Siman 122

It is a known matter that when one appoints an agent, even if he wrote him a power of attorney, he can afterwards cancel him from his agency. And with speech alone, when he says "I cancel the agency," it is sufficient, for speech comes and cancels the speech of the agency. And even not in the presence of the agent he can cancel, for even regarding a get the law is so, as is written in Even HaEzer siman 141. And even if they performed a kinyan with him regarding the agency, he can cancel it with the speech of his mouth, for anything that does not require a kinyan, the kinyan is not effective, as with the gift of a shekhiv mera which will be explained in siman 250; and furthermore, it is a kinyan devarim. And even without witnesses he can cancel, if only it is clarified that he canceled, for witnesses were not created in monetary laws except for falsehood. And that which requires witnesses for its cancellation regarding a get, as is written there, that is because of the concern of mamzerut, lest the woman not know of this and marry [Tosafot Gittin 32b]. And also regarding a get, in the presence of the agent he can cancel, as is written there. And even if he appointed the agent in a beit din, he can cancel him [for if not so, Rabban Gamliel at the beginning of the fourth chapter should have enacted so]. And after the agent has performed his agency, cancellation is not relevant. Therefore, a lender who appointed an agent, even with witnesses or in a beit din, to bring him what he has with so-and-so, and he canceled the agency before this person gave them to the agent—if the defendant knew of his cancellation and handed them to the agent, he is liable for their responsibility until they reach the hand of the lender. And if the defendant did not know of the cancellation, he is exempt, for the defendant can say: "I relied upon you that you stood by your agency," for just as there is a presumption that an agent performs his agency, so there is a presumption that the sender stands by his word, and I should not lose because of your retraction [Tur]. And even though there are those who disagree and say that the defendant is liable unless he wrote to the agent "go, litigate, and extract for yourself," because he should have considered that perhaps he canceled it, the halacha is not so, for the defendant is completely under duress [Shach]. And more than this, even if the authorized agent stood in judgment with the defendant and the authorized agent was found liable, the sender who authorized him cannot overturn the judgment with the claim that when he stood in judgment with this person, he had already canceled his agency. However, if the agent knew of the cancellation of his agency, even though the defendant did not know, his judgment is void and he must return and litigate. And there are those who disagree on this, since the defendant did not know and he gave him a power of attorney, his judgment is a judgment [ibid.]. But regarding the responsibility of the defendant, even according to the first opinion, their responsibility is not upon him even when the agent knew, since he did not know [Sma]. And regarding the law of canceling the agency, there is no difference between whether he appointed the agent not in the presence of the defendant or in the presence of the defendant; and even if he said to the defendant, "send to me via this person" or "via so-and-so," he can cancel [ibid.]. And there are those who disagree on this, and it will be explained in section 2.

If the lender died before the defendant gave to the agent, his agency is voided even if they did not know of his death, for immediately upon death the money fell before the heirs, and they did not make him an agent. Therefore, if they were taken by force or lost on the way, the defendant is liable for their responsibility until he brings them to the hand of the heirs. And one should not ask why the sages did not institute that the defendant should be exempt in such a case, for there is no greater accident than this; for this is no question, as one does not institute an enactment due to a concern of death. For even regarding the prohibition of a married woman, we rely on the presumption of life, as one who sends a get to his wife gives it to her under the presumption that he is alive even if he was ill, and we do not fear death, as is written in Even HaEzer there. And some say that if he wrote him an harsha'ah, even without a kinyan agav karka, death does not void it, and even if he knew he died and gave to him, the defendant is exempt from responsibility, only that if he knew he died, it is within his power not to give to the agent. But if he gave without an harsha'ah, certainly death voids the agency, not like the one who disagrees even in this [Urim VeTumim]. And the details of the laws of harsha'ah will be explained in siman 123. And some say that also if the lender said to the borrower himself, "Send to me by way of so-and-so," and he died before he sent and he did not know he died, the borrower is exempt. And the reason is that when he says to the borrower himself, "Send to me by way of so-and-so," there is upon the lender, besides the agency, the law of an arev, for it is no less than an arev who says, "Give to so-and-so on my guarantee," and all the more so when he commanded him to give his money, and the entire guarantee is for the responsibility, and an arev becomes obligated by mere speech, as is written in siman 129 [Netivot HaMishpat and Shittah Mekubetzet Bava Metzia 98], and he became obligated for this money regarding the responsibility. And so too, cancellation is not effective according to this reasoning if the defendant did not know of it, because he relied on his guarantee [ibid.]. And for the law, there is no practical difference regarding cancellation, for if he did not know of its cancellation, even with a standard agent, their responsibility is not upon him, as has been written. And if he knew of its cancellation or of his death, certainly his guarantee is removed, for even an arev can retract, as is written in siman 131, and since he cancelled or died, you have no greater retraction than this [it appears to me]. And according to the opinion that was explained, you do not find that the borrower would be liable for their responsibility when the lender died except with an agent made before witnesses, for such an agent comes only by reason of agency and there is no law of arev upon the sender. But when he wrote to him by way of the agent, "Send to me by his hand," there is upon him the law of arev, for there is no difference whether he guaranteed in writing or by word of mouth [it appears to me].

