Siman 56

A shelish, as long as the object of the trust is in his hand, is believed like two witnesses, even if he is a relative or disqualified, and he does not need to swear regarding everything he says. Since the parties trusted him and it was in his power to act according to his will, he is believed. Even if he does not currently have a migo because it is not within his power to act according to his will—for example, if the object of the trust is visible to the beit din and the like—nevertheless, he is believed. Since at the time they handed the trust to him it was in his power to act according to his will, he is always believed as long as the object of the trust is in his hand [Shach and the Acharonim]. Therefore, if he says that the shtar is paid, he is believed even though the lender denies him, for it was within his power to hand it over to the borrower. Likewise, if he says that it is not paid at all, he is believed even though the borrower denies him and says that he paid part of it, for he could have handed it over to the lender. So too in all matters of this sort. The shelish has an advantage even over the litigant himself, for if the litigant were denied by the other, he would be liable for an oath, whereas the shelish does not need one, as has been written, for a person does not sin for the sake of another [Tur]. A shelish who stated before witnesses that it was entrusted to him under these specific conditions cannot retract his words unless he clarifies that he erred in his statement.

And according to this, in a matter where the trustee never had a migo and was not able to act according to his will—such as where they delivered the trust to him in the presence of witnesses and stipulated with him in their presence that he shall do such and such, or that the parties received a document from the trustee stating that such and such is placed in his hand, and the like—he does not have the law of a trustee regarding credibility, except in a matter where he currently has a migo, such that he could say "I have done such and such." But in a matter where he does not currently have a migo, he is not believed on the grounds that they trusted him at the time of the trust, for in truth they did not trust him, and he is like any other person who, when he has a migo, is believed, and if not, is not believed. And if he has a migo, he is exempt from an oath for the reason we wrote in the previous section.

Even if they wrote the matter of the mediation in writing and placed the document in the hand of the mediator and the document was lost, or even if it is in his hand but he says that after a time they added details that are not explained in the document, he is believed. We do not say that they relied only upon the document and not upon him, for since the document is in his hand, perforce they relied upon him and trusted him, as he could have hidden the document; unless they received a copy of the document and the mediator signed on the copy, for then he is not believed to add anything, as I wrote in the previous section.

And even though the time of the shelishut has passed, during which he was supposed to return it to one of them, and he did not return it, he is still a shelish; for the power of his shelishut is not weakened by the fact that the time has passed. However, if the lender placed his document in the hand of a shelish so that he may render a judgment or a compromise for him until a certain time, and the time passed and he did not act, he shall return the document to the lender. For since he set a time for him to decide it, and he did not state the decision within the time, the opinion of the shelish has already been nullified, as they only relied upon his opinion to speak until the time he set for him. But in an ordinary shelishut where they set a time to return it to one of them, since once the time arrives it automatically belongs to one of them, the matter is not changed by the fact that the time passed; therefore, he has the status of a shelish as long as the shelishut is in his hand [see in the Shach subsection 4].

The trustee is not believed regarding his possession more than the litigant himself except regarding the matter of an oath, as was written in section 1. According to this, if the entrustment was something that even if it were in the hand of the litigant he could not collect from his fellow litigant with it, the trustee has no advantage in this. For example, a note of indebtedness that emerges from the hand of a trustee and the borrower claims that it is forged or paid, and it is not possible to verify the signatures of the witnesses; even though the trustee testifies that the lender and the borrower delivered it to him and told him that such and such still remains from this note, he is not believed. And even though the trustee is believed like two witnesses, nevertheless his credibility is only to deliver that thing which is in his hand to whomever he wishes, and the second party cannot sue even if he has one witness because he is believed like two witnesses. However, a note of indebtedness that is not verified, even when the trustee delivers it to the lender, it will avail him nothing, and the lender must sue the borrower orally and cannot sue him with this note. Necessarily, he will require the testimony of the trustee, and he will have to testify after the entrustment has left his hand, and then he is not believed like two witnesses, for the essence of his credibility is only regarding what is in his hand to deliver to whomever he wishes [Shach].

