Siman 39

It is a positive commandment from the Torah to lend to a poor person when he is in need, as it is said: "If you lend money to my people, to the poor person with you," etc. And this "if" is not optional but obligatory, like "And if you offer a meal-offering of first-fruits," etc., and "And if you make Me an altar of stones," etc. And why did the Torah write it with the language of "if"? Because it is not an obligation like other commandments, for when one has nothing to lend, he is exempt from this commandment. And anyone who does not lend to him when he has the means is called "base," as it is said: "Beware lest there be a base thought in your heart, saying, 'The seventh year approaches,'" etc. And this verse also refers to a loan, since the verse warns that he should not fear lest the Shemittah release it. And thus our sages, of blessed memory, said: Anyone who lends a sela to a poor person in his time of distress, regarding him the verse says, "Then you shall call and Hashem will answer," etc. And it is also a mitzvah to lend to a wealthy person when the wealthy person needs a loan and the lender has the means. Therefore it is written "to my people, to the poor person," to inform us that it is a mitzvah to lend to everyone; for if not so, let it write "if you lend money to the poor person" and no more. Rather, we learn from this that it is a mitzvah to lend to all of Israel, only the explanation of the verse is that a poor person precedes a wealthy person if he does not have enough to lend to both of them. And thus our sages, of blessed memory, explained (Sukkah 49b). They further said: Gemilut chasadim is greater than tzedakah, for tzedakah is for the poor, while gemilut chasadim is for both the poor and the wealthy. And thus we learned in Avot: Rabban Shimon ben Gamliel says, on three things the world stands: on the Torah, on the service, and on gemilut chasadim. And there are two types of loans: a loan by word of mouth and a loan with a shtar. And these are also divided into two: a loan by word of mouth in the presence of witnesses, and a loan by word of mouth between him and the borrower. Similarly, a loan with a shtar is divided into two: a loan with a shtar without witnesses, where only the borrower writes "I, so-and-so, borrowed from so-and-so a maneh," and a loan with a shtar with witnesses, where the witnesses write in the shtar "We, the undersigned, testify that in our presence so-and-so borrowed from so-and-so," or by an admission where they write "We have testified for ourselves that so-and-so admitted," etc. And also when they performed a kinyan sudar from the borrower in the presence of witnesses, it is like a loan with a shtar, and the witnesses may write a shtar, as will be explained, for an ordinary kinyan is intended for writing. And specifically when the witnesses write for the purpose of a shtar, then it has the law of a shtar; but when they wrote merely as a memorandum of the matter, it does not have the law of a shtar, such as if they wrote an explanation of what so-and-so admitted in our presence and did not write "We have testified for ourselves," this is a sign that they only wrote it as a memorandum of the matter, and this does not have the law of a loan with a shtar, but rather like a loan by word of mouth. And the advice of our teachers, of blessed memory, is not to lend without witnesses or without a shtar, so that the borrower will not be able to deny it. And know that every loan with a shtar that will be explained in these laws refers to a shtar with witnesses, for a shtar with the borrower's own signature does not have the law of a loan with a shtar, and it will be explained in these laws. And know a great principle: that all the loans and the shtarot that will be explained in these laws are not the iska loan shtarot that are customary among us in all the provinces, for this is not gemilut chasadim but commerce to take a known profit according to a heter iska. And these laws are explained in Yoreh Deah, the laws of interest. But in these laws, they are loans of gemilut chasadim. And keep this principle, for iska shtarot have other laws.

