Siman 60

<b>[The law of the encumbrance of movable property incidental to land, and the law of the encumbrance of properties acquired afterwards, and the law when a deed is written in the name of another, etc. 21 sections]:</b> According to the law of the Gemara, one who comes to collect his debt that is in a deed with witnesses from the borrower, and all that is found belonging to the borrower—land, movable property, and cash—is not sufficient against his debt, he seizes from lands that the borrower had at the time he borrowed and sold them afterwards or gave them, and even if he did not write "responsibility" for him in the deed, for "responsibility" is a scribal error, as has been explained in siman 39. However, lands that the borrower acquired after the loan and sold them or gave them, he does not seize from them if he did not write explicitly in the deed that he encumbers them. And in siman 112 it will be explained that there are those who say that even in this we say "responsibility" is a scribal error. Nevertheless, if he wrote "responsibility" and did not write that he encumbers also the properties he will acquire, according to everyone he does not collect from them from purchasers, for since he wrote "responsibility" and did not write "that he will acquire," he presumably did not want to encumber them [Sma]. And if he wrote explicitly that he encumbers for him properties "that I have acquired and that I am destined to acquire," he collects also from them from purchasers. And even though we hold that a kinyan does not take effect on something that is not in a person's possession, as has been explained in siman 211, and how can he encumber properties that he will acquire when they are not in his possession now? However, it is an enactment of the sages for the sake of the order of the world, so as not to lock the door before borrowers, that it should be in a person's power to encumber also the properties he will acquire [Rashbam 157a]. And furthermore, the essence of the encumbrance is upon his person, for he obligates himself, and his properties automatically enter under him, for "a person's properties are guarantors for him," and an encumbrance is not similar to a sale. And since he wrote that he encumbers them, he cannot retract even before he acquired them [Shach], for the sages strengthened the encumbrance of a creditor. And all this is regarding lands, but movable property that he sold or gave, even those that he had at the time he borrowed, and even if he did not sell them as a permanent sale but only a temporary sale, such as for thirty days, the creditor cannot collect them as long as they are in the hand of the purchaser or the recipient of the gift, and likewise if he rented them [it appears to me]. And the reason is because a person's responsibility is not upon movable property, and the lender does not rely on this because it is in the borrower's power to hide them and take them to a distant place; and furthermore, there is no "voice" to the sale of movable property and the purchasers cannot be careful in this, and the primary reliance of the lender is upon lands. And if he wrote for him in the deed that he encumbers for him movable property that he has incidental to land, not as an asmakhta and not as a mere form of a deed, to reveal that his mind relies on the movable property like on the land [Tur siman 113], he seizes from movable property that he had at the time of the loan and sold them or gave them. And if he wrote for him that he encumbers for him movable property incidental to land "that I have acquired and that I am destined to acquire," not as an asmakhta, etc., he seizes also from movable property that he acquired afterwards and sold them or gave them. And this is according to the law of the Gemara, but now they are accustomed even in places where they write in deeds the encumbrance of movable property incidental to land that he does not seize from movable property that he sold or gave or pledged, because of the "enactment of the market," so that they will not refuse to buy any object out of fear that perhaps the owners encumbered them and a creditor will come and seize them, and regarding movable property they cannot be careful as has been explained. And also regarding a gift the "enactment of the market" applies, for a gift is like a sale, for presumably the giver received a benefit of pleasure from the recipient. But if the borrower had a promissory note against another and sold it, the creditor collects from it, for regarding deeds the "enactment of the market" does not apply, for the sale of deeds is not common; and likewise from the gift of a person facing death they collect, as has been explained in siman 250. And for this is the benefit that they write in deeds the encumbrance of movable property. And likewise there is a benefit in this writing when he did not sell them, that the earlier creditor shall be first to collect them, for if not so, there is no law of precedence in movable property, as has been explained in siman 104, see there. And there are those who say further that if a later creditor preceded and collected them, the earlier creditor removes it from him, for in this the "enactment of the market" does not apply [Beit Yosef]. And there are those who disagree on this, for it is no worse than a gift [Shach]. And if he gave all his properties to another and did not leave for himself anything, it is a proven assessment that his intention was to smuggle from creditors, and the "enactment of the market" does not apply in this, and creditors collect from them, and it will be explained in siman 99. And the main laws of debt collection will be explained from siman 111 until siman 114.

