Siman 103

When it is necessary to grant the creditor possession of the debtor’s property, three appraisers expert in appraisal perform an assessment. They appraise only according to the time and according to the rate at which properties are currently sold in that place. The appraisers may be related to one another, as this is not a formal judgment but merely an appraisal; nevertheless, they should not be related to the litigants, so that their hearts do not incline toward their benefit. Afterward, they announce it to anyone who wishes to bid more than the appraisal. The duration of the announcement is not fixed, but rather according to what the beit din sees fit until buyers cease to add to the price. If this land is being seized from purchasers, they must announce for thirty days, as with the property of orphans, which will be explained in siman 109. Some say that even when the creditor himself collects, since it is sold by the beit din without his consent, it requires appraisal and announcement like the property of orphans. When they announce and the buyers come and set the price as they wish, if they offer according to the appraisal or more, they sell to them, take the money, and pay the creditor. If the creditor wishes to retain it for himself at the same price the buyers are offering, he takes precedence. If the buyers offer less than the appraisal, they transfer it to the creditor according to the appraisal, and they do not reduce from the appraisal, for presumably they appraised fairly, but the buyers wish to purchase cheaply; for the announcement is for the benefit of the debtor, perhaps they will add to the appraisal. At the time of the announcement, they announce how they are selling this field or this house in order to pay a creditor his debt or a woman her ketubah. And why is it necessary to publicize this? Because for the buyers there is a practical difference in this, for a woman is not a merchant and will agree to receive the money little by little, and conversely, there is an advantage with a creditor who is not as particular about the quality of the coin as a woman [Arachin 21b]. The version of the announcement is thus: they announce that such-and-such a field, whose markers and boundaries are such, and which produces such-and-south amount of grain, and was appraised at such-and-such—anyone who wishes to purchase, let him come and purchase [ibid.]. If someone purchased it, they give him a deed of announcement stating how they made the announcement according to the law and sold this land to this person for the payment of a creditor or for a woman’s ketubah. The guarantee of this land is upon the debtor, and the debtor has no right to this land forever [Sma]. A beit din that sold without an announcement is treated as if they erred in a matter of Mishnah, and they retract [Ketubot 100b], as I wrote in siman 25. If the creditor says, "I will accept the field for my debt without an appraisal or without an announcement," we do not listen to him if the debtor does not agree to this; and it will be further explained in siman 109. Also regarding movable property, an appraisal is required, but announcements for thirty days are not required for movable property as they are for land; rather, they announce in the synagogues one time that they are selling movable property in such-and-such a place—anyone who wishes to purchase, let him come and purchase. And if there is a custom to sell even land without an announcement, we follow the custom [ibid.].

A place where they are accustomed to write in contracts that the lender may descend to the properties of the borrower and sell without appraisal and public announcement—if the custom in the city is to do so, any condition regarding monetary matters is valid. For even though the Torah forbade the lender from descending to the properties of the borrower by himself, as was written in siman 97, nevertheless, since the custom has spread to do so, the borrower has consented to this and borrowed with this understanding, and with the borrower's consent the Torah did not forbid it. But if there is no fixed custom to do so, and we see that even though this formulation is written in the contracts, nevertheless many do not sell without appraisal and public announcement, this writing is not effective since it is to transgress the words of the Torah. And we hang it on the possibility that the intent of this written formulation is for when he cannot find a judge, then he may execute the law for himself; but when there is a judge, it is forbidden for him to descend on his own. For since this writing is contrary to the words of the Torah, we hang it even on a remote matter unless there is a fixed custom in the city [as mentioned above according to the explanation of the Levush, and the Sma, and the Shach siman 61 subsection 11]. And this has already been explained there in section 3, see there. And specifically when it is written in the contract that he may descend to the properties of the borrower on his own, which is against the words of the Torah, in this we hang it even on a remote concern; but if it is written only that he may sell without appraisal and public announcement, any condition regarding monetary matters is valid, and he shall fulfill according to what is written in the contract, for appraisal and public announcement are not from the Torah. Therefore, beit din descends to his properties and hands them over to the lender, and the lender sells them himself, for any condition regarding monetary matters is valid [Urim VeTummim; and although what was written regarding the intent of the Sma is not so, nevertheless the law is true, and examine this]. And some say further that even to descend to the properties of the borrower at the time of payment there is no prohibition here according to several of our teachers whom we cited in siman 97 section 18, that the Torah did not forbid the lender from going to the borrower's house except when he comes to take a security, but not to be paid by him. And if so, when it is written thus in the contract, we always follow the language of the contract [Ketzot HaChoshen], unless the custom in the entire city is the opposite—that even though they write thus, nevertheless there is not even one who sells without appraisal and public announcement, for then we do not pay heed to what is written in the contract [it appears to me].

