Siman 108

A loan by word of mouth is not collected from heirs, even when they are adults and do not know if the claimant is owed by their testator or not, except in one of three ways; and then it is collected even from minor orphans. But without this, it is not collected from them, for since their father would have been believed with a shevuat hesset to say "I paid," the beit din claims on behalf of the heirs everything that their testator could have claimed, and they are exempt even from a hesset oath that they should swear that they do not know that this debt is still owed to this claimant. And they also do not swear the oath of heirs—the oath "that our father did not command us" that this debt is owed to this person—for this oath is only sworn by the heirs of a creditor when they come to collect, as will be explained in this siman, but not the heirs of the debtor when they come to exempt themselves, for how could they impose this oath upon heirs without a certain claim? However, if the creditor claims with certainty that they know that this debt is still owed to him, or if he claims that their father commanded them to pay this debt and they deny him, they are obligated to swear a shevuat hesset as with all claims and demands [so it appears to me]. And in siman 69 it was explained that it became the custom in recent generations to be stringent upon the heirs to swear if there are some grounds for the matter and there is reason to doubt if he owes him, and this matter depends on the assessment of the beit din.

These are the three ways: The first is when the debtor admitted to this debt during his lifetime and commanded during his illness that so-and-so has a debt against him, in a manner where there was no concern that he said this in order to appear as if he has no money, according to the details explained in siman 81. And if he admitted to the debt before he was ill and afterwards during his illness he said that it belongs to that so-and-so, there is no longer a concern of appearing as if he has no money, since he admitted before his illness [this is the intent of the Sma in subsection 2, and the difficulty of the Shach in subsection 1 is settled]. And the second is when it was a loan for a set time and it is still within the time, for there is a presumption that a person does not pay within his time, as written in siman 78, and it is a strong presumption such that we say it even against minor orphans; and regarding an unspecified loan which is thirty days, we do not say this presumption, as written there. And the third is, for example, where the beit din imposed a ban upon him that he should pay and he died under his ban, or it became clear to the beit din that he had not yet paid him. And without this, they do not need to pay; even if witnesses came and testified that their father owed this man a maneh and that he borrowed in their presence, he collects nothing from them, for perhaps he paid it, as one who lends to his fellow in the presence of witnesses does not need to pay him in the presence of witnesses. However, if the heirs claimed a certain claim that their predecessor did not borrow from this person at all, and afterwards witnesses came [testifying] that he borrowed, they are obligated to pay, for anyone who says "I did not borrow" is like one who says "I did not pay," as written in siman 79, for even regarding heirs we say this, and as will be further explained in this siman. But if they did not claim a certain claim, they may claim whatever they wish and they may retract from claim to claim [Sma].

And so, if he produced the handwriting of their father stating that he owes him, he does not collect with it, lest he paid him, as has been written in siman 69 that one is believed to say "I paid" regarding handwriting. And since the borrower is believed to claim so, we claim on behalf of the heirs. And it has already been explained there that this depends on the assessment of the dayan whether he is believed to say "I paid." And if the document is written on government-stamped paper, such as a wexel and the like, where he is not believed to say "I paid," they collect with it from orphans as well, since the document was given in order to collect with it in the courts; if he had paid him, he would have taken it from his hand. And this is not specifically regarding a loan, for the same law applies to all matters of monetary claims: if their father would have been believed with an oath to say "I paid," we claim so for his heirs. And if people incurred expenses for their benefactor during his illness for medicines and doctors, even if the sick person did not command them, nevertheless this has the law of any other debt; if it is known how much they spent and that they were not paid during his lifetime, they are paid from the heirs, but otherwise they are not paid. And there is no distinction in this between relatives and non-relatives, and we do not say regarding relatives that their intention was as a gift unless it is known that they intended it as a gift. And the wife of the deceased is not believed to say that they were not paid during his lifetime, for she does not have the power to obligate the orphans by her admission, unless it appears according to the assessment of the dayan that she is speaking the truth, in which case they act according to her words. And so too regarding other debts, if it is clear to the beit din that everything she says is the truth and that she has no ulterior motive in this, they act according to her word, and one must deliberate much on this. And if one of the heirs admitted to this debt and the other heir does not know, this one who admitted does not have the power to obligate the other who did not admit by his admission, and he only pays his portion that he admitted to. And if it appears clear to the beit din that this one who admitted is speaking the truth, they act according to his word, and one must deliberate on this. And if the heirs sue someone for a debt owed to their benefactor, and one of them admitted that it is not owed to their benefactor, it will be explained in this siman that there are those who say that if this one who admitted does not have a migo, he is not believed regarding the portion of the others, but if he has a migo, he is believed. Therefore, it seems to me that also when they are the defendants, if there is a migo for this one who admitted that he would have paid, he is believed regarding all of them according to this opinion. And even though it would be a migo to extract money, nevertheless the matter is recognizable that his words are so, that this is owed to him from the deceased, and why should he not be paid?

In siman 385 it will be explained that in a case where the sages obligated payment as a penalty and not by law, if he died and had not yet paid, the heir is exempt, for they did not penalize his son after him. And in siman 388 it will be explained that regarding malshinut, the heir is required to pay because his obligation is from the laws of garmi, and garmi is a complete obligation and not from the perspective of a penalty. Therefore, even if his predecessor had not yet stood in judgment, the heir is obligated to pay. And if he stood in judgment, even regarding a penalty the heir is obligated to pay, for his properties already became liened from the time they stood in beit din [Shach ibid.]. And there are those who say that even regarding malshinut the obligation is not upon the heir except when he stood in judgment, for this opinion holds that even garmi is nothing but a penalty [Shach ibid.]. And in siman 386 we explained with the help of Heaven the primary ruling. And there is one who says that regarding penalties, even when he stood in judgment, the heir does not need to pay, since the sages did not penalize his son after him [Urim VeTumim].