By Torah law, whether it is a loan with a deed or an oral loan, one collects from encumbered properties, for we hold that the encumbrance of property is by Torah law [according to most of the early and later poskim, and not like the Shach]. From the moment he borrowed from the lender, his person became enslaved to him to repay, as it is written, "the borrower is a slave to the lender," and the properties of the borrowing man are guarantors for his debt, whether movable property or lands, as it is written, "and the man to whom you are lending shall bring out the pledge to you outside." And "lending" implies whether with a deed or orally. It is explicit in the Torah that even movable property is encumbered to him, and certainly lands, which it is the way of lenders to rely upon more (Levush) because the borrower cannot hide them. Even if the borrower sold them or gave them to others after his borrowing, the lender has the ability to take from them, for they were encumbered to the lender from the time of his borrowing, and the buyers should not have purchased them. However, the enactment of our sages, of blessed memory, was not to collect an oral loan from what was sold or given, due to the loss to the buyers who did not know that this seller owed money. They were not concerned for the loss of the lender, for he should have made a deed. Even if he lent before witnesses—since there is no deed, and usually one who borrows money does not desire it to be publicized that he borrowed—therefore, the buyers would not know of this. For the sake of the order of the world, our teachers, of blessed memory, enacted this, for if not so, it would be impossible to purchase or trade at all. They likewise gave this power to a recipient of a gift, for presumably one who gives a gift to his fellow does not give it to him for nothing, but rather because of a favor he did for him; therefore, the rabbis treated him like a buyer. But when he borrows with a deed, the matter is publicized since they wrote and signed a deed, and this has a "voice." Therefore, the buyers caused their own loss, for they should not have purchased from one who owes money and whose properties are encumbered. A deed of deposit or iska will be explained in siman 104. Specifically regarding lands that he sold; but movable property that he sold or gave, he does not collect from them because the lender does not rely upon them, since it is in his power to hide them or destroy them (Rashi, Bava Metzia 67b). Furthermore, they do not have a "voice," and therefore even if he made them an apotiki, he does not collect from them, for the buyers cannot be careful regarding this, as will be explained in siman 117. Also, from slaves that he sold or gave, he does not collect without an apotiki, even though they have the legal status of land for the entire Torah, for this reason (Urim VeTummim). It is only from the borrower himself that he collects from everything he has, for the person of the borrower is encumbered to pay from everything he has. Regarding the matter of collecting from the heirs of the borrower, it will be explained in siman 107, and likewise the gift of a shekhiv mera is similar to an heir, as will be explained in siman 253.

We establish that responsibility is a scribal error. The explanation of the matter is that even though it was not written in the document that his properties are responsible to repay the debt even when he sells them to others, nevertheless, he collects. We say that the scribe erred and did not write the responsibility, for presumably a person does not lose his money; how could he lend to him while the borrower sells his properties and he would have nothing from which to collect? This is so unless it is explicitly stated in the document that it has no responsibility, but an unspecified case is a scribal error. So too, anything that is customary to be written in a document and was not written, and likewise a matter where it is proven that the scribe erred, we attribute it to a scribal error, as will be explained in siman 49. And it is not specifically in documents of loan, for the same applies to documents of sale where responsibility was not written in them, it is also a scribal error. Certain details regarding this will be explained in siman 225 that do not apply to a loan.

The primary laws of debt collection will be explained in the laws of debt collection from a borrower, but we will explain several specific distinctions between a loan with a deed and an oral loan. For a loan with a deed, one collects even from real property that was sold or given after the loan, but for an oral loan, one does not collect. From movable property that was sold or given, one does not collect in either case. However, from unencumbered property, one collects in both cases, whether from real property or from movable property. If he rented or lent to others, one also collects in both cases from the renter and the borrower, whether real property or movable property. However, there is a distinction: for an oral loan, one only collects from them after the period of their rental or borrowing has concluded, for during all this time they are encumbered to the renter or the borrower, and an oral loan does not collect from encumbered property; and so too for a loan with a deed regarding movable property. But for a loan with a deed and regarding real property, one collects from them immediately. Even if the renter preceded and gave the rent to the landlord, one collects from him, and the renter shall collect the rent he gave from the landlord, for a renter is no better than a buyer. This is unless, according to the assessment of the judges, there is no damage to the lender if he receives his debt after the period of the renter's rental, in which case they allow the renter to hold it for the duration of his rental, as will be explained in siman 111 regarding when there is unencumbered property far from the location of the borrower and the lender (as mentioned above).

Since there are distinctions between a loan with a document and a loan by oral agreement, therefore, one who lends to his fellow in the presence of witnesses, even if he said to them, "You are my witnesses," they may not write their testimony and give it to the lender, for perhaps the borrower does not want this person to have a document against him, until he says to them explicitly, "Write a document, sign, and give it to him." And one should not say, on the contrary, that presumably a person does not cast away his money for nothing and we should be concerned for the loss of the lender, as was written regarding responsibility in section 3; for it is different here, as he caused his own loss, for if he desired a document, he should have told the borrower that he would not give him the loan unless he commanded the witnesses to write a document. We do not have to be concerned for his loss in a case where he himself is not concerned. But regarding responsibility, we say that this person who commanded the scribe to write a document presumably intended like all documents which include responsibility, but the scribe erred. Therefore, the witnesses must be careful that as long as they do not hear from the borrower that he commands them to write a document, they shall not write. And some say further that even after he commanded them to write and they wrote, they must, prior to the delivery to the lender, ask the borrower once more. And some say that it is not necessary, and so we practice (Levush), for specifically regarding a deed of gift or a ketubah did the sages of blessed memory command to ask his word once more because he is obligating himself from his own property, but not regarding a loan [Ra'avad chapter 11 of Laws of Lender]. And so too, if the lender told them to write and the borrower is silent, silence is like admission and they write [Shach]. And when he lent to him without specification, whether he can compel him to write a document will be explained in siman 73, section 2.

