Siman 115

Our sages, of blessed memory, said that a creditor collects the improvement. The explanation of these matters is that when the lender seizes from the purchaser properties that he bought from the borrower, he also seizes the improvement that the properties improved while they were in the hand of the purchaser, if his debt reaches against the improvement as well. This applies both to improvement that the properties improved on their own, such as if trees grew on it or it increased in value and the like, and to improvement that improved due to expenditure, where the purchaser incurred expenses to improve them. The purchaser then returns and seizes everything from the seller when his hand can reach it, for so the seller writes to the purchaser in the deed of sale, that he will pay him also the improvement when they seize it from him. And why did they do so? For behold, now the seller has no other properties, for if he had, the creditor would not collect from purchasers; and why should we cause the purchaser to lose also in the improvement? It is in order not to lock the door before borrowers. Therefore, the rabbis strengthened his lien so that he should not lose at all from his liened land when the borrower sold it, and just as if it were in the hand of the borrower he would collect all the improvement, therefore the purchaser who entered his boundary and bought his lien descended from the start with this understanding [the Rosh]. And since we consider the improvement as if it were made by the borrower after the loan and he sold it to the purchaser, therefore a creditor does not seize improvement unless he wrote to him "d'ikne." And some say that he seizes even without the writing of "d'ikne," for presumably it was their intention at the time of the loan to seize improvement [Urim VeTumim]. And there is one who decides in this that regarding improvement that comes on its own, "d'ikne" is not necessary, and improvement that is due to expenditure, he does not seize without "d'ikne" [Shach, subsection 5]. And according to those who say, as was explained at the beginning of siman 112, that even regarding "d'ikne" we say responsibility is a scribal error, certainly he seizes the improvement in every case. However, when he wrote explicitly in the deed that he does not lien to him properties that he will purchase, he does not seize any improvement according to all opinions [it appears to me]. And regarding improvement due to a rise in price, it will be explained in siman 116 that if all fields rose in price, it is possible that this is not in the category of improvement; see there.

It has already been explained that just as the lender seizes from purchasers, so too the purchaser from whom property was seized returns and seizes from purchasers who bought from the borrower after him. And since we have explained that the improvement is considered as if it were produced by the borrower after the loan and he sold it to the purchaser, and the improvement was produced after the sale, it follows that the lender and the purchaser are like two creditors regarding the improvement, for it is like "borrowed and borrowed and afterwards acquired," where they divide. Therefore, the creditor seizes only half of the improvement, and the second half remains in the hand of the purchaser, and we consider him as if he is also seizing for his field that they seized from him. However, the opinion of the Rambam, of blessed memory, [Chapter 21 of Malveh] is that this is only regarding improvement that comes through expenditure, even regarding the improvement in excess of the expenditure; but regarding improvement that comes of itself, the entire improvement belongs to the lender. And even if he did not write for him "d'ikne," all of this improvement belongs to him [Shach], for this improvement is included in the body of the field that he liened to the lender, since the essence of the field improved. But many of our teachers disagree with him, and such is the opinion of our teacher, the Rema, in section 1, that there is no difference between improvement from expenditure and improvement that comes of itself. But the great Acharonim decided according to the opinion of the Rambam [Shach and Urim VeTumim], and specifically regarding improvement where the land did not change entirely from how it was, such as where palm trees thickened and improved or the land improved in richness and the like, for this is like a rise in value. But if it changed entirely through improvement of itself, such as where trees grew on the land that were not there at all, or water was drawn to it and the like, or if he bought it without fruit and now the fruit grew, it is like improvement through expenditure [ibid.]. And according to this, it is possible to say that the poskim do not disagree with the Rambam [though the Tur and the Maggid Mishneh did not write so].