Through one of these three ways that have been explained, they also collect even if the lender died and his heirs come to collect from the heirs of the borrower. And even though the borrower died during the lifetime of the lender, which will be explained in this siman—that if the lender required an oath, his heirs are unable to collect because a person does not bequeath money that requires an oath to his children—nevertheless, through one of these ways they collect, for behold, the lender did not require an oath, and his heirs also collect without any oath. But when it is not through one of these three ways, heirs do not collect from heirs in any manner regarding a loan by word of mouth, even if the heirs of the borrower do not claim anything at all, for we claim for them that perhaps their father paid. And although there are those who say that in a case of the heirs of the lender we do not claim for the heirs of the borrower when they themselves do not claim—since both are heirs and do not know the affairs of their testators—we do not rule accordingly; for since the heirs of the lender come to extract, we claim on behalf of the heirs of the borrower who come to maintain possession of what is in their hand [Sma].

Any debt that remains upon the deceased, the heirs are obligated to pay if he left property, when they know of the debt. And even if the deceased himself did not admit to the debt, but rather he emerged liable from beit din and it is known that he did not pay during his lifetime—such as in that which we say, "since he is unable to swear, he pays," or that he became liable based on what he said, "I do not know if I repaid you," or when he claimed "I repaid" or another claim against a validated document where he is not believed according to the law and emerged liable from beit din, and the like—the heirs are obligated to pay. And even though there is one who expressed doubt regarding this, the primary ruling is as I have written, for even regarding a complete fine (kenas), if he stood in judgment, the heirs are obligated to pay, as I wrote in section 4. And even according to the one who disagrees regarding this, it is only because the essence of the money is a fine; but regarding that which the liability is according to the law, it is obvious that they are obligated to pay. And proof for this is from what was explained regarding a hired worker in siman 91, see there. And even regarding all laws of garmi and one who damages the lien of his fellow, according to the one who holds that it is a fine, they are also obligated when their testator stood in judgment, even according to the one who holds that regarding a matter whose essence is a fine they are exempt [it appears to me, and so it seems from the book Sha'ar Mishpat].

One does not collect payment from minor heirs, whether they are the children of the deceased, the brothers of the deceased, or other relatives who inherit him, as long as they are not thirteen years of age, and even if they have an apotropus, and even if there was a validated shtar against their benefactor that also contains a clause of trustworthiness and every possible condition. For we are concerned that perhaps they have evidence with which they can invalidate the shtar. And why are we concerned for this? Because we are concerned that perhaps this borrower, prior to his death, handed over payment to the lender for his debt and did not manage to receive the shtar from him before he died [Rashi, Arachin 22a]. For regarding minor orphans, one must be concerned for all concerns that are possible to concern oneself with, and it is also not a remote concern, for it is the way of a person before his death to calculate his accounts and pay his debts. Therefore, if there is no concern of payment at all, such as in one of the three ways that have been explained, one collects even from minor orphans and even with a milveh al peh. And only in one of the three—namely, within its time—is it necessary that the testimony was received during the lifetime of their benefactor that the loan is still within the time if it is a milveh al peh, for otherwise, one does not receive testimony against a minor even in his presence, as a minor lacks legal competence and it is like being not in the presence of the litigant, where one does not receive testimony, as written in siman 28. However, regarding a milveh b'shtar within the time, one does not need testimony for the time, as it is evident from the shtar [it appears to me].

And if the heirs are adults and the lender produced a validated document against them, even if none of the three aforementioned methods are present, he collects from them without an oath if it contains an explicit trust clause stating that he trusted him and his heirs or those coming by his power, for his heirs are included in "those coming by his power" since they come to inherit by his power. But if an explicit trust clause is not written in the document, even if a general trust clause is written in it and he did not specify regarding his heirs or those coming by his power, the lender must swear an oath similar to a Torah oath while holding a sacred object and collects, just as with the borrower himself if he were to claim "swear to me that I did not pay you," as was written in siman 82. And it is a great principle that everything he is able to claim, we claim on behalf of his heirs, and one does not collect from heirs except with an oath unless he explicitly trusted him regarding them. And even if the lender found the money or the movables that he gave to the borrower in their original state as they were with him, and it is recognizable that they are his, nevertheless he only takes with an oath [Sma], for we fear perhaps he gave him others in their place. However, this depends on the assessment of the beit din, for if it appears to them that he did not return others to him, he does not need to swear. And seizing does not avail against orphans, and even if he seized from theirs without witnesses, we administer an oath to him; and if he does not wish to swear, we do not extract it from him even if he seized with witnesses where he has no migo, since he has a validated document, and as was written in siman 82.

