Siman 65

One who finds a document in his possession and does not know its nature—whether the creditor deposited it with him, or the debtor, or both of them placed it in his hand as a third party, for example, if it is partially paid, and likewise a bill of sale or a gift or a mortgage or other types of documents found in his possession and he forgot the matter of who placed it as a third party and for what purpose it was placed—he does not have the ability to perform any action with this document, and it shall be left until Elijah comes, or until the matter is clarified, or until he himself remembers its context, for he is trusted to say "I have remembered" [Netivot HaMishpat], or if the parties themselves say that such and such is the matter of the document, for since they agree on the matter, one acts according to their words. And even though there is reason to fear some collusion when they say to return the document to the creditor—perhaps their intent is to seize property from purchasers and similar types of collusion, just as we fear regarding a document that was found as will be explained in this siman—nevertheless, we do not fear this, for we only fear collusion regarding a document that was found, where it is evident they were not careful to guard it. But regarding a document deposited in the hand of an individual, why should we fear collusion? And one acts according to their words without any oath [Shach]. And some say that if there is reason to fear collusion, one does not act according to their words, and only if both of them command to tear the document, for in this collusion is not applicable. And when the parties are divided, one can say: either you swear that it is as you say and they will give you the document, or I will swear and they will give me the document; and if the opposing party does not want to, he swears and takes [ibid.]. And if one witness testifies according to the words of one party, for example, if he supports the creditor and the debtor denies him, the debtor swears a biblical oath to deny the witness and the document remains in the hand of the third party. And if the debtor says that the witness speaks the truth, that at the time it was placed it was as the witness says, but afterwards the matter changed through a condition that was between us or that I paid it, he becomes one obligated to swear and unable to swear, and he pays, as I wrote in siman 51, section 1. And if the witness testifies according to the words of the debtor, if the debtor says to the creditor, "Swear against the witness and receive the document," we compel the creditor to either swear or to tear the document. And if he does not say this to the creditor, the document shall remain in the hand of the third party, and the creditor does not have the ability to compel the debtor to swear and take, for the oath that the Torah obligated against a witness is to swear and be exempt, and not to swear and take; and such an oath is a Mishnaic oath when the document is in the hand of the creditor as I wrote in siman 94, and not when the document is in the hand of another. And likewise you shall judge from this for other types of documents [it appears to me].

If the one in whose hand the document was found returned it to the creditor, he has transgressed the words of the sages. And if the creditor admits that this person gave it to him, he must return it to him and it shall be placed in deposit. And even according to the first opinion that will be explained in section 19 regarding one who found a promissory note—that if the finder returned it to the creditor, he does not need to return it to him—nevertheless, in the case of a bailee, he is obligated to return it. For the one who deposited it with him trusted him, and the third party is like an actual party to the matter. And when a doubt arises for the third party, it is as if a doubt arose for the creditor; and when the creditor claims "perhaps" and the borrower claims "certainly," he is exempt, as is written in siman 59. And if so, even though he has a migo that he could have said that this person did not give it to him, a migo does not avail in this [Netivot HaMishpat]. But if the creditor denies it and says that the document was always in his hand, he may collect with it and does not even need to swear against the bailee, for the bailee does not claim with certainty that it is a paid document [Shach], and only the borrower can make him swear, as with all documents.

If a shtar of mashkanta on land is found in his hand and he does not know its nature, even though the holder of the mashkona is in possession of the land, it avails him nothing. Since it is found that it is only by way of mashkanta, the shtar shall be laid aside until Eliyahu comes, and he returns the land to its owners. Even though he is in possession of it, for land remains in the chazaka of its owners, and he is not believed to say "it is purchased in my hand," since it is known that it came into his hand by way of a mashkon. He is also not believed to say that it is pledged in his hand for such and such an amount according to the implication of the shtar, for since it is in the hand of a third party, perhaps it was entirely repaid and the borrower deposited it [Sma]. For this land, since a shtar of mashkanta was found in the hand of a third party, the matter was presumably publicized and a rumor went out that it is a mashkona, and he has no chazaka. This is specifically when the shtar was written before he held possession for three years; for if not so, he could say "it was purchased in my hand from long ago, and I was not careful with my shtar for more than the years of chazaka, and afterwards the seller acted craftily and wrote a shtar of mashkanta himself," as we established that we write a shtar for a seller even though the buyer is not with him, and likewise a shtar of mashkanta, and he placed it in the hand of a third party in order to plot against me. And if the third party remembers that both of them placed it in his hand, he has no chazaka at all, as will be explained in siman 150, see there. And the third party is believed regarding this matter more than one witness, for in any event, he should have been careful with his shtar [as above, and the difficulty of the Netivot HaMishpat and the Divrei Mishpat is settled, and the words of the Sma are settled, and so it appears from the language of the Tur, and study it].