If the seller wrote to the buyer that he shall not collect from properties that he will purchase afterwards, the buyer has nothing in the improvement, and the creditor collects all of the improvement, even that which is due to expenditure. But if he did not write to him that he shall not collect from properties that he will purchase, he retains for himself half of the improvement, even according to the one who holds that regarding "that which I will purchase" we do not say that responsibility is a scribal error, for since he is in possession of it, he retains it [Sma]. And in this, his power is greater than the power of the creditor who comes to extract from the buyer. And there are those who disagree on this [Bach and Shach] and hold that the law of the buyer is like the law of the creditor that was explained in section 1.

Some say that when the creditor seizes half of the improvement that resulted from expenditure, he must deduct for the buyer half of the expenditure that he incurred for the improvement, and therefore he only collects half of the improvement that is in excess of the expenditure. The reason is that the buyer entered the field with permission, for he purchased it from the borrower permissibly; if so, his legal status is at least not worse than one who enters his fellow's field without permission, as will be explained in siman 375, that if there was improvement in excess of the expenditure, he takes his expenditures. And there are those who disagree on this and hold that the creditor does not give him anything for the expenditure since his debt also rises against the improvement. It is not comparable to one who enters without permission, who entered to receive the expenditure from the owner of the land, but the buyer entered to receive everything from the seller when they seize it from him. Furthermore, if we compare it to there, his legal status would be like one who enters with permission and the creditor would not reach any improvement at all, as is written there. The later authorities agreed with this opinion, and such is the primary rule.

Since it has been explained that the improvement is like property that the debtor acquired, therefore the creditor only collects from the improvement that the property improved while the seller was alive. However, if the property improved after the death of the seller, the creditor has nothing in it and it remains entirely for the buyer, for after his death he has no connection to property that was acquired, and how shall the creditor coming from his power collect? And this is regarding improvement that comes through expenditure, but regarding spontaneous improvement, it depends on the dispute between the Rambam and those who disagree with him that was explained in section 2, for according to the opinion of the Rambam, he collects from spontaneous improvement in any case [Urim VeTumim]. And even though there is one who disagrees, that he collects even from improvement that comes through expenditure in any case—and his reasoning is that the improvement truly was not acquired by the seller, but rather we say since it was made in his land it is as if he acquired it, and if so, there is no difference whether the seller is alive or dead [Shach]—nevertheless, the main point is according to the first opinion [Urim VeTumim].

When the buyer returns to the seller to collect from him what the creditor took from him, he collects his principal even from encumbered properties—from what he sold or gave after he sold the field to him. And perhaps you will say, since the seller has other encumbered properties, why did the lender collect from the buyer? Let him push him away to the later encumbered properties. For it is possible that those assets are in a distant location, such that he could not push him away to collect from them, as written in siman 111 [Sma]. Furthermore, it is possible that in truth, at the time the lender collected from the buyer, the seller had no other assets, and only afterwards he profited, purchased, and sold. However, regarding the improvement that the lender seized from him, the buyer does not collect from the seller except from unencumbered properties. This matter is an enactment of the sages, for because there is no publicity for the improvement that he improved—since there is no deed for this—buyers do not know to be careful of this [Sma], and it is like a loan by word of mouth [and the difficulty of the Shach, subsection 11, is resolved, and so wrote Tosafot in Bava Metzia 14b; and according to the reason of "written," it is resolved as written in subsection 15, and even according to the reason of "fixed," it is not clear, and delve into this]. And if they performed a kinyan from the seller at the time of the sale regarding the improvement, he seizes even the improvement from encumbered properties, for a kinyan is like a deed, as written in siman 39 [Urim VeTumim]. And even though the buyer should have deducted from the collection of encumbered properties the amount of half the improvement that remained with him, and he should not have collected from encumbered properties except the principal minus half the improvement—for he should have collected the entire improvement from other unencumbered properties, and the half improvement he should have deducted from the principal, for we consider it as if it is in the hand of the debtor—nevertheless, the reason is that since by law he should collect even the improvement from encumbered properties, and the reason they do not collect is because of the "repair of the world" because it has no publicity, if so, the buyer can say to the [other] buyers: "In any case, if you knew of the improvement, you must pay even the improvement from encumbered properties; and if you did not know, you should have left the entire principal as unencumbered properties; and in any case, the entire principal is due to me from encumbered properties" [ibid.].

