Siman 114

A creditor who knows of purchasers who bought land from the debtor after he lent to him goes and seizes from them in beit din. However, if he seized on his own not through a beit din, it is nothing, and he must also return the produce he consumed because it is theft in his hand. Even regarding unencumbered property the law is so, as was written in siman 103, section 3. And even if the time passed, or in a mashkanta, or an explicit apoteiki, where regarding unencumbered property some say a beit din is not required, nevertheless from purchasers it is nothing without a beit din [Sma]. And even if he stipulated at the time of the loan that he may descend without the permission of a beit din—for regarding the debtor himself it was explained there that there is a stipulation that is effective, but against purchasers no stipulation is effective [it appears to me]. And the beit din tears the document of adrakhta and they write for him a document of tirpa, and they write in it that they tore the adrakhta so that he does not go to collect a second time from other properties of the debtor; and their order was explained in siman 98, see there.

Even though it was explained there that the order of a creditor's collection is that he first sues the borrower and afterwards they write him an adrakhta, and when free assets are not found they write a tirpa against the purchasers and administer an oath to the creditor and the borrower, nevertheless, if the borrower is not before us in the city and they collect in his absence as written in siman 106, they collect even from purchasers. And when the creditor finds the purchaser and clarifies his document which is authenticated in beit din, they compel the purchaser to litigate with him, and he cannot say to him, "Go to the borrower, and when he is found liable to you in judgment and they write you a tirpa against the purchasers, then I will pay you." Rather, he himself shall go to search for the borrower if he wishes and compel him to come to judgment. However, if the borrower is in a nearby place, such as not further than a one-day journey, we inform him beforehand. And if the purchaser requests time to search for him, they give him thirty days, which is the time of beit din, in order to bring the judgment to its truth and not to come through circuitous means. And this matter depends on the sight of the eyes of the beit din, for any time of beit din that they give is not the measure of the law, but rather a measure of mercy the sages practiced with litigants so as not to pressure them excessively [as it appears to me from what the Tur and the Shulchan Aruch wrote in section 2, for if not so, it is difficult from siman 98, and so it is implied in the Bedek HaBayit, see there and examine carefully].

Even though it has been explained in siman 103, section 12, that some say a shuma does not return to a buyer, nevertheless, before the creditor has collected the land, the buyer has the authority to remove the creditor with money, and the land will remain his; he may then go back and claim from the seller what he paid to the creditor on his behalf. This is unless the debtor made this land an explicit apotiki to the creditor, where he said to him, "You shall have no payment except from this land," for then it is like a sale and he cannot remove him from it. But in an ordinary apotiki, where he said to him, "If I do not pay you, you may collect from this land," he can remove him with money, and certainly so when he did not make an apotiki at all. Furthermore, even sometimes when the creditor has already collected the land, the buyer can remove him with money. For example, if the buyer bought two fields from the debtor one after the other, each for a maneh, and the debt to the creditor was two hundred, and he seized from him for a maneh the field he bought first; when he came to seize the second for the remaining maneh, the buyer brought him two hundred zuz and said to him: "If it is your will to accept the first field that you collected for two hundred zuz, good; and if not, take two hundred zuz and remove yourself from the first one as well," the law is with him. For since the creditor suffers no loss in this, and the field is dear to the buyer, there is no "upright and good" greater than this. And if the creditor agreed to accept it for two hundred, nevertheless, the buyer does not go back against the debtor-seller except to collect from him a maneh, for behold, the field is not worth more, and it is only because it was dear to him that he accepted it for two hundred [Tur]. And even though he saved the seller from a maneh, this is nothing but a causation of benefit, and it is an inference a fortiori from causation of damages which is exempt, and certainly one is exempt from paying for a causation of benefit; and behold, he has no loss from this, and it is not similar to the enhancement that will be explained in siman 115 [Tosafot Ketubot 91b]. But if the creditor did not agree and accepted the two hundred, he certainly goes back against the seller and collects two hundred [Ritva ibid.], and the seller cannot say, "Why did you not add some amount to him so that he would accept and you would have saved me at least some amount" [as appears to me in his intention]. And this is specifically with one buyer who bought two fields, but with two buyers, the second cannot say that he should accept the field he collected from the first buyer for more than its value or remove him with money, for he is not his litigant. And when the second buyer desires this, he may, before the conclusion of the proclamations, say to the creditor: "If you do not wish to accept this field for your entire debt, I will raise the field in the proclamation and buy it for the full amount of your debt, and your debt will be paid in full" [Urim VeTumim]. And some say that even with one buyer, this is only when the creditor has not yet descended to the field; but if they have already finished the shuma, the proclamation, the final decree, and the descent to the field, the buyer can no longer remove him, for a shuma does not return in such a case to a buyer [Sma and Urim VeTumim]. And so too, if the creditor descended to it without a proclamation but by the will of the debtor, the buyer can say this to him; but if he descended to it by way of a proclamation, he cannot say this [as appears to me to interpret the words of the Ri in the Beit Yosef, for otherwise how could you find such a case; and perhaps this is the intention of our teacher, the Rema, and there is no need for what the Sma wrote in subsection 6, and study this carefully].

