Siman 66

Our Rabbis, of blessed memory, said that documents are only acquired through writing and delivery [Bava Batra 76a according to the Sages, and on page 77a the version is "documents are not etc." as written in Tosafot there, and so wrote the Rif and most Rishonim]. The explanation of the matter: Reuven, who holds a document against Shimon—whether it is a loan document, a bill of sale, or a deed of gift—and the document is written in the name of Reuven, and he wishes to sell it to Levi, no act of acquisition effects the transfer of the document to Levi unless he writes to him, either on this document or on a separate paper: "I, Reuven, transfer the document that I have against Shimon to Levi, and I transfer to him the document and all its liens," and he must also deliver Shimon's document to Levi. The reason for the matter is that since the document itself is not money, but merely letters, no act of acquisition takes effect upon it, for an act of acquisition only applies to something whose essence is money. Delivery of the document alone is also ineffective since it was written in the name of Reuven, and writing another document alone is also ineffective since the document he has from Shimon remains in his hand; therefore, he requires writing and delivery. And so our Rabbis, of blessed memory, said [ibid.]: One who sells a document to his fellow must write to him, "Acquire it and all the liens within it." If he did not write thus, he has not acquired the loan, the purchase, or the gift in the document. Even the paper he does not acquire to use as a cover for his flask; rather, it is a mistaken transaction, and he returns the paper and [the seller] must return the money to him. For since the intent of the buyer was to acquire the debt and the lien, and this he did not acquire, therefore even the paper he did not acquire, as his mind was not set on the paper alone. However, the buyer may seize the document as collateral until [the seller] returns his money. Likewise, if the seller does not have the means to pay the buyer, we collect from the borrower and give to the buyer based on the law of Rabbi Nathan, as has been explained in siman 86. Know that this which we said, that a bill of sale or a deed of gift is acquired through writing and delivery, this is specifically when the bill of sale or gift was a document of acquisition through which he acquired [the property] with this document. But if the acquisition was through another means, such as with money or through chazakah, and the document was written merely for evidence, such a document is not acquired at all by another. Therefore, if he wishes to sell or give it, Reuven must write another document in his name stating that he sells or gives to Levi his field that he bought from Shimon, but Shimon's document is of no use at all since it is merely for evidence. Do not find this difficult: according to this, how can one sell a loan document, for is it not a document of acquisition? And one cannot say that the borrower's properties became liened through this document and thus it is like a document of acquisition, for we maintain in siman 39 that the lien is from the Torah even without a document. However, the truth is that since the Sages enacted that through an oral [loan] his properties are not liened to collect from purchasers, but only through a document, if so, it is a document of acquisition regarding the liened properties [and see Ketzot HaChoshen].

There is one who says that the delivery of the document must be prior to the writing, such that first he delivers Shimon's document to him and afterwards he writes him another document through which he acquires Shimon's document and all its liens. The reason is because through the other document in which he writes the lien, he does not acquire the body of the first document; and even though he writes to him "acquire it," meaning the document, nevertheless, since the document is movable property, it is not acquired through a document, for one does not write a document for movable property [Bava Kamma 79a]. Perforce, he must acquire it through lifting it into his hand. Since he did not acquire it through the writing of the other document, if so, when he delivers it to him afterwards, through what would he acquire the lien in the first document? It turns out that he acquired only the body of the paper and not the lien within it, and it is like writing without delivery. But when he delivers the document to him beforehand, when he writes him the second document afterwards, he acquires the lien in the first document since it is in his hand. However, all this is only when he writes him another document on its own; but if he writes the other document upon the first document, this law does not apply, for after its writing upon the first document, "acquire it and all its liens," when he delivers it to him, he acquires as one the document with the lien. Therefore, if the first document is not present with him, even though he transferred it to him through a kinyan chalifin, it is not considered like delivery, for chalifin is not considered like delivery. Thus wrote our teachers, the authors of the Shulchan Aruch. And it appears to my humble opinion that their intention is not that a document is not acquired through chalifin, for if so, they should have said so; and what kind of phrasing is "it is not considered like delivery"? Furthermore, our teacher, the Rema, explicitly wrote in section 1 that a document in which the name of the lender is written "and to anyone who produces it" is acquired through chalifin. Rather, the essence of the matter is this: certainly every document is like all movable property which is acquired through chalifin; however, this document which was written in another's name, and the essence of the document is the lien on the property of the borrower, the lender has only a lien but they are not his such that he could sell them. And how can he subject them to a lien through a kinyan chalifin—a thing that is not his? For behold, he cannot transfer them nor consecrate them [Nimukei Yosef in the name of the Ri]. It turns out that through a kinyan chalifin he can transfer to him only the paper and not the lien. But when it is written in the document also "to anyone who produces it," he correctly ruled that it is acquired through chalifin, for behold, the borrower himself is as if he subjected himself to this person, and the borrower has the power to subject them to a lien, for behold, his property is his. Similarly, a document of sale or gift is acquired through chalifin, for behold, it belongs to the seller entirely. This is also the opinion of the Ramban in the Tur, section 4, for so it is implied by his wording. But it is not that the document is not acquired through chalifin. And such is the intention of Rav Yehudai Gaon who wrote that "letters" are not acquired through chalifin, which was cited in Tosafot [ibid. 77a], for ordinary "letters" refers to a promissory note written in another's name, as the Rashbam wrote there. And there are some of our teachers, the later authorities, who wrote that documents are not acquired through chalifin [Shach, subsection 10, and the Gra]. And in my humble opinion, it appears as I have written. And that which our teacher, the Rema, wrote in siman 203, that documents are not acquired through chalifin, that refers to loan documents written in another's name, and therefore he commanded to see this siman; see there. And there is one who says that a document written only in the name of the lender [or in the name of the buyer or in the name of the recipient of a gift], whose mode of acquisition changed from all other movable property in that it requires writing and delivery, is not acquired through chalifin; but in a document written "and to anyone who produces it," which does not require writing and delivery, it is acquired also through chalifin like all movable property [Urim VeTumim and Netivot HaMishpat]. And I do not know what one matter has to do with the other. According to what I have written, this law applies only to a loan document written in the name of the lender, because he has only a mere lien on the property of the borrower and he does not have the power to sell them or consecrate them, and therefore it is not in his power to transfer them through chalifin. But in documents of sale and gift, he can transfer them through chalifin [and so it is implied from the wording of Rav Hai Gaon in the Book of Purchase and Sale which was cited in the Shach there, and from the wording of the Mordechai, chapter 9 of Bava Kamma, see there, and from the Nimukei Yosef in the name of our teacher Yonah, chapter 5 of Bava Batra, which we cited].

In a case where the buyer did not acquire it because there was no writing, and the buyer claims that the seller should write for him while the seller retracts the sale, he may retract. Even "Mi ShePara" he does not receive; for although regarding all movables, when one receives money he is obligated to receive "Mi ShePara" when he retracts, as written in siman 198, this is because by Torah law money acquires all movables. However, regarding the sale of shtarot, where some say that by Torah law they have no acquisition at all, and even according to the one who holds they have acquisition by Torah law, that is specifically with writing and delivery, he is not subject to "Mi ShePara" but is only included among those who lack trustworthiness [Sma], and a person of soul should be concerned for this. Nevertheless, if the seller accepted responsibility upon his properties in the event that he retracts, or if the borrower will not agree to give to him because he will claim "you are not my litigant," that he shall pay him the full value of the shtar and he liened his properties for this, the seller is obligated to pay according to the value of the shtar, even more than what the buyer gave him. But if the seller accepted responsibility that even if the borrower becomes poor and has nothing with which to pay, he will pay, this is absolute ribbit, and it is forbidden for him to receive more than what he paid [Netivot HaMishpat]; for since the borrower has nothing with which to pay, it turns out that when the seller pays him more than what he paid, he is paying him for the money that was with him, and this is absolute ribbit. And in a place where the buyer did not acquire according to the law, his money that he gave to the seller is considered a loan with him, and the seller is liable for its responsibility [Shach], and he is liable even for the responsibility of accidents.