All these laws apply specifically when the bailee does not have a close connection with the lender. However, a son who finds his father's documents in his possession, or a father who finds his son's documents with him and the son is supported at his table, and similarly a son-in-law supported at his father-in-law's table and their documents were found with one another [it appears to me], and similarly all those who do not have a chazakah against one another as will be explained in siman 149—all of these are like the person himself, and it is as if they were found in his own possession. And if the father claims that the borrower owes him, he may collect with it even when the document is found in the possession of the son; and similarly the son who claims so when the document is in the possession of the father. This is unless they also claim "I do not know" and the borrower says that he paid, for then the one in whose possession the document is found must return the document to the borrower, as I wrote in siman 59, section 1 [Netivot HaMishpat].

And so too, the heirs of a depositary who found notes of indebtedness belonging to others in the possession of their testator shall not return any note unless they know its nature or it was found in the handwriting of their testator what its nature is. However, in this there is a distinction between heirs and the depositary himself: for regarding heirs, when they know that the note was delivered by both parties but they do not know the details, its law is like the law of two who are holding a note and they shall divide, as will be explained in this siman. This is not the case regarding the depositary himself; if he does not know the details, even though he knows that both parties deposited it with him, it shall be laid aside until Eliyahu comes or until the matter is clarified, for the doubt of the trustee is like the doubt of the litigant himself regarding this matter, in that it impairs the note [ibid.]. And some say there is another distinction regarding a case where the creditor himself seized the note from the house of the testator before it came into the hand of the heir, for since no doubt at all arose with any person before it came into the hand of the creditor, we do not say in this case "it shall be laid aside," for since he seized it, he has seized it, and he may collect with it. This is not the case when he seized it during the lifetime of the depositary, where he must return it as I wrote in section 2. And the reason is that since the doubt was not born until after the note was in the hand of the creditor, and the depositary did not state any doubt regarding this note during his lifetime, his seizure is a valid seizure. This is not the case when the depositary stated the doubt during his lifetime, where seizure does not avail even after his death, and it must perforce be laid aside. But the doubt of heirs does not impair at all when the note is already in the hand of the creditor. And heirs who found a woman's ketubah deposited with their testator, and the woman is living with her husband, they return it to the woman, because it is not the way to collect a ketubah during the husband's lifetime, and presumably the woman deposited it with him. And so too, any note that is still within its time, they return it to the creditor, for it is not the way to pay within its time, and presumably the creditor deposited it with their testator. But the depositary himself, when he has a doubt, then even within its time it shall be laid aside, for the doubt of the trustee is like the doubt of the litigant himself, as I have written.

If the heirs claim regarding a deed they found in the possession of their benefactor that their benefactor lent money upon it, and they say that even though he could not collect with this deed which was written in the name of another, nevertheless he took it as a mashkon, their claim is a valid claim. However, the beit din does not claim this claim on their behalf, even though we hold that we claim on behalf of an heir, because it is an uncommon matter to lend upon a deed that is in the name of another without writing another deed, and we do not claim an uncommon matter on behalf of orphans. And even the heirs themselves, according to the opinion we wrote in siman 64 that regarding deeds there is no migo and their father would not have been able to claim thus, they also cannot claim thus, for the heirs cannot claim a claim that their benefactor would not have been able to claim. And regarding a deed that was written to "any bearer," certainly even the beit din claims on behalf of the heirs everything that their benefactor would have been able to claim, for such a deed is acquired through masirah alone as I wrote in siman 50; only the borrower can adjure them with the oath of heirs [it appears to me].

An incident occurred regarding Reuven who died, and notes belonging to his sister were found in his possession tied together; some of the notes were in her favor, namely the note of her dowry and her lands, and some were to her detriment, namely a deed of gift that she gave to her husband for her land. The Rosh, of blessed memory, ruled that even though the note of her dowry is like other debt notes where the law is that it should be set aside until Eliyahu comes, nevertheless, since they were found tied together with the deeds of her lands which are certainly hers, it is as if it became known that she deposited them. Therefore, even regarding the deed of gift to her husband, we maintain that she deposited it and had not yet given it to her husband. This applies specifically without a kinyan, but when there is a kinyan in her deed of gift, the husband merits it even when it did not come into his hand [Shach]. Therefore, when there is no kinyan, they return everything to her or to her heirs. And even though there is a doubt that perhaps Reuven himself tied the notes together [ibid.], nevertheless they return them to her because of a sefek sefeka: a doubt that perhaps she tied them, and if you say that Reuven tied them, there is a doubt that perhaps she deposited it; and she is called the muhzak, and therefore they return everything to her [it appears to me]. And one should not say that this is from a single category and is not considered a sefek sefeka in prohibitions, as is written in Yoreh Deah siman 110; nevertheless, regarding a hazakah of money that a person is muhzak in, such as in this gift of land in which she is muhzak, it is certainly considered like a sefek sefeka. For even if it were not tied, there would be a doubt as to who placed it with a third party, and now that it is tied, there are "proving hands" in her favor to establish the land in her hazakah [as appears to me].