Even though it was explained in the previous siman that a borrower who sent the lender his debt at his command via his messenger and it was lost is exempt, and similarly regarding a deposit, nevertheless, if the borrower or the bailee wishes, he need not send it to him via his messenger even if there are a hundred witnesses that he made him a messenger. And the reason is that he can say that he fears perhaps the lender will die before he gives it to the messenger, and if it is lost by force on the way, he will be liable to pay the heirs as has been explained. And even though we do not fear death, as I have written, nevertheless if he fears it, we do not prevent him. Therefore, it is good advice for the borrower or the bailee not to give it to the messenger unless he comes with a power of attorney (harsha'ah) in which he transferred to him via kinyan agav karka the money that he has with so-and-so, for in such a case, even if the sender dies, he is not liable for their responsibility. However, if it became known to the defendant that the sender died, he should not give them to the messenger ab initio, for we are witnesses that the intent of the sender was only for himself and not for his sons [Sma]. And although such a power of attorney is not voided, nevertheless perhaps the heirs do not desire this [Shach]. And all this is regarding an iska or a deposit, but a loan, which is not acquired via agav karka as I wrote in siman 203, is nothing but a mere agency and he should not hand them over when he died in any case. And if the deposit is movable property, a kinyan alone is sufficient in that he transferred the movable property to him [ibid.], for specifically with money we require agav karka since a coin is not acquired through exchange (chalifin) as I wrote there. And according to the "there are those who say" that we wrote in the previous section, if the lender said to the borrower himself or the depositor to the bailee, "Send it to me via so-and-so," he cannot delay at all, for even if the claimant dies, he is exempt [it appears to me]. And there are those who disagree with this entire law and hold that the defendant does not have the power to delay giving to the messenger because of a fear of death, and only when the defendant has some claim does he have the power not to give to the messenger; and even if the messenger says "I will stand with you in judgment," he can say to him "You are not my litigant," and in this he needs a power of attorney to authorize him to litigate with him, and he shall write in it "Go, litigate, and take for yourself." But when he has no claim, he is obligated to give to any messenger that the lender or depositor made [Shach]. And such is the custom, and we have never heard of delaying the agency because of a fear of death, and so it is proper to rule, and especially in this time when swindlers are common. And more than this, our teacher, the Rema, ruled that even regarding litigating with the defendant, even though he is not his messenger at all, if he provides him a guarantor for a power of attorney from the claimant, if it appears to the beit din that this is a merit for the claimant, the defendant is obligated to litigate with him, for one may act to a person's advantage in his absence. Thus far his words. But if the beit din sees that this person who wants to be the authorized representative—his primary intent is not for the good of the claimant, but rather to provoke the defendant or to quarrel with him or to alarm him or because of jealousy—we do not compel the defendant to litigate with him when he does not have a power of attorney with him. And in such matters, a judge has only what his eyes see, and so ruled the great later authorities.