Even if he delivered the first deed into his hand and witnesses performed a kinyan from his hand that he sold him all the lien within it, and the witnesses wrote this kinyan in a deed and delivered it to the buyer, it is nothing, for this writing is merely for evidence. Rather, he must write him a deed of sale and write in the deed, "acquire it and all its liens," as has been written. Without a deed of sale, he has not acquired it. He must also deliver this deed into his hand, for since it is a deed of kinyan, he does not acquire it until it comes into his hand. He may deliver it to him even without witnesses. The deed must be signed by either himself or witnesses. When witnesses are signed on it, they must write: We, the undersigned witnesses, testify that so-and-so commanded us to write a deed of sale for a deed that he possesses from so-and-so, and he told us to write in his name, "acquire it and all its liens."

And all this applies to a document in which the name of the lender is written, but a document in which it is written "to any bearer," there is no need for writing, only the delivery of the document, as I wrote in siman 50. And even a document in which the name of the lender is written, if it is written therein "and to anyone who produces it," it is also acquired through delivery without writing. And there is one who disagrees on this and holds that since the name of the lender is written therein, it requires writing and delivery [Shach]. And the primary view is like the first opinion [Urim VeTummim], except regarding the matter of forgiveness of the debt which will be explained—that the seller can forgive this debt—in this regard its law is like a document in which only the name of the lender alone is written [Netivot HaMishpat]. And see in section 2.

At the end of siman 60 it was explained that when the lender writes his deed in the name of another and the deed is in his hand, the borrower must pay the lender. Therefore, even if the lender sold this deed to that other person, it requires writing and delivery just as if it had been written in the name of the lender. However, if the lender said from the outset to write the deed in the name of the other and also to give him the deed, the deed belongs to him and does not require writing and delivery; on the contrary, the lender is considered like any other person.

That which we have said, that in the sale of shtarot one requires writing and delivery, one must know that the delivery is that he delivers it to him from hand to hand, and the buyer must lift the shtar like all movable property; for a thing whose manner is to be lifted is acquired through lifting three tefachim or one tefach, according to the opinions that will be explained in siman 198. And that whose manner is through pulling is acquired through pulling, as I have written there. Therefore, if there were many shtarot whose manner is not to lift them because of the greatness of the burden, one requires pulling into his domain. And even though the acquisition of this shtar is pulling or lifting, nevertheless the sages, of blessed memory, called it delivery because we require "from hand to hand." And even though it is not specifically from hand to hand, and the essential point is that he must lift or pull by the command of the seller, nevertheless they called it delivery, for this is literally the language of delivery—that it requires another's mind to command him to lift or to pull, and it is like a delivery from hand to hand since he acts according to his command. Therefore, one who acquires a shtar of ownerless property, such as where the lender made his shtar ownerless, is unable to acquire this shtar, since there is no other mind, and also writing cannot exist upon a shtar that has no owner.

There is no distinction regarding a document between witnesses being signed upon it and the borrower alone having written and signed it, for in all of them there is a requirement for writing and delivery. Similarly, there is no distinction regarding which script or language the document was written in. Also, a document made in secular courts, if it was written in a manner that is valid according to our laws, is acquired through writing and delivery; but if according to our laws it was not written according to the law, it is only like a verbal loan. Similarly, the document that one must write for the sale of a document may be written in any script or language he desires, provided that he writes in it the language sufficient to acquire the body of the paper and the lien, and behold they are like documents written in our script and language. Similarly, one who has a contract from some lord of estates regarding the rental of an arenda, or a loan business, or a sale, or some lease, in a manner that the obligation is upon the lord to fulfill all that is written there according to the laws of the state, it is acquired through writing and delivery. This is specifically when there is no contradiction in the formula to Jewish law, for we require that it be valid also according to our laws, and see in section 33. But if there is no obligation upon the lord to fulfill—for example, if he did him a favor and gave him permission to collect the income of a certain village and the like, in a manner that if the lord wished to retract he could retract—such a document is not acquired even through writing and delivery. And more than this, even partners to whom the lord gave written permission to collect some income, and the document is in the hand of one of them and he claims that his fellow waived his portion to him, his claim is not a claim at all, for such a document is not acquired at all since there is no obligation in it, and consequently even a waiver is not effective. However, if one of them already collected and says that the second waived to him, his claim is a claim, for regarding money a waiver is effective; and this is specifically when he says that he waived to him after he collected, but prior to this, waiver is not effective in such a document. And if the partner denies him, saying that he did not waive to him, he takes an oath and is exempt. And in a document where there is an obligation upon the lord to fulfill and it is in the hand of one of the partners, and he claims that his fellow waived his portion to him, his claim is a claim, for in such a document it is effective for the one who does not have the document in his hand to waive to the one who has the document in his hand, but the reverse is not effective. [It appears to me that in the Shulchan Aruch section 4 there is a scribal error where it is written that such a document is not acquired "except" through writing and delivery, and it should say "even" through writing and delivery].

Government notes that circulate in the country like silver and gold coins have every law of a coin; they are acquired through mesirah alone and are not acquired through chalifin, according to the law of a coin, as will be explained in siman 203. However, government notes that do not circulate in the country like coins—for example, one who deposits money with the government and they give him a note stating that he deposited such and such amount of money and they give him a known annual profit, which is called a "Lombard"—if this note is written in his name and he sells it to another, it requires ketivah and mesirah like all notes. But if it is written to "any bearer," it is acquired through mesirah alone, and similarly it is acquired through chalifin according to the law of all movable property. It has been explained from this that the "Vygresne Bilyetin" in our country, and similarly the "Vykupnye Bilyetin," are acquired through mesirah or through chalifin. Regarding the "Series" in our country, they are certainly acquired through mesirah, but regarding chalifin there is a doubt whether they are like a coin that circulates in the country or not; for their movement in the market is not like coins, yet the large shopkeepers accept them like a coin. Similarly, there is a doubt regarding "Coupons," and it appears more likely that their law is like a coin. All types of notes from companies have the law of notes and not like a coin. Regarding insurance notes for fire and water called "Strakhovki," in which it is written that if the house burns or the merchandise sinks in the water the company will pay him such and such, and similarly lottery tickets called "Lottery Tzetlen," it appears to me that they are not in the category of sale at all, for it is a thing that has not yet come into the world and it is a doubt if it will ever come into the world. Therefore, they are not acquired through a kinyan of chalifin. Only regarding lottery tickets, when he delivers this note to him by way of sale or gift, he acquires the paper like all movable property, and automatically when there is any win on this number he will collect it, since the note is in his hand; for such is the law of the state, that whoever has the number in his hand collects with it. But with a kinyan of chalifin, where the primary transfer is for the win, there is no substance to his kinyan, for to transfer the paper to him through chalifin is not applicable since the paper is not worth a perutah. However, regarding the notes of the owners of insurance for fire and water, since the name of the owners is written upon it, no kinyan is effective. Nevertheless, if he sells his house and his merchandise to another along with the insurance note that exists on this house or this merchandise, it appears that he has acquired it. This is not similar to a slave whose master sold him for the fine, where it is a legal doubt whether he acquired the fine or not, as the Rambam wrote in chapter 23 of Hilkhot Mekhirah; for there he did not sell the slave except for the fine, but here he sold his house and his merchandise with the lien that is upon them. From what will be explained at the end of siman 241, it is proven that he can sell the house with the lien. Thus it appears to me.

