Siman 105

Reuven, who is indebted to several people and does not have enough to pay them all, and someone from the market came forward and seized some of Reuven's movable property on behalf of one of the creditors—he has not acquired it for him, and they all divide it as if it were still in the hand of the debtor. For anyone who seizes on behalf of a creditor in a case where other creditors will lose thereby has not acquired it. And even if this creditor made the one who seized an agent to seize for him, he has not acquired it. And there is one who says that if he has a power of attorney, the seizure is effective [Urim VeTummim], for through the power of attorney he becomes like the creditor himself. However, if the debtor said to a person from the market, "Acquire this object for so-and-so" or "Give this maneh to so-and-so," he has acquired it for him, even if the one acquiring it does not know that so-and-so, and even if he did not say to him "Acquire it for so-and-so my creditor" but rather for so-and-so indefinitely [Sma]. And none of the creditors can collect from this. And the reason for these two laws is that even though in the entire Torah a person's agent is like himself, why should he not acquire it for him when he made him an agent? And even without agency, one may acquire a benefit for a person in his absence, and "acquisition" is based on the principle of agency according to most poskim. And so too, the opposite must be understood: since because there is a debt to others involved he cannot acquire it for him, if so, why when the debtor says to him "Acquire it for so-and-so" has he acquired it for him? Behold, it causes loss to others, and what does the speech of the debtor avail? But this is the explanation of the matter: it is certainly so that when a person appoints an agent to receive an object or money from his fellow against his will, he must also be the agent of the giver, for if not so, how can he appoint an agent over the object and money of others [as is implied in Nimukei Yosef, first chapter of Bava Metzia, and Tosafot ibid. 10a]. However, if there is no creditor besides him, the debtor cannot prevent it, for since he is obligated to pay, the creditor is the owner of the object and the money. But when there are other creditors, they all have a connection to the money and the objects of the debtor. Therefore, if the debtor granted acquisition to the agent, even without the agency of the lender, the agent has acquired it; for just as the debtor has the authority to spend his money and objects before the creditors have collected, so too if he granted acquisition to one creditor through another, he has acquired it for him. But without the permission of the debtor, how can the lender make him an agent in a matter in which others also have a right, without the permission of the debtor? And what will his agency avail over that which belongs to others? [So it appears in my humble opinion, and all that they questioned regarding this is settled].

And if the debtor is also indebted to the one who seizes, he has acquired through his seizure via a migo: since if he wanted he could acquire for himself, he can acquire for his fellow, as will be explained in siman 269. And some say that he cannot seize except for the amount of his own debt, for regarding this we say migo; but for more than what is due to him, since he cannot acquire for himself, he also cannot acquire for others [Sma, Bach, Urim VeTummim, Netivot HaMishpat]. And some say that he can acquire even more than his debt, since he has a connection to the money and objects of the debtor [Beit Yosef, Levush, Shach, Ktzot HaChoshen]. And so it appears primary, for perforce even according to the first opinion he seizes more than his debt, for after this seizure he also claims his debt from the debtor; and how can he claim from him, for has he not handed over to his fellow everything he was able to acquire for himself? Rather, perforce, since he had a right for himself, he acquired for his fellow as well, and also to claim his money as well. And if so, why can he not acquire at one time more than his debt? And all the proofs brought by the first opinion can be rejected, and there are proofs for the latter opinion [as written in Erech Lechem siman 87]. And all this is specifically when the creditor said to him, "Acquire for me," or if he acquired on behalf of the creditor on his own; but if the creditor said to him, "Go and seize and bring to me," where he revealed his intent that he does not desire that he acquire on his behalf, he has not acquired [Urim VeTummim]. For we only say migo that since he acquires for himself he also acquires for his fellow, but that his fellow should acquire not through his acquisition, we do not say. And this which we say migo applies even if he himself is still within the time [of the loan], for one who lacks time is not considered like one who lacks an action [Noda BiYehuda].

An apitropos may seize on behalf of the debt of orphans, for his hand is like the hand of the owners themselves, like the orphans themselves. And some say that also regarding any creditor, if he hired a messenger and pays him a wage, he may seize on his behalf even if he is not indebted to the messenger [Shach], for since he hired him, he also has a right in this seizure and we say "migo." However, the later authorities disagreed on this, for "migo" is only applicable when the messenger himself has a debt against the borrower, then we say "migo." And similarly, even a worker, although in several matters his hand is like the hand of the employer, nevertheless he does not acquire [Urim VeTummim]. But if the objects of the borrower were in the domain of the lender, in his courtyard or in his house, it is a valid seizure; even though a courtyard is based on the principle of agency, nevertheless, at times it is also comparable to his hand [Bava Metzia 12a]. And in several matters a courtyard is comparable to his hand, and therefore it is a valid seizure [it appears to me]. And even if he is not standing next to his courtyard, and also does not know that the objects are in his domain, for a person's courtyard acquires for him without his knowledge if it is a guarded courtyard, as will be explained in siman 243. And there is no distinction whether the borrower was an Israelite or not an Israelite [see Tummim, subsection 4]. And if the messenger was not an Israelite, he does not acquire on behalf of his sender even if the borrower is also indebted to him, for he has no agency, as I wrote in siman 188 [it appears to me].