Even though the third party is as credible as two witnesses, nevertheless, if two witnesses contradict him, he is not believed. For he is believed against the litigants like two witnesses, but not against the witnesses, since the essence of his credibility is due to the migo, as I have written, and we do not say migo in the presence of witnesses, as I have written in siman 82. Therefore, if the witnesses say that he is a third party between them regarding these specific details and he contradicts them, he is not believed, and likewise the reverse. In what case does this apply? When the third party says, "On such-and-such a day the third-party status was entrusted to me regarding these details," and the witnesses contradict him. But if the third party says generally that such-and-such was the condition between them, even though the witnesses say that at the time they entrusted the third-party status to him these conditions did not exist, or vice versa, the third party is believed. For perhaps afterwards the litigants came before him and added to or subtracted from the conditions that existed at the time of the entrusting. And even though the third party does not claim this, we claim it for him so that he will not be contradicted by the witnesses. Since they made him a third party and trusted him, we reconcile his words with all possible effort so as not to remove him from the credibility that the litigants themselves established for him [so it appears to me].

But one witness is not believed at all against the shalish, even to obligate a shevuat hesset upon the litigant who denies him, since the shalish supports him. Only if the shalish is a relative and the borrower claims "swear to me," even though the shalish testifies according to the words of the lender, the lender must swear; for we have already explained that the power of the shalish is not greater than the litigant himself, except regarding the matter of handing over to whomever he wishes. And if the document were in the hand of the lender and the borrower were to claim "swear to me," he would have to swear; therefore, even now he must swear. But when the shalish is fit to testify, he is a supporting witness who exempts from an oath, as I wrote in siman 75, and even though the status of shalish originates from his hand, for it is no worse than an ordinary witness.

And similarly, a shtar that is in the hand of a third party and an erasure or a scraping is found upon it in a place where there is concern that a payment or some condition was written in this place, in a manner that if the shtar were in the hand of the lender it would be invalid, the third party is also not believed, for the third party is no better than the litigant himself as I have written. And even according to what I wrote in section 1, that when the third party had a migo he is believed even afterwards when he does not have the migo, nevertheless, who is to say that it was ever within the power of the third party to make it a valid shtar? Perhaps the condition or the payment was already written in it long ago. Only if there are witnesses that the shtar is still within its time, or if it is proven from the shtar itself that it is still within its time, does he collect with this shtar when the shtar is still in the hand of the third party [Netivot HaMishpat]. For in this, the third party is better than the litigant himself because of the presumption that a person does not pay within his time; even though regarding the lender himself we do not say this presumption when there is a flaw in the shtar, nevertheless, regarding the third party this flaw is not considered a flaw when it is within the time. And similarly, when the shtar is lost from the hand of the third party and it is within the time, he collects with it, even though regarding the litigant himself it is considered a flaw that the shtar was lost and he does not collect even when it is within its time. But a shtar that was lost from the hand of a third party and it is after the time, he does not collect with it. And similarly, if there were two flaws, such as that it was lost and also had a scraping or an erasure upon it, they do not collect with it even within the time and with a third party [it appears to me].

If the shalish dies, one acts according to what is found in the handwriting of the details of the shalishut. And if it is found in the handwriting of the shalish that this shetar is paid, even though there are no witnesses to the writing, we maintain the presumption that the shetar is paid. But if the handwriting belongs to another and there are no witnesses signed upon it, if there is no sign that it was written with the knowledge of the shalish, it is nothing, for perhaps it was placed among the shetarot without the knowledge of the shalish, unless the shover is written upon the shetar itself. And if the shalish is alive and says that the shetar is not paid, even if the shover was established in beit din, he is believed, for it is in his power to hide the shover and deliver the shetar to the creditor [see in the Netivot HaMishpat]. And all this is regarding a shover found with a shalish, but a shover that is in the hand of the creditor, even if it was written in the handwriting of the creditor, it is nothing, for perhaps he prepared it so that when he pays him, he will give him the shover, unless the shover was written upon the shetar, as I wrote in siman 65.