One who finds a promissory note, even if it contains a clause of trustworthiness and even if it is within its time, if the borrower does not admit—for example, if he says it is paid and it fell from him—he shall not return it to the lender. For since it fell, it has been weakened, as it appears that he was not concerned with its safeguarding. But if the borrower admits, he shall return it to the lender. In what case does this apply? When it is explicitly stated in the note that it does not carry responsibility; but without this, he shall not return it even when the borrower admits, for we fear perhaps he paid it and they are now making a conspiracy to collect from the purchasers of the borrower's property. For since it fell, we are concerned with many concerns. And if the borrower has free assets according to the amount of this debt, he shall return it when he admits, for there is no concern for the purchasers, as he will collect from the free assets and not from the encumbered ones. And even though there is reason to fear perhaps he has other debts upon him, nevertheless, for a multitude of such concerns we need not fear. And some say that we fear for this as well, and it is specifically required that it be known that he has no other debts [Shach]. And likewise, when it is found on the day it was written, he returns it to the lender by the instruction of the borrower, for there is no concern against the purchasers, as he has the ability to write him another note today. And some say further that on the day it was written, they return it to the lender even without asking the mouth of the borrower, because it is not common at all that he would pay him on the day that he borrowed. However, this is specifically when the borrower is not here; but when he is here and claims that he paid it, he shall not return it, for since it fell, it has been weakened. And likewise, he shall not return the note to the borrower even if it is after its time and does not contain a clause of trustworthiness, and it shall be placed with him until it is clarified. And even if the borrower gives a distinct sign on the note, it is of no avail, for there is no proof that it fell from his hand, as the note was in his hand before he delivered it to the lender, and therefore he knows the sign. And likewise, if the lender gives a distinct sign, it is of no avail, for there is no proof that it fell from his hand, for perhaps after the borrower paid him, it fell from the hand of the borrower, and he knows the sign because it was in his hand before the payment. However, when the borrower says that he never borrowed with this note, they return it to the lender, for the borrower is caught in his lie; for if it is according to his words, from where does the lender know its signs? And even when he says afterward, "I borrowed and I paid," he is not believed, for he has been established as a liar, as I have written in siman 79 [it appears to me].

Even if one found torn documents in the marketplace and one whole promissory note among them, and all the documents are in the name of one creditor, such that there is a semblance of proof that this document is paid since it is placed among his torn documents, nevertheless, he shall not return it to the borrower and also not to the creditor unless there is a shover with them. In that case, he shall deliver it to the borrower, for with a shover and being found among torn documents—even if found in the house of the creditor and even if the shover is not signed at all—he is obligated to return it to the borrower, as will be explained in this siman, and all the more so when found in the marketplace. And if one found a document that contains ribbit, he shall tear it immediately, and when they brought it to beit din, the beit din shall tear it immediately [Sma]. And there is no distinction regarding a document found in the marketplace between one where the name of the creditor is written and one where it is written "to anyone who produces it," for he shall not return it to any person until the matter is clarified. But he himself does not acquire it to collect with it, for behold, he did not lend upon it; and even if we consider it a lost object, behold it has a siman and he is obligated to proclaim it. And that which we explained in siman 50, section 3, that when it is written to any bearer, anyone who produces it collects with it even when it is known that he did not lend upon it, see there—certainly that is so against the borrower who obligated himself to anyone who produces it, and he collects from him as long as it has not yet become known that he paid it, as is explained there. But the finder himself, against the true creditor, is a robber. Therefore, it appears to me that when the one producing it admitted that he found it, beit din does not allow him to collect with it, and it shall be left until it becomes known who the creditor is [so it appears to me].

One who finds a document in a vessel shall give it to the one who provides a siman for the vessel. And even when he does not provide a siman for the vessel, but rather when this one announced "I found a document" and that one says "You found it in such-and-such a vessel," if it is not the way of the world to place documents in such a vessel, it is a siman and we return it to him, for it has been clarified that it fell from the hand of this one. And regarding this, it is not relevant to say that the document's reliability is weakened since he was not careful with it, for the vessel is certainly not a "lost object with knowledge" and was lost by accident. Furthermore, since it has been clarified that it fell from his hand, it is not in our power not to return it to him because he was not careful in its guarding [see the Rosh, first chapter of Bava Metzia, siman 51].

