Siman 58

One who is a creditor to his fellow for two debts and the borrower paid him without specification, the authority is in the hand of the creditor to say, "I took them for such-and-such debt." Not only this, but even if the borrower said to him at the time of payment, "Take these moneys for such-and-such debt," and he received them and remained silent, he can afterwards say that he received them for the other debt. And even if he does not have the same strength regarding the other debt as he has regarding this debt—for example, if the other debt is an oral claim or the like, and the borrower explicitly gave it to him for the debt for which he has strength—nevertheless, he can calculate it toward the other debt, for "the borrower is a servant to the man who lends," and on the contrary, he acted well in this, that he received them for the debt in which he is not so secure, and the secure debt he will collect afterwards. But if the creditor said to him explicitly at the time of receipt that he is receiving them for such-and-such debt, he cannot retract. In what case is it said that the creditor can calculate it toward whichever debt he desires? When both debts have reached their time for payment. But if one has reached its time and one has not reached its time, even if he paid him without specification, he can only calculate it toward the debt that has reached its time. And if the borrower gave the creditor money to give to another, the creditor can withhold them for himself when the time for his payment has also arrived, and it will be explained in siman 83. And Reuven who was indebted to Shimon for a maneh and the time for payment arrived, and Shimon said to him, "I will sell you land or movables," and Reuven agreed and gave him money for this—whether Shimon can withhold them for his debt will be explained in siman 190 and in siman 204 with the help of Heaven:

One who produces a validated shtar against his fellow, or is able to validate it, and the borrower says to him, "I paid you," and the lender says to him, "It is true that you paid me, but I have another loan against you by word of mouth and I received the payment for that debt"—if the borrower admits to this debt, it has been explained that the law is with the lender. But if the borrower does not admit to the debt: if he paid him in the presence of witnesses, the lender is not believed to say that another debt is owed to him; and if he did not pay him in the presence of witnesses, he is believed and the shtar remains in its presumption of validity, based on a migo that if he wanted, he could have said, "You did not pay me." And if there is a clause of trustworthiness in the shtar, he collects without an oath, and afterwards the borrower can sue him for taking from him unlawfully, and it is like all other claims, and the lender—who is the defendant—swears a shevuat hesset and is exempt. And if there is no clause of trustworthiness in the shtar and the borrower claims, "Swear to me," the lender shall swear that it is indeed as he says, that another debt is owed to him from the borrower. And similarly, when the lender claims, "I had another debt against you in a shtar and I returned the shtar to you," the law is also thus. And similarly when he says that he received them for rent owed to him from the borrower, or the like. But when the shtar is not validated and there is no ability to validate it, the borrower is believed based on a migo that if he wanted, he could have said, "It is forged" or "It is paid." Therefore, when he says, "No other debt is owed to you," he is also believed and swears a shevuat hesset and is exempt [it appears to me].

That which we have written—that when he paid him in the presence of witnesses the shatar is voided—there is no difference whether the witnesses say that he received the money for the shatar or whether they say that he paid him without specification. For since he paid him in the presence of witnesses, he no longer has a migo of "I was not paid." And this is specifically when the witnesses say that they gave it to him as payment of a debt; but if they saw him giving him money and did not know if it was as payment of a debt, or as a deposit, or as a gift—if the lender says "the matter never occurred," he is established as a liar and the shatar is voided, and the borrower takes a shevuat hesset regarding the other claim. And even though regarding this money he was established as a liar, nevertheless, he was not established as a liar regarding other money, and therefore the borrower must swear [Shach]. And if the lender says that it was payment of another debt, he is believed, and he swears and takes what is in the shatar; for he did not give him the money before the witnesses as payment, and therefore since he could have said "you gave it to me as a gift," he is also believed to say that it is another payment. And there is no difference in all this whether the sum of money that he gave him was according to the sum written in the shatar, or whether it was less than this or more than this. For in a case where he can claim another debt, he could claim so even when the sum was equal to the sum in the shatar, because he can say that the other debt's sum was also thus. And in a case where he cannot claim, he cannot even when it was more or less; for with less we can say that previously he paid him a little, and with more we can say that he had some other debt upon him [ibid. and Maggid Mishneh].