Our teachers, the authors of the Shulchan Aruch, wrote: One who obligates himself in a matter that is not defined, such as one who obligated himself to provide sustenance for his fellow or to clothe him for five years, or if he did not set a limit for the years, even though they performed a kinyan from his hand, he is not enslaved according to the Rambam. All those who came after him disagreed with him, saying that he is enslaved, and thus we hold. Thus far their words. And there are those who wrote that the one in possession may say, "I hold like the Rambam," and there are those who disagree with this and hold that he cannot say "I hold like," because the majority of our teachers disagree with him and there are many difficulties against him. And in my humble opinion, it appears that even the intention of the Rambam was not due to the reason of a matter that is not defined, but rather because it is a kinyan devarim, as the kinyan has nothing upon which to take effect. If he said he would provide sustenance with bread or meat and the like, it would be effective, as the kinyan takes effect upon the bread and the meat; or if he said to clothe him with wool or linen garments, the kinyan would take effect upon them. But when he said "to provide sustenance" or "to clothe," there is nothing upon which the kinyan may take effect, for there is no substance in this, and even an obligation is not effective in this, as will be explained in section 11, see there. And so it is explicitly explained from the words of the Rambam, of blessed memory, in chapter 22 of Mechira, law 13. And so our teacher, the Beit Yosef, wrote in his book Beit Yosef in siman 212, that such is the opinion of the Rambam, see there. And so it may be inferred from the wording of the Rambam himself regarding this law, as he wrote in chapter 11 of Mechira, law 16: One who obligated himself in a matter that is not defined, such as if he said, "Behold, I am obligated to provide sustenance for you or to clothe you for five years," even though they performed a kinyan from his hand, he is not enslaved, for this is like a gift, and there is no known and existing thing here that he gave as a gift; and so my teachers instructed. Thus far his words. And with this wording he wrote in chapter 5 there, law 14, regarding kinyan devarim, and this is his wording: Matters that have no substance, the kinyan is not effective for them, etc., for he did not transfer to his fellow a specific and known thing. Thus far his words. And this is what the Rambam innovated in the name of his teachers, that even "to provide sustenance" or "to clothe" is a kinyan devarim, for indeed there are those who disagree with this, as our teacher, the Beit Yosef, wrote there. And this is what he calls a matter that is not defined—that the thing is not defined as to what the kinyan shall take effect upon, whether upon bread or upon wool, as I have written. And however it may be regarding the opinion of the Rambam, it is a simple matter that the one in possession cannot say, "I hold like."

One who obligates himself to provide sustenance for his fellow, and the one who is obligated says that he will sustain him at his table or give him prepared food, while the other says that he only desires to be sustained on his own—that he should give him money according to the value of the sustenance and he will sustain himself as he wishes—the law is with the recipient of the gift. For the language "to sustain him" implies according to the will of the one being sustained, and he must give him money so that he will have sustenance in the manner that the members of his household are sustained [Rosh, chapter HaNoiseh]. However, if the beit din understands according to the context that the intention was to sustain him at his table, they shall judge accordingly. And if he explicitly stipulated with him to sustain him at his table and he does not wish to eat with him, he is only obligated to give him according to the "blessing of the house," for when many eat together, they do not have the same expenditure for each individual as one who eats on his own; therefore, he only gives him according to what his expenditure would have amounted to if he were eating with them. However, if the delay is not due to the one being sustained but due to the one who is obligated—for example, if he shows him hatred or instigates a quarrel with him, or if he cannot tolerate the members of his household and the one who is obligated has the power to protest against them but does not protest, and the like—he is obligated to give him the full value of the sustenance. And this matter depends on the assessment of the judges after investigation and inquiry into this.

If the one being sustained fell ill, he is not liable for his medical healing, only for the cost of sustenance as it was when he was healthy. And even though regarding the sustenance of his wife he is liable also for her medical healing, as written in Even HaEzer siman 79, there it is different, for she does not eat from his favor but rather from an enactment of the sages or from the Torah, and therefore he is obligated to provide her all her needs. And therefore also regarding partners, we have established in siman 177 likewise, for it is not a gift. But in one who obligates himself with a mere gift to sustain him, it is an assessment of the intent that he did not intend for his medical healing. And if he obligated himself to provide him all his needs, he is liable for his medical healing [it appears to me], for behold he is liable also to clothe him and provide him footwear and the rest of a person's needs.

One who takes upon himself to sustain his fellow according to his honor, the beit din assesses according to what he was accustomed to previously; and garments and shoes are not included in "sustenance" unless he said "I will sustain and provide," for this is included in "provision." And if he said to supply him with all his needs, everything is included, as has been written.

