Siman 128

We hold that one who chases away a lion from the property of his fellow and saves him from loss is exempt, even if the rescuer incurred a loss, since he acted of his own volition without the command of the owner [Tosafot and the Rosh, Bava Kamma 58a]. And specifically when the damage was not certain, but when the damage was certain, he must pay him [ibid.]. Therefore, one who pays the debt of his fellow without the knowledge of the borrower, whether it was a loan by a deed or an oral loan, the borrower is exempt from paying him, for the borrower can say to him: "Who requested this from your hand? I would have pleaded before the lender and perhaps he would have forgiven me." And even though you saved me from distress and caused me relief, we do not find that one must pay for causing relief [Perek 8 ibid.]. And it appears to me that these matters are only said when the borrower is pressured in his situation, for in this case it is possible that he would have pleaded before the lender and he would have forgiven him or would have left it to him for a long time and the like. But when the borrower is in a good situation, we are witnesses that the lender would not have forgiven him and the loss was certain. And proof for this is from the wording of the Rosh who wrote: "that he saves him from mere distress, for he is distressed that he cannot pay him," thus far his words. And this is what is found in the Yerushalmi: "I would have appeased him and he would have forgiven me." And why would he forgive a wealthy man? And even though regarding one who enters into the field of his fellow without permission and plants it, the owner of the field must pay him, as is written in siman 375, and we do not distinguish between a poor man and a wealthy man, that is because there the profit is tangible, but one who pays a debt only saves him from loss [Tosafot, Ketubot 107b]. And even if the lender was pressing him to pay him and he is a man who does not forgo anything of his own, nevertheless he can say that he would have brought many friends to influence him and he would have forgiven him. And there are those who disagree on this, for certainly since he was pressing him to pay, it is like a certain damage and the borrower must pay him, and it remains a legal doubt [the Shach]. And one of the great authorities rejected this view entirely, and our teacher, the Rema, ruled accordingly. And it appears to me that even according to this view, if according to the estimation he would have worked upon the lender to pay little by little over periods of time, he does not need to pay this person either except as he would have paid the lender according to the estimation. And one should not raise a difficulty against the principle of this law from what is written in siman 66 that one can transfer a loan deed through "handing over and writing," for certainly that is so if the lender sold it to him according to the law, he acquired all the rights of the lender; but when he pays on his own without the acquisition of the deed, he has not acquired the rights of the lender, and this is nothing other than like one who chases away a lion. [What the Shach wrote that the Rambam obligates in the case of a pressing creditor is forced, for it is not like the Yerushalmi which derived this from the Mishnah of "one who weighs his shekel," and in our Talmud in Ketubot 108a it is established as being "lost or collected"; on the contrary, in the Rambam chapter 4 of Nedarim he wrote according to the wording of the Mishnah, but one must say that he holds like the Rashba in his novellae there, that the establishment of "lost or collected" was before we established the Mishnah according to Chanan and not according to the conclusion; and examine this carefully].

There are those who say that even if the lender held a mashkon and this person paid and took the mashkon into his hand, the borrower is also not obligated to pay him, for he can say, "I would have appeased him and he would have given me my mashkon," and the payer does not acquire the debt by taking the mashkon; for since he acted with the intent to be reimbursed by the borrower, immediately upon paying the lender, the lien on the mashkon was removed [Ktzot HaChoshen]. Therefore, if the lender said to him, "Acquire this mashkon and pay me the debt of so-and-so," he acquires this debt as if by writing and delivery of a shtar [ibid.]. And similarly, if the payer said to the lender, "I will pay you the debt and you shall return the mashkon to me, and I will hold it as long as the borrower does not pay me," and the lender delivered the mashkon to him, he also acquired the mashkon, for presumably it was with this intent that he returned the mashkon to him [it appears to me]. And there are many poskim who disagree with the essence of this law and hold that regarding a mashkon, the borrower is obligated to pay the payer in any case; and even if this is a legal doubt, since the payer is holding the mashkon, the burden of proof is upon the one who seeks to extract from his fellow [Shach and Urim VeTumim].

Some say that all this applies when the lender is an Israelite, but when the lender is a gentile and one paid him, he is obligated to pay the one who paid, for a gentile would not have forgiven him; and all the more so if he redeemed his collateral from him, that he is obligated to pay him. And there are those who disagree and hold that there is no difference between an Israelite and a gentile [Shach and Urim VeTumim], and regarding collateral it is a legal doubt just as with an Israelite [ibid.]. And the great later authorities wrote that according to the custom of the gentile merchants who compromise with one who is indebted to them for many years when they are given a guarantee, if an Israelite comes to pay the merchant on behalf of the one who is indebted to him and took the note of indebtedness from the hand of the merchant and comes to claim it from the borrower, the borrower can say: "I would have appeased the merchant to pay him over distant times," and he does not need to pay the one who paid more than this either [Levush and Sma]. And likewise, if there is only an assessment that this lender would have reduced his debt for him, and all the more so if this one who paid actually purchased the note of indebtedness from the gentile for less, for he cannot claim from the borrower more than what he paid to the gentile. And on the contrary, if according to the assessment he would not have paid the gentile as much as this one who paid, he does not need to pay the one who paid even what he gave to the lender, but only according to the assessment of what the lender would have been satisfied with. And in Yoreh Deah siman 252 it was explained regarding one who redeems his fellow from captivity whether he is obligated to pay him; see there.