And there are those who disagree with all this and hold that even if the witnesses saw that he gave him money without specification, he is not believed to say "it was for another debt," for the migo of "a gift" is a weak claim, as a person is not accustomed to giving gifts, and especially one who is a debtor, it is more comfortable for him to pay the debt than to give a gift. And since this is not a good migo, he is not believed. And he has no migo of "a deposit," for if so, let him say "give me my deposit," and if he says "I returned it to you," he will be caught in his lie, for why would he return it to him since he owes him according to this shetar? And even according to this opinion, this is specifically when the witnesses remember that the giving of the money was after the time of the shetar; however, when he gave it for the sake of repayment, even if they do not remember when the giving occurred, the shetar is void [Netivot HaMishpat]. And specifically regarding the giving of money, but when they saw that he gave him movable objects without specification, the lender has not lost his migo, for he can say "he returned a deposit to me," and therefore he is also believed to say that he received them for another debt. And it is not the way for a lender to place money as a deposit with the borrower, whereas when he gave for the sake of repayment, there is no difference between money and movable objects [ibid.]. And they likewise disagree with what has been explained that when he gave for the sake of repayment the shetar is certainly void; and this opinion holds that even when for the sake of repayment it is not entirely void, only that we do not collect with it, and if the lender seized from the borrower, we do not remove it from him. And so too when he gave without specification, the law is such. And their reasoning is that certainly even when he gave without specification, the migo of "a gift" is a weak migo as has been written; and conversely, even when he gave for the sake of repayment, nevertheless the claim of the borrower is a weak claim, for why did he not receive the shetar back from him in the manner of the world? Therefore, whether in a giving without specification or in repayment, we do not have the power either to extract money from the borrower or to extract the shetar from the hand of the lender. And our teacher, the Rema, decided in accordance with this opinion. Therefore, if it is not the will of the lender to return his shetar to the borrower, he cannot administer an oath to him either, for it is not from equity that he should administer an oath to him and withhold the shetar in his hand, unless the lender wants to return his shetar to him, then it is within his power to administer an oath to him regarding the other debt, that he should swear that it is not owed to him [Shach]. And if the borrower says, "You swear that I owe you another debt and I will pay you," the law is with him, and he places the money in beit din, and the lender swears and takes it [it appears to me].

When he gave it to him in the presence of witnesses, there is no difference whether there is a clause of trustworthiness in the shtar or not, for they only granted trustworthiness against himself but not against witnesses, as is written in siman 71. However, if it is written in the shtar that the lender shall be trusted like two witnesses, he is trusted even without an oath; and even when the witnesses testify that they gave it to him for this debt, the lender is trusted since he trusted him regarding it. And even when he claims "the matters never occurred," he is trusted, as will be explained there. And such is the primary ruling in law, not like the one who disagrees in this [Sma and Urim VeTummim]. And know that the shtar explained in this siman is a shtar with witnesses, for regarding a shtar in the borrower's own handwriting, these laws do not apply, as in all cases the borrower takes a shevuat hesset and is exempt, as will be explained in siman 69. But where there is a clause of trustworthiness, there is no difference between a shtar with witnesses and a shtar in the borrower's own handwriting, for in all cases the lender is trusted. And if there was no shtar at all but rather an oral claim, it is obvious that the borrower always takes an oath and is exempt.

If the borrower possesses a receipt for the document, even if it is not explicitly stated in the receipt that he received it from him for this document, but rather it is written therein that he received such and such an amount of money from the borrower on such and such a day, the document is completely void, for the lender no longer has a migo [Shach]. We remove the document from the lender and tear it. This is specifically when the date of the receipt is after the arrival of the time for the payment of the document, or if no date is written in it. However, if the date of the receipt is prior to the time of payment of the document, it is not clear that he received it on account of this document, since it is not explained therein that he received it for this debt and the time for the debt has not yet arrived. Therefore, although it is impossible to extract from the borrower since in any event there is a receipt in his hand, nevertheless, we do not have the power to remove the document from the lender. Therefore, we do not collect with it and we do not tear it, and if he seized [payment], we do not extract it from him [it appears to me].

Our teacher, the Rema, wrote that this is specifically when the borrower gave him the money in the presence of two witnesses, but in the presence of one witness the shtar is not weakened. However, the great later authorities disagree, and their words appear correct; for since the primary right of the lender is because of a migo of "the matter never occurred," and since there is one witness, it is not a good migo, for a person is not so brazen as to contradict a witness [Tosafot Ketubot 84b], and this is not a good migo. Furthermore, if he had claimed "the matter never occurred," he would have been required to swear against the witness, and now that it is not known to the witness if his claim regarding the other debt is true or not, he is obligated to swear and is unable to swear, and the law is that he pays, as written in siman 75. And even though there are those who disagree and hold that this law applies only to a Torah oath, and here, where one witness testifies that the shtar is paid, it is only a Mishnaic oath, as will be explained in siman 84, nevertheless, since his entire right is by reason of migo and this is not a good migo. And whether a clause of ne'emanut written in a shtar is effective against one witness such that he may collect without an oath will be explained in siman 71 with the help of Heaven.