And all this is when it is written thus in the deed, but if it is not written thus in the deed and the lender descended to the properties of the borrower without the permission of the beit din, his actions are nothing, and all the fruits that he consumed are deducted for him from his debt, and his possession of the properties is nothing. And if he sold them, his sale is void, even if he did not find a judge to perform justice for him, unless there is a fixed custom in the city to do so, for then he certainly lent to him based on the custom and it is like the granting of permission from the borrower [it appears to me]. And without this, everything is void, and he returns to the beit din and they perform an appraisal and a public announcement. And even if the land is a mashkona in his hand or an explicit apotiki that he wrote to him, "you shall have no repayment except from this," nevertheless, since he can dismiss him with money, his action without a beit din is nothing. And even though there are those who say that if the time he set for him to pay passed, or if it is a mashkona held in the hand of the lender, he can sell it, the halacha is not so [Shach]. And similarly, land for which the beit din performed an appraisal and a public announcement to bring the lender down into it, and it happened that time was delayed and they did not bring him down into it, as long as the beit din did not finalize the land for the lender, if it increased in value or decreased in value, it increased or decreased in the domain of the borrower, and they must perform an appraisal and public announcements anew.

It appears to me that all the laws that have been explained apply only if the lender and the borrower did not make an explicit condition between them at the time of the loan that the lender may sell the properties himself without a beit din and without an appraisal and public announcement. However, if they made an explicit condition, any condition regarding monetary matters is valid if the borrower does not deny the condition, for the borrower understood and accepted it, and in such a case the Torah did not forbid it. And as I wrote regarding a pledge in siman 73, section 22, that all that was explained is only when it is found written so in the deed and they did not explicitly stipulate so at the time of the loan; but when they explicitly stipulated so, even if this is not written in the deed, any condition regarding monetary matters is valid. And if they stipulated between them, but in the deed it is written to the contrary, that there shall be an appraisal and public announcement by a beit din, we follow the deed, and we say that afterwards they retracted what they had stipulated between themselves. And know that to collect from purchasers, no condition is effective, as will be explained in siman 114 with the help of Heaven.

If three appraisers appraised it, and the creditor or the debtor says that three others who are more expert in appraisal should appraise it, we do not listen to him if the second party does not desire so; for since the appraisers were appointed by the beit din, they are presumably expert in appraisal. And if there is a dispute between the appraisers, such as one says it is worth a maneh and two say two hundred, or one says two hundred and two say a maneh, the opinion of the individual is nullified against the two. And even though it was explained in siman 12, section 15, that we only follow the majority in a Torah law, appraisal is different, as will be explained in siman 206. And even according to the Rambam there, that there is no difference between the language of appraisal and other language, nevertheless here it is comparable to a legal judgment since it was done by the authority of the beit din and regarding a Torah law. But if the creditor and the debtor agreed that more than three appraisers should appraise it, we do not follow the majority unless they explicitly stated that they would follow the majority [it appears to me so, and so it is implied from siman 206]. And if one says a maneh, and one says eighty, and one says one hundred and twenty, some say it is judged as one hundred, because we average what is between the minimum and the maximum and add half to the minimum and subtract half from the maximum; and since between eighty and one hundred and twenty there are forty, we set it at one hundred. And according to this, if one says a maneh, and one says ninety, and one says one hundred and thirty, we set it at one hundred and ten, for we average the forty. And in this manner we appraise in all appraisals when there is a dispute between the appraisers. And some say that we do not judge so, but rather we always judge by the sum that two appraisers agree upon. Therefore, in a case of a maneh, eighty, and one hundred and twenty, we certainly set it at one hundred, because two agree that it is worth a hundred: the one who said a maneh and the one who said one hundred and twenty. But in a case of one hundred, ninety, and one hundred and ten, how can we set it at one hundred and ten? Behold, two say that it is not worth more than one hundred. Therefore, in truth, we set it at one hundred. And in this manner we appraise in all appraisals [Sma]. And the later authorities agreed to this opinion, and the first opinion is the opinion of the Rambam, of blessed memory [and he interprets "the middle matter" in Bava Batra 107a according to the plain meaning of the language; and see there in the Rashbam; and what the Sma wrote in subsection 5 that this is not the opinion of the Rif and the Rosh, I do not know from where he derived this; and the proof of the Tumim from Ketubot 100a is difficult; and see there in Tosafot, starting with the word "Ma," and delve into it].