If one produced against heirs a shtar iska, which is half loan and half deposit as has been explained in Yoreh Deah siman 177, therefore on the half of the loan he swears while holding a sacred object and takes as has been explained regarding the law of a loan with a shtar. However, on the half of the deposit he does not take even with an oath, for since their father could have claimed "I returned it" with a migo of "it was lost to an accident," or he could have claimed "it was lost to an accident," for on the half of the deposit he has the status of a paid watchman who is exempt from accidents, and he would have sworn a Torah oath according to the law of the watchmen's oath and been exempt. Therefore, we claim this for the orphans as well according to the rule that has been explained. And the heirs are exempt from an oath, for should they swear that it was lost to an accident or that he returned it? Behold, they do not know. And that they should swear an oath of "we were not commanded" was only instituted when they come to take, and he has against them only the imposition of a herem stam if they do not know that it was not lost to an accident and that he did not return them. And if they cannot claim a claim of return, such as where their testator admitted before his death that he did not return it, or that he empowered the holder of the shtar if he says that he did not return it to him and the empowerment is written in the shtar, and even a general empowerment [Netivot HaMishpat], or if he died within the time of the iska, there is a dispute among our teachers whether we claim a claim of "it was lost to an accident" for the heirs. For some say that we do not claim for them "it was lost to an accident," for an accident is an uncommon matter, and we do not claim on their behalf a thing that is not common; therefore, when there is no claim of return here, they are obligated to pay. And one should not ask that according to this, how do we claim on their behalf a claim of return, for behold the borrower himself would not have been believed in a claim of "I returned it" except with a migo of "it was lost to an accident," and since for the orphans we do not claim "it was lost to an accident," we should also not claim return on their behalf. For the truth is that it is not so, for we claim for the orphans everything that he could have claimed for himself if the claim is common, even though the reason for the claim does not apply to the orphans; for since in any event the borrower had the ability to claim a claim of "I returned it" for whatever reason it may be, why should we not claim so for his heirs? And some say that even a claim of accident we claim for the orphans. And according to the first opinion, even regarding an unpaid watchman we do not claim for the heirs a claim of theft or loss, just like a claim of accidents, for this too is not common, and we only claim a claim of return [Urim VeTummim]. And regarding this law of whether we claim for the orphans "it was lost to an accident," there is one who wished to decide according to the second opinion [Shach], but the main point is that it is a legal doubt [Urim VeTummim]. And if there are coins or merchandise from the iska in existence, and there are witnesses that they are from that business or its exchanges, the lender takes without an oath. And if there is profit, the heirs of the borrower take their portion in it, and the holder of the shtar cannot prevent them as he would have been able to prevent their father when he would take the profit before the conclusion of the time of the iska, because the holder of the shtar would say to him that the profit is liened to the principal until the time they established, as has been explained in Yoreh Deah siman 177. For in this they are not similar to their father, for specifically regarding their father he could prevent it because the holder of the shtar also could not take the iska from him before the time; therefore, he also prevents him so that he should not take the profit beforehand. This is not the case with heirs, for it is within the power of the holder of the shtar to cancel the iska even before the time, because he can say "I trusted your father and not you," as has been explained there; and therefore they also can receive the profit before the conclusion of the time even if it is not the will of the holder of the shtar to cancel the iska [this appears to be the intention of the Sma, subsection 19, and the words of the Urim VeTummim require further study, and look closely]. And it has already been explained nearby that we do not receive testimony in the presence of minor orphans unless the testimony was received during the lifetime of their testator. Nevertheless, if according to the view of the beit din the business will be ruined and the money will be lost if we wait until they grow up, we receive the testimony immediately that these coins or the movable property are from the iska and we return them to the holder of the shtar. And it is no worse than several things that were explained in siman 28 where we receive witnesses sometimes not in the presence of the opposing party. And so too in all matters of heirs, if according to the view of the beit din loss will reach others by our extending the time, we receive the testimony and clarify the matter immediately [it appears to me]. And that which the beit din claims on behalf of the orphans, this is when there is no guardian whom the father of the orphans appointed; but if there is a guardian, the beit din waits until he claims on their behalf, and if he does not claim, the beit din claims on their behalf. But regarding a guardian whom the beit din appointed, the beit din claims immediately and does not wait for the claim of the guardian, since he too comes with the power of the beit din [and see the Rosh, chapter 13 of Ketubot, siman 12, and the Ran there].

If the lender died and the borrower is alive, and the heirs of the lender come to claim from the borrower, the law of the heirs is like the law of their father. If it is a loan by word of mouth, and the heirs say that he has not yet paid, and the borrower says that he paid their father and it is after its due date, the borrower takes a shvuat hesset that he paid and is exempt. And if it is a loan with a shetar and they come to claim with the shetar, and he says "I paid your father" and they say "we do not know," they say to the borrower: "Go and pay," for their claim of "we do not know" is like a certain claim of the lender since they hold a shetar. And if the borrower says "swear to me," if it is written in the shetar that he believed the lender and his heirs, they collect without an oath, for there is no oath incumbent upon the heirs except "that our father did not command us," as will be explained, and from this oath he exempted them by giving the trustworthiness to his heirs [Tur]. And regarding swearing on the payment itself, this oath is not incumbent upon them, and therefore even when they said "we do not know," they are exempt from an oath, and he has nothing against them but a cherem stam. And if trustworthiness for the heirs is not explicitly stated in the shetar, they swear the shvuat hayorshin and take. And if they have one witness who said the father said that this shetar is not paid, they collect without an oath [Shach], for the assisting witness exempts them. And if the shetar was impaired, or one witness testifies that it is paid, or they came to collect from liened properties, they must swear in any case, even when the borrower does not demand the oath from them, just like the lender himself; and in siman 84, section 5, we explained this, see there. And in a loan by word of mouth, if the borrower wants to reverse the oath upon them, that they should swear that they know he did not pay their father and they shall take, the authority is in his hand [it appears to me]. And if there is one witness who testifies that he paid, he exempts the borrower from an oath. And if there is one witness who testifies that he has not yet paid in a loan by word of mouth, the borrower swears a shvuat de'oraita to contradict the witness, for the law of the heirs of the lender in every matter is like the lender himself, except that in a loan with a shetar, their "perhaps" is like the "certainty" of the lender since there is a shetar in their hand and it is not upon them to know if he paid or not.