A mortgage deed where the borrower mortgaged land to the lender and he consumes the produce with a deduction, as is explained in Yoreh Deah siman 172—some say that even though it is superior to another deed which only has a lien on the properties, whereas in a mortgage he is the possessor of the land, nevertheless, since the borrower can remove him with money, it is like all deeds of loan and requires writing and delivery. And some say that it is certain that delivery without writing is not effective, for with what did he acquire the lien within it since the deed is not in his name? But writing without delivery is effective, since the seller is the possessor of the land and wrote to him, "Acquire for yourself my liens that are in my hand," it is not similar to another lien that he has on land in the possession of his fellow by means of a deed; therefore, even though he did not deliver the mortgage deed to him, he has acquired it, and specifically when it is possessed in his hand. But if the mortgaged land is in the hand of the borrower, it is like any other loan and requires writing and delivery. And a mortgage of movables that is in the hand of the lender, and he has a deed against the borrower, requires neither writing nor delivery of the deed; rather, once he sold him the debt and delivered the mortgage to him, he acquired the debt through the delivery of the mortgage like all movables that are acquired through pulling. And regarding a mortgage of land, the primary ruling is according to the second opinion [Netivot HaMishpat], that writing without delivery is effective, and this is the opinion of the Geonim as is explained in the Tur and Shulchan Aruch section 8. And from this we have learned that regarding the fact that a deed of sale or gift is only acquired through writing and delivery, as I wrote in section 1, that is to say that delivery without writing does not acquire, but writing without delivery—where he writes to him, "Acquire for yourself this land for which I have a deed of sale from so-and-so"—he has acquired it, for this is a complete deed of sale and he does not need to deliver to him the deed of the seller who sold it to him. And that which the poskim wrote, that a deed of sale is also acquired through writing and delivery, this is when his desire is to sell it to him by means of the deed he has from his seller, to deliver the deed to him; in this, it is not effective until he also writes to him on this deed or in a separate deed, "Acquire for yourself," etc. [and see in Shulchan Aruch section 8 and section 14, and study it well]. And an iska deed, which is half loan and half deposit, one cannot transfer through writing and delivery except for the loan portion and not the deposit [Maharit], for in a deed of deposit there is neither a lien nor an acquisition and it is only for mere evidence, and with what can he acquire the deed? And this is like a deed of sale which is only for evidence, as was explained in section 1, and it is not possible to transfer it in its entirety except by means of land [Netivot HaMishpat], for he transfers the money of the loan and the deposit, and then he also cannot forgive the debt [ibid.].

In siman 202 it will be explained that movable property is acquired by means of land; therefore, one who transfers any amount of land to his fellow and transfers to him upon it a promissory note, he has acquired the note wherever it may be without writing and delivery, provided that he says to him orally: "Acquire it and all the lien it contains." And some say that notes are not acquired by means of land, and our teacher, the Rema, decided in accordance with the first opinion. And some say that the acquisition by means of land is only in the place of the delivery of the note, but the writing of a document stating "acquire it and all its lien" is required [Shach], and so it stands to reason. And this fact that a note is acquired by means of land applies specifically to a note that has already been written; but a note that has not yet been written, even though the note is an act of the beit din which the beit din must write and it stands to be written, nevertheless, since it has not yet been written, it is no better than other movable property which is not acquired when it has not yet come into the world.

One who gives or sells his properties to another and transfers to him all his movables agav karka, and he also had documents, even though they are included in the category of properties, nevertheless he has not acquired them unless he said to him, "acquire for yourself," etc. And according to the "some say" in section 11, if he did not write to him, "acquire for yourself," etc. And all this is when he transferred the movables to him using the language of "movable properties," but if he transferred to him only using the language of "movables" alone, he has not acquired the documents at all, for documents are not included in the category of movables, only in the category of properties [Netivot HaMishpat].

Since a document is only acquired through writing and delivery and not through delivery alone, therefore, one who gives land as a gift to his fellow by means of a gift document and [the recipient] returned the document to the giver, his gift has not returned to him until he writes to him, "acquire it and [all its rights]," etc. And so too in a sale the law is such. And so too, Reuven who has documents deposited from Shimon, and Shimon gave them to him as a gift, Reuven has not acquired them until Shimon writes to him, "acquire it," etc. And all the more so that the language of "waiving" is not effective, for regarding any physical object the language of waiving is not effective, as will be explained in siman 241.

A woman who brought documents to her husband, whether she brought them to him as tzon barzel or as nikhsei melog, does not require writing and delivery, for the hand of the husband is as the hand of the wife. Therefore, she also cannot forgive the debt, and the husband collects the debts. If the borrower claims "I have paid" and there is no clause of trustworthiness in the document, she must swear. If she does not wish to swear, some say the borrower does not need to pay him [Chelkat Mechokek and Beit Shmuel siman 91]. And some say he does not have the power to cause a loss to the husband by withholding her oath, and he must pay the husband [Netivot HaMishpat], and so it should be ruled. However, if the beit din understands according to the matter that there is something to it, and the borrower claims the truth but it is impossible to clarify, one does not need to compel the borrower to pay without his wife's oath, for it is likely that there is a conspiracy between the husband and his wife that she should not swear and he will take from the lender unlawfully [it appears to me].

Our sages, of blessed memory, said: One who sells a promissory note to his fellow and then went back and forgave it, it is forgiven. Even though he transferred it via writing and delivery or by means of land, nevertheless the lender can forgive the borrower. And even when the lender dies, his heir can forgive it. The lender or the heir must pay the buyer, as will be explained. This applies even if there is a reliability clause in the deed, and even if it is within its time, and even if the lender stipulated with the buyer that he would not forgive it; nevertheless, if he forgave it, it is forgiven, for the lender cannot stipulate a condition that would cancel the right of the borrower [Netivot HaMishpat]. And even if he wrote to him initially that he disqualifies any witnesses who would testify to the forgiveness, it is nothing [Beit Yosef], for he is not believed to disqualify witnesses in a matter involving the right of another [it appears to me]. The reason for this is that the sale of deeds is not like all other sales, for there are those of our teachers who hold that by Torah law it is not possible to sell them at all, since they are not themselves money, and the sale is only by rabbinic law. And even according to our teachers who hold that their sale is by Torah law, there is a correct reason for this: for every lender has two liens upon the borrower. The first, which is the primary one, is the lien of the person, for since he borrowed from him, his person became enslaved to repay him. The second is the lien on his properties, which are guarantors for his person, as Chazal said: a person's properties are guarantors for him. Now, when the lender sells his deed to another, he does not sell the lien of the borrower's person, for the person is not subject to sale; he sells only the lien on his properties, but the lien of his person remains with him. When he forgives the borrower the lien of his person, the lien on the properties is automatically released, for the properties are guarantors for him, and when he is exempt from the debt, the guarantor is automatically exempt as well. And even when he removed himself from that debt and emptied all his power in the deed to the buyer—writing in the deed of sale that he is completely removed from this debt—nevertheless, if he forgave it, it is forgiven because of this reason, that the lien of the person remains with him. And just as he can forgive, so too can he produce a receipt for the borrower, which is an admission that he was paid. Likewise, it is within his power to extend the time of payment for him, and he pays the buyer according to how they assess the damage in this.

And so some say that if the borrower wrote to the lender in the document, "I am indebted to you and to all who come by your power," and he sold it, he can no longer remit the debt, for even the personal obligation is to the buyer, as the borrower himself obligated himself so at the time of the loan. And specifically if he sold it to one who was born at the time of the loan, for to one who was not born at the time of the act, the lien does not take effect, as it does not take effect for one who has not come into the world. And so even in such a case where he existed at the time of the loan, we require writing and delivery, for we require that he come by his power, and he must write to him, "Acquire for yourself," etc. [Shach]. And there are those who disagree on this, for even in all these cases he can remit the debt, since the buyer comes by his power, and when he remits the debt, his power and the power of the buyer are removed. And regarding a document "to any bearer," when he sold it, he certainly cannot remit the debt, since anyone who produces it collects with it.

And what remedy should the buyer perform so that the seller will not have the ability to forgive the debt? He should appease the debtor to write him a document in his name. However, he should not exchange the document, for if so, he will lose the lien from the time of the first document until now, as it is currently impossible to write a document with an earlier date. Rather, he should write him an additional document stating that if the lender forgives him, he will pay him. In any case, if he does not forgive him, he will produce this document, and if he does forgive, then he will necessarily produce this document and collect from the second date [Netivot HaMishpat]. Or, the debtor shall admit before witnesses with a complete admission that he is establishing it against himself as a loan to the buyer, for then the lender is removed from everything entirely, even from the personal lien.

