Siman 116

A buyer from whom a field was seized, the beit din writes for him a tirpa [document of seizure] detailing how they seized it from him on account of a debt of the seller, and he returns and seizes from the seller. And when the buyer comes to collect from the seller, he does not require an authorization from the lender to authorize him to collect from the seller in his place via the promissory note that he had against him or a deed of admission that he seized from him; for since he holds a tirpa from beit din, he collects with it alone. And the version of the tirpa document was explained in siman 98 regarding the lender, and the same applies to a buyer, as they have one law. And every law that a lender has with a buyer, such is the law of a buyer from whom the lender seized and who comes to seize from buyers who purchased after him. And if it is difficult, for if so, why did the lender collect from the first buyer and not from the later buyers? For example, where they are in a distant place. And even if the borrower now has no property at all, neither encumbered nor free, nevertheless the buyer shall receive a tirpa from beit din, so that when the borrower becomes wealthy, he may collect from him.

And there is a matter where the power of the buyer is greater than the power of the lender, for regarding a loan by word of mouth, even if he lent it to him before witnesses, he does not collect from encumbered properties, as written in siman 39. However, regarding a buyer, even if the seller did not sell to him with a shtar but only before witnesses and without a kinyan, and even if he did not explicitly state achrayut, nevertheless, when they seize it from the buyer, he collects from encumbered properties. The reason is that one who sells a field sells with publicity so that its price will rise if there are many buyers, and everyone knows of this; but a borrower borrows money in secret, and without a shtar or kinyan there is no "voice," and the buyers would not know to be careful [Bava Batra 42a]. And some say that in this case we do not say achrayut is a scribal error as we do with a shtar, and if the seller did not explicitly accept achrayut upon himself, he does not collect from buyers, for we only say "lien by Torah law" regarding a loan, for "the borrower is a slave to the lender," and not regarding a sale [Shach]. And since he did not stipulate explicitly, his properties did not become encumbered for the purpose of collecting from buyers. However, when he sold with a shtar, where we say it is a scribal error because in most shtars achrayut is written, for a person does not throw away his money for nothing; but this one, who deviated from all other buyers by not demanding a shtar from the seller, it is possible that he consented to be without achrayut, and therefore he did not speak with the seller regarding this [it appears to me]. And a gift's law is like a loan, for if he gave a gift before witnesses without a shtar, even if the giver explicitly accepted achrayut upon himself, he does not seize from buyers, for a gift has no "voice" except with a shtar. And even when the giver said to the witnesses, "write it in the marketplace and sign it outside," as written in siman 242, nevertheless, as long as they have not written it, it has no "voice" [Sma]. And in an exchange of land for land, its law is like a sale, and we say regarding this that achrayut is a scribal error according to the first opinion [Ktzot HaChoshen].

That which we have said, that he seizes from purchasers even when he did not sell to him with a shetar but rather with witnesses, this is specifically when the witnesses of the sale or the seller himself testify that they did not sign any shetar regarding this sale, and also that there were no other witnesses there except for them. For if not so, there is a concern that he is concealing the shetar and seizes now with witnesses, and afterwards he will come to another beit din and seize also with the shetar or with other witnesses who were present at the sale. And even though one could say that there is no concern in this, for behold, the beit din that writes the tirpa for the creditor tears the shetar, and any tirpa in which it is not written "we have torn the shetar" is not a tirpa, as is explained in siman 98 regarding the law of adrakhta, and such is the law regarding a purchaser from whom the lender collected, as is written in siman 114, and if so, how could he collect another time, for have they not already torn the shetar [Urim VeTumim]. However, nevertheless there is a concern in this, for behold, when he comes to collect from the purchaser, they tear his tirpa at the time of the shuma, as is written there; and if so, automatically there is a concern that he will come to another beit din and bring witnesses that in such-and-such a beit din they tore his tirpa and did not manage to have him collect due to some reason, and the beit din will write him another tirpa to have him collect from the properties of the borrower that are there [Netivot HaMishpat]. And although it is a slight concern, for one way or the other, if the witnesses saw the tearing of the tirpa, they also saw the collection, and even if they did not see it, behold they will not testify that they did not have him collect, and automatically the other beit din will not believe the lender in what he says that that beit din did not have him collect—nevertheless, when he purchased without a shetar, we must be concerned even for a slight concern. And in such a case, we concern ourselves with a mistaken beit din that will not investigate thoroughly, and when the witnesses testify that they tore his tirpa for him, they will write him another tirpa [as above]. And all this is only regarding the matter of collection from purchasers, but to collect from the seller himself, we are not concerned for this, and the beit din writes for the purchaser from whom it was seized to be in his hand as proof so that he may sue the seller who sold to him. And we do not have to be concerned as with purchasers, for he caused the loss to himself when he sold before several groups of witnesses [Bach]. And furthermore, he will be meticulous that he should not collect twice. And so too must the beit din be careful not to write him a tirpa against the purchasers if they do not know that the seller did not pay him after they seized it from him; for it is well when he sold with a shetar, there is no concern in this, for if he had paid him, he would have received back from him his shetar of sale, but when he sold without a shetar, perhaps in truth the seller paid him [Nimukei Yosef, chapter 3 of Bava Batra], and therefore the purchaser is compelled to clarify that the seller did not pay him.