How is the oath of the heirs? They shall swear while holding a sacred object that their father did not command them through another, and that he did not say to them with his mouth that this document is paid, and that they did not find a receipt among his documents that this document is paid and the document was placed among torn documents. For with a receipt alone, or with what is found among torn documents alone, there is no proof that it is paid, as I wrote in siman 65, for perhaps the lender prepared the receipt so that when he is paid the receipt will be ready in his hand, as a receipt in the hand of the lender is nothing. However, if in addition to this the document was found among torn documents, it is proof that it was paid by the borrower, and the borrower trusted him and deposited the receipt in his hand until the promissory note is found, and when he does not find it he will take the receipt from his hand; therefore one must swear regarding both things. And they shall also include in the oath that their father did not say to them that he had a paid document among his documents, for if he had a paid document they are unable to collect any document, as I wrote there. And even if the heir was a minor lying in a cradle when his legator died, he swears when he grows up and collects. However, he only needs to swear "that I did not find a receipt, etc.," but "that he did not command me" is not relevant for him to swear, for such a minor is not subject to being commanded. And also he does not need to swear that he did not command him through another, for anyone who is not fit to be commanded himself, they do not command him through another either; rather his legator would have written the matters in his notebook for a memory or would have commanded an apitropos [Sma]. And if the heir was born after the death of his legator, some say that he does not need to swear at all, for the oath was not instituted for those born after the death of their legator; and some say that he swears the oath regarding a minor that was explained [Tur]. And the first opinion is the opinion of the Rambam. And this which we said, that a minor lying in a cradle does not need to swear "that father did not command me," such is the law for every minor until he is thirteen years old when his legator dies, for a minor is not subject to a command [as is implied from the Tur]. And this which the poskim wrote, "a minor lying in a cradle," is to inform us that even one lying in a cradle must swear when he grows up that he did not find a receipt. And this oath was instituted by our teachers, the sages of the Mishnah, and they only instituted it when the heirs come to extract money, and not when they come to exempt themselves, as has been explained.

If a minor has an apotropos whom his father appointed, and he seeks the minor's debts and the debtor demands an oath, the apotropos must swear that the testator did not command him and that he did not find among his documents that this document is paid, like the oath of heirs. And although in siman 290 it will be explained that an apotropos does not need to swear, for if we require him to swear he will refrain from being an apotropos, that refers to an oath that he did not steal from the heirs; but this oath, which contains no suspicion against him, he will not refrain from being an apotropos because of such an oath which is for the benefit of the orphans and he performs a mitzvah [Tur]. But if beit din appointed him as an apotropos, he does not need to swear that the father of the orphans did not command him, for certainly he did not command him since he did not appoint him as an apotropos; rather, he shall swear that he did not find among his documents that this document is paid, like the oath of the minor that was explained. And regarding a loan by word of mouth, if the debtor wants to reverse the oath upon the apotropos that he should swear and take, he is also able to reverse it when the father of the orphans appointed him, but not when beit din appointed him [it appears to me]. For when the father of the orphans appointed him, he stands regarding the matter of an oath like his adult heirs, for behold, before his death he handed everything over to him. And why is the apotropos not like a witness in the matter? Because he transacts with the property of the orphans and behold, he is like a litigant [Netivot HaMishpat]. This is not the case in siman 290, which deals with one who was established only to plead for them or to guard what is theirs, and therefore he can be like a witness, see there [and so it appears from the Responsa of Maharam of Rothenburg, siman 459].

When the heirs are minors and must swear when they grow up, they do not take the money until they grow up and swear and take it; and the money is placed in the hand of the beit din or in the hand of a trustee, and it is not left in the hand of the borrower lest he lose it by the time they grow up [it appears to me]. And if he left adult and minor heirs, the adults do not need to wait until the minors grow up; rather, they swear the oath of heirs and collect everything, for an oath is not cast upon the minor at all when there is an adult. This is because the oath "that our father did not command us" is not cast upon the minor at all, as has been written, and also [the oath] "that he did not find a receipt" is not cast upon him since there is an adult, and presumably he already found what he found. Therefore, they collect everything with an oath, and the portion of the minor is placed in the hand of the apitropos or in the hand of the beit din. And if the minor dies, the adult merits his portion and takes everything [Levush]. And we do not say: had he lived, it is possible that he would have admitted in his adulthood that others told him that they were told by the mouth of the testator that it was paid, and he would have been believed regarding his portion [Sma]. And if the borrower claims that there are people who know that his debt is paid and wants them to swear, it is not in his power; for either way, if they know of this, let them tell before the beit din as testimony and he will be exempt [it appears to me].

If one of the heirs says, "Father told me that the shtar is paid," and the others say, "He did not command us," if the shtar is produced from the hand of this one who says it is paid, he is believed regarding all of them by a migo that if he had wanted, he could have burned it. And if not, he is only believed regarding his own portion, and the others swear the oath of heirs and collect, for a person is not believed without a migo to cause loss to others through his admission. And there is one who says that even when the shtar is produced from the hand of this one who says it is paid, he is only believed regarding his own portion even though he has a migo. The reason is that since this borrower left the shtar in the hand of the lender, it is a strong chazakah that he did not pay it, and we do not say migo in the place of a powerful chazakah, as I wrote in the rules of migo in siman 82. And specifically when the shtar was originally in the hand of a third party is the third party believed with a migo, as I wrote in siman 56, because both of them trusted him, and the borrower relied upon this when he left the shtar with him. But here, how would the borrower know that the lender would die and the shtar would be in the hand of the heir who would say that it is paid [Urim VeTumim]. And according to this, in a place where there was no powerful chazakah regarding his leaving the shtar in the hand of the lender—such as if he had a benefit from this or the like—we certainly say migo even according to this opinion. However, the Tur, who wrote: "one does not have the power to cause any loss to his fellow through his admission, and we do not say 'if he wanted he could have burned it' except regarding a third party whom both of them designated as a third party in his hand," thus far his words; it is implied from his wording that in any case we do not say migo. And the reason appears to me to be that the entire essence of the reason for migo is that we believe him in this claim that he says because we say if he had wanted to lie, he would have done some action or would have claimed a claim better than this claim. And behold, this is only relevant regarding one who comes to exempt himself or regarding one who comes to extract money for himself according to the one who holds that we say migo to extract, for certainly every person calculates thoughts in a matter that touches upon himself. And likewise witnesses who come to testify, for they certainly are precise in their testimony not to testify falsely. And likewise a third party who was designated as a third party is precise because it is incumbent upon him. But in a matter where he is not a witness and not a third party and it does not touch upon himself—neither to extract money nor to exempt himself—like here, where this one who admitted is not affected by the portion of the other heirs whether they are exempt or obligated, in this we do not say migo at all, for perhaps it did not enter his mind to do this thing since it does not touch upon himself. And therefore the sages, of blessed memory, did not say this migo except regarding a third party, and even regarding a third party, his primary credibility is not from the aspect of the migo itself but because they trusted him upon themselves. And similar to this reasoning we explained in siman 93 regarding that which we do not say migo to be exempt from an oath, see there. And according to this, even in a place where there was no powerful chazakah, we do not say migo in a matter that does not touch upon himself, as I wrote. And that which was explained in siman 93, that if there is a shtar in the hand of Shimon against Levi that he owes him and Reuven a maneh, and Shimon says that he paid, Levi is exempt through the admission of Shimon—this is because the shtar was written in his name, and therefore he is believed in everything he says [Sma], and not because of the reason of migo.