Even though the creditor collects the enhancement, nevertheless all the fruits that the buyer consumed are not seized from him. And even if he did not consume them, but they are no longer attached to the ground, he does not collect from them. However, those attached to the ground, even if they no longer need the ground—such as grapes that have reached the stage of being harvested—nonetheless the creditor collects from them just as he collects from the enhancement. And some say that regarding those that do not need the ground, their law is like detached items and the creditor does not collect from them [Shach], for fruits are not like enhancement. For we have explained the reason regarding enhancement, that it is as if the borrower purchased it afterwards, and we hold in siman 104 regarding one who borrowed and borrowed and afterwards purchased, that if the later creditor preceded and collected, what he collected is collected; and here too, since they are in the hand of the buyer, what he collected is collected. And even if they are not placed in the domain of the buyer, or when he wrote to the creditor "that which I shall acquire," where in that case what he collected is not collected as written there, nonetheless the fruits are movable property, and a creditor cannot seize from movable property [Shach]. And even if the borrower subordinated movable property along with land, or according to the "some say" regarding attached items when they do not need the ground, even so it is not similar to enhancement; for regarding enhancement, the buyer returns to the seller since it is so written in the deed of sale as has been explained, but regarding fruits, he did not write to him in his deed. And his law in this is like a gift, which will be explained in this siman, that the creditor does not collect the enhancement from him because he has no one to return to [Urim VeTumim]. And furthermore, the creditor did not rely his mind upon the fruits, since it is possible to detach them when they no longer need the ground [Shach].

It has already been explained in siman 114 that when the buyer wishes to remove the creditor with money, he has the right to do so; but if he made it an explicit apotiki, where he said to him, "You shall have no payment except from this," he cannot remove him. However, the debtor himself can remove him even in an explicit case, as will be explained in siman 117. Therefore, if it is the will of the debtor to litigate with the creditor and remove him with money, he has the right to do so [Shach]. But regarding the fruits there is no difference. And some say that in an explicit apotiki, the buyer must return to him all the fruits, even those he already consumed, because it is like a sale [ibid.]. And so too regarding improvement, some say that in an explicit apotiki the creditor collects all the improvement even if he did not write to him "that which I will acquire," and even improvement that comes through expenditure. And some disagree on this, for there is no advantage to an explicit apotiki except regarding the matter that the buyer cannot remove him with money [ibid.], but not regarding any other matter. And some say that the buyer can never remove the creditor with money unless he pays him his entire debt; but when the field is not worth the entire debt, the creditor can say, "If you pay me the entire debt, it is well; and if not, behold I am receiving the field for my entire debt." And such is the primary ruling [ibid.], and even without an apotiki.