When one wrote an authorization for the agent and transferred the money to him via agav karka, nevertheless the money does not become the agent's, and if he wishes to seize the money, it is not within his power, for he is nothing more than a mere agent in this matter, as the intent of the authorized party and the authorizer is only that he be an agent for the matter [Sma]. This is only a "strong agency" such that the liability is removed from the defendant even upon the death of the plaintiff, as has been written. Since this is so, one who authorized another, even with a kinyan agav karka [Shach], and desired to cancel the agency and authorize another, he is permitted to do so. And if he wishes, he may say that the first one's agency shall also remain standing, and each of the two of them shall be an authorized party in the matter. Even so, the defendant cannot rebuff the authorized party by saying, "Perhaps the authorizer canceled your agency and authorized another," for this one says to him, "Give me what is in your hand and my authorization shall remain with you; and if my sender canceled my agency, he has caused a loss to himself, and you shall be exempt since you give according to an authorization." Likewise, if the authorized party stood in judgment with the defendant and the authorized party emerged liable, the authorizer cannot overturn the judgment; so ruled the great later authorities, and such is the primary ruling [and what the Shach wrote in subsection 9, that such is the opinion of the Tur and the Beit Yosef, it does not appear so from the Tur section 7 and from the Beit Yosef section 12, and examine this carefully].

It appears to me that a lender who appointed an agent without a power of attorney, and the defendant had some claim and the agent stood with him in judgment and the agent emerged liable, the lender cannot say: "Since you did not have a power of attorney from me, your judgment is not a judgment." Rather, what he did is done, unless the lender reveals other claims that the agent did not know, for then, even if he had a power of attorney, he may return and plead. But without this, even though the defendant had the ability not to answer him in judgment when he lacks a power of attorney, nevertheless, the lender does not have the ability to say "I did not send you for this," for the agency includes everything, unless he explicitly made him an agent only to receive the money and not for any other matter. And it will be further explained before us [and so it appears from the Shach, subsection 4, and so it is implied from the Rambam, chapter 3 of Laws of Agents, halacha 5, and examine it closely].

Our sages, of blessed memory, said [Bava Kamma 70a]: Any power of attorney in which it is not written, "Litigate, acquire, and extract for yourself," the defendant can say, "You are not my legal adversary." The reason is because he can say, "I have many claims that I need to argue with the plaintiff himself." But when he wrote to him, "Litigate and acquire," it becomes as his own, and he is forced to answer him in judgment. And if the beit din sees that the granter of the power of attorney is also needed, they shall send for him [so it appears to me, and so is implied from the Shach, subsection 16; and see the Levush]. This applies to a power of attorney to extract from the possession of his fellow. However, one who gives a power of attorney to sell his land or movable property requires nothing but a mere agency, for "a person's agent is like himself," and he shall write that he made him an agent to sell [Sma]. But one who empowers his fellow to extract his property from the one holding it must transfer it to him with an effective kinyan so that he acquires that thing for which he empowers him; for example, for movable property, a kinyan sudar is sufficient, and for money, he requires kinyan agav karka. And even though he does not transfer it to him completely, as he is only his agent, nevertheless, since he must write to him, "Litigate and acquire," he must transfer it with an effective kinyan according to the opinion of the Rambam [Shach]. And some say that an effective kinyan to actually acquire is not necessary, and any kinyan whatsoever is sufficient, for this is only like giving permission [Ramah in the Tur, section 9]. And he must write to him, "Litigate, acquire, and extract for yourself," or other similar language that includes that he grants and transfers to him the thing for which he empowers him. If he did not transfer it to him or did not write thus, if the holder wishes, he need not answer him at all, for he may say to him, "You are not my legal adversary." However, even if he did not transfer it and did not write thus to him, and the holder gave what was in his hand to the authorized agent and it was lost, he is exempt, for it is no worse than an agent appointed before witnesses, who is exempt from liability, as has been explained. And the authorized agent is believed against the plaintiff in everything he claims, and his law is like a trustee since he trusted him, and he cannot contradict his claims [Shach in the name of the Mabit]. But the plaintiff may add to his claims, for even the plaintiff himself, when he has claimed, can afterwards add claims, as was written in siman 16 [so it appears to me]. And the authorized agent cannot contradict his claims, just like the plaintiff himself, as will be explained in siman 80. But regarding a mere agent, the sender can contradict his claims if he clarifies before the beit din that he did not claim properly, for regarding claims, he is not like an actual legal adversary [so it appears to me].