Everything that has been explained regarding the trustee being trusted applies when both litigants admit that they made him a trustee. However, if they deny him, or one of them denies him, claiming they did not make him a trustee at all, there are some of our teachers who say that nevertheless the trustee is trusted that he is a trustee and in everything he says, as has been explained. And it is not only when the litigants say it was delivered to him as a deposit that he is trusted—for since they say they deposited it with him, they have automatically trusted him, as a bailee is almost like a trustee—but even if they say he stole the document or the object, or robbed it, or that it was lost and he found it, he is also trusted that he is a trustee, for we do not suspect falling, theft, or robbery. And there are some of our teachers who disagree on this, for if so, you have not left any life, since when Reuven's object is in Shimon's hand, Shimon will make a conspiracy with Levi to say that Reuven and Levi made him a trustee to deliver the object to Levi at such-and-such a time, and he would be exempt from an oath according to the law of a trustee, and he would also exempt Levi from an oath even after he removes the object from his possession according to the law of a witness who assists, and they would divide it between them. Therefore, they hold that when one or both of them deny him, saying they did not make him a trustee, he does not have the status of a trustee at all. The Acharonim have decided that in this matter, the law of the trustee is like the claim of "purchased," which will be explained in siman 133; that if he would be trusted to say regarding this object "it is purchased in my hand"—being that it is not of the things made to be lent or rented—he is also trusted to say that he is a trustee. And in any case where he is not trusted to say "it is purchased in my hand"—because it is of the things made to be lent or rented, or it is of livestock or documents—he is also not trusted to say "I am a trustee." And even in what he is trusted to say he is a trustee, he requires an oath that he is a trustee since one of them denies him, and certainly if both of them deny him. And since he requires an oath, he automatically does not exempt the second party whom he assists from an oath, for a witness who requires an oath is not a witness. Therefore, the second litigant whom the trustee assists, while the first litigant denies him, also requires an oath.

When does he have the status of a shlish? When there is no contradiction between them and him regarding the sum of the money. But when there is a contradiction between them, he is an interested party, for they are claiming more from him, and he is not believed at all even if they admit they made him a shlish. However, this is specifically regarding the detail in which he is an interested party, but regarding that which he is not an interested party, he is believed if they admit they made him a shlish. For example, if Reuven and Shimon say, "We deposited one hundred and fifty gold coins in your hand," and at a certain time he was required to give them to one of them, and there is a contradiction between them—Reuven says they were to be given to him and Shimon says to him—and the shlish says, "You deposited one hundred, and they belong to Shimon," even though regarding the fifty the shlish must swear and be exempt according to the law of another who is not a shlish, nevertheless, regarding the hundred he is believed without an oath that they belong to Shimon, and Shimon also does not need to swear, as has been explained. And so too, when one of them contradicts the shlish regarding the sum of the money, the shlish swears against him, and regarding that which he admits, he has the status of a shlish. And if their contradiction affects the entire shlishut, he is not believed at all. For example, if Reuven and Shimon deposited fifty gold coins and a promissory note for one hundred in the hand of Levi in this manner: that when Shimon brings another fifty by a certain time, all the money shall be for payment and the promissory note shall be torn, and if not, the fifty he deposited are a gift to Reuven and the promissory note remains in its force, as written in siman 55; and now Shimon claims that he delivered the fifty to him by the certain time and the promissory note is void, and the shlish and Reuven say that he brought only thirty and the promissory note and the fifty belong to Reuven—he is not believed at all, for the contradiction affects the entire shlishut. And so too in any similar case [Netivot HaMishpat].

And that which has been explained, that when he is an interested party he is not believed, this is specifically when he does not currently have a migo. However, when he currently has a migo to hand it over to whomever he wishes, he is believed even when he is an interested party. And he must swear that it is as he says, and he is not a "supporting witness" since he requires an oath. Therefore, the litigant also requires an oath against the litigant who contradicts him. And according to this, if witnesses saw the object deposited in his hand, he does not have a migo. But regarding a shetar, he has a migo unless the shetar was validated in beit din and it is known that it was in the hand of the lender. But without validation in beit din, even when witnesses saw the shetar in the hand of the trustee, he has a migo, for he could return it to whomever he wishes; for the witnesses do not know to whom the shetar belongs, since they have no involvement with this shetar, how would they know? But regarding other movables, they recognize the movables, that they belong to so-and-so [ibid.].

