] if he does not have money. And so too, in a place where there is a loss to the borrower if he pays him with money, he may pay him with the equivalent of money even when he has money; for example, if he is also indebted to a violent person, and if he does not pay him with money he will imprison him in a house of captives, he may pay the Israelite with the equivalent of money. And specifically with a loss such as this; but if the loss is that he needs to buy merchandise with the cash and the like, we do not heed him and he must pay with money [it appears to me]. And if he said "I do not have money" and was found to be a liar, he is no longer believed regarding this debt when he says "I do not have money," but rather he is obligated to take the trouble to sell and bring money, since he has been established as a liar. And so too, if it appears to the beit din that he is lying—that he has money and does not want to pay with it—they compel him to pay with money. And if he has money and attributes it to being that of a gentile, and the creditor suspects that it is his, he cannot administer an oath to him on a claim of doubt; but he can impose a herem stam on anyone who knows that he has money. And if the borrower is assessed to be wealthy, we do not listen to him and we compel him to give money. And so too, if he attributed his money to a gentile and it became known that the money was his, and now in truth it is not in his power to give it because the gentile is withholding it, we penalize him and compel him to sell his objects and settle with the creditor with money. And one who in truth does not have money is not obligated to take the trouble to sell his properties and pay with money, but rather he pays with whatever he has with the equivalent of money. However, if the matter is known that a gentile has a claim against the properties of the borrower, and the creditor is afraid to take them because of the claim, certainly the borrower is obligated to take the trouble to sell and give money. And so too, regarding any loss that could reach the creditor if he pays him with the equivalent of money, it is in his power to compel the borrower to obtain money for him, for in a place of loss the rabbis did not institute [it appears to me].

If the borrower does not have money but has movable property and lands, and the borrower wants to give him land while the lender prefers movable property, he is obligated to give him movable property because they are closer to money than land, since he can carry them and sell them. However, in this regard the power of the borrower is superior, for he may give him whichever movable property he desires, and the lender cannot say, "I specifically want these movable items," because since he receives them based on an appraisal, all movable property is equal, for all movable property is "the best of silver," as if he does not sell it here, he will sell it in another place. And similarly, if the lender wants land and the borrower wants to pay him with movable property, we listen to the borrower; and all the more so if he wants to pay him with money, that it is not within the power of the lender to say, "Give me land or movable property." And if the borrower has no money, only land and movable property, and he comes to pay him with land or with movable property, and the lender says to him, "I am not requesting the debt from you now, and I do not wish to receive the equivalent of money, and I will wait until you have money," the law is with the lender, for as long as he does not claim his debt, he does not need to take something he does not desire [Tur siman 74]. And see there what was written in section 7.

There are those who say that one who sells merchandise on credit to be paid after a period of time, his law is like that of a worker—which will be explained in siman 336—that he is obligated to pay him in currency even when he has none, and he must trouble himself to sell his belongings and pay him in currency. For we are witnesses that this person did not sell his merchandise so that he would receive the equivalent of money, as every merchant sells his merchandise specifically to receive cash. This is not comparable to a loan, where he performed a kindness for the borrower and his intention from the outset was that if he should not have cash, he would accept the equivalent of money; but the merchant would not agree under any circumstances to receive the equivalent of money. And there are those who further say that for this reason, even regarding shtarot iskot, since the intention of the lender is to profit and not to perform a kindness, the borrower must pay him in currency in any event. However, one who gives money to his fellow to trade with for half the profit, not by way of a loan—since the way of business is to exchange merchandise for merchandise, and he profits from the merchandise he took in place of his merchandise, and this person did likewise—the giver must wait for the recipient until he sells his merchandise for cash, or he receives the merchandise itself along with the profit that accrued on the merchandise [Sma]. And there are those who say that shtarot iskot are also governed by the law of a creditor, for the reason does not depend on whether his intention was for a mitzvah or in order to profit, and therefore he may pay him with the equivalent of money. And there are those who disagree with the essence of this ruling and hold that even a seller of merchandise is equal to a creditor [Urim VeTumim]. And the primary ruling is that a seller of merchandise is obligated to be paid in cash, for such is the custom of merchants, but shtarot iskot are equal to a creditor [and so it appears in the Ketzot HaChoshen, subsection 4]. And if they stipulated between them that the borrower shall pay him in cash, or in a sale of merchandise where they stipulated to pay him with the equivalent of money, his stipulation is valid, for any stipulation in monetary matters is valid when the stipulation was at the time of the loan or at the time of the sale; but afterwards, a kinyan is required for such a stipulation [it appears to me].