When the creditor forgives the debt to the borrower, the borrower does not have the power to compel the purchaser to return his shtar to him [Sma], and some say he can compel him [Shach], and it is a legal doubt, and the burden of proof is on the claimant, and he cannot compel him to return the shtar to him [ibid.]; and if he seized the shtar, it is not removed from him. And the first opinion is the view of the Rashba, of blessed memory. And in the Tur, Even HaEzer siman 28, where he ruled regarding kiddushin in such a case that if the paper is worth a perutah she is betrothed, it also implies that he holds according to this opinion. And in the Shulchan Aruch there, section 13, where he ruled that it is a doubtful betrothal, this is because her intent is not for the paper alone [see there in the Be'er Heitev subsection 37]. And there is one who says that even according to this opinion, if he wishes to pay him for the value of the paper, he must return it to him [Netivot HaMishpat], but it does not seem so to me, for from Rashi, Ketubot 86a, s.v. "magbi," it does not imply so, see there. And there is one who says that when the purchaser bought it for less than the debt written in the shtar, the borrower can say, "I will purchase it at this price" [Mabit], but the great later authorities disagreed with him; and it is not only necessary to say this if the borrower was poor at the time of the purchase and became wealthy afterwards, but even if he remains in the same status, he also cannot say so [Urim VeTummim].

This fact that one who sells a promissory note can remit the debt applies when the seller was not indebted to the buyer prior to the sale, or even if he was indebted, provided he has the means to pay. However, if he was indebted to him and has no means to pay, he cannot remit the debt, for even without the sale, it is encumbered to him by the rule of Rabbi Nathan, as written in siman 86, and it is not in his power to remit it. But if he was not indebted to him previously, even though he is now indebted to him for what he received from him in the sale of this note and he has no means to pay, he can nevertheless remit it [Shach], for the encumbrance of Rabbi Nathan does not apply to this. For when the debtor was encumbered to the lender, the lender was not then indebted to the buyer; and now that the lender is indebted to the buyer, the debtor is not encumbered to the lender such that we could say "take from this one and give to that one." And even though the personal encumbrance of the debtor remains with the lender—which is the reason he can remit the debt, as I have written—nevertheless, this is nothing, for regarding a personal encumbrance it is not applicable to say "take from this one and give to that one." However, certainly when the seller has no means to pay, we do not take the note away from the buyer, for this is no worse than what was explained in section 1. And even though we wrote there that when there was only delivery, we take it from the debtor for the buyer by the rule of Rabbi Nathan, that is because since the buyer did not acquire it and the encumbrance of his assets remained with the lender, the encumbrance of Rabbi Nathan properly applies to it, which is not the case here, as I have written [see Sma, subsection 65]. And we have already written in section 14 that a woman who brings a promissory note to her husband cannot remit the debt, for his hand is as her hand; and even a loan by word of mouth she cannot remit, and even with nichsei melog, and even without writing and delivery, for a woman has no acquisition without her husband.

We have already explained in section 11 that documents are acquired by means of land, and this is when he transferred the document to him. But if he transferred the debt itself to him by means of land, there is no acquisition at all, for the debt is not a physical entity that can be acquired for him. Specifically, money of a deposit can be transferred by means of land because it is a physical entity, but not money of a loan. Therefore, when he transfers the document to him, which exists in the world, the debt in the document is automatically acquired for him. And some say that the debt is also acquired by means of land. And some say further that, on the contrary, this acquisition is superior to writing and delivery, for he cannot forgive the debt. However, the primary ruling follows the first opinion; and see in siman 83.

In siman 126 it will be explained that the sages, of blessed memory, instituted the acquisition of ma'amad sheloshtan, and it is acquired through mere speech, whether regarding a deposit or a debt. Since the three of them—the borrower, the lender, and the recipient—stand together, and the lender says to the borrower, "The debt that I have in your hand, give it to him," he has acquired it, and none of them can retract. There the reason for this institution will be explained. And just as writing and delivery is effective for documents, so too ma'amad sheloshtan is effective; and on the contrary, it is more powerful than writing and delivery, for when it is given via ma'amad sheloshtan, he can no longer forgive the debt to the borrower. The reason is that since it was an institution of the sages to acquire through mere speech, they strengthened the institution as if the borrower established it for the buyer as a loan, such that the borrower is removed from the lender even regarding the personal obligation. It is considered for the buyer like a loan with a document, for in this it is not relevant to distinguish between the lien on property and the personal obligation as in section 15, for by law even a lien on property cannot be acquired through mere speech, but rather one acquires according to the institution of the sages; and just as they instituted for this, so they instituted for that [see Shach and Urim VeTumim]. And in section 34 more will be explained regarding this.

One who sells a promissory note to his fellow and has a mashkon in his hand and delivered it into the hand of the purchaser, he can no longer forgo the debt to the borrower for that which corresponds to the mashkon. The same law applies if it was a mashkon of land and the purchaser took possession of it, he can no longer forgo the debt. And even though there is one who disagrees on this, nevertheless, the primary law is that he cannot forgo the debt when the purchaser is in possession of the land [see Netivot HaMishpat subsection 71].

All the laws that were explained regarding one who sells a promissory note to his fellow also apply to one who gives the promissory note as a gift. And regarding all the laws that were explained concerning forgiveness of the debt, there is no difference whether he forgives all of it or part of it, whether in a sale or in a gift. Except, if the lender gave the promissory note as a gift of a person facing death to another and died, the heir can no longer forgive the debt. And this is by an enactment of the sages, so that the mind of the sick person should not be disturbed if he were to know that his heir has the power to nullify his words. However, the person facing death himself can retract his words, as was written in siman 250 regarding all gifts of a person facing death.

And that which has been explained, that even the heir can forgo the debt to the borrower, nevertheless, he cannot forgo it to himself. How so? Reuven lent to his son with a document and sold it to Shimon, and Reuven died; the son may not say, "Since I am the heir, I shall forgo the debt to myself, and I am not even obligated to pay the buyer like any other who forgoes a debt," as will be explained that any other who forgoes a debt is liable by the law of garmi, for he is considered like one who causes damage. But I, my intention is not to damage, but rather to exempt myself. For on the contrary, even according to that opinion that will be explained, that one does not need to pay the entire debt in the case of other forgoers, he himself, when he forgoes to himself, must pay the entire debt in full, for there is no logic at all that he should forgo to himself and thereby cause a loss to the buyer. And some say that he can forgo to himself and does not need to pay the buyer at all, since his intention is not to damage. And some say that his law is equal to any other forgoer, and so appears to be the primary view [and according to this opinion, the proof of the author of the Terumot from Ketubot 81a is removed; and see there in Tosafot, starting with the words "Lo," and study it well].

In section 6 it was explained that when the lender writes his document in the name of another, nevertheless the lender is the owner of the document. Therefore, also regarding the matter of mechila, the other person cannot grant mechila, and it is the lender who can grant mechila since the money is his. And even if he did not explicitly grant him mechila for this document, but rather granted him mechila for everything in his possession, or all the debts he has against him, or in another phrasing that includes the mechila of all the money, this document is also included in the mechila even though it is written in the name of another. And at the end of siman 60 this was further explained; see there.

One who purchases a promissory note and then sells it back to the creditor cannot forgive the debt, for the personal lien remained from before with the creditor, and he only sold him the lien on properties; and now, when he sold it back to the creditor, no lien remains for the purchaser. Therefore, even if the purchaser sold it to another, the first purchaser cannot forgive the debt to the debtor. And even if it was sold several times from hand to hand, the creditor can forgive the debt and not any of the buyers, and the creditor must pay when he forgave the debt to the one whom he caused a loss, as will be explained. According to this, a purchaser who then sold it back to the creditor does not require a writing but only the delivery of the note alone, since the personal lien of the debtor remained with him, and since the note was written in his name, nothing more is required [Shach].

When the seller or his heirs waive the debt to the borrower, they must pay the buyer everything written in the document from the best of their properties, according to the law of every tortfeasor who pays from the best. This obligation is by the law of garmi, like one who burns the document of his fellow which will be explained in siman 388, for he caused him to lose the document and it is as if he burned it. Therefore, even if the one who waived died, his heirs are obligated to pay. However, according to the poskim there who hold that all garmi is not by law but rather a fine, the heirs do not need to pay, as is written there [Shach]. Nevertheless, even though he must pay the full value of the document, this refers to what the document was worth at the time of the waiver for sale; for if the borrower is assessed as wealthy and secure, it is sold for nearly the full amount of the sum in the document, and if he is not assessed as wealthy or if he is a violent man and it is difficult to extract payment from him, it is sold for much less. According to this assessment, the one who waived shall pay the buyer, for this is what he caused him to lose. And in the sale of a debt document, there is no difference whether the borrower was an Israelite or a Cuthean. Therefore, if he sold a debt document of a Cuthean and waived it to the Cuthean, he must pay him also the interest when the interest is explicitly stated in the document and he added it to the principal, such as if he borrowed from him one hundred and the interest was ten and it was written in the document that he borrowed from him one hundred and ten. But without this, he is not obligated to pay the interest, for the prevention of profit is not called damage [ibid.]. And even though there are those who disagree and hold that the one who waived only needs to pay the buyer the money that he gave him, nevertheless, the primary law is as I have written, that he is obligated to pay him what it was worth at the time of the sale.