Our teacher, the Rema, wrote that they can administer an oath to the trustee when there is a denial between them even with a claim of uncertainty. Thus far his words. And his intention is not a claim of literal uncertainty as in the oath of partners or a member of the household, for there is no logic at all [to say so], as there the Sages, of blessed memory, imposed an oath upon them even with a claim of uncertainty because they permit themselves [to take from the property], as will be explained in siman 93. But why should the trustee swear with a claim of uncertainty? Rather, his intention is, for example, where one hundred gold coins were deposited in his hand to pay a creditor, and the creditor says that he only received fifty from him, the trustee must swear against the borrower who deposited [the money], even though the borrower himself does not know if he is speaking falsely or not. And the trustee swears that he gave the creditor the full hundred and is exempt, and the creditor swears that he only received fifty and the borrower pays him fifty, as in the case of a shopkeeper with his ledger which will be explained in siman 91 [Shach and the Acharonim]. And specifically where the borrower alone deposited it in his hand, and the creditor can say, "I did not make him a trustee and I did not trust him." But if both of them made him a trustee, the borrower does not have to pay the creditor, since the creditor knows that the borrower deposited in full and both of them made him a trustee, and his legal recourse is only with the trustee, and he swears and is exempt [it appears to me].

There is no difference in the status of a third party whether both parties made him a third party or whether one of them deposited it in his hand, for against the one who deposited it in his hand, he has the law of a third party, since he trusted him, and he is believed in everything he says to the detriment of the depositor and to the benefit of the opposing party. And there is one who says that this is specifically when the opposing party also claims with certainty regarding the essence of the matter like the third party; but if this opposing party does not know the matter himself except through the third party, and the one who handed him the deposit denies it, he does not have the status of a third party [Shach]. And some say that this law applies only to a document that the creditor alone handed to him, and the debtor only knows through the third party and the creditor denies it, for then he does not have the status of a third party; but regarding all movable property, the third party is believed against the one who deposited it in his hand even if the opposing party only knows through the third party [Later Authorities]. And a document is different because its essence is not money, and therefore when the depositor denies it and the opposing party also does not know, his status as a third party is nullified; but regarding movable property whose essence is money, it is simple that he is a complete third party, and even regarding a document there are those who hesitate, but in any case, regarding all movable property, the primary ruling is like the "some say" [it appears to me].

The shalisht, after he has removed the escrow from his hand, is only believed as a single witness, provided he is not a relative or disqualified. Therefore, some have written that it is proper that at the time he removes the escrow from his hand, he should only deliver the escrow in the presence of a beit din or witnesses, and he should clarify to them the details of the escrowing, because perhaps a denial will later arise between them and he will not be believed as a shalisht. But now, since he is believed as two witnesses, the beit din or witnesses shall write the matter as he says. And it appears that this is only when the escrowers have a connection in this business even afterwards; but if they later separate from one another in the business of the escrow, there is no concern for this. And we have never heard that a shalisht, when he delivers the object of the escrow from his hand, must deliver it before a beit din or witnesses.

This fact that he is believed as a single witness even after he has removed the shlishut from his hand is specifically when they departed from him without any grievance, where they admit that he removed the shlishut from his hand according to the law; then, if a contradiction arises between them, he is believed as a single witness. However, when one of them has a grievance against him, saying that he removed the shlishut from his hand improperly, he is like one who has an interest in the matter and is not believed at all, and all the more so when both of them have a grievance against him. And some say that they are not believed to say regarding the shlish that he removed it from his hand improperly, and they cannot make him swear regarding this, for a person does not sin for the sake of another, and there is a presumption that an agent performs his agency. Therefore, the shlish is always believed as a single witness when he is not a relative or disqualified, even when they have a grievance against him [Urim VeTumim], unless they contradict him regarding the sum of the money and claim it from him as in section 11. And so too if there is even one witness that he removed the shlishut from his hand unlawfully, for then he must swear against the witness to contradict him if there is an obligation of an oath in this, and consequently he is not a witness in the matter, for a witness who requires an oath is not a witness, as has been written. And so it should be ruled, for if not so, you have not left life for any shlishim, as one of the litigants will say that he removed it unlawfully. Therefore, as long as there is no witness in the matter that he removed it unlawfully, and there is no contradiction between them regarding the sum of the money, the shlish is always believed as a single witness. And if one of the parties wants them to return the shlishut to the shlish so that the shlish will be believed as two witnesses, his claim is a valid claim against the litigant who challenges him and the shlish by saying that the shlish removed it from his hand unlawfully [Acharonim]. And if the shlish is a relative or disqualified, he is not believed at all after he has removed the shlishut from his hand, and returning it to be deposited with him does not avail unless it is with the will of both of them.