A creditor who seized for his debt from the hand of the buyer that which is due to him from the principal and half of the improvement or all of it, according to what has been explained, we see if there is utility for the buyer in what remains of the land. For example, if there remains for him in a field an area of nine kabin, which is the measure of a field as will be explained in siman 171, and in a garden an area of half a kab, and likewise in houses and courtyards that there remains for him a house or the measure of a courtyard in which he can dwell on its own according to the sight of the eyes of the beit din, they shall divide. And the buyer cannot say to the lender, "Give me my portion in money," and also the lender cannot compel him to accept money. For since there remains for him after his collection that same name that the land had before the collection, one cannot compel his fellow to pay money for what remains. But if there did not remain the measures that were explained, and if these were divided its previous name would not be upon it, the lender gives him money if the buyer desires. And likewise, if the amount of the debt was only against the principal and not against the improvement, or if the improvement does not reach him by law according to what has been explained—where then all the improvement remains for the buyer—the law is also thus. And the reason is not because of "god o igod," for they were never partners, and all the laws that will be explained regarding "god o igod" are not here. Therefore, if the lender wants to leave from his portion like the measure of what remains and that they should use it in partnership, the buyer cannot compel him to give him money [Shach]. And all the more so if he wants to complete for him from his portion until he has like the measure and to wait for his money that is due to him for the completion, the authority is in his hand [it appears to me]. And if the debt is a small matter and the land reaching his debt does not have the measure in it, we do not force the lender to accept it, but rather we rent out the land for a time and pay him his debt [Shach]. And if the buyer wants to complete for him from his own land until it is like the measure and that he should pay him for the completion, if according to the sight of the eyes of the beit din there is no loss to the lender in this, the buyer can compel him, for you have no "upright and good" greater than this [it appears to me]. And it appears that all the laws of this section depend on the sight of the eyes of the beit din according to the matter and according to the situation of the buyer and the lender. And if he made an explicit apoteiki and the buyer incurred expenses for improvement, and his debt is only against what was there previously and not against the improvement, the creditor collects also all the improvement even if it has the measure [it appears to me], only that he gives the buyer his expenses. And if the expense is greater than the improvement, he has no expense except up to the amount of the improvement. And if the debt is also against the improvement, he gives him nothing of the expense and the buyer returns to the seller [Tur]. And according to those who disagree in the previous section, there is no difference whether he made it an apoteiki or not [Shach].

All the matters that were explained in this siman were only stated regarding a buyer, but regarding a recipient of a gift where the value increased due to expenditure, the creditor does not collect anything from the improvement, even if the improvement exceeds the expenditure [ibid.]. Rather, they see how much it was worth at the time of the gift and he collects. And do not wonder that the power of a gift recipient is greater in this than a buyer, for it is certainly so; for the buyer has someone to return to, as the seller writes to the buyer in the deed of sale: "I will stand, and quiet, and purify from every claim these purchases, and their labor, and their improvements." But a gift recipient who improved it has no one to return to, and how shall we cause him to lose his labor? For it is well that the borrower encumbered the body of the land to him, but the improvement that he expended, why should we cause him to lose it? Therefore, regarding improvement that occurred on its own, he collects all of it, for behold, even if it were in the hand of the giver, this improvement would have existed, and it is like the body of the field. And some say that even improvement that occurs on its own is also not seized unless he made it an apoteiki. And these two opinions depend on the dispute between the Rambam and the poskim that was explained in section 2, and therefore the primary ruling is as I wrote there. And if the giver accepted responsibility for the gift, behold the creditor collects from him like from a buyer, since he has someone to return to. And so too the opposite: regarding a buyer without responsibility, his law is like a gift recipient. And even though regarding a buyer with responsibility we explained in section 3 that if he did not write "that which I will acquire" the lender collects everything and we are not concerned for the loss of the buyer because in any event it is in his power to collect from unencumbered property when it is found with him after some time, but a gift recipient has no one at all to return to [Sma].

And similarly, orphans who improved the properties, a creditor does not collect anything from the improvement, even if the improvement exceeds the expenditure. And even though there is one who disagrees and holds that regarding a recipient of a gift and regarding orphans he collects the improvement that exceeds the expenditure, his words are not compelling [Urim VeTummim]. But if the properties improved on their own, he collects the entire improvement. And some disagree and hold that he does not collect from orphans even spontaneous improvement, as was written regarding a gift according to this opinion, unless he made it an apoteiki, in which case he also collects the improvement. And many disagree with this, for even according to the opinion explained in section 2 and in the previous section that spontaneous improvement is equal to improvement via expenditure, nevertheless, regarding orphans who stand in the place of their testator and upon whom it is incumbent to pay the debt, certainly the creditor collects from spontaneous improvement, and such is the primary ruling [Shach]. And specifically regarding improvement that they made, in this the creditor has nothing, since they have no one to whom to return; but not regarding spontaneous improvement. And if the buyer improved the land while the seller was alive and afterwards he died, and the buyer has no one to whom to return, nevertheless, since the improvement was at a time when he had someone to whom to return, it is immediately as if the seller acquired it and this one took it from him, and the lender collects even though there is a loss to the buyer [Urim VeTummim], for they did not differentiate.