When it is discovered that the document was paid, it is a mistaken transaction, and he need only pay the money he received from the buyer. If the borrower claims regarding the document that it is forged and it is impossible to verify it, or if the borrower is a violent person and does not obey the law, he does not need to pay even the money he received, for the lender is not liable for this and the buyer knew of this. Even if he waived the debt to the borrower, he is exempt, for he did not damage him at all with his waiver, and there is no difference whether the borrower is an Israelite or not. One should not raise a difficulty that a forged document is a mistaken transaction and why should the buyer not be able to retract, for it can be said that this is if its forgery was clarified; but here the seller claims it is not forged, and the buyer entered into this and he did not mislead him, and therefore he lost his money [Urim VeTumim]. Similarly, when the borrower is a violent person, we do not adjudicate in this case the law of ona'ah according to the latter opinion that will be explained in section 46, that in more than half there is ona'ah, since the buyer knew of this [it appears to me]. If the borrower claims that it is paid and the lender denies it, the lender must swear, and if he does not want to swear, he must pay the buyer the full value of the document [Shach]. If the seller admits that it is paid, he is believed, and he must pay the buyer the money he received from him [see there subsection 110 and it requires further study]. All the laws regarding waiver where he must pay in the case of one who sells a debt document, so too it is with one who gives it as a gift and waives it to the borrower, that he must pay the recipient of the gift, and there is no difference between a gift and a sale except for the law of responsibility which will be explained, which does not apply to a gift.

Also, regarding one who sells a promissory note, the liability for a scribal error is the same as in a loan, as was explained in siman 39. Therefore, if a creditor of the seller comes and seizes this debt, or if someone comes and brings proof that this note is his—for example, that his name is the same as the name of this lender and the witnesses erred when they gave the note to this one, or that it was written in the name of this lender but the money was his, or that he brought proof that he purchased this note from the lender prior to the purchase of this buyer, and so too anything similar to this—the buyer returns and collects from the seller everything the note was worth for sale. And so too, the buyer seizes from purchasers who bought from the seller after the sale of the note to the buyer. However, if the borrower produced a receipt showing that this note is paid, or if the lender forgave it prior to this, this is a mistaken transaction and the seller must return to the buyer the money he gave. This is not in the category of liability at all, for he sold something regarding which the borrower has no debt at all. For when one brings proof that this note is his or that he purchased it from the lender previously, even though his sale is not a sale, nevertheless the promissory note against the borrower is a complete note, only it does not belong to this seller who did not have the power to sell it, and it is like the liability when one sells a stolen field. But when he produced a receipt, it turns out that there is no note against the borrower; you have no greater mistaken transaction than this [it appears to me].

If the debtor was poor at the time of the sale, whether the purchaser knew of this or did not know, this is included in the category of ona'ah. According to what will be explained in section 46, documents are not subject to ona'ah; however, according to the opinion that will be explained there that for more than half there is ona'ah, this also has the law of ona'ah if it is not worth even half and the buyer did not know of his poverty to such an extent, and the sale is void and he must return the money he received. But if the debtor became poor after the sale, the purchaser has nothing against the seller, and this is not included in achrayut, and even if he accepted achrayut upon himself, for his fortune caused it. All sales are so, just as if one purchased a house and it burned down afterward, would we say that the seller is obligated in its achrayut? So too in this matter, unless he specified in the achrayut that if the debtor becomes poor he will pay him, for then any condition in monetary matters is valid. And also what was written in section 28, when it is not within the power to fulfill the document or if he is a violent person, this too is not included in achrayut, for the purchaser entered into the transaction on this understanding, unless the purchaser did not know of this at all, for then it is a mistaken transaction and he returns his money to him.

Specifically regarding a sale, there is an responsibility to collect from purchasers, but when he forgave the debt to the borrower, the buyer does not collect from the purchasers who bought from him even after the forgiveness, for the one who forgives is a damager. Just as if one sold a house to his fellow and afterwards the seller burned it, he does not collect from purchasers; rather, he brings him to beit din and collects his damage from him. So too here, for responsibility only exists when he sold something that was not his or his creditor collected it from him for his debt, but this person is a damager like all damagers. And even according to that opinion that will be explained in siman 119, that even for a damager one collects from purchasers, nevertheless, regarding forgiveness one does not collect, for regarding other damagers there is a rumor of the damage and the purchasers should have been careful not to buy from the seller, but regarding one who forgives there is no rumor, and it is like a loan by word of mouth which one does not collect from purchasers even if they knew of the loan [it appears to me].

But if he obligated himself at the time of the sale and wrote to him in the document, "If I should go back and remit this debt, I hereby obligate myself and my properties to pay the value of this debt to the buyer," he collects from the purchasers even if they bought from him prior to the remission. For since he became obligated through a document, this has a voice, and the purchasers should have been careful not to buy from him due to the concern of remission [Shach].

That which was explained in section 8, that a bill of sale from among the documents that was written in any language or if it was made in the secular courts, where we require that it be valid also according to our laws—this is specifically regarding an Israelite who sold to an Israelite. However, a gentile who sold or gave a promissory note to an Israelite, whether the borrower is an Israelite or not, we judge for this purchaser according to their laws, and any right that the gentile had, the purchasing Israelite has. And if according to their laws there is no need for writing and delivery, or if he cannot forgive the debt to the borrower, we judge for him also thus. And so our sages, of blessed memory, said [Bava Batra 35b]: An Israelite who comes by power of a gentile is like a gentile regarding his rights. However, if the gentile is a man of violence and there is concern that he will return and claim from the borrower, the purchaser must provide him with a guarantee that no damage will reach him from the seller [ibid.]. And similarly, an Israelite who sold to a gentile, he has all the power of the Israelite who sold it to him. And it is not only necessary according to the one who holds that the sale of documents is from the Torah, but even according to the one who holds that it is Rabbinic; whatever the sages enacted, they enacted similar to the Torah law [ibid.]. And do not wonder why they did not enact the acquisition of "the presence of the three" regarding a gentile, as written in siman 126; it is different there, since according to their laws there is no acquisition in this, as it is a mere statement, therefore they did not enact for the gentile that he should acquire through this. This is not the case with the sale of documents, which exist in their laws, and on the contrary, in their laws they do not require writing and delivery, it is rightly an enactment also for the gentile [Netivot HaMishpat].

It has already been explained in section 21 that one can transfer a promissory note through ma'amad sheloshtan. Therefore, if Reuven had a promissory note against Levi and said to him, "The maneh in the note that I have in your possession, give it to Shimon who is standing before us," Shimon has acquired it even though Reuven has not yet given him the note. The borrower and his purchasers become liened to him just as they were liened to Reuven. Nevertheless, Shimon does not have the power to compel Reuven to also return the physical note to him. The reason is because through the transfer of the lien and the debt, the note in his hand was not acquired by him; only the debt and the lien were acquired by him. The lender cannot forgive the debt, as was written there. Furthermore, the borrower is not believed to say "I paid" to Shimon as is the law of an oral loan, for his status is like a loan by a note even though the note is not in his hand. However, if the borrower denies it, saying that he owes nothing at all to Reuven, or if he needs to collect from his purchasers, beit din compels Reuven to produce the note and they shall judge according to the note. For since Shimon's right lies with Reuven, they do not suppress Shimon's right; for even if his right is found with another person, they compel him also to show this person's right. And if the borrower paid Shimon, beit din removes the note from Reuven and returns it to the borrower, for it is forbidden for him to keep a paid note.