In what case are these things said? When the borrower did not accept with a kinyan sudar. However, if he accepted with a kinyan sudar, even when the kinyan was between him and the lender, then they write the deed even if they did not see the loan, provided that the borrower admitted before them with a complete admission, as will be explained in siman 81, for an unspecified kinyan is intended for writing. And as I wrote in section 1, since he granted him the kinyan, you have no greater empowerment than this, and presumably he wants them to write for him. And even if a long time elapsed and afterwards the lender came to the witnesses and requested that they write the deed for him, these men shall write and give it. And they do not need to concern themselves that perhaps he paid him, for certainly since he knew that witnesses write a deed for him when he requests it, he would not have given him his money until this one returned his deed to him or he took a shover from him. And if he paid him and he gave him a shover, they do not cause him any loss by the writing, for if this one produces his deed, this one will produce his shover. And if he did not take a shover, he is the one who caused himself the loss. And the witnesses should be careful when they write the deed for him to write in it the time of the kinyan; and if they do not remember the time of the kinyan, they shall write: "This deed we have predated and written." And the reason is that perhaps when the lender writes a shover, he will write in it the time of the kinyan, and the borrower will not pay attention that they do not write the time in a shover, as will be explained in siman 54; and if so, when he produces the shover, the lender will say that it is a different debt [so it appears to me to settle the words of the Levush]. And there is a further concern, perhaps he borrowed in Nisan and purchased land in Iyar, and they delayed and wrote the time of the loan as Sivan, and afterwards he sold the land, and the lender will seize it from the purchasers unlawfully, for the properties that the borrower purchased after the loan are not liened unless he wrote to the lender in the deed "de'ikne," as will be explained in siman 112. Therefore, they shall write the time of the kinyan. And even if the borrower died before the writing of the deed, they write the deed and give it to the lender. And even if he set a time for him and the time passed, they can write it even after his death. And likewise, if the lender died and his heirs request that they write the deed for them, they write it for them. And the reason is as we explained, for there is a presumption that the borrower would not pay without the return of the deed or a shover. However, there are some of the great Rishonim who say that after the time of payment, and likewise in an unspecified loan after thirty days, they do not write it, for we concern ourselves that perhaps he paid [and so implies the opinion of the Geonim brought in the Beit Yosef, and the Shach decided like the first opinion, and it requires further study; and it appears to me that in any case it is a legal doubt].

Witnesses who wrote a document when the debtor did not say to them "write and sign," it is nothing and is like a mere notebook. They cannot collect from him with this document when the witnesses are not here or when they do not remember the testimony except by means of this document, for it is like "from their writing," which was explained in siman 28, that this is not testimony at all [and see there in section 18]. And even though there are those who disagree on this, the Shach has already decided in favor of this view.

That which we required that he must say "write and sign" was specifically regarding a deed of obligation, but when one waives something to his fellow or exempts him from something, it is not necessary; rather, once they heard from his mouth saying "I waive to you" or "I exempt you," they write immediately and give the deed to the one for whom he waived or exempted. For a waiver does not require a kinyan, as will be explained in siman 241. For the reason that he must say "write" is because perhaps it is not pleasing to him that there should be a loan against him in a deed, but regarding a waiver and an exemption, this is not applicable. And in siman 81, more of this will be explained.

One of the great Rishonim wrote that the reason a kinyan is effective regarding an hoda'ah so that they may write a deed for him to seize from purchasers is specifically when they performed a kinyan from his hand that he would give him his debt by a certain time, and automatically his properties became liened since he obligated himself to give by a certain time. However, if he said generally, "I hereby admit to you with a kinyan before witnesses that I am indebted to you," there is nothing upon which the kinyan can take effect, since he is not transferring anything to him now and is not obligating himself with this kinyan more than he was previously obligated; it is nothing but a mere kinyan devarim which is not effective, as will be explained in siman 157 [Hagahot Ashri in the chapter "Zeh Borei"]. This is only effective like any other hoda'ah without a kinyan regarding collecting from the borrower himself [Shach]. Our teacher, the Beit Yosef, disagrees with this, for since he admits that he is indebted to him and undergoes a kinyan, automatically his properties become liened through this kinyan of his; and the law requires further deliberation [Shach].