All the laws that apply to the heirs of the lender with the borrower when they come to collect from him, likewise apply to them with the heirs of the borrower if he died and they come to collect from them. However, when they litigate with the heirs of the borrower, they must also add to the oath that they themselves were not paid by their father, for if their father were alive, he could have claimed "I paid them." The general rule is that whatever he would have been able to claim, we claim on behalf of his heirs. Furthermore, there is a distinction: when the borrower is alive, they do not swear unless the borrower claimed "swear to me," as we have explained; but to his heirs, they swear even when they did not claim "swear to us," for the reason we have explained. However, there is one who says that this is specifically when the heirs of the borrower claimed "our father told us that he paid," for then the heirs of the lender swear even if they did not demand the oath. But when they did not say at all that their father said he paid, we do not claim on behalf of the heirs to the detriment of other heirs if they themselves did not claim the primary claim [Shach]. And some say that even if they did not claim at all, we claim on their behalf [Tur in the name of the Ramah], since the heirs of the lender come to extract, we claim on behalf of the heirs of the borrower who come to retain what is in their possession. And it appears that this depends on the understanding of the beit din according to the level of trustworthiness of the borrower, the lender, and their heirs. And that which we said, that they must also swear that their father did not pay them, this is specifically if the heirs of the borrower claim that their father said generally that he paid, or according to the latter opinion when they said nothing at all; but if the heirs of the borrower claimed "father told us: I paid your father," there is no oath upon them that they themselves were not paid. And so too, if the heirs of the lender were minors and swear when they grow up, they do not swear that he did not give to them, since they were minors [it appears to me].

If the heirs who were required to swear the oath of heirs died, some say that their heirs do not swear and collect, and they cannot collect at all from the heirs of the borrower. The reason is as will be explained regarding a case where the borrower died during the lifetime of the lender, where the heirs of the lender do not collect from the heirs of the borrower because when the borrower died, the lender became obligated to swear an oath to the heirs, and without an oath he was unable to be paid from the assets of orphans; and when he died, he was unable to bequeath to his sons money that he could not collect without an oath. So too in this law, where the heirs of the lender became obligated to swear the oath of heirs to the heirs of the borrower, and without an oath they were unable to collect according to the latter opinion in the previous section; therefore, when they died, they do not bequeath to their heirs money that was not [possible] to collect without an oath. However, according to the first opinion, they are like the lender himself [it appears to me]. And there are those who disagree on this and hold that they also swear "that our testator and our testator's testator did not command us" and they collect. The reason is that which will be explained, that "a person does not bequeath an oath to his sons," this applies specifically when the lender was obligated to swear a definitive oath that he was not paid, and his heirs cannot swear this oath but rather the oath "that father did not command us"—in this case, he does not bequeath an oath to his sons. But in this law, where even their testators only needed to swear the oath "that father did not command us," and this oath they too can swear, we do not say in such a case "a person does not bequeath an oath to his sons." Therefore, if the heirs of the borrower claimed against the first heirs who died that their testator paid them personally, and they were obligated to swear a definitive oath and died, their heirs do not collect even according to this opinion, since they cannot swear this oath [Shach and Urim VeTumim]. And it appears to me that even according to the first opinion, if the first heirs were minors when their testator died and they died, their heirs collect, for behold, no oath was incumbent upon them during their minority, and even in their majority they did not have to swear the oath "that [he] did not command" except that they did not find a receipt, as I wrote in section 11; and therefore their heirs also swear the oath "that we did not hear from our testator's testator and that no receipt was found" and they collect. Similarly, if the borrower is alive and the heirs of the lender died before they swore, their heirs swear and collect even according to the first opinion, for during the lifetime of the borrower the rule "a person does not bequeath an oath to his sons" is not relevant, since they did not become obligated in an oath except when the borrower claims "swear to me," as I wrote [it appears to me]. Furthermore, it appears to me that in every place where the exemption of minor heirs from swearing was explained, the same law applies if they were adults but were not in his city together with their testator for a long time during his life, and after his death they came here, for they have the status of minor heirs; since they were not in his city at the time of his illness and death, he certainly did not command them anything.