And just as the physical document of the shter is not acquired through the acquisition of the lien and the debt, so too the lien and the debt are not acquired through the physical document of the shtar. Furthermore, even if the seller retracts, we take the shtar and return it to the seller. How so? Reuven, who deposited shtarot of debts with Shimon and said to him, "The shtarot that I deposited in your hand, give them to this Levi," and the ma'amad sheloshtan consisted of the depositor, the bailee, and the one to whom they granted merit, but the debtors were not present in that assembly, it turns out that he did not acquire the debt and the lien, only the shtarot. Therefore, as long as Reuven has not retracted, Shimon should give them to Levi; but if he retracted, he must return them to him, for as long as he has not acquired the liens within the shtarot, he has also not acquired the physical shtarot, neither through mesirah nor through ma'amad sheloshtan. And if he said to him, "Give these shtarot to him," and also wrote a shtar for the beneficiary and transferred them and all the liens within them to him, it turns out they are acquired by him through writing and mesirah; even though he did not deliver them to the beneficiary but rather to the bailee, nevertheless he acquired everything through ma'amad sheloshtan, and the bailee must deliver the shtarot of debts and the shtar through which he transferred the liens into the hand of the beneficiary. And there are those who disagree and hold that a shtar chov is not acquired at all through ma'amad sheloshtan, for this enactment applies only to something whose essence is money; and even though if he transferred the debt within the shtar to him he would acquire it, nevertheless if he transferred the shtar to him he does not acquire it. And according to what I wrote in section 2, that a shtar is acquired through chalupin, the same applies to ma'amad sheloshtan [see Shach, subsection 70].

One who produces a document belonging to another and claims that the other person transferred it to him via "writing and delivery" and the bill of sale was lost from him, or who claims that he acquired it via "acquisition incidental to land," does not require witnesses against the lender, for he does not come to extract from him. However, he requires witnesses against the borrower from whom he comes to extract, as the borrower says to him: "Bring witnesses that the lender wrote and delivered to you or transferred to you via acquisition incidental to land." And if the borrower does not claim so, he may pay him, and the lender cannot prevent this, but he can only administer an oath to him that he sold it to him [it appears to me]. And if the borrower claims that he paid the lender and says, "Let the lender swear to me that I did not pay him," if he wishes to swear, he shall swear; and if he does not wish to, we cannot compel him to do so, since he does not admit to the sale. And even if the lender admits that the borrower paid him and claims against the buyer that he did not sell it to him, there is one who says that he does not require an oath, for the burden of proof is on the claimant [Sma, subsection 33]. And there are those who disagree on this, that certainly an oath is required, for this claim is no worse than all other claims [Shach and Taz]. And so it appears to be the primary view; even though one could say that since he comes with the claim of the document in his hand, and the document has no substance without the writing of another document, this is not a significant claim and is worse than an oral claim where there is no flaw in his claim, but in this case the flaw is before us—nevertheless, since he stands and cries out that the lender received money from him, how can we release him without an oath? And if the lender says to the borrower, "I did not sell this document, and it fell from me and this person found it, and you have not yet paid me," and the borrower claims, "I paid you and it fell from me," the borrower swears that it is so and is released from both of them. And even though we established that regarding a document, the lender swears and collects when the borrower claims "I paid you," as written in siman 82, this is when the document is in his hand; but here, where the document is not in the hand of the lender, the borrower swears a "hesset" oath and is released [Sma]. And if this person who produced the document brings proof that the lender sold it to him via "writing and delivery" or "acquisition incidental to land," the borrower must pay him. And if the borrower claims "I paid the lender," the lender is compelled to swear when the borrower claims "Swear to me." And if he does not claim "Swear to me," he pays without an oath. And when he claims "Swear to me" and the lender does not want to swear, the lender pays the buyer the full value of the document; and certainly if the lender admitted that he was paid, he must pay the buyer. And if he has nothing with which to pay, the buyer loses. And when the seller dies and the borrower claims that he paid the seller, the heirs swear the "oath of heirs" and the buyer collects from the borrower. And if they do not wish to swear, they pay the buyer, since there is proof that he sold it to him. And if there is no proof that he sold it to him and the lender died, even though the borrower wishes to pay him, nevertheless he swears against the heirs that he purchased it from their father. And if he says to the heirs, "You swear the oath of heirs that your father did not tell you that he sold it to me, and you shall collect," his claim is a valid claim since the document is produced from under his hand [it appears to me].

There are those who disagree with what we wrote, that witnesses are not required against the lender, and they hold that even against the lender he is not believed without proof. For even though he does not come to extract from his possession, nevertheless, since there is a deficiency in that he does not possess a deed of acquisition, he is not believed to say that it was in his possession and was lost from him. And even if he claims that he acquired it to him via agav karka or in ma'amad sheloshtan, he is not believed because it is more common to acquire via ketivah u-mesirah. And so too, he is not believed to say that he gave it to him as a matnat shekhiv mera [Shach] because it is not common. And even though he has a migo that if he wanted he could have said "your deed was never in my possession," however, this is not a good migo, for behold, he must show the deed in order to extract from the possession of the borrower [Sma]. Our teacher, the Rema, decided according to this opinion. And one should not raise a difficulty: why should he not be believed when he claims that he acquired it via agav karka or in ma'amad sheloshtan or as a matnat shekhiv mera, for behold, the litigant is believed to claim even an uncommon matter? For it can be said that since there is no proof of the acquisition in his seizure—for seizure of the deed without some form of kinyan is nothing—and regarding the kinyan he has no proof, therefore he is not believed [see Netivot HaMishpat, subsection 19] and he is not called a muhzak by means of the deed. And although from the words of our teacher, the Beit Yosef, in Tur Even HaEzer siman 86 it appears that he is believed when he claims thus, nevertheless, the great later authorities decided as we have written. And if the deed was in the hand of a third party, even though the third party is believed against the seller to say that he sold it to another since he made him a third party as written in siman 56, nevertheless, against the borrower he is not believed if he does not want to pay the purchaser. For the third party is no better than the purchaser himself; just as when the deed was in his hand he was not believed without ketivah u-mesirah, so too the third party is not believed. Therefore, if the lender also does not admit that he sold it to him, the borrower pays the lender. And there is one who says that even against the lender he is not believed, since the third party never had a migo, for even if he had delivered it to another, it is nothing without ketivah u-mesirah [the Gra]. And this which we said, that he is not believed against the borrower, this is according to the poskim who hold that we do not say "one who is obligated to take an oath and is unable to swear must pay" when he could not have known, as written in siman 75, for how was the borrower to know if the lender sold it or not? But according to those who disagree with this, the borrower would be obligated to swear against the third party, and being unable to swear, he pays, unless the third party is disqualified from testimony [Shach].

One who sells a promissory note to his fellow through delivery and a deed or through another effective kinyan, and the borrower says "I paid the lender," we do not heed him and we compel him to pay the buyer. And if he claims that the lender must swear to him, he swears if there is no trust clause in the note; and if he does not wish to swear, he pays the buyer the entire value of the note. And if the borrower died, the lender and the buyer must swear that he did not pay them, for one does not collect from heirs without an oath, unless it was within its time as I wrote in siman 108. And if the seller also died, the buyer swears that the borrower did not pay him and also that the seller said nothing to him and that he does not know that this note is paid; and also the heirs of the seller swear that their father did not command them that he received the debt, and the buyer collects from the heirs of the borrower. And if they do not wish to swear, the buyer collects from the properties of their testator; and if they did not inherit from their father, they are not obligated to pay from their own, for even though they cause the buyer damage by not wishing to swear, this is only germa. And if he claims that he paid the heirs of the lender and they do not wish to swear, they pay from their own properties. And all this is specifically when the borrower died after the sale, but if he died before the sale and afterwards the lender sold it and died, the buyer does not collect even with an oath, for since the borrower died before he sold, the lender could not have collected from the heirs of the borrower without an oath, according to the law of one who is paid from the properties of orphans, and a person cannot sell to his fellow money that he could not collect except with an oath. And how can the sale take effect? Behold, it is not yet his so long as he has not sworn. For when the seller is alive, he swears and the buyer collects, even though he purchased it after the borrower died [Shach]; but when he died, there is no one to swear, and without an oath it is impossible to collect from the heirs of the borrower. And it appears that the heirs of the lender shall pay him what he gave to their father if he left properties, for behold his debt remains upon their father, yet they have the ability to make him swear how much he gave for the promissory note, and if he received nothing from their father [it appears to me]. And all this is when there is no trust clause in the promissory note, but when there is a trust clause, the buyer collects from the heirs of the borrower even when the borrower died before the sale, for behold the lender did not need to swear when the trust clause is also against the heirs of the borrower, and his sale was certainly a complete sale, and also the buyer collects from them without an oath [it appears to me].

