Siman 119

It has already been explained that one does not collect from mushubadim in a place where there are bnei chorin, and it has been explained that the law of a creditor is with beinonit, and it has been explained that when there are bnei chorin, even ziburit, one does not collect the beinonit from the purchasers. And this is specifically regarding the first purchaser who bought from the borrower, for the properties in the hand of the borrower are called bnei chorin and those in the hand of the purchaser are mushubadim. But a purchaser who bought from the purchaser of the borrower, the second purchaser does not have against the first the status of mushubadim against bnei chorin, for behold both of them are mushubadim. And he only has this power against the first: that if the first was able to push off the creditor from this field to another field in his possession, and from these two fields he sold to the second, the second can push off the creditor to the other one in the hand of the first purchaser, because whatever power the first has, the second also has, for when the first sold it to him, he sold him every right and power that he had in this field. Therefore, if Reuven the borrower sold all his fields to Shimon and no bnei chorin remained with him at all, and he sold them all at once and with one acquisition, and one field has no precedence over the second in the acquisition, and Shimon went back and sold one of these fields to Levi and it is beinonit, and no other beinonit remained in Shimon's hand, and Reuven's creditor came to collect: if he wishes, he collects from the beinonit in Levi's hand, for behold even Shimon would not have had the power to push him off from it unless he would return the ziburit to the borrower, the seller, as will be explained, and Levi does not have the ziburit in his hand such that he would be able to return it to the borrower. And if he wishes, he collects from what is in Shimon's hand; even if only idit remained in his hand, he can collect it from him, for he may say to him: "You purchased my liens from the borrower and you distanced the beinonit from yourself and sold them to another, and I do not wish to deal with him, and from you I shall collect." And if Shimon has idit and ziburit, he can only collect ziburit, for Shimon can say to him: "In any case, if I stand in the place of the borrower regarding all the fields, go and collect the beinonit that is in Levi's hand; and if you do not wish to deal with him and you consider only what is in my hand, and I stand in the place of the borrower, you shall only collect ziburit, just as if there were idit and ziburit in the hand of the borrower, for he does not collect from idit as I wrote in siman 102." And furthermore, he can say to him: "I will return the ziburit to the borrower and you will perforce collect from it" [Sma].

In what case are these matters stated? That he is able to collect even from Levi when he purchased the beinonit. But if he purchased idit or ziburit, he cannot collect from him, for even Shimon would have been able to push him away from them, and he possesses the power of Shimon. And if the debtor had only idit and ziburit and sold them to Shimon, and he sold the ziburit to Levi, if the creditor desires, he may collect even from the ziburit in the hand of Levi, for with idit and ziburit in the hand of the debtor, his lien is upon the ziburit as has been written. And if both were in the hand of Shimon and the creditor desired the ziburit, the purchaser would not have been able to push him away against his will toward the idit; therefore, Levi also cannot push him away, for the ziburit has the law of beinonit. And so too the opposite: when Levi purchased the beinonit, if he only left another beinonit in the hand of Shimon, he cannot collect from Levi, since Shimon would have been able to push him away to the other one.

And all this is when Shimon purchased them at once; but if he purchased them one after the other and purchased the ziborit last and sold the beinonit to Levi, he does not collect from Levi, since the ziborit was bnei chorin in the hand of the borrower at the time the beinonit was sold, and Shimon could have pushed him aside toward the ziborit, and Levi purchased the right that Shimon possessed. But if Shimon purchased the idit last and sold the beinonit to Levi, the creditor collects from whomever he wishes [see Shach]:

A borrower who stipulated with the lender that he shall collect from the idit of his properties, and he sold the idit and left before him beinonit and ziburit, nevertheless the creditor does not seize from the idit that he sold, just as in the case of damages where their law from the Torah is from idit and nevertheless when he sold the idit he only collects from unencumbered properties even if they are ziburit, as will be explained. And if so, the stipulation is not superior to the law of the Torah. But from the borrower, he seizes from whichever beinonit he desires. And even though without this the choice would have been in the hand of the borrower to give him from whichever beinonit he desires, as was written in siman 102, nevertheless here, where he was supposed to collect from the idit and he caused him a loss through his sale, the choice is in the hand of the lender to seize from whichever beinonit he wants [Shach], and therefore he seizes from beinonit and not from ziburit.