If one found two or more documents bundled together regarding one borrower who borrowed from two lenders, if the documents are authenticated by a beit din, he must return them to the borrower even without a sign, for they certainly fell from him. For it is not to be said that they fell from the lenders when they went from the beit din, for if so, who bundled them together? Rather, it is certain that the borrower paid them and received his documents and bundled them, and they fell from him. But if they are not authenticated, there is a concern that perhaps the lenders went to the beit din to authenticate them and the beit din bundled them until they would authenticate them, and they fell from the hand of the beit din [Sma], or that the lenders bundled them, since when they went to deliver them to the beit din they bundled them together, and they fell from them. But after the authentication, each one receives his document. And if the documents are from two borrowers and one lender, he shall give them to the lender even without a sign, for they certainly fell from him. And it is not to be said that the borrowers went together to the beit din to authenticate their documents and bundled them together and they fell from them, for it is known that the borrower does not go to authenticate his document, only the lender. However, if the documents are the handwriting of one scribe, there is a concern that perhaps the borrowers requested him to write the documents, for one may write a document for a borrower without the lender, and the scribe bundled them after his writing and they fell from his hand. And also in this case it is not relevant to say, when it is necessary to return to the lender, that the document's status was weakened by its falling, for since they are bundled together it is recognizable that it is not a deliberate loss; and specifically regarding one document that was found or scattered documents can this weakness be said, but not regarding bundled ones [Ba'al HaTerumot]. And furthermore, because of the second reason that we explained in the previous section. And in all that has been explained in this section, when there is a doubt from whom it fell, how do we act? We give to the one who provides a sign regarding the bundle and the number of documents.

Our sages, of blessed memory, said [at the end of the first chapter of Bava Metzia]: If one found three documents or more bundled together, or where one was bundled at the head of the other, he must announce, "I found documents," and whoever provides a siman for them, he shall return them to him. Our teachers disagreed regarding the explanation of the siman. Some say that he must say there were such-and-such number of documents and they were bundled [Rashi]. And some say it is sufficient that he provide a siman for the number of documents, and he does not need to say how they were bundled [Tur]. And the bundling is only so that he can provide a siman for the number, for if not so, perhaps they did not fall together and he despairs because he cannot provide a siman for the number [the Rosh]. And we are not particular about how the bundling was, only if it is impossible for them to be separated [Nimukei Yosef]. And likewise, if he provides a good siman for the bundling, in what manner they were bundled, it is also a siman. And some say that if the documents were of separate borrowers and lenders, one siman—either the number or the bundling—is effective. And likewise, even if all the documents were of one borrower and lender, and both came and one provides some siman and the second provides no siman at all, we give them to the one who provides the siman. But when both are not before us, and the documents are of one borrower and lender, and one of them comes and provides one siman, we do not give them to him until he provides all the simanim that are possible. And the reason is because we can suspect, when the lender says the siman, perhaps the borrower paid him and the lender gave them to him thus bundled, and therefore he knows the siman; and likewise when the borrower provides the siman, there is a concern that perhaps when he borrowed from him, he gave them to him thus bundled, and therefore he knows the siman even though it fell from the lender, and each one was not particular when he received it from his fellow to change the bundling. Therefore, we require of him all the simanim that are possible. And even though according to this concern there is no proof from all the simanim either, nevertheless, it is not in our power to do more than this [thus is the explanation of the Ramah in the Tur]. And from the Rambam at the end of Gezeilah, it is implied that one siman is sufficient. And the siman of number is only for three documents and not for two, for since the finder says "I found documents," they are not fewer than two. And it appears that even according to the opinions explained that require a siman of number and a siman of bundling, if there are only two documents, a siman of bundling is sufficient since there is no siman of number in this. And know that this which we wrote, that if he has no siman he despairs of the document, the intention is not that he despairs of the debt, but rather he despairs of the document, but he collects his debt [Netivot HaMishpat]. And the enactment for one who lost his document, how to collect his debt, we explained in siman 50; see there.

A lender and a borrower who come to beit din holding one shtar, the lender says "it is mine and I produced it to collect from you" and the borrower says "I paid it and it fell from me," if the shtar is not authenticated and he cannot authenticate it, the borrower swears a shevuat hesset and is exempt because he has a migo, as he could have said "it is forged." And so too if the shtar is only with the signature of the borrower, he is believed with an oath to say that it is paid, as will be explained in siman 69. But when the shtar is with witnesses and authenticated, or he can authenticate it, its law is like the law of "two who are holding a garment" which will be explained in siman 138, that this one swears that he has no less than half of these funds, and so too the second one swears, and they divide. And this means that the borrower pays him half of what the shtar is worth for sale, for not all shtarot are equal; for if the borrower is an upright man and of means, it is worth its entirety, and if he is violent or poor, it is worth less, and this matter depends on the knowledge of the beit din. And some say that this is specifically when both of them are holding equally in the tofes or in the toreph or in the margin of the shtar, and even if the toreph is closer to one more than the other, there is no concern in this. But if one is holding the toreph and one the tofes, the one holding the toreph takes the advantage of what the toreph is worth over the tofes, and the remainder they divide with an oath. And even though tofes and toreph are both essential in a shtar, nevertheless the toreph is worth more because of the date that is in it, for a shtar without a date is kosher, only one does not seize with it from purchasers, as written in siman 43 [Sma]. And there is no difference in this law between whether it contains a ne'emanut clause or does not contain one, for since there is a doubt that perhaps it fell from the borrower, what does the ne'emanut clause avail in it?

