Siman 112

A creditor does not seize from encumbered properties except from assets that the borrower possessed at the time he borrowed and subsequently sold or gave away. However, assets that he acquired after he borrowed and then sold or gave away were not encumbered to the creditor, and he does not collect them from purchasers or recipients of gifts, for the creditor did not rely upon them at the time he lent to him, since they were not yet in the borrower's possession. Nevertheless, while they are in the borrower's possession, he collects from them just as he collects from his movable property, and he even collects from heirs. For when the assets are in the possession of the borrower or his heirs, there is no distinction between assets he had at the time of the loan and what he acquired afterward. The creditor cannot compel him to pay specifically from assets he had at the time of the loan; rather, he collects from whichever medium-quality land the borrower desires, as was written in siman 102 [it appears to me]. If he encumbered to him in his document his assets "that I have acquired and that I will acquire," then the encumbrance takes effect also on what he acquires afterward. If he acquired afterward and sold it, the creditor collects from it. For even though a person cannot transfer ownership of something that has not yet come into the world or is not in his domain, nevertheless, he can encumber them, for the sages strengthened the power of an encumbrance so as not to lock the door before borrowers [Rashbam, Bava Batra 157a]. This applies specifically where he explicitly specified it to him. But if he did not write "achrayut" (guarantee) for him at all, and we establish that "achrayut" is a scribal error, we only say this regarding assets he possessed then, upon which the creditor relied, and not regarding assets he will acquire afterward. Some say that regarding everything that is fit to be encumbered, we say it is a scribal error, for the intent of the creditor is for every type of guarantee that can be. Even according to this view, nevertheless, regarding movable property together with land (agav karka), if he encumbered them but did not write "d'ikne," they are not encumbered, since there is no encumbrance on any movable property when he did not encumber them explicitly [Shach]. And although for us, he does not collect from them even when he encumbered them explicitly because of the "market regulation" (takanat hashuk), as was written in siman 60, nevertheless, there is a practical difference regarding documents, which are not subject to the market regulation, as was written there. Also regarding movable property, there is a practical difference regarding a prior and later creditor according to one view explained there, that the prior one takes precedence in such a case. But regarding land, according to the "some say," whether he did not write "achrayut" at all—where we say it is a scribal error—or whether he wrote "achrayut" without specification, it takes effect also on what he will acquire afterward. There is one who decides between these views: that if they did not speak of "achrayut" at all, he has no guarantee on what he will acquire, and it is sufficient to say "scribal error" regarding assets he possessed. But if it is not known to us whether they stipulated or did not stipulate—for example, where the document comes before us and "achrayut" is not mentioned in it, and we say it is a scribal error—it is certain they spoke of it, but the scribe forgot to mention in this guarantee also what he will acquire, for it is an assessment of the mind that the creditor mentions all types of guarantees [Shach, and so it appears from Rashbam there 128b, s.v. "u-venekhasim"]. All the more so if "achrayut" was mentioned in the document without specification. And according to all views, if he wrote part of the guarantee explicitly—for example, if he wrote that he encumbers to him his assets that he possesses and did not write "d'ikne"—we do not say in this case "scribal error," for if his intent was for them, he should have mentioned them explicitly just as he explicitly mentioned assets he already acquired [and so it appears from the Gra, subsection 4, that according to all views it is so, and the two "some say" mentioned in the Rema are one view; and study this].

Some say that even if he wrote "that which I shall acquire" for him, the borrower can retract as long as he has not yet acquired it. For just as we find in the Gemara according to the one who holds that a person can transfer ownership of that which has not yet come into the world, nevertheless, before it comes into the world he can retract, so too regarding a lien. However, if the borrower retracts in this matter, the lender can demand his money from the borrower immediately, for he did not lend to him on this understanding [Urim VeTumim]. And there are those who disagree and hold that he cannot retract, for since the sages strengthened the lien so that it should take effect even on that which a kinyan does not take effect, they also strengthened it so that he cannot retract [it appears to me]. The great later authorities decided in accordance with this view.

Our teacher, the Beit Yosef, wrote in section 2: If he did not write for him "d'iknei," and he sold his properties after he borrowed, and the lender comes to seize from the purchasers and claims that these properties were in the possession of the borrower, and the purchaser claims he acquired and sold them after he borrowed—some say that the lender must bring proof that these properties were in the possession of the borrower at the time of the loan. And some say that if there are witnesses that the borrower acquired this land and sold it, the lender must bring witnesses that the borrower acquired it prior to his lien; but if there are witnesses that the borrower was established in possession of it and that it was his, the purchaser must bring proof that the borrower acquired it and when he acquired it, and if not, the beit din establishes it for him and we say that it was his and his ancestors' forever. Thus far his words. And our teacher, the Rema, wrote: It appears to me that the first opinion is primary. Thus far his words. For since the purchaser is now established in possession and the lender comes to extract it from him, the burden of proof is on the claimant. Furthermore, the great later authorities wondered about the second opinion—that when there are witnesses that the borrower was established in possession of it, the purchaser must bring proof that he acquired it and when he acquired it—why must he clarify when? Since there are witnesses that he acquired it, that is sufficient, and the lender must bring proof, just as the proponent of this opinion holds that when there are witnesses that he acquired it, the lender must bring proof. And it appears to me that this is the explanation: Certainly these witnesses who testify that the borrower was established in possession of it forever do not testify with certainty that it belonged to his ancestors forever, for if so, they would contradict the witnesses brought by the purchaser that he acquired it, and they would have the law of two sets of witnesses who contradict one another. Rather, they testify that according to their knowledge, the land was in his possession from long ago until it appears that it was his forever. And if so, even when the purchaser brings witnesses that the borrower acquired it, if they do not testify explicitly that he acquired it afterwards, it is more probable that he acquired it before, for the lender's witnesses testify that it appears to them that it was in his possession for a long time; therefore, they must necessarily testify that he acquired it afterwards. And even so, they do not contradict the lender's witnesses, for the lender's witnesses do not know with certainty when he acquired it, but rather they estimate so according to what they see. And according to what we have explained, it is possible to say that in any such case, even the first opinion would agree to this. And the law requires further study, for according to what we have explained, it appears to me that the law is like the latter opinion.

