Siman 117

There are two types of apotiki: an ordinary apotiki and an explicit apotiki. What is an ordinary apotiki? When he says to him or writes to him: "If I do not repay you, collect from this land." And it is called "explicit" when he says to him or writes to him: "You shall have no repayment except from this." There are differences in the laws between an ordinary and an explicit one: for in an ordinary one, if a river flooded the apotiki field and water floats upon it and it is impossible to plow it or sow it, he collects from the rest of the properties and seizes from purchasers from the time of the loan. But in an explicit one, he does not collect from the rest of the properties, for it is like his own field that was flooded and he lost his debt. Likewise, if he sold it to another and this creditor comes to seize it, in an ordinary apotiki the purchaser or his heir can remove him with money, but in an explicit one he cannot, as I wrote in siman 114. However, the debtor himself can remove him with coins or with movable property even in an explicit apotiki, but with other land he cannot remove him, and even in an ordinary apotiki, for regarding this, at any rate, the apotiki is effective. And some say that in an ordinary one, even with other land he can remove him, and the apotiki is for the sake of the debtor, so that the creditor will not have the power to descend to other land. There is another difference: for in an ordinary apotiki, if an earlier creditor seized it from him, he returns to the debtor; but in an explicit one, he does not return to the debtor, for it is like one flooded by a river. But if it is found that it was not his at all and it was stolen in his hand, he returns to the debtor even in an explicit one, for it is a mistake from the outset, as the debtor had no right in this field. Nevertheless, he does not return against purchasers, for they did not know of this and they did not have to be careful from buying properties from the debtor, and it is like a loan by word of mouth [it appears to me]. And all the laws of apotiki in siman 115 are only regarding an explicit apotiki and not an ordinary apotiki. According to this, in an ordinary apotiki there is no advantage at all for the creditor, except that he cannot push him off to other land according to the first opinion; and for the debtor there is a benefit, that the creditor does not have the power to descend to other properties. And that which we said, that according to the first opinion the debtor does not have the power to push him off to other land—there is one who says that this is specifically from medium-quality land to medium-quality land, but if it is superior-quality land, the debtor can remove him to medium-quality land; and likewise, conversely, if it is inferior-quality land, the creditor can collect from medium-quality land according to his law [a creditor], for in such a case there is no reason to say that the creditor intended and accepted not to descend to land according to his law. And there is another difference: for in an ordinary apotiki, when the debtor sold this field, when the creditor comes to collect, he shall not seize it if there are unencumbered properties found with the debtor; but in an explicit one, he shall seize it, unless the debtor wants to pay him with money or with movable property, but with other land he cannot remove him. However, until the time of the seizure, his purchase is valid. And according to the opinion of the Rambam, of blessed memory, in an explicit apotiki, he must say to the purchaser at the time of the sale that he is selling him a temporary sale, and if he sold it as a permanent sale, it is not sold at all, for it is a sale in error. And all the poskim disagree with him on this, for behold, it is capable of being a permanent sale when he wants to remove him with money or with movable property. And it is obvious for one who holds according to the opinion of the Rambam that even in an explicit apotiki, if he sold it and he has unencumbered land, he does not collect from it, for certainly it can be a permanent sale. And know that in an explicit apotiki, even if he encumbered the rest of the properties to him in the deed, nevertheless, it has the law of an explicit apotiki [Rashba]. And if a river flooded it, he does not collect from other properties [Urim VeTumim], and the encumbrance of the rest of the properties is only effective regarding the matter where it is found not to be his, that he seizes from purchasers from the rest of the properties [ibid.], for he did not remove his encumbrance from them, as the purchasers should have been careful from buying since they were encumbered to him.

A mashkona where he pledged his field to him to consume the produce with a deduction, certainly the debtor has no permission to sell it within the time [our teacher, the Beit Yosef], except regarding the matter that he can remove him with other assets, its law is like an apotiki. And if he pledged it to him without specification, its law is like an unspecified apotiki, and if he specified to him "you shall have no repayment except from this," its law is like an explicit apotiki. And with money or movable property he can remove him. And according to the first opinion in the previous section, that even in an unspecified apotiki he cannot remove him with another land, there is no difference in a mashkanta between unspecified and explicit, for in both of them, with another land he cannot remove him, and with money or movable property he can remove him [it appears to me].