One who finds a deed of sale or a deed of gift: if it is explicitly stated in the deed that he transferred ownership to him immediately, even though it is known that the deed has not yet come into the hand of the buyer or the recipient of the gift, it is given to him. And even if the seller or the giver protests not to give it, we do not listen to him, for with a deed that contains a kinyan, he acquires it immediately even when the deed has not come into his hand. If it is not explicitly stated so in the deed, he shall not give it to this one or to that one. And not only when the seller or the giver protests and says that he has not yet delivered it into his hand, but even when he commands to give it to him, we do not give it. The reason is that we have already explained that regarding a deed that fell, we are concerned for every concern that could be; therefore, we are concerned that perhaps he has not yet given him the deed, and after the writing of this deed he sold or gave it to another, and now they have made a conspiracy between them to deliver the deed to this one, and when that other person comes with his deed, he will lose out because the date of this one is earlier. But when the buyer or the recipient of the gift brings proof through witnesses that the deed already reached his hand, we give it to him, for it is not similar to a deed of debt, as regarding sale and gift, repayment is not relevant. And likewise, if it is written in the deed "from today if I do not retract during all the days of my life," we also give it to him even without the knowledge of the seller or the giver, for he has no loss, since if he wishes, he may retract. And also there is no concern of conspiracy in this as was explained, for if he sold or gave it afterwards to another, the other will acquire it even though his date is later, since he retracted from this one. And there are some of our teachers who hold that "his witnesses through their signatures acquire for him," as I wrote in siman 39, section 22, and according to this view, it is possible to deliver the deed to the buyer or the recipient of the gift even in a deed that does not contain a kinyan. However, we have already explained there that we do not rule according to this opinion; see there.

In siman 250 it will be explained that regarding a matnat shekhiv mera, the giver can always retract it until he dies. Therefore, one who finds a deed of matnat shekhiv mera, if the giver is alive, it should be given to the recipient when the giver commands to give it, and we do not fear that perhaps he later gave it to another and now retracts it, for in truth he can retract it. And as for the concern that perhaps he later gave to the other a matnat bari which he cannot retract—for in truth if he did so, the other would merit his gift, as he retracted from this one by way of the gift he gave to the other. But if the giver died, even if his son says to give it to him, we do not give it, because we fear perhaps his father did not give this deed to this person, and the son sold or gave this field to another and now regrets it, and his desire is that the deed of matnat shekhiv mera be delivered to this person in order to expropriate what he himself did by way of his father's gift. And he must bring proof that during the father's lifetime the deed came into the hand of this person. And likewise, if it is not a matnat shekhiv mera but a matnat bari with an acquisition, we deliver it to him, for there is no longer a fear of collusion in this, as has been explained.

One who finds a bill of manumission, if the master does not admit that he already gave this document to the slave, he shall return it neither to this one nor to that one. And if the master admits, he shall return it to the slave. However, if the master sold the slave's property—for whatever a slave acquires, his master acquires—and the slave comes to seize it from purchasers who bought from the master after the time of his manumission, the slave must bring proof that the document reached his hand at the time written in the document. For if not so, we fear a conspiracy, perhaps the document reached his hand afterward, and at the time he sold or gave, he was still a slave and his sale is valid, and now they both, the master and the slave, made a conspiracy to deliver the document to him so that he may say he was already manumitted from the time of the writing of this document and that he sold or gave unlawfully. And in a case where "witnesses acquire for him through their signatures," such as where it is written in the document "from now," he does not need to bring proof. And there are those who disagree on this, as they hold that since we do not establish the law like the one who holds "witnesses acquire for him through their signatures," there is no difference between whether he wrote "from now" or did not write it [Shach]. And if it became known that the document reached his hand previously, even though it is not known if it was delivered to his hand on the day of its writing, they deliver it to him and he does not need to bring further proof [Taz]. And it requires further study for the law.

If one found documents in which there is no concern that perhaps they did not reach the hand of the document holder, such as an assessment letter where the beit din assessed the assets of the borrower for the lender, or a maintenance letter in which one accepted upon himself to maintain the son or daughter of his wife, or where the beit din sold land for the maintenance of a wife and daughters, or documents of foreclosure where the beit din foreclosed the assets of a borrower for a lender, or documents of arbitration where this one chooses for himself one as a judge and that one chooses for himself one, or documents of claims in beit din after which they can no longer retract, or documents of halitza and refusal, all of which are an act of beit din, and similarly all matters of an act of beit din, behold, he shall return them to their owners, for a beit din only writes a matter that is established [see in the Sma, subsection 37].