One who sells a promissory note to his fellow through delivery and a deed or through another effective kinyan, and both of them—the seller-creditor and the buyer—come to claim from the debtor, beit din commands him to pay the buyer and they compel him regarding this. And if, despite all this, he paid the seller, we return and collect from the seller for the buyer, and the buyer has a grievance against the debtor for paying the seller, but we do not have the power to collect from him. The reason is that since it is in the power of the seller to forgive the debtor, if so, when he paid him, the creditor surely forgave him; and just as with forgiveness we collect from the seller and not from the debtor, so too in this case we also collect from the seller. And even if beit din gave a verdict that he must pay the buyer and he violated this, we do not extract from him for this reason, for certainly such is the law even regarding one who forgives, that he can forgive even when the buyer holds a verdict [Shach]. However, if the debtor knew that the creditor squanders his money or that he is a man of violence and the buyer will not be able to extract from him, and he is not afraid of him if he does not pay him, and despite this he paid and the buyer lost his money, the debtor is liable to pay the buyer by the laws of garmi, for this is exactly like one who throws his fellow's money into the sea. And if the debtor did not know that the creditor squanders or that he is a man of violence, the debtor is exempt [so it appears to me to explain the words of the Shulchan Aruch, section 16]. And although there are those who disagree and hold that if the debtor paid the creditor he is not exempt from the buyer in any case and is liable to pay the buyer as well, nevertheless the main point is as I have written [ibid.]. And if we compel the buyer to return his note to the debtor when he paid the creditor, it is a legal doubt and we do not extract it from his hand [ibid.], and so it also appears from the fundamental law.

We have already explained that the sale of a debt-instrument requires writing and delivery, and without this, the purchaser has not acquired it. Even if he said to the purchaser orally, "Acquire it and all its liens," he has not acquired it. Nevertheless, if there was delivery without writing, and he said to him orally, "Acquire it, etc.," and the borrower paid the purchaser, the lender has no claim against them. For just as with the sale of a thing that has not yet come into the world, which a person cannot sell, yet nevertheless when one has seized it, he has seized it, as will be explained in siman 209, so too in this case; since the lender said to him, "Acquire it, etc.," and even if there was no delivery at all, since he said to him, "Acquire it," the seller has no claim when he paid the purchaser [ibid.]. However, without saying "Acquire it," even if he delivered the debt-instrument to him, it is nothing. It is not comparable to a thing that has not yet come into the world, for there, at any rate, he said to him, "Acquire the fruit that will grow," but here, when he did not say to him "Acquire it," the delivery is nothing, and even if the purchaser seized it, we remove it from his hand. And some say that the borrower is not discharged from the lender unless the lender knew that he was paying the purchaser and remained silent, for then we say that he waived this. But if he did not know of the payment, the borrower is obligated to pay him when there was no writing and delivery according to the law. It is not similar to a thing that has not yet come into the world, for there he did not omit anything from the modes of sale, but rather that legally it is not effective because it has not come into the world; therefore, we are witnesses that when the purchaser seized it, he has seized it, for it is also pleasing to the seller since he sold it at any rate and did all that was in his power. But here, he omitted from the modes of sale that which was in his power to do, namely the writing of the debt-instrument, and we say that he intentionally omitted it in order not to fulfill the sale, and he will say to the borrower: "You should not have given to him until he showed you writing and delivery according to the law; and even if he told you that he had a debt-instrument and it was lost from him, you should not have believed him." Furthermore, it is not similar to a thing that has not yet come into the world, for there the purchaser seized from the seller himself, and we say that since he sold it to him at any rate, when he seized it from him, it is certainly pleasing to him. This is not the case here, where the borrower delivered it to him; certainly it is not pleasing to the lender, for why should the purchaser involve himself in this? As long as he did not show him writing and delivery according to the law, he should not have paid him [as per the reasons above]. And if, despite this, the borrower paid the purchaser, he is obligated to pay the lender and shall claim from the purchaser what he gave him. And if he has nothing with which to pay, our teacher, the Rema, ruled in section 17 that the seller cannot extract anything from the purchaser since he has seized it. Thus far his words. And they wondered at him, for it is certainly true that the borrower can extract it from the purchaser since it was no sale at all; if so, the lender can also extract it from the purchaser by the rule of Rabbi Nathan. Therefore, they ruled that certainly when the borrower cannot pay, the lender extracts it from the purchaser [Shach and Taz] according to this opinion. And it appears that our teacher, the Rema, holds like the second reason we wrote to distinguish between this and a thing that has not yet come into the world. Therefore, it is well that the borrower certainly can extract it from the purchaser, whereas the lender does not have the power to extract it from him since he himself sold it to him, similar to a thing that has not yet come into the world as I wrote. And to compel the borrower to extract it from the purchaser is not in his power, for the borrower will say to him: "Behold, I hand over my power to you, and you extract it yourself," and he does not have the power because of the second reason we wrote. Regarding the law, it is difficult to extract money against the first opinion, even when the lender did not know of the payment [Taz]. However, according to what I wrote in siman 209, section 7, that even regarding a thing that has not yet come into the world where we do not extract, this is also specifically when the seller knew of his seizure—the primary rule of law is like the "some say."

When there was no writing and delivery, and the debtor comes to pay the creditor according to the law, he can compel the creditor to retrieve his shtar from the hand of the purchaser. Without this, the debtor is not obligated to pay him, even when it is the will of the creditor to give him a receipt, for as long as the shtar chov exists in the world, the debtor can say, "I will not always guard the receipt," as has been written in siman 54. And that which was explained in the previous section—that if he paid without the knowledge of the creditor, he must pay the creditor—this is because the shtar is presumably in his hand, since he paid the purchaser, he presumably received his shtar [Sma].

Some say that in the place where we said in section 40 that if the borrower paid the purchaser, the lender has no claim against him, this is even if he did not pay him in actuality, but only that he established it against him as a loan and made a deed against the purchaser as if he had borrowed from him; its law is as if he collected, for establishing a loan is like payment in many matters. Therefore, wherever payment is effective, establishing a loan is also effective, and such is the primary law [Shach].

If the purchaser is one of the witnesses of the shtar, he may nevertheless purchase it from the lender, and he is not considered one who has a personal interest in the matter such that we should fear perhaps he signed falsely in order that he might later purchase the shtar from the lender, for the second witness would not have signed falsely with him. And one should not say that it follows from this that the entire shtar was validated based on a single witness, for in truth this is not a disqualification by law but merely a general concern. And specifically when he is signed on the shtar, which is like testimony that has been investigated in beit din, or if he already testified in beit din even orally, he is not considered now by his purchase from the lender as one who has a personal interest in the matter. However, to testify now regarding any detail of the shtar that is not explicitly explained in the shtar, he is disqualified by law, for now it is obvious that he has a personal interest in the matter. And two witnesses who are signed on the shtar should not purchase it together ab initio because of the appearance of impropriety, but if they purchased it, they have purchased it, for two are not suspected of signing falsely [Shach]. Nevertheless, if the borrower claims that they signed falsely and their intention was to purchase it later from the lender, his claim is a valid claim, and they are obligated to clarify that he borrowed from him [as mentioned above, and the difficulty of the Shach in subsection 71 is resolved, and this is the intention of the Tur and Shulchan Aruch in section 21].

And so too, if the borrower is signed on the bill of sale of the lender, the document is valid. And even though it is possible that he is an interested party, as his desire is to be a debtor to the buyer and not to the lender because the lender is a difficult man or the like, nevertheless, since the lender admits that he wrote and delivered it to him, he has acquired it, and the document is not disqualified because of such an interest. And if the lender denies it and says that he did not sell it at all and the borrower signed himself falsely in order to be rid of him, his claim is a valid claim. And it is not similar to the previous section, for there, at the time the witness signed himself on the document, he was not an interested party at all, and therefore even when he purchased it afterwards, since there is another one, it is not possible to disqualify it. But here, where at the time of his signing he is somewhat of an interested party, the lender may certainly deny it, and it must be clarified that the lender sold it to the buyer of his own will and commanded them to sign.