Our sages, of blessed memory, said that this rule, that the heirs of the creditor swear and collect from the heirs of the debtor, only applies when the creditor died and afterwards the debtor died. But if the debtor died during the lifetime of the creditor, and afterwards the creditor died before he swore, the heirs—whether they are sons or whether they are brothers or other relatives who inherit them according to the law—do not collect anything even with an oath. This is because the creditor had already become obligated in an oath to the heirs of the debtor, according to the law of one who comes to collect from the property of orphans, and a person does not bequeath to his heirs money that he could not collect without an oath that the beit din obligated him. However, during the lifetime of the debtor, even though the creditor also became obligated in an oath to the debtor when he claims against him "swear to me," as has been explained, nevertheless the heirs of the creditor collect from him because this is not an oath of the beit din but rather an oath that the debtor obligated him in. But from orphans, the beit din obligates him in an oath even when the orphans did not claim "swear to us," as has been explained. And even if the creditor already swore during the lifetime of the debtor that he was not paid by him, and afterwards the debtor died during the lifetime of the creditor, and it was not known that the debtor did not pay him during his lifetime after the oath, his heirs do not collect. Since the beit din would have obligated the creditor in an oath when he came to collect from the heirs of the debtor, for perhaps the debtor paid him after his oath, and he does not bequeath this to his sons. And let this fundamental law not be so wondrous in your eyes, for the reason is that since one only collects from orphans with a certain oath that he was not paid by their decedent, as long as this oath is not here, they have no right at all to the money. Therefore, if the heirs truly know that their decedent was not paid and they are able to swear a certain oath like their decedent, they also collect with this oath. And although there is one who says that the reason is because he does not have the power to bequeath such money, as it is like a thing that has no substance since he is unable to collect except with an oath—and according to this, even if they are able to swear a certain oath they do not collect—nevertheless, the primary rule is as we have explained. And in these two reasons, the two opinions in the previous section are divided [the Gra].

And behold, according to what has been explained, we should have said regarding all money that the lender left to his heirs, which he could not have collected except through a beit din oath that he was not paid, that he does not bequeath them to his heirs when they cannot swear a certain oath. For example, in the case of one who impairs his document and died before he swore, where he was obligated to swear even when the borrower does not demand it of him, as written in siman 84; and similarly when one witness testifies that the document is paid and he died before he swore to contradict him; and similarly one who comes to collect from purchasers or not in the presence of the borrower; for in all of these, he does not collect except through an oath that the beit din imposes upon him. And when he dies, we should say: a person does not bequeath an oath to his children. However, the sages said that one does not learn from this law for all laws, and only regarding purchasers will it be explained in section 20. And specifically regarding orphans from orphans they said this, but in all these cases, the heirs swear the oath of heirs and take. And how do they swear? An oath that "our father did not command us through another, and did not say to us with his mouth, and we did not find among our father's documents that this document is paid." And in the case of one who impairs, they swear that "we did not find that the entire document is paid," and they collect the rest of the document, whether from the borrower or from his heirs, as long as the borrower did not die before the lender, for if he died first, this would be orphans from orphans, where he does not bequeath to his children. And similarly, when there are two witnesses who testify that the document was partially paid, they swear that "our father did not command us that more of it is paid than what the witnesses testify." And their father, if he were alive, would have had to swear a certain oath. And thus the sages said regarding this law: "Grant that we shall not add to it," and we do not learn for another place. And even regarding this law itself, the sages said that a judge who administered the oath of heirs to the heirs of the lender and collected their debt for them, what he has done is done, and we do not remove it from their possession. And the reason for all this is because the reason is not so strong that because they cannot swear a certain oath they should lose their money. Therefore, they did not uphold this reason except when they come to collect from the heirs of the borrower, and not in other matters similar to this. And even in this law itself, the sages did not establish their words, and said that if they seized, they have seized. And similarly, if the judge extracted money through the oath of heirs, what he has done is done, as I have written. And more than this, our sages, of blessed memory, said that a debt document of orphans who come to collect from orphans whose father, the borrower, died first—we do not collect with it, but we do not tear it, for perhaps they will seize or they will come to some judge who will collect with it. And specifically the apotropos or the beit din who oversee the property of the orphans do not tear the document, but the beit din before whom the case comes, where the heirs of the lender and the heirs of the borrower came, certainly they tear it, since they must rule that they do not collect with it. However, if they did not tear it and it later came to another beit din and they collected with it, what they have done is done.

Let this law and what branches out from it not be a wonder in your eyes, for there is almost nothing similar to it in all of monetary laws, because even the sages of the Talmud disagreed regarding this law. Therefore, they decreed and said that ab initio the judge should rule not to collect with it, but if he did collect with it, what he collected is collected, and that one should not learn from this for other similar laws, as wrote the [Levush]. And it further appears to me to add a proper reason for this: for behold, this law only applies when the time of the document has already passed, for within its time there is no oath for the lender, as it is one of the three ways explained in this siman [Sma]. And behold, even though in most instances when the document is in the hand of the lender there is a presumption that he did not pay him, nevertheless, there are also cases where the lender and the borrower trust one another, and the borrower is not meticulous when the document remains in the hand of the lender after payment, relying on him that he will not claim from him a second time. And this is clear: when the lender dies during the lifetime of the borrower, certainly the borrower would be anxious that the heirs of the lender, due to their lack of knowledge that he already paid their testator, would claim from him to pay once more. Therefore, if he truly paid their testator, he would see to it to employ all advice and all stratagems to bring proofs that he paid; and since he did not bring proofs that he paid and then died afterwards, there is in this a sign that he did not pay. Therefore, the heirs of the lender rightly swear the oath of heirs and collect from the heirs of the borrower. But when the borrower dies during the lifetime of the lender, and the heirs of the borrower know nothing of whether their testator paid or not, and there is no one to be aroused to bring proofs of the payment, the matter remains in doubt. However, when the lender is alive and swears a certain oath that he was not paid by their testator, he collects with his document, for there is proof from his oath that he has not yet been paid; and as long as he has not sworn, we maintain the matter in doubt. Therefore, when the lender dies before he swore, and the payment is in doubt before us, and it is possible that the lender would not have sworn and would have admitted that the document was paid—and how shall his heirs collect with an oath of "our father did not command us," for perhaps he did not concern himself to warn them, since he knew that as long as he did not swear a certain oath the heirs of the borrower would not pay, and he was not so anxious to warn his heirs that they should not collect once more as was the anxiety of the borrower that they should not pay once more, as is known in the nature of the world. Therefore, our Sages, of blessed memory, said that when the judge comes to rule on this law, it is not in his power to extract money with this document since the matter is in doubt and there is no proof that he has not yet paid it. However, it is possible that if the judge knows the nature of the matter, and according to his clear estimation based on the state of the business it is clear to him that the borrower has not yet paid, and he ruled that the heirs of the lender should swear the oath of heirs and they collected their debt, what he did is done and he has done properly. And so too if the heirs of the lender seized from the heirs of the borrower, what they seized is seized, since there is a document in their hand. And according to this, our Sages did well in commanding not to tear the document, for perhaps it will come before such a judge who knows according to the nature of the matter that it has not yet been paid. And that one should not learn from this for other laws, for according to what I have written, this is only relevant when the borrower died during the lifetime of the lender.