If the money of the borrower was deposited in the hand of others, we extract it from them and pay the lender, even though the borrower possesses the equivalent of money, for deposited money is as if it were in the hand of the borrower. However, if the money was as a loan with others, it is not necessary to state that if it is still before the time of repayment, we do not extract it from their hand even if the borrower has no equivalent of money at all; but even if it is after the time, if the borrower merely has the equivalent of money, the lender does not extract it from them if the borrower wishes to extend the time for them, just as one does not collect from encumbered properties in a place where there are free properties [Shach and Taz]. And there are those who disagree on this and hold that when the time of repayment has arrived, the borrower does not have the ability to extend the time for his borrowers even when he has the equivalent of money, and we extract it from them and pay in cash to this lender, unless it is explicit in their contract that he does not have the ability to compel them to pay at the time, and as I wrote at the end of siman 86, see there [Urim VeTumim].

If the debtor possesses promissory notes against others, he may transfer them to him, and they appraise them according to their current value based on the status of the debtors, their condition and their strength, and according to their properties, whether they are high-quality or low-quality land. The general rule of the matter is that they are like all movable property; even if he has other movable property, he may transfer notes to him at their value. Just as the debtor has the ability to give the creditor any movable property he desires, so too he may give him notes even when he has other movable property. The creditor does not have the ability to say, "I will not accept notes from you, for perhaps they will not pay for them," for the beit din appraises them, and if they are not standing to be paid at all, they would certainly not appraise them as worth anything. And some say that when the debtor has other movable property, he cannot compel the creditor to accept notes [Shach], but the primary view is like the first opinion [Urim VeTumim]. And even if the time of the notes has arrived, nevertheless, it is necessary to appraise them with an appraisal of beit din as to how much they are worth, and they transfer them to the creditor [ibid.]. And it is not specifically notes; the same applies to oral debts or even those of gentiles; they appraise them and hand them over to the creditors according to the appraisal [ibid.]. And if the creditor can subsequently forgive the debtors of the notes, some say he can forgive as in every sale of notes as explained in siman 66 [Shach], unless he transferred it to him in the presence of the three of them, for then he cannot forgive as written there [Taz], or if he has land, and consequently when he forgives, they will seize his lands [ibid.]. And some disagree on this and hold that he cannot forgive, for it is not similar to the sale of notes, for from the Torah there is no basis for their sale as written there, but seizure for a creditor is from the Torah; if so, no power remains for him such that he would have the ability to forgive [Urim VeTumim]. And this is a simple matter: that if he has the ability to forgive, he cannot compel him to accept the notes [and these opinions follow their reasoning; and examine this carefully].

Everything that he gives to him, whether from land or from movable property, they shall appraise for him according to what is possible to sell them immediately; and regarding land, after the days of appraisal and public announcement. And that he should not need to wait until the market day, and that it should be possible to sell in his city and not that he should need to travel to sell it in other towns and markets. And they shall appraise according to the hour and according to the time, so that he should not need to delay until buyers are found for it or until it increases in value, for if so, you lock the door before borrowers. The general rule of the matter is: they shall appraise how much a buyer would give for this object or for this land here on the spot immediately, and for that amount they shall give it to the lender; and regarding land, after the days of appraisal and public announcement.

We collect for a creditor any movable property found belonging to the debtor, and if the movable property is not sufficient, we collect land for him after they administer an explicit ban if he has further movable property [Taz]. And they also administer a communal ban against anyone who knows that he has movable property and does not inform the beit din, unlike those who say that he must swear on this that he has no further movable property; for since he is paying him in land in any event, the sages did not institute an oath for this. And if the creditor says it is certain to him that the debtor has further movable property or money, some say that they administer an oath to him for this if there is a difference of at least the value of a perutah between the land and the movable property or the money [Urim VeTumim]. And when they collect land for him, they collect from any land that the debtor has, even if the land is encumbered for a woman's ketubah or to an earlier creditor; nevertheless, they collect for this one immediately, and if the first one comes and seizes it from him, let him seize it, but for the time being they collect for this creditor before us since there is nothing to collect except for this [see the Yerushalmi brought by the Rosh, chapter 10 of Ketubot, siman 5].

If he had movable property or land or money, and he has debts that he owes to idolaters, and the debtor cries out that everything he has is liened to them, and if the Jews take them they will come and imprison him in captivity, and the beit din knows that it is as he says, nevertheless, the Jew shall collect his debt when its time arrives. And if they imprison him in captivity, all of Israel are commanded to redeem him. For specifically when he wants to give the Jew land, the choice is in his hand and he may give the money to the idolaters if there is a danger of captivity, as has been explained; but that the debt of this one should be lost because of his captivity—why should this lender suffer more than all of Israel?

Just as a debtor, if he has money, is obligated to pay with money, and movable property precedes land, so too is the law regarding the collection of a ketubah, even when she comes to collect from orphans [Shach]. And there are those who disagree on this, and so it is implied in Even HaEzer siman 100, see there [see Urim VeTumim and Netivot HaMishpat].