And so too, if there are many appraisers, they judge in this manner. And if they stipulated among themselves at the time of the loan that all three appraisers must agree on the purchase price, they judge according to the lowest among them. And so too, if they stipulated that more than three appraisers should appraise, they do not follow the majority as I have written. And so too, if they stipulated that a certain person should appraise and that they would act according to his appraisal, any stipulation in monetary matters is valid. And if they did not stipulate at the time of the loan, an act of kinyan is required [it appears to me]. And all the appraisers must be together at the time of the appraisal, for in this way it emerges closer to the truth. And if they did not appraise it together, it is not an appraisal [Netivot HaMishpat], for together perhaps the two would have conceded to the individual when he would show them proofs and demonstrations. Furthermore, even though it is not a formal judgment, nevertheless the law of a beit din applies to them regarding the matter of the appraisal, and they must be together like a beit din [it appears to me].

A beit din that appraised and erred, such as if four people entered and said that the three who appraised erred—and in such a case we follow the majority of opinions and do not say "two are like a hundred" [Netivot HaMishpat]—if the appraisal was of the debtor's unencumbered property, their law is like a beit din that sold the property of orphans and erred, which will be explained in siman 109. However, if the appraisal was of the property of purchasers that was seized from them, even if they erred by any amount, their sale is void because they are like agents, and an agent who erred by even any amount, [the transaction] is retracted, as will be explained in siman 182, for he can say, "I sent you to benefit me and not to cause me loss." Whether the error is for less than its value by any amount or more than its value by any amount, the appraisal is void [Sma]. And why regarding purchasers are they like agents and not regarding unencumbered property? Because it is not incumbent upon the purchasers to exert themselves to sell and pay the debt of the seller, and therefore their power is not greater than the power of an agent. But regarding unencumbered property, where it is incumbent upon the debtor to pay his debt, and similarly it is incumbent upon orphans to pay the debt of their father, the beit din are like owners and not like agents [ibid.]. There are those who disagree on this and hold that even regarding unencumbered property, the law of the beit din is like an agent; and specifically regarding orphans, where the beit din are the "father of orphans," their law is like owners, but the debtor himself has the matter incumbent upon him, and when the beit din sold, they are like his agents and their sale is void even by any amount [Taz and Urim VeTumim and as is implied from the Tur]. And some say the opposite, that even regarding purchasers their law is like the property of orphans, for the beit din always have the law of owners since they act by Torah law; and it will be explained with the help of Heaven in siman 114.

If the debt is not against the entire land or the entire house, for example, if the debt is a maneh and the land or the house is worth five manehs, we do not say that he should give him a fifth of the land or of the house, for a person would not agree to take a fifth part for a fifth of its value. Therefore, they appraise how much of this land or this house can be sold for a maneh, and they give this amount to the creditor, and it will amount to more than a fifth part. The general rule of the matter: they only appraise for the creditor something that he can sell immediately and collect his debt, and we are not concerned with the loss of the debtor, for if you do not say so, you lock the door before borrowers.