Regarding the matter of kinyan sudar that we have written, this type of kinyan must be explained; for in siman 195 it will be explained that a kinyan must specifically be with the vessel of the buyer, as the buyer transfers the vessel to him and the seller transfers to him, in exchange for this, the object he is selling to him. If so, here, where the borrower needs to encumber his properties, the lender shall give the sudar and the borrower acquires the sudar, and in exchange for this, the borrower transfers his properties to him for the encumbrance of his debt. Even though he says nothing, since he receives money, his person and his properties are encumbered by Torah law; therefore, also by rabbinic law, his properties become encumbered through his kinyan as I have written, and it is permitted to write [a deed], for it is like a loan with a shetar. Therefore, according to the first opinion in the previous section, one must add words to the admission, at least something that was not there previously, for otherwise it would be a kinyan devarim since he is not explicitly encumbering his properties now. But according to the latter opinion, there is no difference, for based on the receipt of the money that he already received, he was already encumbered by Torah law; therefore, now through his kinyan, his properties become encumbered now also by rabbinic law, and it becomes like a loan with a shetar [as mentioned above].

Even though the witnesses write a deed for the lender based on the command of the borrower or based on his kinyan, nevertheless, if the borrower wished to retract, he may retract. And even if he performed a kinyan sudar so that he could not retract, it is nothing, for such a kinyan that he cannot retract is a kinyan devarim alone, as there is nothing upon which the kinyan can take effect. However, the lender may also say: since you are retracting from the writing of the deed, it is not my will to lend to you when there will be no lien of properties from you, and the loan is voided. And automatically, since the lender can retract and suffers no damage, automatically the borrower can retract since he caused him no loss. And if he does not return his money to him immediately, what shall the lender do? We see: if the borrower is squandering his money or if he is going to a province across the sea, the witnesses write the deed against his will, for it is not within his power to take his money without return and to prevent the witnesses from writing a deed [Urim VeTummim]. And even as long as they have not written the deed, the borrower is not believed to say "I paid," and he shall not pay except before witnesses or based on a shover [ibid.]. And if the borrower is a secure man and an upright man and is not going to a province across the sea, if the witnesses are here and do not wish to go to a province across the sea, they do not have the power to write a complete deed, but only a mere memorandum of matters, and they press the borrower to pay him. And if the witnesses wish to go to a province across the sea and the lender does not wish to leave the loan without a complete deed and the witnesses are unable because of his protest, the lender and the witnesses go before a beit din and testify before them, and the beit din writes a complete deed, for a beit din has the power to do this even when he protests, and this has the law of a complete deed even to collect with it from encumbered properties [so it is implied from the later authorities]. But there are those who disagree in all this and say that it is not in the power of the borrower to protest in any way; since he commanded to write a deed or accepted a kinyan sudar, the witnesses write against his will even if they are not going to a province across the sea and even if the borrower is a secure man and an upright man. For specifically regarding one who gave a gift did the sages, of blessed memory, say that he can retract from the writing of a deed, but not regarding a loan and not regarding a sale. And according to the first opinion, even when they wrote the deed, he can protest if they have not yet delivered it to him, that they should not deliver it to him [Netivot HaMishpat].

That which we have said, that an unspecified kinyan is intended for writing, it is for the writing of all the laws of a document, even for achrayut; and if the achrayut was not written, we also say that it is a scribal error and he collects from encumbered properties [Shach]. But if we require the kinyan specifically in the presence of the lender, there is a dispute among the poskim; for some say specifically when he performed the kinyan in the presence of the lender, but not in his presence we do not say an unspecified kinyan is intended for writing, and some say even not in his presence. And let it not be difficult for you how it is possible to be not in the presence of the lender according to what we explained in section 10, that we require the vessel of the lender, for in truth in all kinyanim we do not require specifically a vessel of the buyer, but even another can give his vessel for the benefit of the buyer, as will be explained in siman 195, and the primary concern is only that the vessel should not belong to the transferor, as will be explained there.

