Siman 40

In the previous siman, we explained certain details of the laws of admission, and the core law of admission—regarding which phrasing one becomes obligated by his admission—will be explained in siman 81. All of this refers to one who admits that in truth he owes him money. However, there is a case where one can obligate himself even if he never borrowed money from him at all, and nevertheless, he becomes obligated thereby. How so? If he writes in his own handwriting, "I, so-and-so, owe so-and-so a maneh," and delivers the document to him, he has become obligated to give it to him even though we know that he never borrowed from him. If he delivered the document to him privately, he cannot collect from encumbered properties, but only from unencumbered properties. If he delivered it to him in the presence of witnesses of delivery, he may collect even from encumbered properties, as will be explained in section 2. However, orally, his obligation is not an obligation at all, even in the presence of witnesses. But the opinion of the Rambam is that even orally one can obligate himself. How so? One who says to witnesses, "Be witnesses for me that I owe so-and-so a maneh," or if he wrote to him in a document, "Behold, I owe you a maneh," even though there are no witnesses there, or if he said to him in the presence of witnesses, "Behold, I owe you a maneh by document," even though he did not say "you are my witnesses," since he said "by document," it is as if he said "be witnesses for me," and he is obligated to pay. This is so even though both of them admit, and the witnesses also know, that he had nothing of his, for he has obligated himself just as a guarantor becomes encumbered. His reasoning appears to be that one can encumber the person with a mere statement for a monetary obligation if there is no condition involved, for when there is a condition in this, it is an asmakhta. Certainly, when one obligates himself through speech to give him a specific object, this is nothing, for an object is not acquired except through some kinyan, such as meshikha, or delivery, or lifting, or kinyan sudar; however, the encumbrance of the person for money is effective. But he cannot collect from encumbered properties, just as the sages, of blessed memory, said [Bava Metzia 94b] that owners become encumbered by a mere statement to lend their person, and like a guarantor who encumbers his person for the debt. Many of the Rishonim disagree with this. However, regarding a waiver, such as when one says to another, "I have received from you such-and-less toward my debt that is in your hand," even though we know he did not receive it, or if he says, "Behold, I waive the debt to you for such-and-such an amount," according to everyone it is a waiver and he cannot retract it, for a waiver does not require a kinyan, as will be explained in siman 241. This is specifically when he did not err, but if he erred, thinking that he had received from him and it became clear that he did not receive it, a waiver in error is not a waiver. All the more so, one who admits to his fellow under the assumption that he owes him, and afterward it becomes known that he erred and the matter was clarified by witnesses, or the lender admitted that he does not owe him—even if he delivered a document to him with witnesses or if he accepted through kinyan sudar—behold, this is an admission in error and is nothing, for any kinyan in error is retracted [Shach], and likewise, a document in error is not a document at all.

A borrower who wrote in his own handwriting and witnesses signed upon it, even if he delivered the document to him not in the presence of witnesses, behold, he collects from encumbered properties. And similarly, if he wrote a document in his own handwriting, even though witnesses did not sign upon it, but he delivered it to the lender in the presence of witnesses, behold, this is a loan with a document and he collects from encumbered properties, for the witnesses of delivery are like witnesses of signature and they also generate the report; therefore, he collects from encumbered properties. And specifically that the witnesses read the document that was delivered in their presence, and that the document be written in the handwriting of the borrower, for then he cannot easily forge, but in the handwriting of another it is not a document [Sma]. And there are some of the Geonim who instructed that the borrower must say to the witnesses who delivered in their presence, "Sign and testify that it was delivered in your presence," so that this will have a report, for if he did not say so to them, this has no report [Shach]. And they do not need to sign on this document, but rather even in another writing they shall write that so-and-so delivered such a document to so-and-so in our presence, and then he collects from encumbered properties. And if he did not say so to them, he only collects from unencumbered properties and not from encumbered properties. And it appears to me that when he said so to the witnesses, then even if they did not write, he collects from encumbered properties, for through the statement to them the report went out.