In the case of a borrower who died during the lifetime of the lender, where the heirs of the lender do not collect from the heirs of the borrower, if there is a guarantor for this debt and the borrower died first, the heirs of the lender shall not collect from the guarantor if the borrower left behind property, whether land or movable property. For if they were to collect from the guarantor, the guarantor would then turn back and collect from the heirs of the borrower since he left them property, and there is no distinction in this between a guarantor and a contractor. However, if the borrower did not leave property, they collect from the guarantor. This is included in what was explained, that one may not learn from this law for another place; so said our Sages, of blessed memory, and this too is like a law without a reason. However, according to the reason we explained, the reason for this law is revealed: for it is obvious that if the guarantor would have to pay from his own pocket, he would clarify the matter that the borrower paid while the borrower was alive, if indeed the event occurred such that he paid. Since he is a guarantor for this debt, certainly everything the borrower did is revealed before him. And if it is not in his power to clarify, it is a sign that in truth he did not pay, and the obligation to pay properly falls upon the guarantor. This is not the case when property remained from the borrower and the matter does not affect him—because he will be paid from the heirs of the borrower—he will not delve to bring proofs, and the law returns to being between the heirs of the lender and the heirs of the borrower; therefore, they do not collect from the guarantor either. Our teacher, the Rema, wrote that there are those who say that if the guarantor is the heir himself, one collects from him. Thus far his words. Many disagreed with this [Urim VeTumim and Knesset HaGedolah]. And according to what we explained, this law is necessitated, for since the heir of the borrower is the guarantor himself, he certainly knows the nature of the matter well and was exacting in this; and if only the borrower had paid, he would have known of it and would have clarified it so. When it is impossible for him to clarify, it is a clear sign that his decedent did not pay. Also regarding purchasers, the law is so: that if property remained from the borrower, even movable property, and the purchasers would return upon the orphans, one does not collect from purchasers just as from a guarantor [Sma and Shach].

They only said "a person does not bequeath an oath to his children" specifically when they come to extract payment, but not when they come to retain what is in their possession [Beit Yosef in the name of the Rashba]. Therefore, regarding a loan on a mashkon, we do not apply this law [the Rambam, chapter 13 of Malveh]. And even regarding a mashkon of land, if the lender who bequeathed it to them was in possession of it, or even synagogue seats that he pledged to the lender [Rashba, ibid.], we do not apply this law, because the lender himself would have collected without an oath; for since he was in possession of the mashkon, we do not fear that the borrower gave him money toward the debt while the mashkon was in his hand. Therefore, his heirs also collect from the heirs of the borrower with the oath of the heirs alone [Sma]. Nevertheless, they must swear the oath of the heirs since there is no loss in the matter [it appears to me]. And even according to the one who holds that even with a mashkon the lender requires an oath, nevertheless, we do not say in this case "a person does not bequeath an oath to his children" [Shach]. And the reason is that just as we do not have the power to extract from the heirs of the borrower due to the concern of repayment as has been written, all the more so we do not have the power to extract from the heirs of the lender when they are in possession and the document is in their hand.

In what case is it said that the heirs do not collect when the borrower died during the lifetime of the lender? When there is no trust clause in the document. However, if there is a trust clause in the document—if he trusted the lender regarding himself and those who come in his stead—the heirs of the lender swear the oath of heirs and collect, for their father would not have needed to swear, neither to the borrower nor to the heirs. And if he also trusted the children of the lender, they collect without an oath, even if the lender became obligated to the borrower an oath regarding the matter of another claim [see Sma subsection 42, and according to what I wrote in siman 71 section 15 there is no place for this, and delve into it].

When there is an earlier creditor and a later creditor, and the earlier one died during the lifetime of the borrower and they cannot collect as has been explained, the later one or his heirs collect, and the heirs of the earlier one cannot extract it from the later one or from his heirs, unless the earlier ones are orphans coming by power of their mother's ketubah against the later creditor; they can say "we waive our mother's oath," and they take precedence to collect before the later one [Beit Shmuel Even HaEzer siman 96 subsection 4].

That which has been explained, that in all oaths when the lender dies his heirs swear the oath of the heirs and collect, this is specifically regarding oaths where by law the lender should have collected without an oath, but the sages imposed an oath upon him, such as a lender with a shtar and the like. However, regarding oaths where by law the claimant should not have collected at all even with an oath, but the sages enacted that with an oath he may collect, if the claimant dies his heirs do not swear and collect. This is not because a person does not bequeath an oath to his sons, but rather because since his entire collection by oath was an enactment of our sages, of blessed memory, they only enacted it for him and not for his heirs. Therefore, regarding a hired worker in siman 89, a victim of theft in siman 90, and a shopkeeper regarding his ledger in siman 91, if they died before they swore, since they have no shtar, their heirs do not swear and collect. But regarding the law of laborers that was explained there, their law is like a lender with a shtar, since the obligation is certain and the payment is in doubt, and therefore his heirs swear the oath of the heirs and collect. And so too, regarding an oath of hesset that the defendant reversed upon the claimant—that he should swear and collect—and the claimant died before he swore, his heirs do not swear and collect. Even when they are able to swear with certainty like their father, it is because the defendant is able to say: "I reversed the oath to your father of my own will because I believed him regarding his oath, but you I do not believe" [it appears to me]. And so too in all of them the law is such; even when the heirs are able to swear with certainty, they do not swear and collect, and the defendant swears a hesset and is exempt. And regarding one who is suspect, it was explained in siman 92.