It has already been explained in siman 36 that regarding all testimony, the witnesses do not specifically need to be those whom the parties invited, and anyone who saw the matter can testify. However, regarding that which we explained, that an ordinary kinyan is intended for writing, other witnesses who saw the kinyan do not have the power to write a shetar, but specifically the witnesses whom the lender and the borrower invited and made witnesses for this kinyan. Reason necessitates this, for if not so, if there were many people at the time of the kinyan, every two of them would write a shetar and the lender would collect with all the shetarot, one collection after another [Sma]. But for oral testimony, testimony is accepted from all of them who saw the kinyan. The practical difference in this is when the lender does not produce a shetar and sues the borrower: if the borrower denies the loan entirely, we obligate him to pay based on these witnesses who saw the kinyan, and the borrower is established as a denier based on them. However, if he claims "I paid," he is believed, and even within the term of the loan he is believed to say "I paid" and shall swear a shevuat hesset. Even though even in an oral loan one is not believed to say "I paid" within its term, nevertheless, here the claims of the lender are weakened when he does not produce a shetar. For since he was able to receive a shetar from the hands of the witnesses of the kinyan, we say that he presumably received it and the borrower paid him and he returned his shetar to him. And it is inferior to an oral loan where one is not believed to say "I paid" due to the presumption that a person does not pay within his term. All this is when the witnesses of the kinyan who were designated for this are not here; but if the witnesses are here and say that in truth they have not yet written a shetar for him, the borrower is not believed to say "I paid" within the term. And if the witnesses say that they wrote a shetar for him, and the lender says that he lost his shetar, and the borrower says that he paid, the borrower is also believed even within his term, because the claim of the lender is weakened when the shetar is not in his hand, as will be explained in siman 41.

That which we have said, that regarding an admission in beit din they do not write a document if he did not command it and did not acquire through kinyan sudar, there is no difference whether the admission was before witnesses or before a beit din; for even if he admitted before a beit din of three, the beit din does not write a document for the lender. And even if the borrower gathered the beit din and seated them and admitted before them and said to them, "Be my judges that I owe so-and-so a maneh," they do not write a document for the lender. But if a beit din of three sat of their own accord in their established place, and the claimant came and complained before them, and they sent a messenger of the beit din after the defendant, and he came and admitted before them, behold, these judges write his admission and give it to the claimant. For since he stands in judgment, it becomes like a loan with a document which is revealed to all, and therefore they write [Rashi in Zeh Borei]. And in a beit din, it is not necessary that he say "you are my witnesses" as is required with witnesses, as will be explained in siman 81, for without this he could say "I was mocking you"; but in a beit din this is not necessary, for a person does not mock in a beit din [Levush]. And the beit din must recognize both of them, the lender and the borrower, so that they do not both conspire to obligate another man. And this is the opinion of the Rambam, but many disagree with him, holding that they only need to recognize the borrower and not the lender, as is explained later in this siman, for they write a document for a borrower even though the lender is not with him [and thus the Shach decided]. And when a beit din writes the document, it has every law of a document, and he is not believed to say "I paid," and the lender collects from encumbered properties.

In what case is it said that when he confessed in beit din it is like a loan written in a deed, and therefore they write and give it to the lender? Specifically when he did not accept the judgment upon himself until they sent for and brought him, as has been explained. But two who came to judgment and one of them claimed against his fellow and said to him, "I have a maneh in your hand," and the defendant said to him, "Yes," they do not write and give it to him, for a beit din does not write if they did not send after him, for then it is revealed to all and is an act of beit din. But when they came of their own accord, this is not a revelation and publication, and it is like a confession before witnesses; and so when he says at a later time, "I paid," he is believed and shall swear a hesset oath that he paid him, according to the law of an oral loan. And more will be explained regarding this in siman 79, see there. And even to give a p'sak din like all judgments that a beit din gives, they do not give here, for according to what will be explained in section 16 according to the first opinion, which is the opinion of the Rif and the Rambam, every p'sak din is an act of beit din for every matter, and he is not believed to say "I paid" against a p'sak din, and he collects from encumbered properties, for this itself is an act of beit din. And they only write a p'sak din if they sent after him to come to beit din and he did not come of his own accord, or even when he came of his own accord but was found liable through his arguments, such as where he claimed he was not liable and the beit din told him that he is liable. But where he came of his own accord and immediately confessed to his litigant, this is not a liability of beit din at all, but rather like one who confesses before witnesses, and he is believed to say "I paid," and the beit din does not write anything [as it appears to be the intent of the Rif in the first chapter of Bava Metzia and the Rambam in chapter 7 of Hilkhot To'en, and examine this]. And even according to the second opinion that will be explained, that a p'sak din is not an act of beit din but only in order to remember what the judges ruled, and he is believed to say "I paid" and it does not have the law of an act of beit din, nevertheless, after they left the beit din, if the lender returned to the beit din to request that they write him a p'sak din, they do not write it, for we fear perhaps he paid him. And even though there is no harm in this, for he can say "I paid" against the p'sak din, nevertheless we should not trouble the beit din for nothing. But if it is known to the beit din that he has not yet paid, they write him a p'sak din [Shach], and not in the formula of an act of beit din, but in the formula of a p'sak din for a memorandum of matters. Therefore, if before they left the beit din he requests a p'sak din, they give it to him according to this opinion. And further on it will be explained according to this opinion what is an act of beit din and what is a p'sak din of a memorandum of matters.