Even if he did not transfer it to him regarding the entire matter, but rather wrote to him "judge, and merit, and take for yourself a half, or a third, or a quarter, and the remainder is mine," since he judges with him regarding his portion, the defendant must judge with him regarding everything, since he gave him an authorization for everything; rather, that he transferred to him a portion of this for himself, we have no concern with that. And it is not similar to partners, which will be explained in this siman, where he only judges regarding his portion when the second is not in the city, for certainly if the partner would also give him an authorization, he would be able to judge regarding all of it [Shach]. And there is one who says that this is specifically in such a case where he transferred a portion to him and did not specify the amount, but if he wrote to him "judge, and merit, and take for yourself one hundred dinars and the rest is mine," he does not compel him to judge with him except regarding the one hundred dinars. And the reason is that with a term joined by the name "half" or "third" or "fourth," the entire debt is included, since he writes that this is a portion of the debt, and therefore he has a connection to all of it [Sma]. And it appears that when he transferred a portion of the debt to him, this portion belongs to the agent entirely, and he can withhold this portion for himself, even though in a transfer of the entire debt he cannot withhold it for himself as I have written; but when he wrote to him "a portion," it implies that he made him an agent for everything, and this portion he gave to him absolutely [and so it appears from the Rashal cited in Shach, subsection 21]. And if the authorizer retracted and pardoned the defendant or admitted that he was paid, whether he must pay the agent his portion will be explained in siman 123. And some say that if he transferred to him a portion of "what he shall extract from the loan," the kinyan is of no effect at all, for it is a thing that has not yet come into the world like the fruit of a palm tree; rather, he should transfer to him a portion of the debt that he has, for he transferred to him the body of the money. Nevertheless, even if he transferred "what he shall extract" and he extracted it, he has merited, as I have written in siman 209 and as will be explained in section 12.

According to what has been explained, it is not effective when he transferred to him a portion so that he may litigate with him over the whole, except in the case of land or a deposit where a kinyan is effective for the portion of the authorized agent, or if it was a loan with a document and he transferred to him a portion via writing and delivery. However, in other matters where a kinyan is not effective except by the enactment of the sages regarding agency and authorization, as I wrote in siman 123, the portion is not effective for him to litigate with him over the whole. For since according to the law a kinyan is not effective in this case except by enactment regarding agency, how can we say that he made him an agent over the whole? Behold, he only made him an agent over a portion. For it is well understood that in a matter where a kinyan is effective, we say that he made him an agent over the whole, but he transferred a portion to him completely; however, in that which a kinyan is not effective and the kinyan is the agency, behold, he only made him an agent over the portion [ibid. subsection 19].

One who grants an authorization to his fellow, all the expenses that the authorized agent spends on this litigation, the grantor is obligated to return to him, and even if he spent more than what he received [Sma], for thus he writes to him in the authorization: "anything that is required from the beit din, it is upon me to return," and its meaning is that he obligates himself to him that whatever expenses he spends in this litigation, he must pay. And if there was a condition between them that when he extracts such-and-such from the defendant he will pay him such-and-such, and if he does not extract this amount he will not give him anything, any condition in monetary matters is valid [Shach]. And even though he wrote to him "anything that is required from the beit din, it is upon me to return," it is nothing more than the formula of the authorization since they stipulated an explicit condition. And if there was no condition between them and he also did not write to him "anything that is required etc.," he does not need to pay him the expenses by law; however, from the perspective of custom he must pay him [ibid.]. And furthermore, presumably he authorized him with the understanding that he would pay him, and it is a strong assessment. And if there is a denial between them regarding the details of what they spoke, if the agent has a migo in that he could have withheld the money and said to him "I gave it to you," he is believed with an oath; and if he does not have a migo, the grantor shall swear and be exempt [it appears to me].