A creditor or his heirs who came to collect from the heirs of the borrower, and the heirs of the borrower claimed, "Our testator said to us, 'I never borrowed with this shtar,'" behold, the creditor or his heirs collect without an oath. This is so even if the borrower died during the lifetime of the creditor and afterwards the creditor died, and even if the creditor believed the borrower in the shtar when he says "I paid." For since they claimed a claim of certainty in the name of their testator that they did not borrow, and anyone who says "I did not borrow" and is contradicted is like one who says "I did not pay," and behold, we have before us a validated shtar that he borrowed. And even though it contains a trust for the borrower regarding payment, behold, they themselves are as if they admitted that they did not pay. And this is specifically when they claim with certainty, but if they claim "perhaps," they have not lost by this. And if the heir is a minor and says so, there is no substance in his statement; but if he is now an adult and says, "So my father told me in my childhood," he is believed to disadvantage himself [Urim VeTummim].

The heirs of a lender who are minors and produced a deed against the borrower, and the borrower produced a receipt that was written during the lifetime of their father stating that this deed is paid, we do not tear the deed and we do not collect with it until the heirs grow up, for perhaps this receipt is forged, and therefore the borrower did not produce it during the lifetime of their predecessor. And even if there are witnesses who remember the payment, their testimony is not complete testimony because we do not receive witnesses except in the presence of the litigant. And even though we hold that we authenticate a deed not in the presence of the litigant as written in siman 46, here, since there is a flaw in the receipt in that he did not produce it during the lifetime of the lender, the beit din does not attend to authenticating it before they grow up [our teacher, the Beit Yosef]. And therefore, even if the receipt is authenticated by its signatures, and even from the mouths of witnesses who said "we signed and there is a hole in it next to such-and-such a letter," we do not receive from them because we do not receive not in the presence of the litigant. And some say that this is specifically when the lender was claiming from him during his lifetime and he did not show the receipt, for there is a flaw here; but if he did not claim from him during his lifetime, from where do we have cause to hold a flaw in the receipt [Tur in the name of the Ramah]. And some say that even if the lender did not claim from him at all during his lifetime there is a flaw here, for why did he not claim from the lender that he return his deed to him [Ri Migash ibid.]. And even according to this opinion, it is only specifically when the time of the deed had not arrived during the lifetime of the lender, for there is also a flaw from the presumption that a person does not pay within his time; but if the time arrived during the lifetime of the lender and he did not claim it, it is proof that the receipt is true [Shach and Urim VeTumim]. And if the receipt is for a portion of the deed, the receipt is not flawed at all, for he was not able to force him to return the deed to him since he did not pay it all. Therefore, if the receipt is authenticated, he pays the remainder and we tear the deed [Urim VeTumim]. And the same law applies when it is not authenticated and there are witnesses to the receipt, that we authenticate it now, for we authenticate a deed not in the presence of the litigant as has been explained [it appears to me].

One does not collect from the property of heirs, even adults, except with an oath, as has been explained. And if one collected without an oath contrary to the ruling of the beit din, they compel him with all types of compulsions to swear, and if not, he must return it; aside from the three ways explained at the beginning of the siman where one collects even from minors without an oath. And one does not collect from the property of heirs, even adults, except from the ziborit according to Torah law, as written in siman 101. And even if he stipulated with the borrower that he would collect idit from him, nevertheless, he only collects ziborit from orphans. And even though the line of the law is that he should collect according to the stipulation since the lien is from the Torah, nevertheless, the sages did not distinguish to collect from orphans more than ziborit since he did not stipulate explicitly regarding the orphans. And even if he wrote so within the document, it is not effective. And even if she wrote him a general apoteiki, it is not effective when he did not write to him: "you shall have no repayment except from this" [Sma], unless he stipulated explicitly that he shall collect idit or beinonit "from me and from my heirs," for then the stipulation is effective. And that which we say that he collects from ziborit is specifically when the land produces fruit in excess of its labor, such that it is worthwhile to toil and sow it [it appears to me], for if not so, the name of "land" is not upon it, but rather it is "decreed land." Therefore, if there are other properties, they collect for him from the other properties. And if he has no other properties and the lender wants them to collect this land for him, they collect it for him, and the borrower cannot say that land such as this is not subject to the law of collection at all.

If the creditor seized intermediate land during the lifetime of their father—for example, their father borrowed a maneh from him and he borrowed a maneh from their father, and the orphans have poor land, intermediate land, and superior land [Netivot HaMishpat], and he has intermediate land and superior land, and they come to take intermediate land from him for their debt and to give him poor land for his debt—he may withhold his intermediate land for his debt, for since the intermediate land is in his hand, it is as if it were already collected and they do not remove it from his hand. And specifically regarding lands does a general seizure avail, but regarding movable property it does not avail unless he specified that he seized them for his debt, as I wrote in siman 104. And also regarding lands it only avails when he possessed the intermediate land during the lifetime of their father; but if he purchased his intermediate land after the death of their father, such that his seizure was after his death, the seizure does not avail, for during the lifetime of their father it was not as if it were collected, and after his death his lien is not on the intermediate land at all such that we should say it is as if it were collected.

In damages, if the damager died and left lands, and the damaged party comes to collect the payment for his damage from the lands of the damager, if the heirs are minors, he only collects from ziborit. But if they are adults, he collects according to his law from idit. For specifically regarding a creditor, whose law from the Torah is in ziborit and it is by rabbinic enactment that he collects from beinonit, the sages established for orphans that he remains at the Torah law. However, regarding damages, the law of which from the Torah is in idit, the sages did not make an enactment except for minor orphans; but for adults, he collects according to Torah law. And there are those who say that even for adults he only collects from ziborit, and this is the opinion of the Rambam, and it will be explained in siman 419.