Regarding movable property, the law of apotiki does not apply and it is of no use at all; even if he made them an explicit apotiki and sold them, the creditor does not collect from them. Thus our Sages, of blessed memory, said: If one made his ox an apotiki and sold it, the creditor does not collect from it because this does not have a public voice. The same applies if he gave them as a gift, though some disagree regarding a gift and it remains a legal doubt [Urim VeTummim]. Even if he made them an apotiki in a deed, for movable property is not subject to a deed and no lien takes effect upon them to collect them from purchasers. Even if he liened them incidental to land, he does not collect according to our practice due to the regulation of the market, as I wrote in siman 60. This is so even if the purchaser knew that he made them an apotiki, and even if he himself was a witness to that loan, and even if the lender warned the purchasers not to buy them, for the Sages did not differentiate. It appears that in any event, the borrower commits a prohibition if he has nothing else with which to pay; for it is well understood regarding land that when he sells it, the lender can seize it, but regarding movable property, he surely causes him a loss. Also, if the purchaser knew of this, he should not buy them in the first instance, for it is no less than indirect causation of damages [it appears to me].

And so too regarding the matter of precedence that was explained in siman 104, that regarding movable property there is no law of precedence, even if he made them an explicit apoteiki in the document for the first [creditor]; and if the later [creditor] preceded and collected them, he has merited. And if they come together to collect, they shall divide. And there are those who disagree on this, as I wrote there. And this is specifically when he did not subordinate them incidental to land, for if he subordinated them to the first incidental to land, then even without an apoteiki, if the later preceded and collected them, he has not merited. And specifically regarding a purchaser did they establish the "market enactment," but regarding creditors this is not applicable. And it has already been explained in siman 60 that there are those who disagree and hold that even with a later [creditor], if he collected, he has collected; see there.

Slaves, even though for the purpose of a lien their law is like movable property, nevertheless regarding apotiki they are like land. For if one made his slave an apotiki, even in an unspecified manner, and sold him, and the creditor has nothing from which to collect, the creditor collects from him because his lien has a voice, and the purchaser should not have bought him, and he caused his own loss. And if he made him an explicit apotiki, his law is also like land, as I wrote in section 1. And specifically through an apotiki, but without an apotiki, one does not collect slaves from purchasers, because through the apotiki a voice goes out that this slave is departing from the domain of Reuven to the domain of Shimon, but without an apotiki there is no voice here [Sma]. And specifically when the loan was in a deed, for then the creditor has a lien on properties and "movable property incidental to land" was written in the deed; and even if the slave was not mentioned, he collects from him since this has a voice. But when a lien on "movable property incidental to land" was not written in the deed, the apotiki that he made for him verbally is of no avail. For granted that this has a voice, nevertheless there is no lien in the deed upon movable property, and a slave's law is like movable property. And even from orphans he may not collect according to the law of the Gemara, for the movable property of orphans is not liened to a creditor, and certainly if the loan was verbal, for there is no lien here at all [Maggid Mishneh]. And there are those who disagree on this, for since he made him an apotiki, what do we care for the lien of the deed? Therefore, even in a verbal loan he collects [Bach] when there are witnesses that he did not pay or it is within its time; for the reason a verbal loan does not collect from liened properties is because it has no voice, and since this has a voice, what is the difference to me if it is a deed or if it is verbal [see Shittah Mekubetzet Bava Kamma 11b]. However, it is certainly so that if he made a deed on the slave alone, he also collects from him, for what do we care for a deed of lien on lands since he liened the slave to him in a deed and it has a voice [as is evident from the Rosh there, siman 14].