Our teacher, the Rema, wrote that some say one who takes upon himself to provide sustenance for his fellow without specification, it implies all the days of his life or as long as he needs. And some say that if he took upon himself to provide sustenance for him without specification, or to give him 100 gold pieces per year, he is exempt from his vow after one year. Thus far his words. Some have explained that they do not disagree, for when he spoke without specification, it implies forever, but when he mentioned "or give him such-and-such per year," he can exempt himself in one year [Levush]. However, most of the great Acharonim explained that they disagree in the halacha, for in truth, when he says "such-and-such per year," it does not imply more that his intention was for one year than when he speaks without specification; on the contrary, this phrasing implies for every year. Nevertheless, since he did not explicitly say "for every year," these "some say" hold that he is exempt after one year; if so, all the more so when he spoke without specification. And so it is clear from the words of our teacher, the Beit Yosef, in Even HaEzer siman 114, that they disagree. Also, our teacher, the Rema, there in Darkei Moshe, is in doubt regarding this law; if so, it is impossible to say that he ruled here that when speaking without specification it implies forever. Regarding the halacha, there are those who decided according to the first opinion [the Gra], because we find regarding nedarim that when one says "the fruits shall be forbidden to me for benefit," he is forbidden from them forever, as written in Yoreh Deah siman 232, and so wrote the Ran in Nedarim [28a], see there. And as for what we established in Even HaEzer siman 143 regarding a get, that when he said "on condition that you nurse my son," one day is sufficient even when he spoke without specification—this is because he intends only to distress her and not for his own benefit, and one day of distress is sufficient. And it is explicitly implied in the Gemara in Gittin [75a] that if we were to say his intention was for his benefit, she would have to nurse as long as the child needs to nurse [see there in Rashi, s.v. matnitin]. If so, here too, when he obligates himself for the benefit of his fellow, it implies as long as he needs, and if he needs all the days of his life, he is obligated to provide sustenance for him all the days of his life. This is the intention of our teacher, the Rema, who wrote "all the days of his life or as long as he needs" [and what the Sma wrote in subsection 15 requires further study, for the matter is simple as I have written]. Some have ruled according to the latter opinion [Urim VeTummim and Chatam Sofer]. From nedarim there is no proof, for unspecified nedarim are to be treated stringently [Nedarim 18b], as a prohibition is different. From the condition of a get there is no proof, for certainly when one must perform an action and the performance of the action depends on it, if he stipulates some condition for his own benefit, certainly an unspecified phrasing implies forever. Therefore, when he gives her the get and stipulates a condition for his benefit, an unspecified phrasing implies forever or as long as there is a need for this. Therefore, if a person gives a gift to his fellow and stipulates with him that he shall provide sustenance for him in exchange for his gift, it implies forever [Netivot HaMishpat subsection 8]. But when he obligates himself to provide sustenance for so-and-so, where the obligation is not for the benefit of the one obligating himself, he can exempt himself in one year. However, when the obligation is to a poor person as tzedakah, he is obligated to provide sustenance for him as long as he is poor, for it is a matter of prohibition. Similarly, when he spoke in the language of a neder, it is forever, for unspecified nedarim are to be treated stringently [Urim VeTummim]. In my humble opinion, it appears according to the first opinion, for from nedarim there is clear proof, as we established in nedarim that we follow the common speech of people. If the common speech of people when they speak without specification did not imply forever, we should have ruled so in nedarim as well. And that which we established that unspecified nedarim are to be treated stringently means that if we were to say to be lenient, the neder would not take effect at all, and if so, everything he said in his neder would be nullified; certainly we follow the stringency so as not to nullify his speech. But in a case where the neder takes effect in any case, only that there is a difference in the duration of time, we do not apply more stringency in nedarim [and so it is explicitly implied from the commentary of the Rosh on the Mishnah in Nedarim 18b, see there]. Also from get there is clear proof. And that which we wrote to distinguish between one who stipulates a condition for his own benefit and when he speaks for the benefit of his fellow—this is in a doubt of phrasing where we indeed say "the burden of proof is on the claimant." But from where do we say that this phrasing is a doubt? In Gittin it is implied there that it is not because of a doubt, but rather that the unspecified phrasing implies forever. Furthermore, if this phrasing is a doubt, even when he stipulates for his own benefit, the one in possession can say "bring proof and take," for we do not find a distinction in the principle of "the burden of proof is on the claimant" between whether he spoke for his benefit or not for his benefit, for it is a great principle that the burden of proof is on the claimant without any distinction between one place and another. Behold, the presumption of possession is superior even to a majority, and all the more so in a doubt of phrasing [and so in the language of the Shas, an unspecified phrasing implies forever, as proven from the question of the Shas at the beginning of the third chapter of Temurah, and see there in Tosafot, and at the beginning of Yevamot, and at the beginning of the chapter HaKotev, and look closely]. And that which we rule that when one says "so-and-so shall dwell in the house," one hour is sufficient, as will be explained in siman 212—there it certainly does not imply forever, for if so, this is not the language of "dwelling" but the language of a gift for all the days of his life. And you should know that it is so, for if not so, even according to the latter opinion we would obligate him for at least a year, so why is one hour sufficient there? Rather, it is certainly as I have written. Similarly, what will be explained in siman 163 regarding tax, that he is exempt with one time, is because it is collected once a year [Sma and Netivot HaMishpat]. Also, the latter opinion can be said to hold so only because he said "or give him 100 gold pieces per year" and did not say "in every year"; his phrasing proves that he spoke regarding one year. Even though he should have said according to this "100 gold pieces for the year," nevertheless, since either way his phrasing is not precise, the burden of proof is on the claimant [and so it is implied from the language of the Rosh in a Responsum, which is the source of this law, that because of a doubt he ruled so, see there].