Our teacher, the Beit Yosef, wrote that if one holds a written verdict, the borrower is not believed to say "I paid." Our teacher, the Rema, wrote that there are those who disagree and say that in any case the defendant is believed to say "I paid" against a written verdict. The explanation of the matter is as we explained in the previous section: that according to the Rif and the Rambam, every written verdict is an act of beit din and has all the force of an act of beit din, such that he is not believed to say "I paid" and he collects from encumbered properties, for an act of beit din has a public voice and is like a loan by a document. Therefore, the beit din does not give any written verdict except in the manners explained previously. Consequently, the judges must inform the defendant that they gave a written verdict to the plaintiff, and then the defendant will be careful when he pays him to receive the written verdict back from the plaintiff. If he was not careful in this, he caused a loss to himself, for if the plaintiff sues him another time and he has no witnesses that he paid him, he will be forced to pay a second time and will not be believed to say "I paid." Therefore, if the judges did not tell him that they gave a written verdict, he is believed to say "I paid." The judges are believed to say that they did not tell him, and it is not applicable to say regarding judges that they are not believed—as with witnesses who do not return and testify—for a beit din is believed, especially in this case where they do not return and testify completely [Shach], for they do not contradict their first words, but rather they forgot to tell the defendant. Even though they acted improperly, nevertheless they are believed in this. If they do not remember whether they told the defendant or not, there is a presumption that they presumably acted according to the law and told him. If it becomes clear to the judges that the plaintiff delayed several days with the written verdict in his hand and did not sue him in beit din to pay him, it is a logical reasoning that he paid him since he remained silent all this time. The judges should investigate this thoroughly and understand if the reason he did not sue him is because he paid him or not, and they shall rule in this according to their understanding of the matter [as above]. According to the second opinion, a written verdict is not an act of beit din at all, but rather a mere memorandum; therefore, this does not have the law of a document at all, and he is believed to say "I paid." The judges do not need to inform him at all that they gave him a written verdict, and they can give a written verdict on any matter immediately after they stated the law, as was explained in the previous section. According to this, one must distinguish the difference between an act of beit din and a written verdict. It appears to me that a written verdict is when they write: "When Ploni and Ploni came and argued thus and thus, and they ruled that he is liable thus and thus," and no more. It is called an act of beit din when they write that Ploni is liable to pay thus and thus, and he is encumbered, and all that he has is for this debt, and similar matters that are written in debt documents, encumbrance documents, and sale documents; "give to a wise man and he will become yet wiser" [as above]. It seems that now the custom is according to the second opinion, and they are not careful to receive the written verdict back when he pays it.

The general principle of the matter that we have explained, that one does not write the confession unless he commanded to write a deed or they performed a kinyan from his hand, applies specifically when he confessed that money or movable property is due to him. Even if the movable property is a deposit that he placed in his hand and it is still in existence, nevertheless, one should not write a deed regarding this, for perhaps he will return the movable property to him and the holder of the deed will then go back and claim them from him with the deed [Sma]. But if the confession is regarding land or that which is attached to the land, such as if he confessed that "this house of mine belongs to Reuven," then even if he confessed before two people and they did not perform a kinyan from his hand and he did not say to them "write and sign," these individuals may write and give, for there is no concern here that perhaps he will give it to him and he will claim it from him a second time.

A deed of admission or a deed of loan that was brought to beit din and two signed it, and it is not clarified therein that the admitter said to them "write and sign," it is valid, for presumably they would not have written if he had not commanded them or when they performed a kinyan from him. And some say that this is specifically in the days of the ancients when the scribes were proficient in the law, but now that the Torah has diminished in our many sins and they are not proficient in the law, we are concerned lest they wrote and signed without his command and without his kinyan, and one does not seize property from purchasers with this deed. However, to collect from the borrower himself, it is a valid deed and he cannot deny it, for we do not suspect them of lying regarding the essence of the matter. And such a deed is not called "from their writing" [like the difficulty of the Shach], since it was written in the language of a deed, it is like all deeds [Urim VeTumim]. And even if he did not command them to write, for there is no practical difference in this except regarding the matter of purchasers [as mentioned above, not like the Netivot HaMishpat] and that he is believed to say "I paid," for it is like an oral loan [so it is implied from the Shach, subsection 33]. And if the witnesses say that he commanded them, they are believed, for it is not like "returning and testifying," as they are not contradicting their words but rather they did not mention this in the deed, and it has every law of a deed. And if the borrower admits that he said to them "write and sign," if the witnesses died, he is believed to say "I paid" with a migo that he could have said that he did not command the witnesses; but if the witnesses are alive, he is not believed [the Gara].