And so too, if the debt is a small amount such that a fitting portion will not reach the lender according to what it is—a house plot, a field, or a vineyard—according to the measurements that will be explained in siman 171, and the lender says to the borrower: "Either sell me from what remains to you so that a fitting measurement reaches me, and I will complete for you the remainder above my debt in cash, or pay me money," the law is with him. For how can we force him to receive land that is of no value to him? And not only this, but even if the lender does not desire to purchase more than the amount of his debt and says, "Pay me my money," since within the amount of my debt there is no fitting measurement, the law is with him. And we compel the borrower to sell the land, or to mortgage it, or to rent it out in a manner where the renter pays the lender immediately what is due to him [Shach], and we do not concern ourselves with the loss to the borrower. And we do not show mercy in judgment to say, "How can we remove the borrower from his house for the sake of a small debt?" And this is specifically when the borrower finds a buyer who will purchase the land or the house at its value, for then the lender can compel him with the law of "cut or be cut" as will be explained in siman 171, and he can say to him, "Either pay me my debt or I will purchase your portion," for what difference is it to me if he was a partner with him in this land or if he has a debt against him and he will sell them to another? But if the borrower does not find a buyer who will purchase it except for less than its value, we do not compel him to sell, for in such a case there is no law of "cut or be cut" unless he himself wants to purchase all of it at its value, or so that a fitting portion reaches him and he completes the debt in cash [Netivot HaMishpat]. And it is a simple matter that even to purchase all of it at its value he cannot compel him, but only that he should complete for him until a fitting portion, for behold, he is not a partner with him but rather has a debt against him, and when he gives him a fitting portion, by what could he compel him to sell him all of it?

And if the matter was the reverse, that there did not remain for the borrower the required measure after the removal of the debt from the field, he cannot compel the lender to take the remainder from him for money, for the lender may say to him: "Behold, I do not wish to buy land, and I am forced to take it for my debt; how can you compel me to take more because of your loss?" But if the borrower says: "If you do not wish to take the remainder, give me a little more of your land so that I will have the appropriate measure, and I will pay you in cash or in the equivalent of money," the law is with the borrower [Sma], and specifically when there will also remain for the lender the appropriate measure, for if not so, why should the lender lose [Shach]? But when he seizes from a buyer, and with the deduction of his debt there will not remain for the buyer the appropriate measure, the buyer can compel him to take the remainder from him for money, for a buyer is not similar to a borrower. And if the lender says: "I will not buy the remainder from you, but rather I will leave for myself the required measure and in the remainder I will be in partnership with you," and in the remainder there is also the appropriate measure, the law is with the lender [ibid.]. And some say that the borrower can also compel the lender just like a buyer [ibid.], but the primary view is like the first opinion [Urim VeTumim].

When the beit din places the creditor in possession of the debtor's property, they tear the adrakhta for him and write for him a shuma. This is its formula: "We were in a session of three, and so-and-so produced an adrakhta that was made for him regarding such-and-such field for such-and-such debt, from such-and-such a time, as is written in his adrakhta. And we tore it, and we thereafter appraised it for him and announced this land for thirty days according to the enactment of the sages. And the value of that land did not reach more than such-and-such zuz, and we did not find anyone who wanted to buy it. And we sent from the beit din three trustworthy men who are experts in appraisal, and they appraised that land for him at such-and-such zuz, so that it shall be his to consume the fruit of the land without deduction, and he shall have the authority to build and to demolish and to do with it whatever he desires, and no man shall protest against him at all. For thus was the law decided before us, the judges who are signed below. And if a man comes from the world and seizes it from this so-and-so for whom we appraised it, its guarantee is upon this so-and-so to whom it belonged previously. And after we appraised this land for him, we tore the document of adrakhta and wrote for him this document. And that which was before us, we the beit din have written and signed to be in his hand for merit and for proof." And they sign their names [Tur].

