Siman 106

A creditor who comes to collect with a validated shtar in his hand not in the presence of the debtor: if the beit din is able to send to him and inform him until he stands with him in judgment, they send and inform him, for perhaps he has a shover in his hand that he already paid him, or other clarification that he paid him. This is specifically if it is within the time that the messenger can go and return within thirty days, which is the time of beit din, or to inform him by means of the post office. The creditor shall pay the fee of the mission and collect it from the debtor in addition to his debt when the debtor is found liable in judgment, because the mission is for the benefit of the debtor; but when the creditor is found liable in judgment, he must bear the expense of the mission. If there is no ability to send a messenger, or if the messenger cannot go and return within thirty days, or if it is not known where the debtor is, they collect his debt for him immediately after the creditor swears with a sacred object and takes, whether from real estate or from movable property. We do not concern ourselves that it is paid, since it is validated, we maintain it as a proper shtar. Even if trustworthiness is written in the shtar, he is obligated to swear, for he only trusted him when he pays in his presence, unless it is explicitly written "trustworthiness regarding payment not in his presence," or if it is written in it "trustworthiness regarding him and those who come in his power," for then he does not need to swear, as even the beit din are included in "those who come in his power." However, they see if perhaps there is some merit for the debtor, they claim on his behalf. Nevertheless, regarding giving notice to the debtor, there is no difference whether it has trustworthiness in it or not [as is evident from the Tur and Shulchan Aruch]. And why did the sages say that they descend to the properties of the debtor not in his presence? So that each person should not take the money of his fellow and go to distant places; and you have no greater "locking of the door" than this if we do not collect for him. Therefore, specifically regarding a loan or a deposit did they say so, but regarding a cause that occurred, they do not collect not in his presence, such as a house and an upper story that fell and the landlord is not here, they do not build not in his presence, as I wrote in siman 164, and so too anything similar to this [Urim VeTumim]. And so too, specifically with a validated shtar, but with a loan by word of mouth or a shtar in the debtor's handwriting, where he is believed to say "I paid," even if the beit din knows that it has not yet been paid, they do not attend to him not in his presence, for they only concerned themselves with "locking of the door" regarding a loan with a shtar. Furthermore, since there are those who said that even with a loan with a shtar they do not attend to it, and this is the approach of the Yerushalmi [chapter 9 of Ketubot, halacha 9], granted that we rule that they collect, but without a shtar they do not collect. And it appears to me that if he summoned him to judgment regarding a loan by word of mouth or a shtar in handwriting and the debtor fled, they collect not in his presence, and so it is implied in the Yerushalmi there. And there is one who says that specifically when the loan with a shtar was here and the debtor went to a province across the sea, they collect not in his presence; but when the loan was made in another place and the creditor afterwards came to the place of the debtor and requested from beit din to descend to the properties of the debtor, they do not listen to him when the debtor is not before us [Urim VeTumim].

Some say that one does not always collect in his absence except from the borrower himself, but from his heirs, sometimes one does not collect in their absence, and the lender must follow after them. For example, if the properties left by the borrower from which the heirs are obligated to pay are in another place, and the heirs have their own properties in this place, one does not descend to their properties that are here in their absence, for the lien of the debt is not placed upon these properties. But if the properties of the borrower are here, one collects in the absence of the heirs just as one collects in the absence of the borrower [Sma]. And even though it is impossible for him to collect from their properties even when they are here, nevertheless, sometimes one collects from their properties, such as if they caused loss to their father's properties after his death; but in their absence, even in such a case, he is not to collect [so it appears to me to explain the words of the Rivash and the Sma, and examine it closely]. And if one collects from purchasers in their absence, it will be explained in siman 114.

The lender must bring three proofs to the beit din, and afterwards he may collect in the debtor's absence. The first proof is to validate the shtar in his possession, for with a shtar that is not validated, one does not collect in the debtor's absence, nor from purchasers, nor from orphans [Shach]. The second proof is that his debtor is in another country, further than the distance a messenger could travel and return within thirty days. The third proof is that these properties are in the possession of so-and-so the debtor until now, even though it is not known how they came into his possession, whether by inheritance or if he purchased them. And even though even in his presence they must know that the properties belong to the debtor, nevertheless, in his presence there is no need for inquiry and investigation into this, for behold, they see that he possesses them; but in his absence, inquiry and investigation are required.

One who comes to collect not in the presence of the borrower, just as the beit din can pay him from his properties not in his presence, so too they can seize the borrower's land as a mashkon for his debt if they see that this is better for the borrower. For the general rule of the matter is that when the borrower is not before us, the beit din shall act as if he were before us, seeking his merit and arguing the claim that is best for him. Thus shall the beit din do, and they shall search and investigate everything that is good for him, and they may act to his benefit not in his presence [Tur].

A document that is not authenticated, when one comes to collect in his absence, if when the debtor was here he admitted that he wrote it, its law is as one that is authenticated, and they collect from his properties in his absence. However, from purchasers they do not collect based on his admission if it was not authenticated by witnesses, for we fear a conspiracy [Shach]. And if the purchasers themselves recognize the signatures of the witnesses, they collect from them, for there is no longer a fear of forgery, and it is as if it were authenticated [Ketzot HaChoshen].