Siman 55

One who paid part of his debt and deposited the document in the hand of a third party and said to him: "If I do not give you the remainder of the debt by such-and-such a time, the third party shall hand over the document to you so that you may collect the document in its entirety, and what I have given now shall not be reckoned in the account at all"—and the time arrived and he did not give, the third party shall not hand over the document, for this is an asmakhta and he does not acquire it, as will be explained in siman 207. For anything that a person does and obligates himself in an additional matter based on a condition, "if it will be so-and-so," he does not transfer it to him with a whole heart and does not truly promise his fellow, but it is merely like "filling words." Therefore, if he did something that indicates that his true will is to transfer it to him when he does not fulfill the condition, the creditor acquires it. How so? For example, if he deposited his rights in a prestigious beit din that is expert in the laws of asmakhta, and they performed a kinyan with him on this in the beit din, and the beit din explained to him that if he does not pay by such-and-such a time, these monies that he gave shall be an absolute gift from now, and they shall sell the document to the creditor, and he consented to this—certainly he resolved and transferred with a whole heart. And some say that we do not require the depositing of rights at all, but rather since he accepted with a kinyan in a prestigious beit din, there is no issue of asmakhta in this; for since he accepted with a kinyan sudar, he transfers it to him from now and there is no asmakhta, as is written there. And since he did not come at the time he established, the creditor collects his entire document, and if it was deposited in the hand of a third party, he hands it over to the creditor. And the same law applies if the creditor wrote him a receipt for the partial payment he gave, and they both deposited the receipt with a third party on the condition that if he does not give the remainder by such-and-such a time, he shall return the receipt to the creditor; the law is also thus (as is implied from the Rashbam 168). And all this is when an accident did not occur to the debtor, but if an accident occurred to him such that he was unable to come, they shall not give the document to the creditor; and even when the document is in the hand of the creditor, he shall not collect with it when an accident occurred to him, according to the "some say" who do not require the depositing of rights, for the Merciful One exempts in any case of accident [so it appears to me]. And specifically an accident that is not very common, but rather is "common and not common," such as if he fell ill or a river delayed him—where at that time the river grew large from the melting of snows or from rainwater unlike the way of all years—and similar to this, for it did not enter his heart to make a condition regarding this. And all the more so an accident that is not common at all except at distant times. But an accident that is very common is not called an accident, for he should have made a condition regarding this, and since he did not make a condition, he intended and accepted (Shach and Tosafot in various places).

In what case are these words said, that in a prominent beit din if he did not come they give the deed to his litigant? And so too according to the "there are those who say" regarding a kinyan alone, when he said, "If I have not paid by such-and-such a day, the money I gave shall be a gift (from now)," and the deed shall remain standing as at first. Thus it turns out that the creditor received nothing toward the deed, for if it were not so, the lien of the deed would be waived to the extent of the money he gave, and he would not collect anything from encumbered properties with it—even that remainder that he has not yet given—for we decree lest he also collect what he already gave. And even from the borrower himself he only collects the remainder that he has not yet given, but what he gave is considered for him as a discharge of the deed. And there are those who say that he collects the remainder that he did not give even from encumbered properties (Shach), and from the borrower himself he collects the entire debt (Taz) when he handed him the deed. But most of the great authorities agreed that even from the borrower himself he only collects the remainder that he did not pay, and so the primary ruling appears, since he did not give them as a gift, they are perforce considered toward the debt, and he did not create a new debt upon himself (it appears to me). Therefore, the judges must be careful when one effects a kinyan for his fellow in such a manner regarding matters of asmachta—that if he does not fulfill such-and-such he shall lose his money—that he should effect the kinyan for them with the language of a gift from now. And see in siman 207.

And why did the sages not concern themselves in this law with the matter of ribbit, for he takes from him more because of the waiting for the money if he does not come by a certain time? For in truth there is no ribbit here, as he does not take because of what he waits for him, for if he comes on a certain day he takes only according to his debt; it follows that until that day he takes nothing at all as payment for waiting for the money. And upon reaching the moment of the end of the day when he did not bring it, he became obligated immediately, even if he brings it after that moment. And so too, if he does not bring it even after much time, he will not be obligated any more. It follows that he takes nothing at all as payment for waiting for his money. Therefore, if he said: "If I do not bring it by a certain day, deliver his document to him and he shall wait for me a duration of time until I pay him," it would be absolute ribbit, as he pays him an excess in exchange for waiting for his money. [It appears so to me, and see in the Beit Yosef].

A trustee who returned a document unlawfully, if the creditor is before us, we compel him to return the document or to write a receipt upon it according to what he received from the debtor. And if he is not before us, or if he is a powerful person and does not obey the law, we place the trustee under a ban until he accepts upon himself that whatever the debtor pays in excess due to the return of the document, the trustee shall pay him. And even though this is only indirect causation (germa), and for indirect damage one is exempt, this applies when the damage has already occurred; but as long as the damage has not yet occurred, such as when the creditor has not yet collected from him, it is obvious that we obligate the causer to remove his damage. And a beit din that knows the document was returned unlawfully does not adjudicate based on it. And if it was not known to the beit din that it was returned unlawfully until after the creditor collected the entire document from the debtor, the trustee is exempt by the laws of man because it is germa, and he is liable by the laws of Heaven like all germa. And a trustee who returned an unpaid document to the debtor, this is not germa but rather garmi, and he is liable to pay the creditor everything that was written in the document, for this is like one who burns the document of his fellow, who is liable by the law of garmi, as will be explained in siman 386 (Shach). For specifically when he returned it to the creditor, the damage is not certain, for perhaps he will not collect with it and the damage is not done immediately, and therefore it is only germa according to the principles that will be explained there; but when he returned an unpaid document to the debtor, the damage is certain and he damaged him immediately. And even according to what will be explained there, that garmi is due to a penalty and not because of the specific distinctions we wrote, nevertheless they are not similar to one another, for in this case the damage is clear and in that case it is not clear. Therefore, any trustee who returned what was deposited in his hand unlawfully, if the damage is clear and prepared according to the sight of the eyes of the beit din, he is liable to pay [it appears to me]:

Reuven borrowed a maneh from Shimon for the duration of a year, and Reuven made for him a deed of sale for his field from now, without condition and without reservation, and they deposited the deed in the hand of Levi, and Reuven said to him: "If I do not repay Shimon by the end of the year, give him the deed of sale," and Reuven consumes the produce as is written in Yoreh Deah siman 174. And within the year, Shimon sold the field to Yehuda before he had acquired the deed of sale that was in the hand of the third party, and the time arrived and Reuven did not repay Shimon, and Levi delivered the deed to Shimon, and Yehuda took possession of the field and consumes its produce. And Reuven comes to remove Yehuda from the field with the claim that he purchased it before Shimon acquired the deed and he did not have the power to sell it—his claim is not a valid claim, and Shimon's sale to Yehuda is a good sale. For when Levi gave the deed into the hand of Shimon, he acquired the field retroactively from the time of the writing of the deed, for the sale was performed with a kinyan without any condition or reservation, and it is like one who sells his field "from now" and says to the seller, "When you have money, I will return it to you," in Yoreh Deah ibid. And this is not an asmakhta, for the sale is a complete sale on the condition that he does not repay him by the time they designated, and it is like other conditions. But in a case where one deposited his deed, it is indeed an asmakhta, for he obligated himself in that which he is not obligated, and in siman 211 it will be further explained.