One who accepted upon himself to provide sustenance for his fellow for a certain period of time or to give him one hundred dinarin, and he sustained him for part of the time and then stopped, he is not obligated to give him one hundred dinarin, but rather to complete the sustenance up to one hundred dinarin and no more. And he shall deduct from the one hundred dinarin the cost of his sustenance expenses until now, and he pays the remainder; for he did not intend the giving of the one hundred dinarin except if he would not provide him sustenance at all.

Reuven who took upon himself to provide sustenance for Shimon and his wife and began providing for them, and Shimon's wife died, he is exempt from her sustenance, and the husband cannot say, "Behold, I am her heir, so give me the expenses of her sustenance." And even if he fixed a sum of money for the purpose of her sustenance, since he said "for her sustenance" and did not hand over the money to her or to her husband, the intention was only for as long as she would need it. This is not like those who disagree, who hold that when a sum of money is fixed, he is obligated to give it to her heir. And similarly, anyone who obligates himself to a fixed sum for sustenance, such as if he said, "Behold, I obligate myself to the sum of one hundred dinarin for the sustenance of Ploni," and Ploni died, he is not obligated to hand it over to the heirs, for he did not obligate himself with this in mind [Even HaEzer]. And see in siman 253 regarding one who obligated himself to money for a dowry and the daughter died, where our teacher, the Rema, ruled that he is exempt from paying. However, when he has already released the money from his hand and the one being sustained died, the remainder belongs to the heirs. And if one obligated himself to give sustenance to his son and daughter-in-law for such and such years, and his son died in the middle of the period, whether he is obligated to give the daughter-in-law the sustenance until the duration of the time he obligated himself, some say he is obligated [Taz] and some say he is exempt [Urim VeTummim]. And so it appears primary, for we are witnesses that any father who obligates himself to give sustenance to the couple, it is only for as long as his son or daughter is alive. And if one obligated himself to sustenance for "years" without specification, it is not less than two years, and if he obligated himself with the language "as some years," it is not less than three [Beit Aharon].

One who obligates himself to provide sustenance for another without specification, or who obligated himself to provide for him at his table, and the one who obligated himself died, the heirs are obligated to provide for him just as their testator was obligated. The heirs cannot say, "Behold, he obligated himself to provide sustenance at his table, and when he died his table ceased and the obligation was removed," for in truth the expression "his table" is not literal, but rather he stipulated this so that he would not be obligated to give him the full value of sustenance if he did not wish to eat at his table. Since he obligated himself, his properties became liened. It appears that the heirs can compel him to eat at their table just as he used to eat at the table of their testator, and if he does not desire this, they shall only give him money according to the "blessing of the house," as was written in section 3. According to this, a father who obligated himself to support a couple at his table for such and such years and died before the completion of the years, the couple takes the value of their sustenance from the estate to complete the years, aside from the portion of the inheritance [it appears to me].