After they write the tirpa, they send down three experts to that field and appraise for him from it according to the amount of his debt, as is appropriate for him from the principal and half of the improvement according to its current value, and this will be explained in siman 115. And they announce it for thirty days in the manner that they announce regarding the property of orphans, as was explained in siman 109. And afterwards, they administer an oath to the borrower according to the enactment of the Geonim that was explained in siman 99, that he shall swear that he has nothing. And this is specifically if the borrower is in the city or near it within a one-day journey, for if it is not so, one does not wait for him, as I wrote in section 2. And they administer an oath to the lender while holding a sacred object that he has not been paid from this debt, and that he did not forgive it, and that he did not sell it to another, for if he sold it, he is not the litigant, but rather the one who purchased it from him. And he should also include in his oath that this is not a trust deed. And if it is within the time, he seizes without an oath; yet there are those who disagree on this, holding that one never seizes from purchasers without an oath. And let it not be difficult for you how one seizes within the time, for it deals with a case such as where the borrower died, or when he claims "I paid," where there is no benefit in waiting, and in siman 78 this was explained. And after the oath, they place him in possession of the property of the purchaser through an appraisal, as I wrote in siman 103, and they write a deed of horada, and that they recognized that it belonged to so-and-so the borrower, and that they tore the tirpa, as I wrote in siman 98.

A beit din that appraised for a creditor from the property of a purchaser and erred even by any amount, their sale is void. Even though they performed an appraisal and a public announcement—whereas regarding orphans their sale stands when they erred up to half, as was written in siman 109—nevertheless, regarding purchasers it is void even by any amount. The reason was explained in siman 103, section 7. And some say that even regarding purchasers their law is like orphans, for a beit din is never considered like agents but rather like owners, since they act according to the law of the Torah. The first opinion holds that only regarding orphans are they considered like owners, but regarding the debtor himself, and certainly regarding purchasers, their status is only like an agent. After the appraisal, if someone comes and raises its price and the creditor wants to take it, he must receive it at that higher price; and if not, they sell it to the one who raised the price and the creditor receives the money. This is only until the final decree, for anyone has the power to add to the appraisal, but after the beit din has finalized the field to the creditor, we do not listen to one who comes to add to the appraisal, for if we were to say that it is possible to add, there would be no end to the matter [it appears to me]. And if no one is found who adds to the appraisal, the creditor shall receive it according to the appraisal. And it appears to me that when the creditor receives it according to the higher price that the other raised, nevertheless, the debtor only needs to pay the purchaser according to the appraisal and not according to the higher price, for this is not an improvement, as in truth it is not worth more, and this one who raised the price did so only because of its personal value to him; and this is like what was written in section 3. And so it is explained from the Tur, who wrote that the appraisal is for the benefit of the debtor, that if one is found who will give more, it is good, etc. And if it were not so, what benefit is it to the debtor? [And although this could be refuted, nevertheless it is implied so; and examine this carefully].