It has already been explained that even if he transferred it to him by means of agav karka, he is merely an agent, and if the authorized representative desires to seize the money that he extracted from the defendant, he cannot, and he must return it. This is so even if he did not write for him "all that you achieve, etc.," for the primary enactment of the authorization was only for the benefit of the sender; and all the more so when he wrote for him "all that you achieve, etc.," for it is as if he explicitly stated that he shall return it to him. And even regarding land or a deposit, he must return it to the sender. However, when he did not write an authorization for him at all and transferred it to him with a complete kinyan, or with money that he transferred to him by means of agav karka, or if the kinyan was written and the matter of authorization was not mentioned at all, and the agent claims that he transferred it to him completely while the sender claims that it was only by way of authorization, the agent may seize the money since he is the possessor [Shach]. Nevertheless, if according to the assessment of the beit din it appears that it was only by way of authorization, but they did not pay attention to write it, they extract it from the agent and return it to the sender, for it is a strong assessment that it was only by way of authorization. Therefore, the dayan shall act according to his assessment based on the matter.

Since it has been explained that the agent cannot withhold for himself, therefore if the depositor claimed a deposit from the bailee and he replied to him that he gave it to his authorized agent, but the authorized agent went back and borrowed from him against the deposit, the bailee must return his deposit to the depositor and go and claim from the authorized agent. For behold, the authorized agent is nothing more than an agent to receive it from him, and therefore the bailee was negligent in that he went back and lent to him against it. And even if the agent said to him that the sender commanded him to borrow against it, he should not have believed him without witnesses and without a writing from the sender, and so too in all similar cases.

If Reuven had money in another city and Shimon traveled there, and Reuven gave him an authorization to receive his money there and to give him their equivalent when he returns to his place, and Shimon went there and received them, and afterwards it happened that Reuven came there and requests from Shimon that he return his money to him there, and Shimon says, "I will give to you in your place according to what we spoke," the law is with Shimon. And even though if the money were still in the hand of the bailee, Reuven would be able to retract his authorization—for even though he performed a kinyan and authorized him, behold, currency is not acquired through chalupin unless it is through a kinyan agav karka—nevertheless, since Shimon already received them, Reuven cannot retract, similar to a seller of a davar shelo ba l'olam, which is not acquired, and yet if he preceded and seized it, it is not removed from his hand, as will be explained in siman 209 [Sma]. And presumably, when Shimon stipulated thus, he had a benefit from this, that he would use the money there, and Reuven consented to this, and Shimon already received them, behold he has acquired this benefit [this is the intention of the Shach in subsection 27]. And know that in siman 332 it will be explained that regarding hiring, davar shelo ba l'olam is not applicable, and it is finalized with mere speech. And if he hired him to go or to perform work, and in exchange for this he would give him a certain object, even though he does not need to give him the object because it lacks meshikha, or if the object is not his it is a thing that is not in his possession and its law is like a davar shelo ba l'olam, nevertheless, he must give the value of the object. Therefore, if Reuven hired Shimon to go to a certain place to receive his money, and in exchange for this he would keep his money with him and trade with them until he comes to Reuven's place, and Shimon did so and went there, and afterwards Reuven came there before Shimon spent the money, even though Reuven can receive the money, nevertheless, he is obligated to pay Shimon, besides his wages for his travel, that which they would appraise as the value of the money for such a time that it was to be with him according to the nature of his trade [it appears to me]. For regarding the value of wages, we do not judge the law of acquisition nor the law of davar shelo ba l'olam. And so too regarding what was explained in section 7, that when he transferred to him a portion of what he would extract from a loan it is a davar shelo ba l'olam, nevertheless, he must pay him the value of his wages for what such a portion is worth [Ktzot HaChoshen, and the difficulty of the Netivot HaMishpat can be settled, and delve into it].