If two people deposited a trust with a trustee and afterwards they wish to receive the trust from his hand and hand it over to another, the trustee cannot prevent this unless an act has already been performed according to the details of the trust that was handed to him in a manner that retraction is impossible. And if one wishes to hand over the trust to another and one does not wish to, we do not listen to the one who wishes to, unless he shows before a beit din correct reasons that if the trust remains in the hand of this one, loss will occur or the like. And if one of the litigants deposited with the trustee and afterwards wishes to receive it from his hand and hand it over to another, he has the permission to do so, and we do not ask the second litigant at all, since the depositor was only the one, and as long as an act has not been performed, the depositor can retract. However, if the one who did not deposit shows before a beit din correct reasons that the benefit of the matter requires that the trust be specifically in the hand of this trustee, we do so and do not listen to the depositor, and we suspect him that his intention is to perform some deception. And if the trustee no longer wishes to be a trustee, he can compel the parties to receive the trust from him and place it in the hand of another; and if they do not listen to him, he shall hand over the trust to the hand of a beit din, for in what way is he enslaved to them such that he would not be able to refrain from this? Unless he takes a wage for the trust, for then he cannot retract until the conclusion of the matter; and even though a worker can retract, a trustee is not similar to a worker and it is like the renting of a place [it appears to me].

The trustee is obligated to always act according to what was entrusted to his hand, even if one of the litigants subsequently has some claim in the matter. How so? Reuven, who reached an agreement with Shimon regarding the debt he owes him, that he shall pay him over periods of time, and they deposited the deed in the hand of Levi and stipulated that if he does not pay him for one of the periods explained in the entrustment, Levi shall return the deed to Reuven and he may collect the entire deed at once; and Shimon did not pay for one period, the trustee is obligated to return the deed to Reuven even though the trustee knows that Shimon will have a claim regarding this. And the reason is that the trustee is not a judge; therefore, he is obligated to fulfill according to what they entrusted with him. However, before he delivers it to Reuven, he should state before a beit din or witnesses what the details of the entrustment were, and they shall write the matter as he says and sign upon it and give this writing to the trustee, and the trustee shall deliver it to Shimon, and he may subsequently claim in beit din whatever he desires. And so too, any doubt that the trustee has, he must state this doubt before a beit din or witnesses, and they shall write and sign and give it into his hand. Therefore, whenever the trustee has returned [the object], there is no concern that he acted unlawfully unless a flaw was born. However, it appears to me that when the trustee understands that if he returns the entrustment to the one, he will not subsequently obey the ruling of a beit din and will extract from the second through violence or cause loss to the second unlawfully, he may withhold the entrustment under his hand even if he is obligated according to the details of the entrustment to deliver it to the one, until they first stand in judgment regarding the claims between them, and afterwards he shall act according to the verdict.

One who was made a trustee over objects or money or documents, and a long time passed until the trustee forgot who it was that deposited them with him, and people came and said to him, "We are the ones who deposited," the trustee should not believe them until they bring witnesses or clear proof. And so too, if the trustee died and the heirs did not find a writing from their testator as to who the depositors were, they should also act as we have stated. And if the trustee remembers that Reuven or Shimon, or both of them together, were the depositors, and Reuven says that he was the depositor and Shimon says that he was the depositor, he should bring the trusteeship to a beit din, and they will judge this according to the law of two who deposited with one, which will be explained in siman 300. But he himself should not judge this, for the beit din will clarify the matter more to its truth. And so too, regarding any doubt that the trustee has and he does not know how to act, he should come to a beit din and they will judge according to the law of the Torah.