If he does not have a debt to others, the one who seizes for a creditor has acquired it, as I wrote in section 1. And this is specifically in a place where there is a loss to the creditor if this person did not seize on his behalf, such as when the borrower is losing his property, or became poor, or is close to death and his heirs are presumed to be those who will smuggle the property away. And even within the time of the loan, seizure is effective if he has no other property and he will lose his debt. But if the borrower is a secure man, seizure is not effective, for if not so, you have not left life for any creature, as anyone could come and seize from the borrower and say, "I am seizing for your creditor" [the Rosh at the end of the first chapter of Gittin]. And even after the time has arrived, seizure is not effective without the agency of the lender. And when the time has not arrived, it is not effective even with his agency since he is a secure man [it appears to me]. And even in a place where seizure is effective, it is only specifically when there is a promissory note in the hand of the lender, for he is able to have it validated by a beit din; for then, even when the borrower claims "paid" and the lender must swear as I wrote in siman 82, nevertheless his seizure is a valid seizure [Sma], for by the letter of the law he does not need to swear, rather it is an enactment of the sages when the borrower claims "swear to me" as I wrote there. And so too even if it is a loan by word of mouth, provided that it is known that he still owes him. But if he does not have a note with witnesses and it is not known that he owes him and the borrower denies the debt, seizure is not effective at all, and he returns everything he seized to the borrower. And a note in the borrower's own handwriting has the law of a loan by word of mouth as I wrote in siman 69. And in this case where seizure is not effective, it does not help even if the lender or the one seizing on his behalf requests time to clarify his debt; rather, we say to the borrower that he should swear to him immediately that he does not owe him and he takes it from the hand of the seizer [Sma]. And until the oath, he may hold the seizure. And so too with a validated note where the borrower claims "paid," where his seizure is a valid seizure, we set a time for the lender to swear, and if he does not swear, we return it. And so too if they are not in the city but are in a nearby place, we set a time until they inform the lender or the borrower and he comes and swears [ibid.]. And when they are in a distant place, we do not delay for the sake of the oath. And in a place where an oath is required, it appears to me that until the oath, we leave the object that was seized in the hand of the beit din or in the hand of a third party. And the principle of this law depends on the sight of the eyes of the judges according to the subject of the matter.

One who seizes on behalf of a creditor in a situation where he does not cause loss to others is liable for the responsibility of the object or the money that he seized, and even for the responsibility of unavoidable accidents, for he has made himself "the servant of the borrower to the man who is the lender," as he now stands in the place of the borrower. And this is specifically when he acquired it with a kinyan sudar, and immediately upon his acquisition, the borrower is exempt and the one who seized is liable for its responsibility [Tur]. And if he does not wish to accept responsibility, it is not a seizure at all and he must return it [Bach]. Nevertheless, if the lender comes, he can sue the borrower to pay him, for he has no legal standing or claim against the one who seized, as he did not appoint him as an agent for this, and the borrower then seeks recourse from the one who seized [Acharonim], unlike the one who disagrees on this. And in any case, it appears to me that if the seized item is ready and available in the hand of the one who seized, the lender seeks recourse from the one who seized. And some say that the one who seized is not liable for the responsibility of unavoidable accidents by default, even when he acquired it with a kinyan sudar [as is implied from the Tur], unless the borrower says to the one who seized: "Explicitly accept responsibility upon yourself or return to me what you seized, for you are not trustworthy to me," and we listen to him. But if he did not say so to him, he is not liable for unavoidable accidents, only for theft and loss [Netivot HaMishpat]. And when he explicitly accepts responsibility, some say that he can compel him to accept upon himself that even if the object depreciates in value, he must pay the lender according to its current price, for it is in his power to sell it and receive its value [Urim VeTumim]. And he is liable for responsibility from the time he received the object. And it is a simple matter that every instance of one who seizes on behalf of a creditor that has been explained is specifically when the one who seizes is an upright man and it is known that he seizes only for the benefit of the creditor to deliver it to him; but if he is not presumed to be an upright man, or his character is unknown, he does not have the power to seize from him, for if not so, every deceiver would come and seize.

It has already been explained that even in a case where there is no loss to others, the one who seizes cannot seize unless there is a concern of loss to the creditor. However, sometimes the one who seizes can seize even in a case where there is no concern of loss to the creditor, such as when the debtor deposited an object with someone, the bailee can seize it for the sake of the creditor's debt; since it is in his hand, he can do so if there is no debt to others. And what benefit is there to the creditor in this, given that even without this there is no loss to the creditor? The benefit is that the Sabbatical year will not cancel the debt, as it is considered as if collected. And according to the law of the Gemara that the movable property of orphans is not encumbered to a creditor, there is a further benefit, for even if the debtor who deposited it dies, it will not be considered as movable property in the possession of his sons. Similarly, if the debtor gave this deposit to another, having transferred it via land, or via a kinyan sudar, or as a gift of a person facing death—for with all these kinyanim he can transfer it even if the object is not with him—it is not given over, because it is considered as if collected. And this is specifically when the time for payment has arrived, but within the time, he cannot withhold it when there is no loss [Urim VeTumim]. And similarly, specifically when the creditor is here, but when he is not here or near the city, but rather is in a distant place, the bailee cannot withhold the deposit for him even if the debtor admits to the debt, since there is no loss to the creditor; for in truth, the law dictates regarding a deposit to return it to the depositor, and if another has a right to it, there is a beit din in Israel. And if despite this he withheld it and subsequently delivered it to the creditor, he is exempt, for he must pay the creditor. And if the debtor has no assets, he may give it to him in the first instance, for it is encumbered to him by way of Rabbi Nathan, as written in siman 86. And even though we hold that one who pays the debt of his fellow without the knowledge of the debtor, the debtor is exempt from paying him, and even if he redeemed his pledge he is obligated to return it to him for free, as written in siman 128, this is when he comes to extract from the debtor, who can say, "Who requested this from your hand?" But when he is the holder, he cannot extract it from his hand [Acharonim]. And see what I wrote in siman 125.