And so, regarding such a document that issued from a beit din, such as if it is recognizable from within the document that it was not written with the language "before us witnesses" but rather it is written "before us, a beit din, he admitted etc.," if it is written therein that the borrower commanded them to write, there is no practical difference in this, for even if they are only two, since two are sufficient, even though it is written in the language of a beit din, it is valid [Sma]. And if it is not written therein that the borrower commanded them to write, we concern ourselves with an erring beit din that erred to say that an admission before two is like an admission in a beit din, and this does not have the law of a document, unless it is proven from within the document that there were three, only that the third did not sign himself, and then the document is valid; for example, if it is written therein "in a session of three as one we were," or even if it is written "before us, a beit din" without specification, only that it was written therein "and one was not present," or if it is written therein that it was done before a renowned expert sage, and presumably that expert would not have erred in this, that two are considered a beit din, and also nowadays there is the law of an expert regarding this matter [Shach], or if it is written therein within the matters "and Ploni said to us," from which it is automatically proven that there were three, and similar to this. And it has already been explained in siman 3, section 5, that a public expert, even though an admission before him is considered like one who admits in a beit din, nevertheless, this does not have the law of a loan in a document, see there.

One writes a document for the borrower even if the lender is not with him, for what does it matter to us when he wishes to obligate himself? Nevertheless, if the lender protests against the writing, saying that it is not his will that they should consider him wealthy or other arguments, one listens to him and does not write against his will. But for the lender, one does not write without the borrower, and even if the lender says, "Write a document and sign it and let it be in your hands, and if the borrower comes today to effect an acquisition from him, give it to me, and if not, tear it," one does not listen to him, for perhaps the lender desires some trickery or scheme through this. And more than this, even if the borrower already accepted through a kinyan sudar before witnesses without the lender that he owes such-and-such to a certain lender, and afterwards the lender comes to request that they write for him regarding that admission via kinyan sudar, nevertheless, one does not write for him according to that opinion that was explained in section 12, for we do not say that an unspecified kinyan is intended for writing except when the kinyan was in the presence of the lender.

In what case are these matters stated, that they may write a document for the borrower without the lender? When they performed a kinyan from the hand of the borrower, for then his properties immediately became encumbered to the lender even if the document did not reach his hand at all, and certainly when the kinyan was in the presence of the lender, for then [it is encumbered] even if it was not written. However, a document without a kinyan they may not write, even if the borrower delivered the money in our presence, for we fear perhaps he will write today and borrow from him after some time from today, and then he will deliver the document to him; and in truth, his properties are not encumbered except from the day of the delivery of the document, even if the loan was prior. And we must fear perhaps the lender will collect from the purchasers from the time of the writing of the document, for the purchasers will not know that the document was not delivered to him on the day of the writing. But with a kinyan, does he not encumber himself from today? Every kinyan sudar is "from now," as will be explained in siman 195. However, there is a remedy so that they may write even without a kinyan, such as if the witnesses immediately receive the document into their hand and deliver it to the hand of the lender, or that they acquire it through their receipt on his behalf, for one may acquire a benefit for a person in his absence. And according to the opinion of our teacher, the Rema, there is another remedy, that they write explicitly in the document that he encumbers the properties to him from now, and then even if the document reaches the lender after some time, he collects according to the law from purchasers from the time of the writing. But the Acharonim disagree with this, for what is written in the document is not effective according to this opinion which requires a kinyan specifically.

And there are some of our teachers, the Rishonim, who ruled that even with a document without a kinyan, they may write for the borrower without the lender, because they hold that immediately when the witnesses signed the document, his properties were immediately encumbered to the lender. And then, when the document comes into the hand of the lender, even after some time, and even if the loan was after some time, his properties were encumbered from the time of the writing. But when the document does not come into the hand of the lender at all, he is not encumbered. And consequently, there is no concern to write for the borrower, for whichever way you look at it: if the document does not reach the hand of the lender, it will be a loan by word of mouth and he will not collect from the purchasers, and if the document comes into his hand, he will collect by law from the purchasers from the time of the writing. However, our teachers, the authors of the Shulchan Aruch, did not bring this opinion at all [nonetheless, the Shach ruled that the one in possession may say, "I stand by this opinion"].