A trustee who had a shtar deposited in his hand to be paid on a certain day, and the time passed and the borrower claims that he paid the lender in its time, he is not believed, and it remains under the presumption of being unpaid, and he returns the shtar to the lender. The beit din does not claim on behalf of the lender that he should swear, but if the borrower claims "swear to me that I did not pay you," he must swear to him. And if it contains a trust clause, he does not need to swear, just as if the shtar were in the hand of the lender, as I wrote in siman 82. And if they stipulated that he should pay him in the presence of the trustee, the lender does not need to swear even when he claims "swear to me," and even if it does not contain a trust clause, for the trustee is like a supporting witness and exempts him from an oath. Therefore, if the trustee is a relative or disqualified, he does not exempt him. And it appears that specifically regarding a shtar with witnesses he is not believed to say he paid it, but a shtar in the handwriting of the borrower, the borrower is believed to say "I paid," for the trustee is no better than the lender himself, where the borrower is believed to say "I paid," as I wrote in siman 69. And even though it is possible to say that since he deposited it in the hand of a trustee, had he paid it he would have informed the trustee in order to receive his shtar, and there is some proof for this from the language of the Tur, nevertheless it implies that this reasoning only applies to a shtar with witnesses, for there is no logic that what is placed in the hand of a trustee should be better than if it were in the hand of the lender himself, as has been explained, that the power of the trustee is not greater than the lender himself. And so too when the borrower dies, even after the time of payment, we do not concern ourselves that perhaps he paid, for had he paid he would have received the shtar from the trustee since it is a shtar with witnesses; only the lender must swear according to the law of one who comes to collect from the property of orphans, that he may not collect except with an oath. And if afterwards the lender dies before he swore, he does not bequeath an oath to his sons, and the law in this is as will be explained in siman 108. And if there is a trust clause in the shtar which is effective also regarding heirs according to the details that will be explained in siman 71, it is effective also when it is in the hand of a trustee.

One who died and a shtar was found in his possession that does not contain a kinyan, and it is not known who deposited it with him—whether it is a shtar chov or whether it is a shtar of sale or gift—he shall not return it to this one nor to that one until it is clarified what the nature of this shtar is. And if it contains a kinyan, they shall give it to the lender or to the buyer or to the recipient of the gift. And if it is known that the borrower or the seller or the giver deposited it in his hand, but he did not specify what should be done with it: then if it does not contain a kinyan, they shall return it to the hand of the one who gave the shtar or to his heirs. And if it contains a kinyan, then in a shtar chov he shall not return it to this one nor to that one, for we are concerned about repayment; and in a shtar of sale or gift, they give it to the buyer or to the recipient of the gift, for from the moment of the kinyan it became theirs. In what case does this apply? When it is known that he performed the kinyan before witnesses without specification, such that the witnesses are before us and testify so, or it was clarified that so it was. But if this is not known, there is reason to concern that perhaps he made a condition with the witnesses who performed the kinyan from his hand that they should give the shtar into his hand, and therefore he delivered the shtar to this person; and therefore, they do not return the shtar to this one nor to that one until the matter is clarified. And one in whose possession were found deposited shtarot tied together, and regarding one shtar among them it was clarified that it came from the hand of the giver of the shtar, it is as if it became known regarding all of them that they came from the hand of the giver [Shach end of siman, subsection 17]. And in siman 65 and at the end of siman 250, more of this will be explained with the help of Heaven.