If the borrower says that he has witnesses that he paid the lender, we wait for the witnesses. And if the witnesses did not come by the time set for them by the beit din, let the law pierce through them as has been explained, and the lender takes an oath and receives the money of his document. And if after this the witnesses came and testified that in their presence the borrower gave to the lender—if they say that he explicitly gave for the debt of this document and the lender received them for this document, we do not heed his oath, and he returns the second payment to the borrower. And if it is one witness, the lender takes an oath to contradict him when he says that he did not receive them for the document of debt. And if they say that he received them without specification, their testimony is not effective, since if he seized we do not remove it from him, as I wrote in section 4, and here, has he not seized? (It appears to me).

If the lender claims from the borrower that he should pay him the value of this shtar, and the borrower answers him: "How can you claim from me the value of the shtar? Is this shtar not for the merchandise that I took for half-profit with you, or for the merchandise that I took from you, and have you not already received the money from the merchandise?" And the lender said to him: "It is true that I collected the money from the merchandise, but I applied this toward another debt," the Rambam, of blessed memory, wrote in chapter 14 of Malveh that since he admitted that the value of the merchandise is the debt in the shtar, and from the value of the merchandise he was paid, the shtar is void; and the borrower shall swear a shevuat hesset that he paid him and is exempt. And the reason is that even though he has a migo of "the matter never occurred," nevertheless, since he admitted that it is so, we are witnesses that he received the money for this shtar, and it is like a migo in the place of witnesses. And there are those who say that in this case as well, if there are no witnesses, the lender is believed; only when there are witnesses, even if they only saw the giving of the money without specification, the shtar is completely void [Sma]. And our teacher, the Rema, decided according to this opinion. And if it is known that he gave him partial funds for one debt, he cannot say regarding the others that they are for another debt, for there is a basis for the matter that presumably all the money was for one thing. And there is one who is uncertain regarding this law (Shach). And there is one who says that this law depends on what has been explained, that according to the Rambam a basis for the matter is a significant thing, and the borrower swears a shevuat hesset and is exempt if it is known that the partial payment was for the debt of this shtar; and according to the "there are those who say," the lender swears and takes (the Gra). But from the wording of our teacher, the Rema, it does not imply so, for he ruled according to the "there are those who say" and nevertheless ruled this law as well, for this is a greater basis for the matter than the previous law (and proof for this law is from Bava Metzia 25: "some of them in a vessel," etc.).

If the borrower sent the debt via a messenger, and the messenger paid the lender and requested the shtar from him, and he said to him, "The borrower owes me another debt and I will count these funds toward the other debt"—if the borrower did not mention to the messenger that he should receive the shtar from the lender, this law is as has been explained regarding when the borrower himself pays. The messenger is not liable to pay the borrower for his negligence in not receiving the shtar before the payment, for the messenger can say, "Since you did not mention to me the taking of the shtar, I was not concerned with receiving the shtar beforehand, for presumably you trust him." But when he mentioned to him the taking of the shtar, whether he said to him, "Take the shtar and give him the funds," or whether he said to him, "Give the funds and take the shtar," the messenger is liable to pay the borrower, for he was negligent in this. For since he mentioned to him the taking of the shtar and he sees that he does not trust him, he should not have handed over the funds before the taking of the shtar, or the lender should have placed the shtar with a third party until the receipt of the funds if it was not his will to give it to the messenger before receiving his funds. And the messenger cannot say, "Since you said to me 'give the funds and take the shtar,' I did so," for the sender can say to him, "I sent you for my benefit and not for my detriment," and "you should have been precise in my benefit" (Ketubot 85a), and you should have understood that what I said so, my intention was that you should be at least certain of receiving the shtar, and you should have given him the funds before witnesses for this debt, and similar to this. But when he did not mention to him the taking of the shtar at all, there is no obligation upon him to be concerned with this (it appears to me). And so too, even if he did not mention to him the taking of the shtar at all, but rather told him to deliver the funds before witnesses and he did not do so, he is liable to pay.

