Siman 102

By Torah law, when the lender comes to collect his debt from land, he only collects from the ziburit, as it is said: "And the man to whom you lend shall bring out the pledge to you outside," and it is the way of a person to bring out the least of his vessels. And even though regarding metaltelin there is no difference between idit and ziburit, as I wrote in siman 101, section 2, that for metaltelin "anything is best," this is when he comes to collect from them, for if he cannot sell them here, he will sell them in another place. However, the verse spoke regarding a pledge, and regarding a pledge it is obvious that there is a distinction between a good pledge and one that is not good [see Bava Kamma 8a]. And from a pledge we learn regarding the collection of lands, that they are only from the ziburit [Yerushalmi, chapter 5 of Gittin]. But the sages enacted that he should collect from the beinonit so as not to lock the door before borrowers. And for what reason did they not enact from the idit? So that a person should not see an excellent field belonging to his fellow and say, "I will jump and lend to him in order to collect it" [ibid. 49b].

And the average-quality land is appraised according to his own, and not according to the world at large; for example, if his average-quality land is only like the poor-quality land of the world, or if it is as good as the best-quality land of the world, he collects from his average-quality land. We learned this from damages, as it is written regarding them: "the best of his field and the best of his vineyard he shall pay," for we follow his own best, and the same applies to a creditor regarding average-quality land. And if the debtor has several fields of average quality, he gives him whichever field the debtor desires, just as with movable property the choice is in his hand to give from whichever he desires, as I wrote in siman 101. And if the creditor has a field adjacent to one average-quality field of the debtor, whether the creditor has the power to compel him to give him this field so that he will have two fields adjacent to one another—as this would be a case of "this one benefits and this one loses nothing"—depends on a dispute that will be explained in siman 174 regarding division; see there. And so too regarding movable property, when the creditor has a benefit in being given this specific object, whether he can compel him also depends on this. However, it is possible that even according to that opinion that will be explained there, that he cannot compel him, perhaps regarding a creditor even according to this opinion he can compel him, for he must pay him in ready cash just as he lent him, except that they did not burden the debtor with this, that he should sell and pay him in money; and if so, at the very least the power of the creditor should be superior such that he gives him the average-quality land or the object that he desires when he has a benefit from it. And so it appears to me to be the primary view, and a proof for this is from poor-quality land, which will be explained in section 3.

If the creditor desires ziborit and said to the debtor, "Give me ziborit slightly more than the beinonit," we listen to him, for according to the Torah his legal right is to ziborit, but the sages instituted for his benefit that he should collect from beinonit; and since it is for his benefit to give to him according to the law of the Torah, the law is with him. And more than this, Chazal said that even if that ziborit currently stands at a cheap price and is destined over the course of time to increase in value, the debtor does not have the ability to say, "If this field is dear to you, you shall take it according to the future price of the increase," because the creditor can say to him, "If I had the money that I lent you, would I not have bought such a field according to the current price? And behold, even the beinonit I would take from you according to the present price, so why should my power be diminished regarding ziborit?" And some say that we do not compel him to give him ziborit, for the debtor can say to him, "Just as my power is sufficient to give you from whichever beinonit I want, so too my power is sufficient in this not to give you ziborit; and behold, even by the law of the Torah where your legal right is to ziborit, when I want to give you beinonit, the Torah would not prevent me from this." And even according to this opinion, if his desire is to give him ziborit and to calculate for him according to the future price of the increase, he does not have the ability, and the creditor can compel him to give him the ziborit and at the present price, for the creditor can say to him, "You have the ability to give me beinonit or ziborit, but everything must be according to the present price." However, the primary ruling is according to the first opinion [Rashal and Shach].

If he only has ziborit, he is not obligated to sell them for beinonit; and similarly, if he only has idit, he is unable to exchange it for beinonit, for our sages, of blessed memory, equalized their measures, that he shall pay with what he has. However, if he has idit, beinonit, and ziborit, he shall pay him with beinonit, but he is unable to sell and does not need to. And if he has idit and beinonit, he shall give him beinonit; if he has idit and ziborit, he shall only give him ziborit. And one should not raise a difficulty that according to what has been explained, that they appraise based on his own property, how can you find this law? For if he only has one type, how does the name idit or ziborit apply to it? And similarly with two types, how is it relevant to say idit and beinonit? For it can be said, for example, that at the time of the loan he had all three types, and afterwards he sold one or two types, and the previous name remains upon what is left; for the essence depends on the names his fields had at the time of the loan, for then they became liened to the lender. Therefore, when he sold the idit and there remained before him the beinonit and the ziborit, he pays him with the beinonit, even though they are now idit for him. And if the idit was blasted, he only pays him from ziborit [Netivot HaMishpat], for when it was blasted, his lien was removed from it and the beinonit is considered as idit. And if at the time of the loan he only had one type and afterwards he acquired ziborit inferior to it, some say that he only pays him the ziborit [ibid.], and the matter requires further deliberation.

This fact that the borrower pays with beinonit is specifically when all the fields or the houses are in one place, but if the idit is in the city or near the city and the beinonit is far from the city, the borrower cannot say to him, "Take for yourself from the beinonit that is far away," for you have no greater locking of the door than this. Rather, he is obligated to give to him from the idit that is in close proximity. The measure of proximity and distance depends on the assessment of the beit din. Nevertheless, if the idit and the ziborit are in close proximity and the beinonit is at a distance, if it is not the will of the lender to accept the beinonit, the borrower can push him away to the ziborit; for since the beinonit is not in the calculation, it is as if he has only idit and ziborit, where he only collects from the ziborit [it appears to me].

If he had superior-quality land, superior land, intermediate land, and inferior land, and he stipulated at the time of the loan to give him superior land—and any stipulation regarding monetary matters is valid—and afterwards the superior-quality land was damaged, he only pays him from the intermediate land even though the superior land remains. For this fact that he stipulated to give him the superior land was because the superior-quality land remained with him; but had he known that he would lose the superior-quality land, he would not have promised to give him the superior land. And there are those who disagree on this and hold that this is like "matters of the heart," and since the superior land remains, he must pay him according to his stipulation. For specifically if he revealed his intention from the outset, such as if he said to him, "I will give you superior land because I have superior-quality land," in that case, certainly when the superior-quality land is damaged, he may withhold the superior land for himself. But when he did not reveal his intention, it is "matters of the heart," and they are not matters [Maharshal and Taz], unless the superior-quality land was ruined to the point that they are worse than the inferior land, and it turns out that now the superior land is like superior-quality land, and the intermediate land is like superior land, and the inferior land is like intermediate land, and the superior-quality land is like inferior land—for then he collects from the intermediate land, which is now superior land. But when the superior-quality land was lost entirely, he collects from the superior land [Urim VeTumim, see there].

Regarding an iska, he collects the half of the loan from intermediate quality land like a creditor, and the half of the deposit he collects from superior quality land [ibid. in the name of the Riaz]. This is according to what I wrote in siman 101, section 3, that an iska is similar to a creditor and one is not required to give him specifically money as is the case with a hired worker. However, it is simple that he must give superior quality land for the half of the deposit, for it is no worse than damages where he must pay him from the best of his property.