Two who obligated themselves to provide sustenance for one person, their law is like the law of two who borrowed from one, which will be explained in siman 77, that both of them are arevim for one another even though they did not explicitly state that they are arevim. Therefore, if one does not give his portion, the other is obligated to give all the sustenance and shall claim his portion from the partner, unless they explicitly stated that they are not arevim for one another, in which case each one is only obligated to give half even though his fellow gives nothing at all. And when the obligation was oral, they are not arevim for one another unless they said, "In partnership we obligate ourselves to provide you sustenance," so that it is evident that they are partners in this; but if they said plainly, "We will provide you sustenance," it is possible that their intention was that each one obligates himself for half the sustenance. But in a document there is no distinction, unless they explicitly clarified that each one obligates himself for half the sustenance, as I have written there [it appears to me]. And even when they are arevim for one another, he shall not claim everything from the one, but rather he shall claim from each one his portion, and when he is unable to extract it from him, he shall claim everything from the second, according to the law of arevut that will be explained in siman 129.

One who obligates himself in a matter that has not yet come into the world, or that is not present with him, is liable. And even though a person cannot transfer ownership of a thing that has not yet come into the world, this is when he transfers it to him via sale or gift, where he transfers that actual thing to him, and behold it is not in the world or not in his possession—and how can he transfer it to him? Even if he wrote him a lien on his properties or even gave him a mashkon, it is nothing; for since the sale or gift did not take effect, upon what would the lien or the mashkon take effect? And as the sages, of blessed memory, said: There is no maneh here, there is no mashkon here. And some say that regarding a mashkon, he is not obligated to return the mashkon until he fulfills his word [Shach]. But with the language of obligation, where he obligates his person to this, such as if he says, "Be witnesses for me that I obligate myself to give to so-and-so such-and-such or such-and-such an object," or if he said, "I admit before you that I am liable, etc.," behold he has obligated his person to this, and his person is in the world, and the obligation takes effect upon his person, and automatically his properties become liened. And it is no worse than a guarantor who does not receive money but liens his soul via kinyan even after the giving of the money; and therefore the properties of the borrower that he acquired after his loan also become liened. And according to this, every person can sell or give as a gift a thing that has not yet come into the world and a thing that is not in his possession in this manner, that he obligates his person to this matter. And so too he can obligate himself to give to his fellow everything that he will profit in this month or this year (Beit Yosef). And specifically when they performed a kinyan from his hand, for mere words are nothing even if he said "you are witnesses," for this is like a guarantor after the giving of the money, who specifically requires a kinyan (the Gra). And so is the primary ruling (later authorities), even though there is one who disagrees in this. And it appears to me that regarding a thing that has no substance, it is not effective even with the language of obligation, since there is no substance in the obligation, and the kinyan is also a kinyan devarim. And it is not similar to a thing that has not yet come into the world or that is not in his possession, for there, there is substance in it, but he merely lacks the power to transfer it; but in this, where there is no substantiality at all, upon what does he obligate himself? And behold, even an heir does not inherit a thing that has no substance, as is proven in the Gemara (Bava Batra 141). And there is further proof, for the Rambam in the 22nd chapter of Sale included in a thing that has no substance the scent of an apple, and the taste of honey, and the appearance of greatness, see there. And just as he cannot obligate himself regarding scent, appearance, and taste to his fellow, for it is obvious that this is not within the category of obligation at all, so too in every thing that has no substance, such as the dwelling of a house and the eating of fruits. (And with this, the wording of the Rambam, of blessed memory, there is very precise, as he wrote: A person cannot transfer ownership of scent or taste, etc., therefore one who transfers the eating of fruits, etc. Thus far his words. And it is difficult: what is "therefore"? And the Maharshdam already raised this difficulty in siman 323. And according to what I wrote, it is well, and this is the explanation: Just as regarding these, no matter of obligation is relevant nor to bequeath them, so too regarding eating and dwelling. And delve into this.)

