Siman 64

In siman 107 it will be explained that according to the law of the Gemara, the movable property of orphans is not encumbered to a creditor, and only the Geonim enacted that they should be encumbered and that one may collect from orphans even from movable property and from documents that their father left them. And even according to the law of the Gemara, if the creditor seized movable property during the lifetime of the debtor, he may collect from them. And even if he seized the documents of the debtor, which he is unable to collect from the debtor's debtors without the writing of another document as will be explained in siman 66, nevertheless it is considered a seizure, and he has the ability not to return the document until his heirs pay him what is owed to him. And this is specifically when he seized them for the purpose of the debt, but regarding what was in his hand for the purpose of a deposit, it is not considered a seizure at all, for his hand is like the hand of the depositor [Rashi, Ketubot 85a]. Therefore, one with whom documents were deposited and the depositor died, and the bailee claims, "During his lifetime I seized them as a collateral for a debt I have against the depositor," if there are witnesses that he demanded them from him during his lifetime and he did not want to return them to him, it is a seizure, and if not, it is not. And this is dealing with a case where there are witnesses that he deposited them with him and also there are witnesses who saw them in his hand before they came to beit din for judgment, for if not so, we would not require witnesses that he demanded them from him during his lifetime, but rather he would be believed on this with a mere statement by way of a migo that "they were lost by accident," even when there are witnesses that he deposited them with him if they did not see them in his hand; or by way of a migo of "it never happened" even if they saw them in his hand if there are no witnesses that he deposited them with him, for he could say "it never happened" that they ever came to his hand as a deposit, but rather as a collateral [Sma]. And even an oath is not required [Shach]. And all this is according to the law of the Gemara, but according to the enactment of the Geonim, one collects from their documents even if he did not seize them during his lifetime.

And all this is if the debt is clarified, but if the debt is not clarified except by the claim of the depositary, then even according to the enactment of the Geonim he is not believed unless he has a mingo. But without a mingo, how can we believe him? And there are those who disagree and hold that a mingo is of no benefit regarding documents at all, for specifically regarding movable property, because he is able to sell them, a mingo is effective; but regarding documents that are written in the name of another, he does not have the ability to sell them. And one cannot say that he would make a conspiracy with the borrowers to remit part of the debt to them and receive less, for who is to say they would agree to the conspiracy? For perhaps they are upright people and would not want to commit an injustice. And if so, he is forced to claim that he is seizing them as a mashkon, and when the debt is not clarified, by what means shall we believe him? Therefore, he does not have the ability to seize them even in this time, and he is obligated to return the documents to the heirs [ibid.]. And so it appears the primary law, as I wrote in siman 62, section 2 and section 9. But regarding other movable property, when he has a mingo, he is certainly believed according to the details that will be explained in siman 133.

Our teacher, the Rema, wrote that even though he has no migo and cannot say "they are purchased in my hand," nevertheless, if he seized them during the lifetime [of the owner], he can say "I seized them for a mashkon." This is not like the one who says that he cannot say "I seized them for a mashkon" unless it was known that he owed him, since he has no migo. Thus far his words. And his intention is not that he has no migo at all, but rather he means that he has no migo to say "it is purchased in my hand," for shtarot are not acquired without the writing of another shtar. Nevertheless, since he has a migo that he could have hidden them—such as where there are no witnesses of deposit or witnesses of seeing—as has been written. And the opinion of "the one who says" is the opinion of "those who disagree" in the previous section [it appears to me, and the Acharonim rejected his words needlessly].