One who produced a shtar chov against his fellow and sued him in beit din that he should pay him, and his judgment was issued that he must pay, and afterwards the shtar was lost and the claimant cries out and pursues his loss that was lost from him, and in the meantime the defendant came and said "I paid, and whoever finds it shall return it to me for it fell from me," and there are assessments and proofs that he did not pay at all, but only because he heard that the shtar was lost did he put out this report—the beit din is obligated to write a ma'aseh beit din according to the law of one whose shtar was erased, as has been explained in siman 41, and to uphold the entire obligation of the shtar as at first. And they shall write that it is known to them that this person had a shtar chov against so-and-so for such-and-such an amount and such-and-such a time for payment, and the witnesses of the shtar were so-and-so and so-and-so, and it was lost from the hand of the claimant, and they shall compel the defendant to pay him. And likewise in all matters where the beit din has great and proven assessments that this is due to him, and the second party wishes to come with cunning to abrogate his debt, the beit din is obligated to break the fangs of the wicked and to rescue the oppressed from the hand of his oppressor. And as is written in siman 15, that even if his desire is to impose an oath upon him and the beit din understands that it is only because he knows that he will not swear, they do not impose an oath upon him; see there.

One who returns a document that according to the law should not have been returned, there is one who says that it is valid and we do not remove it from his hand and he may collect with it; for since it was not established as being invalid, but rather that the finder according to the law should not have returned it, if so, since he did return it and he is in possession of it, we do not have the power to invalidate it. And some say that since it was established in beit din or by witnesses that it fell, they may not collect with it. And some say further that even if they collected with it in beit din and afterwards it became known by witnesses that it had fallen, we remove from the creditor for the debtor what he took from him, for since it fell, the document’s strength was impaired. But if he paid the creditor or his heirs of his own accord, we do not remove it from their hand, for since he paid him of his own will, presumably he knew that it was not yet paid, but rather that now he wishes to bring a false accusation against him. And not only that, but even when at first he did not pay him because of claims that he had, but afterwards he paid him without the compulsion of beit din, the matter is evident that he is indebted to him, and we do not listen to him if he claims now that he is not indebted to him and that he paid him unlawfully.

One who finds a receipt in the marketplace: if the receipt is authenticated by a beit din, he shall return it to the borrower even if the lender does not admit that he was paid, for since it was authenticated in beit din, he certainly paid him prior to the authentication, as otherwise he would not have authenticated it. And if it is not authenticated and there is no ability to authenticate it, such as when there is no one who recognizes the signature of the witnesses, it is nothing, for even if it were in the hand of the borrower himself it is nothing [Shach]. And even if the lender admits that he was paid, he is not believed if the lender is indebted to others and has nothing from which to pay if the shtar is authenticated in beit din, for we fear a conspiracy where he desires to abrogate his debts; and he has no migo that he could have hidden the shtar or burned it, for since it was established in beit din, he does not have the ability to destroy it. And he also has no migo that he could have forgiven the borrower his debt, for since he is indebted to others he cannot forgive, and it will be explained in siman 86. And he also has no migo that he could write him a receipt now, for since the shtar was established in beit din and he is indebted to others, they will not let him do so [Derishah]. Furthermore, since the shtar is authenticated and the receipt cannot be authenticated, the shtar remains in its strength, and we extract from this borrower for the lender of his lender by the rule of Rabbi Nathan, that we extract from this one and give to that one, as is written there. And if it is not authenticated but there is the ability to authenticate it: if the lender admits that he was paid, he shall return it to the borrower even when the shtar is authenticated and the lender is indebted to others, and we do not fear a conspiracy, for since we have before us a valid receipt and the lender admits, we do not have the power to disqualify it due to a concern of conspiracy. Furthermore, the borrower has a good claim that it is impossible for the lender of the lender to extract from him by the rule of Rabbi Nathan, for he stands and cries out "I paid" and there is a valid receipt that can be authenticated, and how could we extract from him? Therefore, even if they do not return it to the borrower, he shall not pay the creditor of the lender. But if the lender does not admit that he was paid and says that he prepared it to give to the borrower when he would pay him and therefore had not yet authenticated it, he shall give it neither to this one nor to that one, and the shtar remains in its strength, and the lender may collect from the borrower, and likewise his lender collects from him by the rule of Rabbi Nathan; for since the lender does not admit, and the shtar is authenticated, and the receipt has not yet been authenticated and it fell, the receipt is weakened and the shtar remains in its strength, and presumably he would have guarded it if it were in his hand. Nevertheless, from the purchasers of the borrower he does not collect even if the borrower admits, for they can say "you made a conspiracy between you." And it is a simple matter that the borrower can administer an oath to the lender that he has not yet paid him [as mentioned regarding the laws of a receipt; and see Sma, Shach, Taz, Netivot HaMishpat, and Urim VeTumim, and most of them would agree to all that I have written].