Even though a person can obligate himself in a thing that has not yet come into the world or that is not currently in his possession, nevertheless, regarding a matter that is not in his hand at all—such as if he obligates himself to buy the house of so-and-so or the object of so-and-so and to deliver it to this person—the obligation does not take effect, for perhaps that so-and-so will not sell it to him, and how is it within his power to obligate himself? But one who obligates himself in money or in objects that are commonly available to buy from merchants, in this case the obligation takes effect (Netivot HaMishpat). And if he said, "Behold, I obligate myself a maneh to so-and-so if I do not buy him the house of so-and-so," and it was done in an effective manner that does not involve asmakhta, he is liable (ibid.), for even though the condition is not entirely in his hand, he is able to obligate himself in a maneh. And when he obligated himself in a thing that has not yet come into the world and the obligor died before the thing came into the world, the heirs are exempt, for the obligation only takes effect upon his person and it is not in the world; however, if the obligation is for money and he suspended its condition upon a thing that has not yet come into the world, the heirs are liable (ibid.). And when he obligated himself in a thing that has not yet come into the world, he cannot retract even before it comes into the world; an obligation in a thing that has not yet come into the world is like a kinyan in a thing that has come into the world (it appears to me). And the law of obligation is not related to the kinyan of "I will give," regarding which some say he did not acquire as written in siman 245, for in an obligation everyone agrees he acquired (Sma), because a kinyan of "I will give" is a kinyan that is to be in the future, whereas the obligation of the person has already been obligated; even though the intent is for what is to be in the world in the future, nevertheless, he has already obligated his person, which is in the world.

Reuven produced a shtar against Shimon with a kinyan, and it is written therein: "I have given him one hundred gold pieces," or "movables," or "land," "and I have placed a lien on all my properties to collect them from them," and he did not obligate his person to be liable such that it would be effective for a davar shelo ba l'olam as has been explained. And Shimon claimed that at the time he wrote it against himself, it was not in his possession, and a person cannot transfer a davar shelo ba l'olam. Behold, regarding the gold pieces, he certainly did not acquire them even if they were in his possession, for currency is not acquired through chalupin, as is explained in siman 203, unless these coins are not used for trade in the province, for then their law is like movables which are acquired through chalupin if they were in his possession at the time of the kinyan. And if the matter cannot be clarified whether these movables or these lands were in the domain of the grantor at the time of the kinyan, the claimant must bring proof. Thus ruled our teachers, the authors of the Shulchan Aruch. And the great Acharonim wondered about this from the end of siman 250, for there our teacher, the Beit Yosef, wrote the opposite regarding one who gives movables to another "from now and after my death," and the heirs claim perhaps he did not have these movables at the time of the gift—there is nothing in their words, for "here they are found, here they were." And our teacher, the Rema, hinted there to this law. And in siman 112, our teacher, the Beit Yosef, brought two opinions on this, and our teacher, the Rema, decided that the recipient must bring proof. And it appears to be the opinion of our teacher, the Beit Yosef, that he distinguishes between a claim of certainty, as in this law where the grantor claims with certainty that it was not in his possession, whereas there the heirs claim a claim of "perhaps" (Sma). And our teacher, the Rema, does not distinguish in this, for certainly if the grantor himself claims a claim of "perhaps," it is a poor claim, but for the heirs it is a good claim, and therefore in practice one must bring proof. However, this is specifically regarding types of movables that are not specified by name, such as pieces of silk and the like which are merchandise, or types of produce that are intended for trade—certainly in this his claim is a claim; and likewise when he included "all movables" or "all lands" that he has, for certainly it is the way of a person over the course of time to buy and exchange. But where he specified "such and such movables" and "such and such land," and currently these movables and these lands are found with him, there is no substance to his claim, and we say "here they are found and here they were" (as appears to my humble opinion, and see Netivot HaMishpat). And if regarding matters where one must bring proof, the recipient claims with certainty that it was in his domain and the grantor denies it, he must swear. And he is also believed to say "I have already given it to the recipient" regarding his type, for if he wanted he could have said that it was not in his domain, if the movables or the lands are not specified in the shtar as being those that are still found with the grantor. And see in the next section.

Our teacher, the Rema, wrote that all this follows the opinion of the Rif and some of the authorities, but many of our teachers disagree regarding this and hold that anyone who says "I gave such and such to so-and-so," it is an admission of a litigant and is like a hundred witnesses, and we do not scrutinize how he gave; for since he admitted, we say that he certainly gave in an effective manner and the recipient of the gift acquired it. Thus far his words. And he means to say that we say he certainly obligated himself, as I wrote in section 11, and regarding money which is not acquired through chalifin, it can be said that he granted it to him through another (Tur) or transferred it to him agav karka. However, when it is written in the document "I am giving," the recipient must bring proof that it was in his possession (Shach), and in the case of a mistake, he must bring proof that he granted it to him through another or transferred it to him agav karka. And if the recipient admits that it was not in an effective manner, if it was not in his possession, such that he admits he did not obligate his person, even the language of "I gave" is not effective, and he must bring proof that it was in his possession, and he is not believed to say that it was in his possession with a migo that he could have said it was in an effective manner, for it would be a migo to extract [Netivot HaMishpat], and its law is as I wrote in the previous section. And if two expressions are written in the document, "I gave" and "I am giving," we follow the latter expression [ibid.].