A third party who was established by means of an agent, such as where the borrower came with another person who had objects or a document in his hand, and he said to the third party: "So-and-so the lender made me an agent to deliver this into your hand on such-and-such a condition," and the third party accepted it, and afterwards the lender came and denied the agency and said that he never made him an agent for this matter and the agent did so on his own—nevertheless, the third party shall act according to what the agent told him. For behold, the third party is believed that the agent spoke thus to him, and the agent was believed by a migo that he could have said "I am the third party." And this is specifically where the borrower also says that he knows that the agent spoke the truth, that the lender commanded him; but if the borrower does not know of this except through the agent, the third party acts according to the words of the lender, for the migo of the agent is only effective if one of the litigants claims with certainty against the sender. However, when the litigant himself does not claim with certainty, the migo of the agent—who is not personally involved at all—is not effective [ibid.]. And so too, if the lender did not deny the matter of the agency, but the third party did not want to accept the role of third party and it remained in the hand of the agent, the agent does not have the law of a third party but rather the law of an agent, and he returns the matter to the one who gave it to him. Even if the agent has a migo, his migo is of no effect when he did not deliver it to the third party; for since he admits that he is only an agent from him to deliver it into the hand of a third party, and the third party does not want to accept it, he must return it to the sender, because he is not a judge nor a third party, and his hand is as the hand of the sender. And how could his migo be effective to diminish the power of the sender in a place where he cannot fulfill the command of his sender? This is unlike the one who says that even in such a case a migo is effective [Netivot HaMishpat]. And such is the law regarding a bailee in relation to the depositor [ibid.].

The fee for the escrow to the escrow agent: when there is a custom in that place to pay at the time he releases the escrow from his hand, both pay when he delivers with the consent of both. However, if one requests the escrowed item and the second withholds, but the escrow agent acts according to the obligation upon him and delivers to the requester because the withholder is withholding unlawfully, the one who receives the escrowed item pays, and it is impossible to obligate the second since the escrow agent delivers against his will. And if the escrow agent stipulated with them at the time they placed the escrow that both would pay at the time the time arrives to deliver the escrow, we do not heed his unlawful withholding, and we compel him to pay according to what he stipulated at the time of the escrow [it appears to me].

A woman who conducts business within the house and an apotropus appointed over the property of a homeowner, and the homeowner died and they know that he had property belonging to others, and the money or the objects remain in their hand and they know to whom they belong, they are obligated to return to each of them what belongs to him, whether money or movable property or deeds. And if she died, it will be explained in siman 62. And even if they did not return it themselves but came to beit din and informed that these things belong to so-and-so and so-and-so, the beit din acts according to their words, for they are believed with a migo that they could have delivered it themselves. And their law is like the law of a trustee who is believed in all that he says, except that a trustee is believed even without a migo, and they are not believed without a migo. Therefore, specifically if at the time the money or the movable property was revealed they said so, then they are believed; but if at that time they said nothing, only afterwards, they are not believed, for at the time of their statement that they belong to so-and-so they have no migo, since the coins or the objects were already revealed, it was not in their power to deliver to whomever they wished, for the heirs would have claimed them from them. And even though previously, before they were revealed, they had a migo, we do not say migo retroactively [Urim VeTummim]. And even when they have a migo, they shall only return deposits of others, but debts that the homeowner borrowed they do not pay themselves without beit din from the movable property of the owners, for there is a need for an assessment [Netivot HaMishpat]. And a case occurred with Reuven who had a deed against Shimon, and the deed was found in the hand of Levi, and Levi says that they deposited the deed with him as a trustee upon such-and-such a condition, and Reuven denies it, [saying] that they never made him a trustee, but rather he himself delivered his deed to him because he made him an agent to collect his debt from Shimon, and he brought proof from the fact that in his hand is a copy of the deed that the beit din gave him; and if Levi were a trustee, from where would he have a copy of the deed? And there is one who ruled that the law is with Reuven, and Levi must deliver his deed to him even when he had a migo that he could have delivered it to Shimon, for his proof from the copy is a complete proof and no migo is effective against it. And there are those who disagreed with him, for if he has a migo, he is believed that he is a trustee in the matter, and from the copy there is no proof, for perhaps previously they made him a trustee and the beit din gave the copy to Reuven when the trusteeship was cancelled, and afterwards it is possible that they returned and deposited it in his hand as a trustee upon these conditions. And even if the judges say that at the time the deed was with them there was no condition, it is possible that afterwards these conditions were newly created between the lender and the borrower and they deposited it in the hand of Levi upon these conditions [Shach]. And all this is when the borrower also claims like the trustee, but if he does not claim so, it is obvious that they return the deed to the lender.