We hold that manumission nullifies a lien, for if one encumbered a slave to a creditor and then manumitted the slave, his lien is nullified because the sanctity of Israel has taken effect upon the slave. Therefore, a slave whom his master made an apotiki and manumitted him—even if he wrote to him, "you shall have no repayment except from this"—he goes out to freedom. For the slave is not entirely the property of the lender, and he has only a lien upon him; and if the borrower were to pay him with money or with movable property, the lender's lien would be removed. Therefore, he is considered to still be the slave of the borrower and within his power to manumit him. The lender does not lose out by this, for he collects his debt from the borrower because he damaged his lien, and one who damages the lien of his fellow is liable to pay, as will be explained in siman 386. If the borrower does not presently have the means to pay, they compel him to write a document for him, and he seizes from purchasers from the time of this document and not from the time of the loan, for until he manumitted him, the lender had no lien on other properties of the borrower. However, in this regard the power of the lender is enhanced, as he collects even from superior land according to the law of a tortfeasor [Urim VeTummim]. And it appears to me that if it were a general apotiki, he writes a document for him from the time of the loan, for it is no worse than "his river overflowed" which was explained, where he collects from other properties. For if the slave had died, he would collect from other properties in a general apotiki, as this is like "his river overflowed"; and why should it be worse that he damaged it with his own hands? But in an explicit apotiki, when the slave dies, he does not collect from other properties even from the borrower himself, just as in "his river overflowed" which was explained in section 1. Furthermore, the sages commanded that they compel the lender to write for the slave a document of manumission; and even though by law he is not his master, nevertheless, so that he should not find him in the marketplace and say to him "you are my slave"—since in his opinion he is his slave by way of the borrower's lien—and cast a slur upon his children [Rashi Gittin 41a]. Therefore, the sages enacted that he should write him a document of manumission, and this was explained in Yoreh Deah siman 267. And if the heir of the borrower manumitted him, he is also liable to pay; and specifically in a general apotiki, but in an explicit one the heir cannot manumit him, for immediately when the borrower dies, he becomes the slave of the lender, as the heir cannot remove him even with money as I wrote in section 1, and by what power is he able to manumit him [see Urim VeTummim].

And so we hold that hekdesh uproots a lien, for when one consecrates properties that are encumbered, even with an explicit apotiki, the hekdesh takes effect upon them for the reason we explained regarding manumission. There are some of our teachers who wrote that this applies only to inherent sanctity (kedushat haguf), such as if he made an animal an apotiki or encumbered movable property along with land and then consecrated it for the altar. However, monetary sanctity (kedushat damim), such as if he consecrated it for the maintenance of the Temple (bedek habayit), this sanctity does not remove a lien, just as with manumission, which is considered inherent sanctity because the slave’s body enters the sanctity of Israel. Nevertheless, the sages commanded even regarding monetary sanctity, so that they should not say hekdesh leaves without redemption, that the creditor should redeem it for a small amount from the hekdesh, and the redemption money shall be added to the debt and he shall collect it from the debtor. Similarly, all prohibitions of benefit are like inherent sanctity and uproot a lien, such as if he made it an idol or spread an encumbered garment over a corpse with the intent that it be buried with him, for it is prohibited for benefit, as is written in Yoreh Deah siman 349, and the creditor does not collect from them even with an explicit apotiki, and the debtor returns and pays the creditor as we explained regarding a slave. The opinion of the Rambam, of blessed memory, [chapter 7 of Arachin] is that even monetary sanctity uproots a lien, and nevertheless the sages permitted the creditor to redeem it for a small amount. This is also the opinion of Rabbeinu Tam, of blessed memory, in Sefer HaYashar siman 95. It appears to me that they permitted redeeming it for a small amount because according to the Torah, hekdesh worth a maneh that was deconsecrated for a perutah is deconsecrated, and therefore, because of the loss to the creditor, they permitted him to do so initially [and see what I wrote there in our work Or Layesharim]. In this time, there is no law of hekdesh at all, for hekdesh for the poor, for charity, for a synagogue, or for a Sefer Torah are treated as a commoner and require no redemption [Mabit], and this was explained in siman 95. If, nevertheless, one in this time consecrated or banned his fellow's lien for the maintenance of the Temple, the creditor must redeem it for a small amount [it appears to me]. Even without a lien, the law is so, as the Rambam wrote in chapter 8 of Arachin, and like the redemption of neta revai in this time which was explained in Yoreh Deah siman 294. There is one more thing even in this time that is like inherent sanctity, and thus the sages said [Ketubot 59b]: Konamot are inherent sanctity. It was explained in Yoreh Deah siman 216 that one who prohibited his property to his fellow by a konam is prohibited from benefiting from them. The sages said that konamot also uproot a lien, but it only uproots with a general konam where he prohibited them to the whole world and also to himself, similar to inherent sanctity. However, with a private konam where he prohibited them only to the creditor, saying "my property is a konam upon you," it does not uproot the lien, for in this the sages strengthened the lien, as otherwise everyone would uproot his lien through such a konam. But when he prohibits them to the whole world and to himself as well, or in the case of shrouds for a corpse, there is no concern that everyone will do so since no benefit will reach him from this. Some say that even a private konam uproots a lien, and only regarding a wife's obligation to her husband did the sages strengthen the lien, as is written in Even HaEzer siman 81, but not in other matters. Nevertheless, for the benefit of the creditor, we excommunicate the debtor until he seeks absolution for his vow [Sma].