A document of הרשאה does not need to have a date written in it, and nevertheless, it is customary to write a date in it; therefore, a post-dated or pre-dated date does not invalidate it, only regarding the matter of cancellation is there a practical difference, and it will be explained in siman 123. And so too, some write "with a willing soul, without being coerced, etc.," "not as an asmakhta, etc.," and the cancellation of protests, and according to the law it is not necessary to write this, yet some are accustomed to write all of this. And so too, an הרשאה in which "litigate and acquire" is not written, but rather "take and bring forth for yourself" or another such phrasing, one should not invalidate it since the intention is the same. And so too, one should not invalidate it when "litigate" is not written in it, since it is written in it "whatever is answered from the beit din shall return upon me," for behold, this is in place of "litigate" and it is valid. And so too, if "litigate, etc." is written in it but he did not write "whatever is answered, etc.," it is valid. But if neither "litigate" nor "whatever is answered" is written in it, it is invalid [Shach]. And the phrasing "whatever is answered" is written for the benefit of the grantor, so that the agent cannot say "you transferred it to me entirely since you wrote 'litigate, acquire, and bring forth for yourself.'" And that which we said, that one of these two phrasings is a requirement, this is specifically in a case where he does not transfer to him the body of the object, as will be explained in siman 123; but if it is in a case where he acquires the body of the object, such as with movable property that he transferred to him via kinyan sudar, or money of a deposit that he transferred to him incidental to land, or a document via writing and delivery, even if he did not write the two phrasings, it is valid and he is obligated to litigate with him, for granted that he did not acquire it by way of agency, he acquired it by way of kinyan [ibid.].

This is the text of the harsha'ah: On such-and-such day of the week, on such-and-such day of the month of so-and-so, in the year so-and-so, and in such-and-such place, there came before us, the undersigned witnesses, so-and-so son of so-and-so, and said to us: "Be witnesses for me, and perform a kinyan sudar with me, and write and sign and give to so-and-so son of so-and-so how I have granted him four amot of land in my courtyard as a gift of a healthy person, and through them and through a kinyan sudar, I have appointed him an agent against so-and-so son of so-and-so regarding a house [or field] that I have in his possession [or a deposit, or a theft, or a loan, or an inheritance, or money from a partnership business, or from rent that I have in his hand] in order to extract it from him in a beit din. And behold, I have made his action as my action and his mouth as my mouth." [And if he gives him permission to appoint another agent in his place, they shall write:] "And he shall have permission to appoint another agent in his place, and another agent after another agent, up to one hundred agents." And so said Rabbi so-and-so the granter in our presence to Rabbi so-and-so the agent: "Go, litigate, win, and extract for yourself, and whatever results for you from the judgment [or compromise], I accept upon myself; and you shall have permission to administer an oath, and to impose a kabalah, and to litigate with him in any beit din that you desire, and you shall have permission to set a time and to cancel a time. And all this I do with a willing soul, without being coerced, not as a mockery, and not as a hatred, and not as an asmakhta, and not as a mere form of a document." And in our presence, the undersigned witnesses, the granter so-and-so canceled all notifications, etc. And we performed a kinyan from Rabbi so-and-so the granter to Rabbi so-and-so the agent regarding everything that is written and specified above, with a vessel fit to perform a kinyan with it, and everything is valid and established. Signed, so-and-so, witness; and signed, so-and-so, witness. [See Yam Shel Shelomo, Bava Kamma, chapter 7]. And the kinyan does not need to be in the presence of witnesses; rather, for the sake of clarity, they write thus [Shach]. And if there is a concern that the opposing party will deny the signatures of the witnesses, it is good to perform a confirmation by a beit din, or that the beit din themselves should make the harsha'ah and write "In our presence, the undersigned beit din," and so-and-so, judge, shall sign. And if they wrote the language of testimony, it is valid [Gittin 33a]. And it is better to do it before a beit din, as not everyone is learned in the law.