There is one who says that all that has been explained applies specifically when the payer did not have in his possession any property belonging to the borrower; but if he had in his possession property belonging to him and he paid his debt, what he did is done. For specifically when the payer comes to extract payment from the borrower, he can say to him, "I would have appeased the creditor." And even if he redeemed his collateral, the payer is considered one who extracts according to the first opinion in section 2, since the collateral will be returned to the borrower. But when he had property belonging to him in his possession, he can say to the borrower, "If I had not paid him, the beit din would have sent for me to pay him from what is in my possession through the lien of R. Nathan" [Sma]. And some say further that even if this payer did not give the objects of the borrower that are in his possession, but gave his own collateral on behalf of the borrower, since if he had wanted he could have given the borrower's property, therefore even though he did not give it, he is obligated to pay him. And although there are those who hesitate regarding this, nevertheless, through the lien of R. Nathan he is obligated to pay him [Shach]. And nevertheless, regarding the law of the merchants in the previous section that was explained in the name of the great latter authorities, even in such a case he does not become obligated to pay him except according to what he would have paid the merchant [and examine this closely].

Our teacher, the Beit Yosef, wrote: One who is seized on account of his fellow, and gentiles took his property because of his fellow, his fellow is not obligated to pay. You have no one who is seized on account of his fellow where his fellow would be obligated to pay him, except for one seized because of the tax assessed on each and every person every year, or one seized for the gift that each and every person gives to the king when he or his armies pass by them; behold, this one is obligated to pay him, provided that they take from him explicitly because of "so-and-so" in the presence of witnesses. Thus far his words. And there are those who explained that included in this as well is when they seized him for the debt of his fellow; and even according to the first opinion in section 3, that when one paid a gentile the debt of his fellow he is obligated to pay him, nevertheless, when they seized it from him against his will he is exempt, for specifically when he paid of his own volition must his fellow pay him so that the door should not be locked before those who perform acts of kindness, whereas when he did not pay of his own volition he is exempt [Sma]. And there are those who explained that specifically when they seized him for his fellow regarding a robbery, which his fellow was not obligated for at all by law [Levush], but when they seized him for the debt of his fellow he must pay him, even according to the latter opinion in section 3; for specifically when he paid of his own volition can the borrower say to him, "Who requested this of your hand? Perhaps the lender would have forgiven me," but when they seized him against his will, what could he have done? And so it appears to me to be the primary view. And there is a proof for this from the Yerushalmi [Ketubot chapter 13, which brings there regarding one who robs a field and oppressors took it, see there; and furthermore it appears to me that it is a dispute there, as we learn afterward: Rabbi Elazar asked, and this one who was great etc., one said like an arnona etc., and there is no other explanation but that it must be so, and the ruling of Rabbi Ba, and it refers to the previous statement of Rabbi Ba regarding one who pays a promissory note, what is the law, and it was a doubt in the law; and also from the arrangement of the words of the Rambam in chapter 8 of Chovel it is clear as I have written, and examine this carefully].

Our teacher, the Rema, wrote: One who was seized on account of the tax of another community and seized from one of the community members, he may seize him on behalf of the entire community, for they are all responsible and guarantors for one another; therefore, he does not need to collect from each one his portion. And some say that a person is not seized for the tax of his fellow except before the king has been appeased, but if he has already been appeased, a person is not seized for his fellow. However, the community leaders who lent for the purpose of the tax may pay on behalf of the entire community, and each one must give his portion, for they are like the trustees of the community and like their agents. And that which was said that a person is not seized for his fellow, that is where there is no regulation in the city, but if there is a regulation in the city, one follows the custom. Nevertheless, if some of them acted improperly and the minister brought a false accusation against them, others do not need to give toward this, for certainly they did not join together with this in mind, unless they specified explicitly. Thus far his words. And behold, regarding matters of taxes and land taxes, it is impossible to detail everything in writing, for not all lands and not all times are equal in this. However, the great principle in this is that every Jew is obligated to act according to the law of the kingdom where he dwells, for the law of the kingdom is the law. And in siman 163 more of this will be explained. And when there is an established custom in the city, one follows it.

Our teacher, the Rema, wrote: A teacher who was with a homeowner and lent to a gentile on collateral, and he left from there and did not settle himself with the gentile, and when he left from there he left some of his money in the hand of the homeowner, and [the homeowner] wants to withhold them because he will need to settle with the gentile—he cannot withhold them. Thus far his words. And the reason is that perhaps he will not sue him at all, and since the obligation is not clear, he cannot seize it [Taz]. And this is specifically when the homeowner will later have the ability to sue the teacher and collect from him if he is required to pay on his behalf; but otherwise, he certainly can seize it until it becomes known that the gentile will not collect from him on behalf of the teacher [Urim VeTumim]. And if they already collected from the homeowner for him what was due to them from the collateral, or if it is known that they will certainly collect from the homeowner, the teacher is obligated to pay him, and all the more so that he can withhold it from his money. And even according to the first opinion in section 5, the homeowner is like a guarantor for him since he is in his house, and according to their custom, the homeowner is a guarantor for all the people in his house [Taz]. But if the gentile came only with a false accusation against the teacher and seized from the homeowner's property on his behalf, the homeowner cannot withhold it from his money, for a person is not required to pay for what his fellow was seized for on his behalf through a false accusation, as has been explained [and what the Shach questioned in subsection 11 is settled].