Our teacher, the Beit Yosef, wrote in section 6: If a creditor and a purchaser each come to outbid the other, the field is given to the one who adds more, provided the addition reaches the full value of the debt. However, if the purchaser wishes to add a small amount over the appraisal of the beit din, but the entire debt will not be discharged, he is not listened to. Thus far his words. The Tur wrote similarly in the name of the Rosh. The great later authorities questioned this, for it is evident from their words that the purchaser is not listened to if he wants to add a small amount to the appraisal so that it remains in his possession, and they transfer it to the creditor. Yet, before the creditor's descent into the field, can the purchaser not remove him? And certainly according to our teacher, the Beit Yosef, who holds that "an appraisal returns" even to a purchaser, as he wrote in siman 103, he can even afterwards remove him, and certainly before the creditor has descended into it [Bach; Urim VeTumim]. And there is a further difficulty: why should we involve ourselves in this? For the debtor has no practical difference in this, and the practical difference is between the creditor and the purchaser, so what does it matter to us? It seems to me to explain the words of our teachers that their intention is not that they remove the field from the purchaser, but rather this is what they meant: according to what was written in section 3, the purchaser can compel the creditor to accept the field for his entire debt even if it is not worth that much, and the debtor profits from this. The reason is that since he gives the creditor the choice that he may receive his debt in full in cash, he can also compel him to accept the field for the entire debt if he specifically desires it. And so it will be explained in section 7, that the creditor can also compel the purchaser that if he wishes to stand by his purchase, he must pay him his entire debt, and if not, the creditor receives it for the entire debt, and the debtor profits from this. And even when it is desirable to pay the entire debt for it, nevertheless, he may only seek recourse from the debtor according to its appraisal; since the creditor gives him the choice that he receive it for the entire debt, he does not have the power to cause a loss to the debtor. And even though it is possible that when the creditor compels the purchaser it is because he knows the purchaser does not wish to let the field leave his hand and therefore says this to him—and in truth the creditor has no desire at all to keep it for himself for the entire debt, and accordingly the purchaser is like one under duress—why did the sages permit him to say this to him? And similarly when the purchaser compels the creditor in such a case, perhaps the creditor is like one under duress? However, for the benefit of the debtor, that he be exempted from the entire debt, the sages permitted saying so. And all this is when they speak to exempt the debtor from the entire debt, for they seek the benefit of the debtor. But when their intention is not to seek the benefit of the debtor in this, such as when the purchaser does not want to exempt the debtor from the entire debt but merely raises the field above its appraisal—and he truly does not need to raise it, for without his raising it, if he wishes to keep it, he certainly has the power to keep it—therefore we suspect him that his desire is only to harm the creditor, because he knows the creditor desires it, therefore he raises it in appraisal and thinks in his heart that even if the creditor does not receive it and requests from me the money according to the increase, I will seek recourse from the debtor. Therefore, he is not listened to in this, but rather they say to him that you do not have the power to cause a loss to the creditor by your increase, and you too, if you wish to keep it, you shall not keep it except according to its appraisal. However, if he bought it without a guarantee of indemnity, he can say so, since he has no one to seek recourse from; but with a guarantee, he would seek recourse from the debtor, for he is still liable for more to the creditor. And this is the practical difference between the increase of another person and the increase of the purchaser: for with another person, the creditor is forced to accept his increase, for certainly there is nothing for which to suspect the other, but with the increase of the purchaser, we suspect him as has been written. [And that which the Tur wrote, "But if the purchaser etc. so that it remains in his hand etc.," means that it is worthwhile for him to raise it even when it remains in his hand and he does not achieve his desire to harm the creditor. And according to what the Gra wrote in subsection 21, where he holds that the purchaser cannot remove the creditor from the land unless he pays him his entire debt, it works out simply. However, the essence of the matter requires great study, and delve into it.]

Our teacher, the Beit Yosef, wrote: If the creditor says, "I will accept the land for my entire debt without an assessment of the beit din," and the buyer says, "Not so, but rather the beit din shall assess it and I will pay according to their assessment," we do not listen to the buyer. Thus far his words. And the explanation of his words is as I wrote in the previous section, that just as the buyer can compel the creditor to accept it for his entire debt, so too the reverse, since this is for the benefit of the debtor. And know that all the laws that the debtor has with the buyers, the buyer from whom [the land] was seized also has when he comes to seize from buyers who purchased after him.