If the debtor said to the witnesses, "Perform a kinyan with me that I am indebted to so-and-so such-and-such an amount, and write him a shtar," they may write and give it into the hand of the creditor when he does not protest against them. However, if he says, "Write it and give it into my hand," they shall not give it to the creditor, and the creditor does not acquire it until it leaves the hand of the debtor; then the creditor acquires it from the time of the kinyan [Shach]. And even according to the second opinion explained in section 11, that after the kinyan he cannot protest, nevertheless, when he explicitly said at the time of the kinyan, "Write it and give it into my hand," they do not give it into the hand of the creditor.

One who admits a debt against himself to two people, or borrowed from two people and commanded to write a deed in the name of both of them, even though it was delivered to one of them, since they are partners in the debt—as both of them gave the money—the second one also has the law of a deed to collect from encumbered properties, as has been explained in siman 77 that each one can collect. However, if in truth he did not borrow money from them, but rather now obligates himself to two people for a maneh—as will be explained in siman 40 that a person can obligate himself—if they did not perform a kinyan with him and he commanded to write a deed in the name of both of them, and the deed was delivered to one of them, the one who received the deed has the law of a deed and collects his portion from encumbered properties. For the one to whom the deed was not delivered, he has only the law of an oral loan; since he did not receive the deed, he has not yet acquired the deed, and they did not become partners in the deed at all, for through what did they become partners since this one has not yet acquired the deed? Therefore, this one shall collect his portion from encumbered properties and [the debtor] is not believed to say against him "I paid," and that one shall collect his portion from free assets and [the debtor] is believed against him to say "I paid." But if he received a kinyan and obligated himself to both of them with a kinyan, since an unspecified kinyan is destined for writing, he automatically becomes encumbered from the time of the kinyan to both of them and they become partners. Then, even if it was delivered to one of them, it is as if it was delivered to both of them. And even if he died and did not know at all that the deed was delivered to the second one, he acquired his portion and the orphans shall collect it, and this has every law of a loan in partnership that was explained in siman 77. And even if he said to the witnesses at the time of the kinyan that they should write and give the deed into his hand, and he afterwards delivered it to one of them, he is also encumbered to both of them in partnership because of the kinyan.

Witnesses who saw a katan perform a kinyan sudar shall not write a shtar against him, for his kinyan is nothing; and likewise if he said "write," it is nothing.

Witnesses who saw something to the benefit of Reuven, and his benefit is not finalized until he brings additional witnesses who saw another matter, and without the other matter this benefit is nothing—whether the witnesses write down for the time being what they saw and give it to him, will be explained in siman 205.

Reuven who promised to lend Shimon a maneh and said to him, "Go to the scribe and the witnesses so that they may write and sign a shtar that you owe me a maneh," and he went and they wrote it for him, as has been explained that they may write for a borrower without the lender, and afterwards Reuven retracted and does not want to lend to him—Shimon has no claim against him, for with what did Shimon acquire the loan? And even if Reuven accepted a kinyan sudar, it is nothing, for money is not acquired through kinyan sudar, as will be explained in siman 250. And even if Shimon acquired through kinyan sudar and consequently his properties became liened to Reuven, it is also nothing, for nevertheless, with what were the money or the properties of Reuven liened to the loan such that he should not be able to retract? However, Reuven must return to him the scribe's fee based on the law of garmi [Levush]. But if he said to him to bring him a mashkon and he would lend to him upon it, and he brought him the mashkon and the lender took possession of it, he cannot retract, for by his pulling of the mashkon, this one acquired the money that he promised to lend him. And so too when he promised to lend him a certain object, he can retract, but if the borrower acquired through kinyan sudar, he cannot retract, for that object was acquired by the borrower through the exchange of the kinyan. And there are those who disagree regarding a mashkon [Ktzot HaChoshen], and so it appears, for we have not found a kinyan through a mashkon prior to a loan [and the words of the Netivot HaMishpat require further study].

In all documents, the borrower must give the scribe's fee, for the benefit is his. Even in a document of iska, the borrower gives the scribe's fee; for even though the lender also has a benefit, nevertheless, the primary benefit is that of the borrower. If the lender lost the document and requires another document, he must pay the scribe for the second document. Similarly, when the borrower needs to write a shover, the lender pays, for he should have guarded his document. However, if the time passed and he requires another document, and even if the first document was lost, the borrower shall pay the scribe, for the lender can say "pay me" [Urim VeTumim].