Reuven produced a document in which it is written: "My field is mortgaged to you for a prior debt that I borrowed from you," and that he shall consume the produce through the permission of nekhita as written in Yoreh Deah siman 172, and Shimon is signed upon it or there are witnesses, and he admits that he previously borrowed from Reuven as written in the document—Reuven has acquired the mortgage. We do not say that since the loan was from before, and a loan is given for expenditure and they are not like ready money, with what shall he acquire the land? For is it not so that "the maneh is not here, the pledge is not here," and if Shimon sold the land to another, Reuven would not be able to remove it from the buyer? We do not say this, for he did not come to acquire the land but rather to consume the produce until he gives him its value; it is no worse than a loan by word of mouth where he gives him a pledge, for he cannot remove the pledge from his hand until he gives him its value (Tur).

Reuven produced a deed in which it is written that Shimon borrowed from Levi, and Reuven says that Levi was his agent and wrote the deed in his name and he was not particular about it, and Shimon claims: "You are not my litigant, for you have no power of attorney from Levi and he did not sell you this deed." If Levi admitted to Reuven before witnesses that he was his agent, and he does not cause loss to others by his admission—meaning that Levi does not owe others—it has been revealed that this money belonged to Reuven and the borrower is liened to him even though the deed was not written in his name, and they compel the borrower to pay him and he is thereby discharged. Reuven does not require "writing and delivery" from Levi, for they only required "writing and delivery" for one who comes to grant his money to one who had no right to it until now; but here, since this one admits to his words, we must believe him. Therefore, even though regarding one who sells a deed of indebtedness to his fellow and then went back and forgave it, it is forgiven, as written in siman 66, here Levi does not have the power to forgive it to Shimon. Since the deed is in the hand of Reuven and Levi admitted, Reuven has acquired what is his, and it is as if Reuven himself lent to Shimon and he does not require a new acquisition. But if he causes loss to others by his admission, he is not believed, and Reuven is obligated to return even the physical deed to Levi so that the creditors of Levi can collect from it. And if it is impossible to extract the deed of indebtedness from Reuven, nevertheless Shimon is obligated to pay the creditors of Levi; and even when Reuven has a migo that he could have burned the deed of indebtedness or hidden it, nevertheless Shimon is obligated to pay, for we do not say "migo from person to person" (Urim VeTummim). And some say even if Levi owes others, nevertheless his admission is effective and he shall pay Reuven, for it is certain that the creditor of Levi does not have the power to collect from Shimon when he does not return his deed to him and the deed is in the hand of Reuven; and since Reuven stands and screams that they are his funds and Levi admits to him, how can we compel him to return the deed (Taz). And some say that the admission of Levi is not effective at all in this matter (Shach), for we must only follow what is written in the deed. And this is certain: that if the beit din sees some trickery in the admission of Levi, we do not listen to Levi nor to Reuven, and we extract the deed from his hand against his will. However, if the beit din sees that there is no trickery in this, and according to their understanding it is truly so that the funds are Reuven's—as is common in our lands where the broker writes the deed in his own name and the like—certainly the primary ruling is like the former "some say" that his admission is always effective. However, if the beit din is unable to understand the matter, they shall act according to the first opinion, which is the opinion of our teacher, the Beit Yosef, in the Shulchan Aruch, who wrote: regarding others he is not believed, and when he does not cause loss he is believed [so it appears to me]. And if at the time of his admission he owed others and afterwards he cleared his debts and says that the deed of indebtedness is his, and that which he admitted previously that it belongs to Reuven his intention was to smuggle from his creditors—the beit din sees according to the matter: if the admission was at the time the creditors came to collect from him, he is believed, and if not, he is not believed, as written in siman 16 regarding a deed of trust [it appears to me]. And this is a simple matter: that if there are witnesses to this matter, they shall act according to the words of the witnesses, and even by one witness if he is a trustworthy man.