A shover found in the possession of the lender: If the shover was written on the body of the shetar, whether on its front or its back, and even on the edge of the shetar, and it is written that this shetar is paid or partially paid, even though there are no witnesses to this and the lender is also not signed beneath it, nevertheless, one acts according to what is written in the shover; for if it were not paid, he would not have allowed it to be written on the body of the shetar. The lender is not believed to say that he has not yet received from the borrower what is written in the shover. And it appears to me that he is not even able to impose an oath upon the borrower. However, a shover written on a separate document and found with the lender, even if it is the handwriting of the borrower or of the lender, is nothing, for we say that the lender prepared it because perhaps he would pay him at a time when there would be no leisure for the writing of a shover. Therefore, even if witnesses are signed upon it and the lender himself is also signed upon it, it is nothing; for it is a great principle that a shover in the possession of the lender that is written on a separate paper has no substance when it has not yet been validated in beit din [it appears to me]. And if the borrower says "I paid," we do not pay heed to him. And if he claims "Swear to me that I did not pay you," he shall swear to him just as if there were no shover at all, as I wrote in siman 82, except that if the witnesses are before us, they shall be asked; perhaps they know that he paid. And so too, if the shover is validated by beit din, he certainly paid him, for it is not the way to validate it prior to payment, and he certainly paid him and they returned and deposited it in the hand of the lender. And it appears to me that the lender can adjure the borrower in such a case, since there is found in it a bit of a flaw in that it is not in the hand of the borrower. And so too, when the shetar chov is found among torn shetarot, even though it is not torn, nevertheless the shetar is flawed and we rely on the shover even though there are no witnesses signed on the shover and the lender is also not signed on it, since there are two flaws: that there is a shover and the shetar is placed among torn shetarot. And even if there is a trust clause in the shetar, nevertheless the lender can adjure the borrower that he paid him [it appears to me]. But a shetar upon which no shover was found, even though it is placed among torn shetarot, the shetar remains in its strength. And if the shetar is placed among paid shetarot, even though they are not torn, their law is like torn ones for all that has been explained. And there are those who say that a shetar in the borrower's handwriting, if a shover is found upon it with the lender, even though the shetar was not found among torn shetarot, it flaws the shetar [Shach]. However, according to what I wrote for the halacha in siman 69, that the borrower is believed to say "I paid" regarding a shetar in the borrower's handwriting, there is no practical difference in this law; for either way, if the borrower admits that he did not pay it, he shall pay it, and if he says that he paid it, he shall swear and be exempt. And a shover found in the ledger of the owner of the shetar among his account writings, and it is written there that the shetar of so-and-so is paid in its entirety or partially, one acts according to what is written there. And in all these matters, there is no difference whether the lender is alive or dead. And there are those who say that when it is found in his ledger that the shetar of so-and-so is paid, and the lender is alive and says that it is not paid, he is believed by a migo that he could have not shown his ledger. But it does not appear so according to the law, for this is like a migo in the place of witnesses, for we are witnesses that a person does not write in his ledger regarding a shetar that it is paid if the truth were not so. And I am even doubtful if he is able to impose an oath upon the borrower.

If the receipt is in the hand of a third party and he says it is paid, he is believed. And even if the beit din had previously seen it in his hand, such that he does not have a migo that he could have given it to the borrower, nevertheless he is believed, for a third party is believed even without a migo, as I wrote in siman 56. And specifically when the receipt is signed by witnesses and it was possible to verify the signatures, or it is signed with the handwriting of the lender. But if the receipt is not signed, or even if witnesses are signed on it but it is not possible to verify the signatures, it is nothing, for the receipt is no better when it is in the hand of a third party than when it is with the borrower himself. And if the contract is also in the hand of the third party, then he is believed in every matter. And if the third party died or does not know if it is paid or not, if the contract and the receipt are found in his possession, we presume it to be paid even when the receipt is not signed, for if it were not paid, he would not have kept the receipt in his hand and would have torn it; and it is not similar in this to the lender himself, where we would say that he prepared it for when he would be paid, for why would the third party be anxious about this and prepare a receipt? Therefore, they tear the contract. And if the contract is not with the third party, if the receipt is not signed, it is nothing and the name of a third party does not apply to him at all. And if witnesses are signed on it and it was verified in beit din, it is certainly a paid contract and they tear the contract. And if it is not verified and the witnesses are before us, they shall ask the mouths of the witnesses. And if they are not before us, or the lender is signed on it and the third party died or does not know, they shall return it neither to the borrower nor to the lender. And even if the borrower admits that he did not pay it, they do not collect with this contract from purchasers, for we fear a conspiracy, and also they do not tear it. But from the borrower himself, if he has from what to collect, they collect from him since he admitted. And if the lender admits that he paid it, he is believed and they tear the contract, even if the lender is indebted to others, for since there is a valid receipt before us and he admits, we do not have to fear a conspiracy, as I wrote in section 19. And in siman 56 we explained the law of a contradiction with the third party; see there.