Therefore, since the agent is obligated to pay, it follows that the creditor is unable to withhold the money without the return of the document, because the agent says to the creditor: "What do I have to do with you that you should bring me to damage? Return to me what I gave you," unless the creditor claims that the agent himself gave him the money for another debt. Then the law returns to be between the creditor and the debtor, as has been explained. And if the agent says that he gave it for this debt, the creditor shall swear that he gave it for another debt. And if the agent admits that he gave it for another debt and the debtor commanded him so, and the debtor denies it, the agent swears that he was so commanded (it appears to me). And some disagree and hold that the creditor can withhold in any case even though the agent is obligated to pay, for he does not have to be concerned for the loss of the agent in a matter that the agent did of his own accord without his compulsion. But the primary ruling is according to the first opinion (Shach), for the creditor is not able to seize from an agent and damage him with the claim that he has against the debtor; for certainly from the debtor himself he can seize, but here where the agent is obligated to pay and no loss will reach the debtor through this but rather the agent, it turns out that he is not seizing from his debtor but rather from the agent, and what does he have to do with the agent?

From these matters we have learned that if Reuven deposited an object in the hand of Shimon, and Shimon claims that the object belongs to Levi and that money is owed to him from Levi and he desires to withhold this object, he does not have the power to do so. And even if the truth is indeed so, that the object belongs to Levi, since Reuven will be obligated to pay Levi—for he will say to him, "Give me the deposit that I deposited in your hand, and I owe nothing at all to Shimon"—it turns out that Shimon is not seizing from what belongs to Levi, but rather from what belongs to Reuven. And what does he have to do with Reuven? Behold, he has no claim against Reuven. Therefore, he must return the object to Reuven, and no migo is effective here that he could have said "I returned it," for a migo is only effective in order to believe the claimant regarding his claim, and here, even if we believe him, he does not have the power to cause damage to Reuven. And all this is when the lender and the bailee do not have the power to clarify that what they are claiming from them is indeed owed to them from the borrower and from the owner of the object; but if they can clarify this, certainly they can withhold, and the agent and the depositor will not need to pay, since it was clarified that they are liable, behold they are liable to pay. And if Reuven claims that the object does not belong to Levi, and Shimon claims with certainty that it belongs to Levi, Reuven shall swear that the object does not belong to Levi. But if he claims "perhaps," he only has a heiset oath against Reuven. And likewise, if Shimon claims that Reuven delivered it to him as the agent of Levi, he can withhold it for his debt; even though he cannot clarify the debt, he is believed up to the value of the object by a migo of "I returned them," according to the laws that will be explained in siman 133. And even though Reuven will need to pay Levi, nevertheless, since he says that he deposited it with him as the agent of Levi, he can withhold it. And if Reuven claims that he did not say so to him, Shimon shall swear that he said so to him. And if Reuven admits that he deposited it with him as the agent of Levi, and Levi denies it, Reuven shall swear that he deposited it with him as his agent. And there is no difference in all this between whether it came into Shimon's hand as a deposit or whether he seized it from the hand of Reuven. And even though there are those who say that in a case of seizing he can withhold it in any event, the halacha is not so, for it is a great principle that since Reuven would be liable to pay Levi, Shimon does not have the power to seize. For behold, even in a case of seizing, Levi will say to Reuven: "Why were you negligent and left it in a manner that Shimon would seize it?" Therefore, if Shimon seized by force and Reuven was under duress in this, in a manner that he will not need to pay Levi but rather will swear that Shimon seized by force and be exempt, automatically Shimon can seize and claim up to its value, just as if he were seizing from Levi himself, according to the laws that will be explained in siman 133. [So it appears to me].

And all these matters apply specifically when one seizes from another person, but one who seizes his objects from the debtor himself, even if damage will reach another through this—such as if another man accepted responsibility for this object and will be required to pay—nevertheless he may seize if he has a migo, as will be explained in siman 133. For since he seizes from the owner of the object himself with a claim that it is owed to him from him, what does it matter to him if damage reaches others through this? And so too when the seizer claims that this object is his, that it was stolen from him or the like, he may seize even from another when he has a migo, even though damage will reach the other, since he claims that the essence of the object is his [Netivot HaMishpat and Ktzot HaChoshen]. And so too with two partners, he may seize from the partner from whom he claims, even though damage will reach the second partner. But he cannot seize from the second partner his own objects on behalf of the other partner if damage will reach the partner from whom he seized, as has been explained, and even though he has a migo [ibid.]. However, this is specifically when it is clarified that what he seized belongs only to the second partner; but if he seizes money or objects from the partnership business on behalf of one partner, the second is not believed to say that these funds and objects are his alone and not of the partnership, unless he brings witnesses for this. But without this, he is not believed even with an oath to extract from the hand of the seizer the portion of the one on whose behalf he seized, for one does not extract money with an oath alone except in places where the sages of blessed memory instituted it. Therefore, his seizure is a valid seizure according to the portion of the partner from whom he claims. For example, if they are two partners and he seized a maneh, he may withhold fifty, for the presumption is that everything found in the partnership business belongs to both of them [it appears to me].