Our Sages, of blessed memory, said that an appraisal returns forever because it is stated: "And you shall do that which is right and good." Therefore, a beit din that appraised land for a creditor, whether from the assets of the debtor or from encumbered assets in the hand of a purchaser, and after some time the hand of the debtor or the one from whom it was seized or their heirs attained funds and they brought the creditor his money, they remove him from that land even if it remained in his hand for several years. And there is no need for any kinyan to transfer it to the debtor, but rather a mere removal [Shach]. And this is "right and good" to do in such a matter, beyond the letter of the law, for land that is taken from a person against his will—even though it was taken from him by law according to a beit din—nevertheless it is right and good to return it to him when he pays the money because of the distress of the soul, for to every person his own land is dear. And for this creditor there is no difference in this, for behold, he lent to him so that he would pay him in money. And some say that a purchaser cannot remove the creditor after he has collected it, for only for the debtor and his heirs is there "the right and good" in this, and not for a purchaser, for he acted improperly by entering into the encumbrance of a creditor, and it is enough for him if he receives his money from the seller and the creditor's encumbrance remains. And if it is not in his power to extract his money from the seller, he is the one who caused himself loss by purchasing the encumbrance of another [Levush]. And there is one who says that even according to the first opinion that the purchaser can remove him from the land, this is specifically if he pays him his entire debt even if the land is not worth that much; nevertheless, the creditor can say to him: "Either pay me the entire debt if the land is dear to you, or I will not be removed from the land" [the Gra, siman 114, subsection 20]. And if the creditor for whom they appraised the land is a minor, there is no need to wait until he grows up, and they take it even in his minority [Shach]. And there is one who disagrees in this because he holds that when the creditor returns the land he must transfer it with a kinyan, and the kinyan of a minor is nothing. But according to what has been explained, that there is no need for a kinyan, they return it even in his minority. And some hesitate in this for another reason: since by law it does not return but only because of "and you shall do that which is right and good," and a minor is not subject to "and you shall do that which is right and good," just as in the law of a neighbor's right of refusal which will be explained in siman 175 [Urim VeTummim]. And according to this, even when he grows up he does not have to return it, and it requires further study as to the law. And specifically an appraisal of land returns, but an appraisal of movable property does not return, for regarding movable property distress of the soul is not so relevant as it is possible to obtain others. And even if it is a precious object that is difficult to obtain, nevertheless they did not enact regarding movable property that it should be returned [ibid.].

If the lender demolished and built but did not improve the land thereby, he does not take his expenses, for we consider the land to always be in the possession of the borrower. And some say that he takes his expenses, for the land is in the domain of the lender and in his possession. To this the later authorities agreed, for by the letter of the law it does not return, but rather the sages enacted this because of "the right and the good," and how can we say that it is in the possession of the borrower? Therefore, even if it were a legal doubt, the lender is the possessor and the borrower comes to extract from his hand [Sma].

And if the land increased in value—if it increased on its own, not due to the expenditure of the lender, such as if the trees grew thick and the like, or if land prices rose—he only gives him the amount of his debt alone. For since by the enactment of the sages an appraisal returns forever, the money in the hand of the borrower is like a loan, and if the lender were to take more, it would appear like ribbit, even though it is like a complete sale, for he consumes the produce. And some say that if it rose in value, it does not return except according to the value at the time of the high price, for it is not logical that the borrower should wait for the time of the high price and redeem it at the cheap price, and there would be a locking of the door before borrowers. And if land prices fell, the lender has not lost when they wish to remove him, and they must give him the full amount of his debt; and such is the law if it deteriorated on its own [it appears to me], for the lender can say, "To me, it is worth the full amount of my debt." But regarding what he expended and did not increase in value, as in the previous section, he cannot say "to me" according to the first opinion there, because this is not from the money of the debt [it appears to me].

If the land appreciated due to expenditures spent by the lender, the lender takes an oath regarding how much he spent and takes his expenditures, or he clarifies how much he spent, or according to an assessment by experts; and in the appreciation, he takes a portion according to the law of one who descends with permission, which will be explained in siman 375. And some say that if he spent upon it and it appreciated, it does not return at all, for "a new face has come here" [Sma]. Furthermore, if even in such a case the borrower would have permission to receive it back, the lender would never trouble himself to spend expenditures, for tomorrow a man who did not toil in it will come and take it, and this is not "upright and good." Therefore, even if his desire is to pay him its full value, he is not obligated to return it [Urim VeTumim], and such is the primary ruling.

If they performed a kinyan from the hand of the borrower that he cannot remove him, there is nothing after a kinyan, and he can no longer remove him. This is not a kinyan devarim, as the kinyan is on the land, that it shall belong to the lender forever. Similarly, if the borrower himself appraised land to the lender for his debt without a beit din, it does not return to him. Even if they previously litigated regarding the debt in a beit din, nevertheless, since the appraisal was not by a beit din, it does not return to him [Shach]. For specifically when he collected by way of a beit din and they took it against the will of the borrower, there is in this "the upright and the good" to return it; but when the borrower himself paid him with land, it is like a sale, and "the upright and the good" is not applicable to this.