And so too regarding one who gives his property as a gift "from today and after death," and it will be explained in siman 257 that the giver consumes the produce until the day of his death and after his death the property belongs to the recipient, and the property that he had at that time was not known, some say that the recipient of the gift must bring proof that that property was in the hand of the giver at the time of the gift, for the heir is certainly the holder and the recipient is in doubt, and the hand of the holder of the document is at a disadvantage. And some say that if it is not known that he acquired property afterwards, everything is in the chazakah of the recipient of the gift. And our teacher, the Rema, wrote that the first opinion is the primary one for the law. And according to what I wrote in the previous section, it appears to me that the intention of the latter opinion is also that since it is not known that he acquired property afterwards, it is like a chazakah that it was already in his hand, for if not so, the matter would be known. And granted that when there are witnesses that he acquired it afterwards they are believed, nevertheless, as long as there are no witnesses, it is like a clear chazakah that they were already in his hand. And in siman 60, section 13, we explained that there should be no difficulty from what was explained there and from what will be explained at the end of siman 250, see there. And know that when he wrote to him "d'ikne," that the lien takes effect even on property that comes thereafter, it also takes effect on property that fell to him when he was a gosses, for even though at that time he does not have the ability to buy and sell, nevertheless the lien takes effect. And if his heirs sold them, he collects from the purchasers. And there is one who is in doubt about this, but in my humble opinion it appears as I wrote [see Tumim sub-section 3 and a bit of proof from Tosafot Bava Batra 127b, starting with the words "Be-nechasim," and examine it closely].

Two creditors who each produced their document, and "de-ikne" was not written in them, or [it appears to me] it was written for both of them, and the assets are not sufficient for both of them, and the earlier one claims that when he borrowed from him he had already acquired these assets and they were subordinated to him alone, and the later one claims that after he borrowed from both of them he acquired them and they are subordinated to both of them, and there are no witnesses in the matter, some say that the earlier one takes three parts and the later one a quarter, according to the law of "two who are holding a garment" where this one says "it is all mine" and this one says "half of it is mine," for they divide the half, as written in siman 138. However, there is one who says that this is specifically when they claim "perhaps," but when they claim "certainty," the judges apply in this the law of "whoever is stronger prevails" as in siman 139 [Urim VeTumim], since they are not in possession of it. And some say that if there are no witnesses that he acquired them, we leave the assets in the hand of the earlier one because he certainly has a connection to them, and the later one is a doubt if he has any connection at all to their subordination, and a doubt does not remove from a certainty. And this law is like a yevama who married the yavam before three months and gave birth at seven months, and the child is a doubt if he is a nine-month child of the first or a seven-month child of the last, and the father of the yavam died, and the doubtful one seeks a portion of the inheritance saying he is the son of the deceased, and we hold that the yavam takes everything because he is a certain heir and the doubtful one is a doubt, as written in Even HaEzer siman 163. Furthermore, since both are not in possession, we say regarding the assets "here they are found and here they have always been." And if there are witnesses that he acquired them but they do not know when he acquired them, they divide the half that they dispute, for since in any case there are witnesses that it did not belong to the borrower through inheritance from his ancestors, and we have a doubt regarding the assets whether he acquired the assets before his second loan or whether they were still with the one who sold them to him, we leave the assets in the chazaka of the original owner for that time [so it appears to me, and the Acharonim labored over their reasoning]. Therefore, our teacher, the Rema, did not decide in this law as in the previous laws because here both are not in possession [Darchei Moshe and Sma]. And if he acquired the assets between the loan of the first and the loan of the second, if he wrote "de-ikne," the first acquires as written in siman 104 section 11, and if he did not write "de-ikne," there are two opinions in this, and there we explained, see there.

Reuven who borrowed with a document and did not write "de'iknei" to the lender and died, and he had a daughter and she inherited him: if she did not marry, he collects from her, for the domain of an heir is not like the domain of a buyer. But if she married, the lender does not collect from the husband from that which she brought in to him from those properties, whether "nichsei tzon barzel" or "nichsei melog" [Shach], because we hold that a husband regarding his wife's property is like a buyer, as is written in Even HaEzer siman 91. And since he did not write "de'iknei," he does not collect from a buyer. And likewise, if she married before Reuven died and afterwards he died, the lender does not collect from these properties [ibid.]. And there are those who disagree on this [Pitchei Teshuva]. And even according to the "there are those who say" in the end of siman 103 regarding an appraisal that returns, who hold that we do not say the husband has the status of a buyer except after her death, they admit here, because an appraisal that returns is not such a great loss to the husband, therefore they do not give him the status of a buyer, which is not the case here where he would lose entirely. And there are those who say that this is only regarding "nichsei tzon barzel" and not regarding "nichsei melog," for regarding "nichsei melog" they did not make him like a buyer during her lifetime in a place where there is a loss to others [Sma and Beit Shmuel ibid. subsection 9]. And there are those who say that it is a legal doubt, and if the lender seized movable property, we do not remove it from him [Shach and Ktzot HaChoshen].