Regarding orphans, when their father made an apotiki, he collects all the improvement; and if the debt amounts to the value of the principal and the improvement, he takes the improvement that the orphans improved and pays them the expenditure. In this, the power of the orphans is also better than the power of the buyer, since they have no one to whom to return, and the field was already as his because of the apotiki; therefore, he must pay them at least the expenditure when the improvement exceeds the expenditure. And if the expenditure exceeds the improvement, they take only corresponding to the improvement. And if their father improved it, he takes everything and pays nothing. And if his debt is only corresponding to the principal, if their father improved it, he has only the principal and not the improvement; and if the orphans improved it, he takes all the improvement and pays the expenditure, since it is an apotiki.

A creditor who comes to seize from orphans the improvement that resulted from expenditure, and the orphans say, "We made the improvement and you have nothing in the improvement," and the creditor says, "Your father made the improvement"—even when he says, "Perhaps your father made the improvement," the orphans must bring proof. For we say, "Here it is found and here it was," and it was done in the domain of the father. Furthermore, since the orphans admit that the creditor's document is true and the land must be collected, according to everyone this document is considered as if already collected, and the land is in the possession of the creditor, and he is considered the possessor [Urim VeTummim]. And so too regarding a creditor and a buyer, where the buyer says, "I made the improvement and I am entitled to half the improvement," and the creditor says, "The seller made the improvement and it is all mine," the buyer must bring proof [Sma]. And some say that if he did not make it an apothiki, the creditor must bring proof even when he claims with certainty, for we consider the orphans as the possessors, and the one who comes to extract from them bears the burden of proof. For specifically in an apothiki, where the land is certainly his and the orphans are unable to collect from him except for the expenditure, the creditor is certain regarding the land and the heirs are in doubt if they are entitled to payment for the expenditure, and a doubt does not extract from a certainty; but without an apothiki, they are considered the possessors.

If the orphans brought proof that they improved the field, we appraise for them the improvement and the expenditure, and they take the lesser of the two, as was written in section 12, and he pays them the money. In what case does this apply? When he made this field an apotiki, and there is no difference whether the principal and the improvement reach the creditor for his debt, or the principal alone, as was written there. But if he did not make it an apotiki, if the orphans desired to remove the creditor with money, they may remove him; and if they desired, they take from the land the measure of their improvement, for he has no claim to their improvement even if the measure of the improvement also reaches him. And some say that in an apotiki the orphans collect more than if he did not make an apotiki, for they hold that the creditor collects even from the improvement that the orphans improved and he does not give them the expenditure at all, because they are the leg of their father and stand in the place of their testator; therefore, if his debt rises against the principal and the improvement, he takes everything without payment of expenditures. But when he made it an apotiki, he must pay them the expenditures, for when he made it an apotiki, it is like one who descends into the field of his fellow, where he pays him the expenditure [Tosafot Bava Metzia 15a]. And the later authorities decided not according to this opinion.

One of the great authorities wrote that since improvement is like "that which I will acquire," as was written at the beginning of this siman, according to this, since it was explained in Even HaEzer siman 100 that a woman's ketubah is not collected from improvement, so too it is not effective to collect from properties that he acquired after a time and sold them, even though he wrote to her "that which I will acquire." All the later authorities disagreed with him, for this is not similar to that; and regarding improvement, it is an enactment of the sages not to collect, but "that which I will acquire" is effective even for a ketubah, and such is the primary ruling.