Land that a beit din appraised for a creditor, and afterwards a beit din appraised it for a creditor of this lender, it returns to the first debtor, for the power of this creditor should not be greater than the power of the first creditor. However, in this regard his power is superior: that if they appraised it for the first at one hundred and they appraised it for him at two hundred, or if they appraised it for the first at two hundred and for him at one hundred, he never returns it except for two hundred. For when they appraised it for the first at two hundred, he can say to him: Since you come by the power of your lender, and to him you were forced to give two hundred, and I come by his power, you shall also give me two hundred. And if they appraised it for him at two hundred, it is certainly not "upright and good" that he should lose from his debt, even though the first would have only taken one hundred.

Land that was appraised for a creditor and the creditor sold it or gave it as a gift does not return, for specifically regarding the creditor himself is there this obligation of "the upright and the good" to return it, as he only had a monetary debt against the borrower. But this purchaser or recipient of a gift only descended to it with the intent of acquiring land that they required, and it is not "upright and good" that they should return it. And even a recipient of a gift who suffers no loss, nevertheless, in every gift the giver also receives benefit from the recipient, for if not so, he would not have given him the gift, and it is like a sale. And even though they only come by power of the creditor, and he was obligated to return it, and how can their power be better than his? Nevertheless, since he too was only obligated to return it because of "the upright and the good," and regarding them this is not "upright and good," therefore they do not return it [Tosafot Bava Metzia 35a]. And so too if the lender died and it remained as an inheritance, it does not return; for even though the heir of the borrower has the power of the borrower himself, such that it returns to him as well, yet the heir of the lender is not like the lender, since regarding the lender himself it is only because of "the upright and the good," they did not impose this upon the heir. And some say that the law of the heir of the lender is like the lender himself and he must return it, and specifically when there is only one heir, but if there were many heirs and they divided the inheritance among themselves and this land fell to one in his portion, it no longer returns, for this is not like an inheritance but like a sale, as brothers who divided are like purchasers, for this one who inherited this land is as if he sold to the other his portion in the other land that came to the portion of the other, and the other sold to him his portion in this land. And so too if the father bequeathed during his lifetime to one of his sons with the language of "from today and after death" that this son should take this land alone aside from his portion of the inheritance with another, it is like a sale and a gift [Sma]. And so too if this lender appraised this land to his own creditor of his own will without a beit din, it does not return, and all is because of the reason we explained.

We hold that a husband regarding his wife's property has the status of a purchaser, as is written in Even HaEzer siman 90. Therefore, if the creditor was a woman and land was appraised for her, and she married, the husband's status is that of a purchaser and he does not return it. Similarly, if the debtor was a woman and land was appraised from her for a creditor, and she married, they do not return the land to them, because the husband is like a purchaser after the appraisal and has no connection to this land, and to her as well they do not return it, for she is like one who sold all her property to her husband. And some say that this is specifically when the wife died, but during her lifetime the husband's status is like the wife's status before she married; and even though during his wife's lifetime his status is also that of a purchaser, nevertheless regarding this matter it is only after death and not during her lifetime. And this is only according to the "some say" in the previous section that the heir of a creditor returns it like the creditor himself, for according to the first opinion we do not need the reason that he is like a purchaser regarding after her death, for even if his status is like an heir, he does not return it. And in Even HaEzer siman 91 we explained further on this with the help of Heaven.

Land that was appraised for a woman for her ketubah, some say it does not return [the Maharshal and the Bach], for the primary lien of the ketubah is upon the land. And some say it does return [the Shach]. And there is one who wrote that if the orphans were adults and an appraisal was performed in beit din, its law is like any creditor and it returns. But if the orphans were minors, for the beit din is the hand of the orphans, it is like one who took it of his own will and it does not return [Urim VeTumim].

If the shuma was in error, for example, an unpaid shomer who was negligent and they obligated him to pay and appraised his land, and afterwards it was found that the deposit was in his possession, and the depositor has the right to retract because the shuma was in error; or if the deposit was lost and found, such that both of them have the right to retract—it is not a shuma and it returns. And even if the first one sold it or bequeathed it, for any shuma in error returns when the deposit is found, and the fruits that he consumed return [see Urim VeTummim]. And the same law applies if they appraised it for a creditor for his debt and afterwards it became known that the debtor had money, for it is a shuma in error; and if the creditor desires, he may compel the debtor to take it and give him his money. But if he became wealthy afterwards, he cannot compel him to return and take it.