Siman 47

A lender who says regarding a document in his possession against Reuven that it is a document of trust, or repaid, or any other matter that nullifies the document—if there is in this matter harm to others, such as if the lender is also indebted to some person, he is not believed even if the borrower also says so. And they extract from Reuven and give to the one to whom it is due from the lender. And thus our sages, of blessed memory, said: R. Nathan says, from where do we know that one who has a claim of a maneh against his fellow, and his fellow against another fellow, that they extract from this one and give to that one? As it is said: "and give it to him to whom he is guilty (ashem)"—and it is not written "to whom he lent," but rather to the one to whom the principal belongs. For "ashem" means principal, as it is written: "and he shall return his guilt (ashmo) in its principal." And this is so even though this person did not take from his hand; nevertheless, since his lender took from his hand, the principal belongs to this person. And since from the Torah Reuven is encumbered to him, it is no longer effective for his lender to forgive him, for he has no connection to this money. And that which they say, that it is a trust or repaid, they are not believed since the document is validated, and we say that they made a conspiracy between them. However, there are in this some details, as will be explained.

And specifically when this creditor has no other assets besides the debt of Reuven, for if it were not so, why would they compel Reuven when his creditor says that nothing is due from him, since the creditor has other assets? And even if the creditor is a violent man and it is more convenient for this one to collect from Reuven, and even if we were to say that the lien of Rav Natan applies even when he has other assets, as will be explained in siman 86, nevertheless we do not collect from Reuven. For just as the sages, of blessed memory, enacted an ordinance not to collect from encumbered assets in a case where there are free assets, even when the free assets are of lesser quality than the encumbered ones, so too it is obvious that we must make this ordinance not to collect from Reuven in a case where his creditor has other assets and says that nothing is due to him from Reuven [Shach]. Therefore, if those assets were lost before he collected, he collects from Reuven, for behold, he has a lien upon them [Netivot HaMishpat].

And some say that this is specifically when trust is written in the shtar, for otherwise, since the borrower also says that it is paid, and any shtar regarding which the borrower says it is paid, the lender is obligated to swear that he was not paid—and here, where even the lender says that it is paid or an amana, an oath is not applicable, and automatically there is no ability to collect from the borrower. But when trust is written in it, an oath is not required. And some disagree, [asking] what does the trust avail? For it is true that he gave trust to the lender, but the lender himself says that it is paid! Rather, we do not believe them, and we say that they made a conspiracy between them to cause the first lender to lose his money. And if so, even when trust is not written in it, they are not believed. For behold, the primary oath regarding a shtar where the borrower claims it is paid is rabbinic, and how is it possible to abrogate the lien of Rabbi Natan, which is from the Torah, by means of this, that he cannot swear this oath? And so is the primary law.

And this law only applies when the shtar was established in beit din, meaning that people saw the shtar in his possession previously, before he said "it is paid"; for if not so, behold he is believed with a migo that he could have not shown the shtar before us at all, and since he did not do so, we learn from this that he speaks the truth that it is paid. But when they saw the shtar previously, he does not now have this migo. And that we should say a migo retroactively—that if he wanted he would not have shown the shtar previously—we hold that we do not say a migo retroactively, for perhaps it did not enter his mind then to claim this lie, as will be explained in the rules of migo in siman 82, see there. And although there are those who disagree even in this and hold that even if the shtar was not established previously we collect with it, for the reason that it is a chazakah that whatever is found in a person's hand is his, and we do not say a migo in place of a strong chazakah such as this, nevertheless the primary halachah is as I have written; for while it is true that it is a complete chazakah, that is regarding money or movable objects whose essence is wealth, but regarding a shtar, behold the money is not in his hand. And so wrote the great Acharonim, that the primary halachah is according to the first opinion. And also, even when it was already established, if he said then at the time he showed the shtar that it is paid, he is believed, for then he had the migo. And so too if there is a shover for this shtar in the hand of the borrower, it also is effective. And if the first lender warned Reuven not to pay his lender because he is owed by him, he is not believed to say that he paid him afterwards even when he has a shover from his lender, for he should not have paid, and it is more likely that he did not pay him and they made a conspiracy between them with this shover. And if the shtar is not in the hand of the lender but in the hand of a third party, even if the shtar was not established previously, he is not believed to say that it is paid, for he has no migo since it is not in his hand. And even if there is a shover in the hand of Reuven, it is nothing unless witnesses are signed on the shover and write that they saw the payment with their own eyes; for if not so, it is certainly a conspiracy, for how could he pay him when the shtar is not in his hand [ibid.].

And when all the matters that have been explained are present—namely, that he has nothing from which to pay other than this debt, and it was previously established or is in the hands of a third party—we collect from Reuven and give to the first creditor. And even if it was not known at the time the creditor admitted that it was paid that he was also indebted to another, and afterwards this became known, he is also not believed; since, in any event, through his admission it was revealed that through this harm would result to another. And even if he also causes a loss to himself, such as where the document is for two hundred and he only owes one hundred, and even if he had other properties when he admitted and now he does not, nevertheless we collect from Reuven and give to him, since he is subordinated to him from the Torah as I have written. And one should not raise a difficulty against the essence of this law, for the creditor always has a migo since he has the ability to forgive the debt of Reuven; for in truth, since he is indebted to others and his borrower is subordinated to the others from the Torah, he does not have the ability at all to forgive, for this is not his at all, as will be explained in siman 86 with the help of Heaven.

If, after the creditor said that this shtar is an amana or is paid, he paid his own creditor and came to collect with this shtar from Reuven, and he says that what he said previously—that it was an amana or paid—his intention was in order to smuggle it from his creditor, but in truth it is owed to him by Reuven, and Reuven claims: "Did you not admit yourself that it is not owed to you by me?"—we see: if the statement he said previously was at the time his creditor came to collect from him, certainly his intention was only to deflect his creditor, and he may collect with it from Reuven. But if on his own, not at the time of the creditor's claim, he admitted that it is an amana or paid, he may not collect with it. And it appears that he does not even have the ability to make Reuven take a shevuat hesset, since we seize upon his admission as a complete admission.

If one says regarding a document in his possession that the money belongs to another, and his creditors are unable to collect this loan since the money is not his, he is not believed except with clear proof; and it will be explained in siman 99 with the help of Heaven.

If the lender is not indebted to others and says that this shtar is a trust or is paid, it is simple that he is believed, and may a blessing come upon him for not desiring money that is not his. And if he reduces the shtar, such as if it was written in the shtar one thousand dinars and he says that he only lent him five hundred and the borrower trusted me that I would not claim more, the shtar is valid. But if he said that the witnesses erred in their writing, for they should have written five hundred and they erred and wrote one thousand, the shtar is invalid and it is like mere shard. Even if it contains a clause of trustworthiness, it is nothing, since it was not written properly and it is like a loan by word of mouth. Therefore, if the borrower denies everything, he swears a shevuat hesset and is exempt, and if he admits to a portion, he swears a shevuat de'oraita. And it will be further explained in siman 84 with the help of Heaven.