If he purchased it for five hundred and it increased in value and is worth a thousand, they write him a tirpa for a thousand. And similarly, if it was worth a thousand at the time he took it and at the time of the tirpa it was only worth five hundred, or if it was worth a thousand and he took it for five hundred—in all of these they write him a tirpa for a thousand. And when it was worth a thousand and he took it for five hundred and it decreased in price and stood at five hundred, he only collects five hundred [Urim VeTumim]. And some say that even if he took it for a thousand, since now it is only worth five hundred, he only collects five hundred, for why should he pay more than its value now [Shach]? And his bad fortune caused it; for it is well and good when it is worth a thousand, even though he took it for five hundred, he collects a thousand since now it is worth a thousand and he took it cheaply. Or when he took it for a thousand and it was not worth even then more than five hundred, he can say: "To me it was worth a thousand, for behold I paid a thousand for it, and give me it or a thousand." But when he took it for a thousand and it decreased in price, why should they pay him a thousand? Behold it decreased in price and he already lost on it. And the Acharonim wrote that this which was explained regarding where it increased in value, that they write him a tirpa according to the increase, the explanation is for half of the increase according to that opinion explained in the previous siman, section 1, that even in natural improvement, half of the improvement reaches the purchaser, and an increase in value was explained there as being like natural improvement, or it is dealing with where he made it an apotiki. And it seems to me that this which the Tur and the Beit Yosef wrote there, that an increase in value is considered improvement, the intention is when this field increased in value due to some reason; therefore it is rightly considered like improvement, for what does it matter to me if it increased in value because trees grew in it or from another reason, even if it was not improved in its physical body. But when all fields increase in value, this is not improvement but rather the principal, except that the prices rose, and in this the creditor collects everything. And therefore they did not write here that he only collects half [and a proof is from Bava Kamma 103:].

There is one who says that just as a seller with witnesses collects from purchasers, so too if the purchaser did not pay the seller the purchase price and lost the land he bought, the seller seizes from the encumbered properties of the purchaser even if he did not write a shtar for him for the money, for it has a kol [Mabit]. And there are those who disagree regarding this, for the fact that he did not pay does not have a kol, and on the contrary, the presumption is that he paid him; and if he did not write a shtar for him for the money, its law is like a loan by word of mouth and he does not collect from encumbered properties, and even from this land he does not collect if the purchaser sold it [Shach]. And such is the primary ruling in the law.

If the creditor seized from a buyer who explicitly purchased without responsibility, and the buyer requested from the lender that he give him his power from the promissory note via writing and delivery so that he may sue the borrower with this promissory note—if he has already seized from him, he can no longer make for him from it either an authorization or a sale, for the lien of the document was already forgiven when he seized from the buyer, and consequently the document was nullified. However, before he seizes with it, he may appease the lender to give him his power from the document and sue the borrower with it. And the borrower does not have the ability to say to him, "Collect from the land that I sold to you without responsibility," for this is not a collection regarding himself. And afterwards, he will give the lender the land he bought from the borrower of his own will, or give him the money. Nevertheless, the beit din does not write for him a seizure document upon the promissory note to collect with it from buyers, for he purchased the land without responsibility, and the buyers will say to him, "Collect from your own," for regarding buyers this is certainly a good claim, and he is the one who caused himself loss. And all this is if it is the lender's will to do him this favor, but it is not in the power of the borrower to compel him through beit din to do so for him. And this is not in the category of "we compel regarding the conduct of Sodom," for in this there would be damage to the borrower, and the lender is not a guarantor for his purchase without responsibility such that he would be obligated to act for him so that he does not lose. And see what I wrote in siman 130.