One who possessed superior, average, and inferior quality land, and had against him claims for damages, a creditor, and a woman’s ketubah, and he sold them to three people on one day at the same time—they all enter into the place of the owner. The claimant of damages collects from the superior quality land, the creditor from the average quality land, and the ketubah from the inferior quality land. And even if the damages were not in a deed, nevertheless he collects from the purchaser, since damages have a public voice, their law is like a debt in a deed. And there are those who say that he does not collect from purchasers until he stands in judgment [Shach], for then the voice goes out and not before, as a debt written in the Torah is not considered like one written in a deed, as was written in Yoreh Deah siman 305. And if each purchaser claimed against the one who comes to seize from him, "I purchased first"—meaning that the deed was delivered to me in the morning before he delivered to the other purchasers, and it will be explained in siman 240 that even when two deeds of sale were written on one day and one was delivered first, he is called the earlier one—there is one who says that we listen to each one when he claims this with certainty [Sma]. And he cannot collect at all due to doubt, for according to the words of each one, they ought to collect from the later ones and not from him, and the collector must bring proof with witnesses as to who is the later one. And there are those who say that even when each one claims "perhaps it came to my hand first," the law is so, for they do not have the power to extract from purchasers until they clarify from whom it is necessary to collect [Urim VeTummim]. And this is specifically when the properties of one or two purchasers suffice for all the debts, for if not so, all the creditors are able to write a power of attorney to one of them and he will collect from all of them [Sma], since all the fields are due to all of them, except that from each one they could be pushed away, and when they make an authorized agent for one, he has the power of all of them. And there is one who disagrees with all of this and holds that the claim of the purchasers is no claim at all, and even if the truth is so that it was delivered to one earlier, since it is not recognizable from within the deed—for all three of them bought on one day and they do not write hours in a deed such that it would be recognizable in the deed to whom it was delivered first—no acquisition of theirs took effect until the end of the day, and then they all took effect as one, and there is no earlier and later here, and each one collects according to his law. And if they were all creditors or all claimants of damages, each one collects from whomever he wishes, provided only that his lien is upon this field, just as the claimant of damages has the power to collect also from superior quality land and the creditor from average quality land. And the reasoning of the holder of this opinion is that even though we establish that the one to whom it was delivered first on that day is called earlier, nevertheless they enacted this because of the enactment for creditors, for if not so, everyone would be devious to sell his properties at one time, one after the other, and it would not be possible to clarify to whom it was delivered earlier and the creditors would lose [Rashba]. And furthermore, their ruin is their remedy, for since it is impossible to clarify who is the later one from whom they should collect—and the later one relative to the earlier one has the law of unencumbered property relative to encumbered property—it is like "unencumbered property was blasted," where one seizes from encumbered property; for what difference does it make to me if the field itself was blasted or if the clarification was blasted [Ran]? And if so, by law they collect from all of them [see in Urim VeTummim].

If he sold them to three people one after another on three days or on one day and they wrote the hours in the deed, if the creditor does not have the law of precedence because he became obligated to all of them on one day—and regarding a debt deed there is no law of precedence regarding hours even if one was delivered first, as has been written in siman 104 and in Even HaEzer siman 96—they all collect from the last one. And if it did not suffice, they also collect from the one before him, and if even with this it did not suffice, they collect from the one before the one before him. And so too even if the creditor had the law of precedence, having become obligated to one several days before the second, but the debtor had no properties until after he became obligated to all of them and then he acquired properties, and he wrote for the creditor "that which I shall acquire," and also for the victim of damages he wrote a deed, the law is also thus, for the lien of all of them is equal, as has been written there. And if he had properties beforehand and the deed of one of them precedes his fellow and they come to collect as one, whoever's deed is earlier shall collect from the last one first, whether it is idit or beinonit or ziborit, and the one later than him collects from the one before him, and the one later than him collects from the one before the one before him. And if the damages are earlier, and after him the creditor, and after him the ketubah of a woman, the damages are earlier to collect from the last one even if it is ziborit, and the creditor from the one before him even if it is idit, and the ketubah of a woman from the one before the one before him even if it is the best of the idit. And the victim of damages cannot say, "Why has my power been weakened?" for such is the law: whoever's lien preceded must collect first, and he cannot collect except from the last one, for if he comes to collect from the one before him, he will say to him, "I left you a place to collect from" [Tur]. Therefore, if the victim of damages appeases the first purchasers that they should allow him to collect from them, the creditor and the woman cannot protest against him. And so too the creditor, if he is the earlier one, can appease the owners of the beinonit, but regarding the owner of the idit he has no authority to appease, for his lien is not upon idit. And therefore they have the ability to appease because the matter depends on the purchasers, for the enactment of the sages that they enacted that one does not collect from liened properties in the presence of free properties is for their benefit, and since they waive this and the lien of the victim of damages is upon all the properties, it is within the power of the victim of damages to take from what he wishes and the creditor from beinonit according to their law.

If he sold them to one person one after the other, the purchaser enters into the place of the owner, and each claimant takes according to his law. In what case does this apply? When he purchased the idit last, or if he purchased them all at once. But if he purchased the ziborit last, everyone collects from the ziborit if they are sufficient for everyone; for since the ziborit were unencumbered at the time the idit and beinonit were encumbered, one can only collect from them. But conversely, when he purchased the idit last, the damage-claimant and the creditor and the woman cannot claim the idit, because the idit was unencumbered, for the purchaser can say to them: since the enactment was regarding idit, I do not desire this enactment. And if he purchased the beinonit last, the damage-claimant and the creditor collect from the beinonit, and the woman from ziborit. And this is the opinion of the Rambam. And there are some of our teachers who disagree on this and hold that even if he purchased the idit last, and certainly if he purchased them all at once, everyone collects only from ziborit. And the reason is because it is within the power of the purchaser to return and sell the ziborit to the seller, and the ziborit would then be unencumbered, and perforce everyone would collect from ziborit. And since he is able to do so, we view it as if he has done so. And even though according to this, every purchaser has the ability to push off the creditor from beinonit by giving his ziborit as a gift to the seller so that he would necessarily collect from ziborit, however, this law only applies to the ziborit of the seller himself. And if the seller died, even this opinion holds like the Rambam, of blessed memory, because it is impossible to return the ziborit to the heirs, for if so, they would not collect from them at all, as orphans who purchased property are not obligated to pay the debts of their testator with their own property. Therefore, it is not within the power of the purchaser to do so, and they do not collect from ziborit unless the purchaser purchased them last, as has been written.

If he sold them to one person one after another, and he sold him the superior quality land last, and the buyer then went and sold the inferior quality land and the intermediate quality land and left the superior quality land before him, they all collect from the superior quality land if they wish. And if he sold the superior quality land and left before him the intermediate quality land and the inferior quality land, the creditor collects from the intermediate quality land and the woman from the inferior quality land, but the injured party can collect from the superior quality land of the second buyer. And the reason for all of this is according to what I wrote in section 1.