Reuven lent a maneh to Levi, and at the time of the loan, he told Levi to write the deed in the name of Shimon for whatever reason he had, and that they should give the deed into the hand of Reuven. When Reuven claims from Levi, and Levi claims, "You are not my litigant," since it was written in the name of Shimon—there is no substance to his words, since the deed is in the hand of Reuven. And if Reuven claims from Shimon that he should make him a deed of sale for this deed, they do not compel Shimon to do so if he states some reason, such as that it is a disgrace for him to sell a deed, or the like. And even if Shimon admitted to him that he would make him a deed of sale, he may retract. And if Shimon claims, "Since you wrote it in my name, I have acquired it," there is no substance to his words, since the deed is in the hand of Reuven and he commanded at the time of the writing that they deliver the deed into his hand [Tur], unless Shimon clarifies that Reuven was his agent; then they remove the deed from Reuven and give it to Shimon. And in siman 184, more will be explained regarding this in the matter of a sale. And likewise, Reuven cannot compel Levi to write him another deed in his name and tear up the first deed if he has some reason for this. But if he said to Levi at the time of the loan, "On the condition that I lend to you, that now you make me the deed in the name of Shimon, and when I desire, you shall return the deed to my name," they compel him to do so. And even if Reuven did not explicitly state "on the condition," but rather said to Levi or to the witnesses in the presence of Levi, "You shall write me another deed for this loan," and Levi remained silent, they obligate him to write another deed in his name. And they do not write the other deed with the date of the first one, since it was not written now based on the first kinyan, for behold, without the command of the borrower they do not write; if so, it is like a different deed, and they write from the present time. And the witnesses themselves, without the command of the borrower, should not write even when they heard the condition explicitly [Netivot HaMishpat].

And similarly, Shimon who owed a maneh to Reuven, and they reached a compromise between them that Shimon would make a promissory note in the name of Levi for twenty dinars, and afterwards Reuven made for Shimon a deed of forgiveness for all monetary claims, and now Shimon claims that since Levi did not lend to him but rather Reuven, and since he forgave him all monetary claims, this too is included—the law is with Shimon. And this is specifically when he said, "give the deed into my hand," and then even if the deed came afterwards into the hand of Levi, Levi did not acquire it; but if from the time of the writing of the deed for the twenty dinars he said, "give it into the hand of Levi," Levi acquired it, and Shimon must pay him (ibid.):

And similarly, one who lends to his fellow on land pledges and commanded to write the land in the name of his minor son, and now the borrower claims, "You are not my litigant," there is nothing in his words, and he must pay the father who lent him the money in the name of his son; for it is found that he was the apotropos of his son at the time of the loan, therefore even now he is his apotropos (Shach). And if the son grew up and the father forces him to write the deed in his name, the father must clarify that the money was not his son's, only that he did not want then, for some reason, that it be written in his name. And if he does not clarify, the beit din claims on behalf of the son that perhaps it was the son's money from some inheritance or gift. But if he wrote it in the name of his adult son, the son must clarify that the money is his, since he is an adult, one does not claim on his behalf, and his law is like any other man (it appears to me). And regarding a minor son, if the father died, they hand over to the son everything that was written in his name, and the other heirs cannot say, "It is upon you to clarify that it was your money," for since he is a minor, he does not know himself, and the beit din claims on his behalf. But regarding an adult son, if it were his money, surely it would be in his power to clarify (it appears to me).

A document that was written in the name of Reuven, and it is written at its end before the signatures of the witnesses that these funds are from the community leases, and Reuven claims that since they are written in his name they are his, for the community gave him this document for funds that he had with the community, and the community denies him—the law is with the community. For since it is written in the document before the signatures that the funds belong to the community, it is proven that it belongs to the community, for if it were not so, why did Reuven allow this to be written? And as for why they wrote it in the name of Reuven, perhaps they had some reason for this (see in the Shach). And Reuven cannot claim that the funds were his and he only wrote it in the name of the community so as not to appear wealthy, for it is not the way of an individual to write in the name of the community (Netivot HaMishpat), unless Reuven clarifies with absolute clarity that the funds were his or that they reached him from the community.

A woman who claims regarding lands left by her husband that half of them are hers from monies that fell to her from her father's house, and the deeds are written in the names of both of them, the law is with the woman. And if they are written in her name alone and she claims that all of them are hers, all of them are hers. And specifically regarding a woman who does not engage in business within the house, or even if she does engage in business, if the husband himself wrote the deeds in her name, they belong to her (Shach), and it will be further explained in siman 62. And one must be precise now: when land is written in the name of the woman in their courts, the dayanim must be deliberate in this, for there are times when a husband writes his properties in his wife's name for certain reasons, and the properties always belong to the husband; therefore, they must investigate this extensively.