A creditor who died and it was found written upon one of his notes that "this note is paid in its entirety" or "in part," we act according to what is written. We do not claim on behalf of the orphans that perhaps the creditor prepared it for when he would be paid, for since it was written upon the body of the note, it is certainly paid. And so too when it is found in his ledger that it is paid. However, a separate shover that is found, even if it is signed by witnesses or with the signature of the creditor, is nothing, unless it was authenticated in beit din, as I wrote in section 21 regarding the creditor himself, for there is no difference in this matter between him and his heirs.

Even though we have explained that when the shover is on the body of the shetar we act according to what is written in the shover, nevertheless, if there was found written in one's shetar that half of this shetar belongs to so-and-so, that so-and-so does not have the power to take a portion in this shetar because of this writing. For just as if he had said orally that such-and-such is owed by me to so-and-so, if he did not say "you are my witnesses" it is nothing, as a person is prone to not making himself appear wealthy, as written in siman 81; so too regarding his writing on the shetar we say this when there are no witnesses signed on this. And when this so-and-so comes to claim a portion in this shetar, his claim is like other oral claims. And it is not necessary to say that if he is alive and says his intention was not to make himself appear wealthy that he is believed, but even when he dies we claim this on behalf of his heirs. And it is not similar to a shover which is against the borrower himself, where certainly he would not weaken his shetar, whereas against another he was not concerned about this. And if it was found on a separate paper in his possession that so-and-so has a portion in such-and-such shetar, some say that this person has a portion in it, for in such a case it is not relevant to say he wrote this so as not to make himself appear wealthy since it is not written on the shetar itself [Shach siman 81 subsection 45], and it will be explained there with the help of Heaven. And all the more so if it was found in his ledger that so-and-so has a portion in such-and-such shetar, that we act accordingly [it appears to me].

One who says to his son at the time of his death, "One document among my documents is paid, for the borrower trusted me and left his document with me, and I do not wish to be punished by taking unlawfully" [Rashbam], and he did not specify to him which document is the paid one, or if he said himself, "I do not know which one is the paid one," all the documents of the borrowers found in the possession of the son that remained from his father—he is unable to collect them, for each one can say, "Your father was paid by me." And he only collects from those who admit that they did not pay, though he can impose a severe oath on all the borrowers, that each one shall swear that his father was paid by him [it appears to me]. And if two documents are found for one borrower in his possession, we hold the larger one to be the paid one and not the smaller one, for since there is a doubt and the son comes to extract money, his hand is at the bottom. But when the lender remains alive and says that he remembers that such-and-such document is the paid one, he is believed and collects all the other documents. And so too when a shover is found for one of the documents, whether the shover is found in his possession, or found in the hand of a third party, or in the hand of a borrower, the son collects all the other documents, for certainly this is the paid one. And we do not scrutinize the shover as to whether witnesses are signed upon it or not, and even if the lender is also not signed upon it, for it is only as proof for his statement. However, when it is in the hand of the borrower, it must be at least the handwriting of the lender or his signature, for if not so, there is no substance to it [it appears to me]. And so too when he said to his son, "I waive one document for one of the borrowers," and he did not specify for whom, the son is unable to collect from all the borrowers unless it appears to the beit din according to the matters of this deceased that he waived for such-and-such person, then he collects from the others. And if two documents are found for one borrower, the smaller one is waived and not the larger one; and it is not similar to one who says "paid," for since the debt is due to him but this borrower comes with the power of the waiver, his hand is at the bottom, unless the borrower shows with correct proofs that his intention was for the larger document.

One who says to his fellow, "A shtar of yours in my possession is paid," and he said this by way of a complete admission and not merely in casual conversation, and he held two shtarot against him—the large one is considered paid and the small one is not paid, for the hand of the holder of the document is at a disadvantage. And if he says that his intention was for the small one, and the borrower says that the large one is paid, the borrower shall swear a shevuat hesat when the lender says to him, "Swear to me" [it appears to me]. And if he said to him, "Your debt that is in my possession is paid," all shtarot that he holds against him we presume to be paid, unless the lender clarifies that his intention was for a specific debt; and if it appears to the beit din that there is substance to his words, he is believed. And so too regarding a shtar, when he clarifies with righteous proofs that his intention was for the small shtar; and so too if the heirs clarify, the law is thus [it appears to me].