A husband who comes to litigate regarding his wife's property: if it is regarding nikhsei tzon barzel, he does not require an authorization from her, and even if she protests, we do not heed her, as is written in Even HaEzer siman 85. And if they are nikhsei melog, he requires an authorization from her. And if there are fruits on the land, since he has the right to litigate over the fruits because they are his, he also litigates over the principal of the land and does not require an authorization. And if she protests against him not to litigate over the principal, he can only litigate over the fruits [Shach]. And some say that even if there are currently no fruits in the field, since it is destined for fruits in the future time, it is called as having fruits, for behold, he must litigate for the sake of the fruits that will be in the future [Sma]. And some say further that even if it is a field that does not produce fruits at all, its law is like one that has fruits in it, because he has the ability to sell it and purchase a field that produces fruits. And according to this opinion, it must be said that that which the sages, of blessed memory, said—that without fruits he cannot litigate—this is when the husband and the wife admit that they gave the fruits to the defendant for a duration of time and the principal is hers, and the defendant says that the principal is also his [the Rosh at the end of chapter 4 ibid.]. And the opinion of our teacher, the Rema, in Even HaEzer there implies like the first opinion, see there. And in Even HaEzer there, section 18, we explained further on this with the help of Heaven, see there.

One of the brothers who are heirs and have not yet divided, or one of the partners who comes to sue someone, sues for the whole amount; since he has a portion in this money, he does not require an authorization from the others. And if he loses the case in the beit din, the other cannot say to him, "Had I been there, I would have argued other arguments and made our opponent liable," for he says to him, "Why did you not also come to sue since you were in the city?" And even though if he truly has other arguments he can argue them even now—for example, if the first said, "I have no evidence," and this one has evidence, he may bring it, and similar cases—nevertheless, if he has no other arguments, he cannot litigate with him a second time merely so that he will have a new time to come to judgment and for payment. Therefore, if the second was in another city, he has the right to return and litigate with him and say, "I do not admit to everything my brother or my partner argued, since I was not in the city." And therefore, the defendant also has the power to delay the judgment and say, "Either litigate with me only for your portion, or bring an authorization from the other, for the money of both of you is in my hand and both of you are my opponents, and tomorrow the other will come and sue me a second time." And the plaintiff cannot say to him, "What do you care if you litigate for the whole amount?" for he certainly has a concern in this, for if he leaves the beit din liable, he will be liable for everything, and if he leaves acquitted, he will only be acquitted for half, and the attribute of justice would be impaired [Tur]. And so too when it becomes known that the second, even though he was in the city, nevertheless did not hear and did not know that he went down to judgment with him, he can litigate with him a second time; but in an ordinary case, we say that he heard until it becomes clearly known that he did not hear and did not know. And it is not similar to what was written in siman 77 regarding handing over the entire debt to one of the partners, where we require that it be clearly known that he heard; for certainly to hand over money we must know clearly, which is not the case regarding standing in judgment [Shach]. And some say that if the second was in the city and heard and did not come, he cannot even argue other arguments and has lost his right [ibid. according to the Rambam]. And there is one who wishes to say that even if both are in the city, the defendant can compel that the second also come to the beit din, because he can say, "I know that the second will not be able to be impudent against me." And many disagree with this. Nevertheless, if according to the sight of the eyes of the beit din there is substance in the words of the defendant, they compel that the second also come to the beit din [it appears to me]. And see in siman 176.

In what case are these words said? When the brothers or the partners were plaintiffs, but if they were defendants and the plaintiff comes to extract from their hand, the second is not obligated even when he was in the city and heard and did not come. For when they are plaintiffs, it appears clearly that he relied upon his fellow, for if it were not so, he would have come himself; but when they are defendants, he can say, "I did not rely upon my fellow, and why should I hasten to come? And would that he never sue me" [our teacher, the Beit Yosef]. Therefore, if even when they are defendants the plaintiff is not lacking collection—for example, two partners who purchased land and one comes to extract it from their hand with the claim that the one who sold it to them stole it from him, or that he is his creditor, and the beit din placed the plaintiff into the land—the partner cannot protest when he was in the city and heard and did not come, for behold, he is now like a plaintiff [Shach]. And the same applies to money or movables that the plaintiff has in his possession [it appears to me].