A convert [in ancient times] who had a loan documented in a deed against an Israelite and sold it to another Israelite through writing and delivery, some say that his lien is voided and the borrower is exempt. For just as the lender can forgive the borrower the lien on his person, and through this the lien on his properties is automatically voided as has been explained, so too when the convert dies, the borrower goes free from the lien of the convert's person and the borrower acquires his own person, and automatically the lien on his properties is also voided. And some say that already during the convert's lifetime, the borrower became enslaved to the purchaser, and as long as the convert did not forgive him, his lien remains [Shach]. For the borrower, at the time of receiving his money from the lender, is as one saying to him: "I am enslaved to you and to anyone who comes by your power as long as you do not forgive me." And it is not similar to a collateral which will be explained in siman 275, where he has only a mere lien on the collateral; but here, he has acquired the deed with a complete kinyan [ibid.].

It is written in the Torah: "And if you sell a sale to your fellow, or acquire from the hand of your fellow, you shall not wrong one another." The measure of ona'ah will be explained in siman 227. Our sages, of blessed memory, received a tradition that shetarot are not subject to ona'ah, for specifically a sale whose essence is money is subject to ona'ah, and not shetarot whose essence is not money. Therefore, even if one sold a shetar worth a thousand dinars for a dinar, or vice versa, his sale is valid. And let it not be difficult for you according to the one who holds that the sale of a shetar is not from the Torah at all, how it was excluded from ona'ah; for it can be said that this refers, for example, to one who found a shetar after despair and sold it to its owner at a high price, or where Reuven borrowed from Shimon or purchased from him without a shetar and gives him money on the condition that he write him a shetar, and he gave him for this more than its value or less [Tosafot, Bava Batra 76b, s.v. kani]. And some say that in a case of more than half there is ona'ah, for this is not in the category of ona'ah but rather the cancellation of the transaction. And since it is a dispute of the great authorities, it is a legal doubt, and whoever seized the property, it is not removed from his hand [Rashdam]. And there is one who says that the primary ruling is according to the first opinion [Shach]. And shetarot that are sold for the paper alone are like all other merchandise and are subject to ona'ah, and similarly for all that will be explained regarding the matters of oaths and guarding.

Just as the verse excluded documents from ona'ah, so too it excluded them from an oath, as we derive from a general rule, a specific detail, and a general rule, for it is written: "for an ox, for a donkey," etc., that their essence must be monetary. Therefore, if one claimed, "I delivered such and such documents to you," and he admitted to some and denied some, or if one witness testified according to the words of the claimant, he is exempt from a Torah oath. However, one swears a shevuat hesset regarding them, and even in a case of total denial if there was a certain claim. Likewise, one swears regarding them through gilgul even though it is from the Torah, as will be explained in siman 95; see there.

Just as the Torah exempted documents from the oath of one who admits to a part of the claim and from the oath of a single witness, so too they are exempt from the oath of guardians, for that verse of "for an ox" is written regarding guardians. And since the Torah excluded them from the law of the oath of guardians, they are likewise automatically exempt from all the laws of guardians in that section, and they were excluded from all laws of guardianship regarding accidents, theft, and loss, and even from negligence, since the law of negligence is also written there. Therefore, if one gave documents to his fellow for guarding, whether he was a shomer sachar or a shomer chinam, and similarly if he lent him his documents and they were stolen or lost, even through negligence, they are exempt from paying. Nevertheless, a shomer sachar loses his wages until he swears that he guarded properly, for how can he take wages when he did not guard properly? And this fact that they are exempt from negligence is only regarding negligence of guarding, where he did not guard them properly and through this they were stolen or lost; but if he damaged them with his own hands, such as if he burned them or threw them away to be lost and the like, he is one who damages with his hands and is liable. And if they performed a kinyan from him that he should be liable for all the laws of guardianship, he is liable; and a kinyan is only effective if he performed a kinyan on the obligation of payment, such that he liened his properties with his kinyan, but if he performed a kinyan that he should be liable for an oath of the beit din, this is nothing, for it is a kinyan devarim [Shach]. And there are some of our teachers who hold that for negligence, guardians are always liable, for negligence is like damaging. And the one in possession can say "kim li" according to the first opinion. Our teacher, the Rema, decided according to the first opinion, and even if we say it is a legal doubt, one should not extract from the one in possession. And if the owner extracted from the hand of the guardian, it is close to saying that his seizure is effective and it is difficult to extract from the hand of the owner, and so one should rule [as it appears to me, since the Shach wrote at length to sustain the latter opinion and many of our teachers hold like the first opinion, it is a doubt].

That which we said, that when they performed a kinyan from his hand he is liable for all the laws of shmirah according to the kinyan he performed, this is specifically when they performed a kinyan from his hand. However, with mere speech, where he said "I hereby obligate myself in all the laws of shmirah," this is nothing. And even though in siman 291 it will be explained that a shomer chinam who stipulates to be like a sho'el is liable through speech alone, that is because the obligation of shmirah applies to him from the Torah; therefore, his speech is effective to add to his shmirah. But regarding documents, for which there is no Torah obligation of shmirah, speech is not effective and a kinyan is specifically required [Sma].

And regarding the division of documents, such as brothers or partners who came to divide and they had documents, the beit din shall appraise all the documents according to their value, according to the proximity of the time or its distance, and according to the status of the borrowers and according to their strength, and they shall divide by lot, for division applies to everything. And if there is only one promissory note, they shall divide by god o igod. And in a division of brothers or partners, we do not require writing and delivery, and he cannot forgive the debt [Netivot HaMishpat]. And in siman 171 it will be explained that there are those who say that partners do not have the law of god o igod. And if after the beit din appraised and they divided the documents between them, the document of one of them was ruined, he has no claim, for his luck caused it. And nevertheless, due to this concern that perhaps the document of one of them will be ruined, one may not cancel the division beforehand because of this, and one can compel his fellow to divide. And also regarding oral debts, one can compel his fellow to divide [ibid.].

If one said, "My assets are for so-and-so," the shtarot are also included in the category of assets. If he is a shekhiv mera, whose words effect a transfer through mere speech, he also acquires the shtarot. However, a healthy person who transferred all his assets to another agav land, even though shtarot are included in the category of assets, nevertheless, he does not acquire the shtarot since he did not write for him, "Acquire them and all the lien contained within them." For according to the latter opinion that we explained in section 11, an agav acquisition only takes the place of delivery, but writing is required. And even according to the first opinion mentioned there, at any rate, he must say, "Acquire for yourself, etc." But a shekhiv mera does not even need to say, "Acquire for yourself," for since he said, "My assets are for so-and-so," it is as if he said, "They and all their lien." And even according to the opinion of the Rashba, which will be explained in siman 253, that he must say, "Give this shtar and all its lien," see there, that is when he specified the shtarot on their own; but when he included them in the category of all assets, it is not necessary [Shach]. And all this is when he spoke with the terminology of "my assets," but if he said, "My metaltelin are for so-and-so," the shtarot are not included, for in human speech they are not included in metaltelin. Therefore, a husband who removed himself from his wife's assets between erusin and nissuin, for then the removal is effective as is written in Even HaEzer siman 92, if he removed himself from her assets, shtarot are also included, and he is also removed from a shtar of inheritance if her father made one for her, and similarly from a shtar of a half-male portion if her father made one for her and her offspring. But when he removed himself from her metaltelin, the shtarot are not included. However, according to our custom where we perform the kiddushin at the time of the chuppah, there is no practical application for this law, for before erusin and after nissuin the terminology of removal is not effective, as is explained there.

One who consecrates a promissory note to the hekdesh or to the poor requires writing and delivery just as with an ordinary person, as is written in Yoreh Deah siman 258. And if they forgave the borrower, it is forgiven just as with an ordinary person [there in the Shach]. And he must pay the hekdesh or the poor according to the value of the note just as with an ordinary person. And in siman 95 it will be explained that the hekdesh of this time does not have the law of hekdesh; see there. And some say that writing specifically is not required, and it is sufficient when he says, "The poor or the hekdesh shall acquire this note and all its liens," for his speech to the Most High is like delivery to an ordinary person; and if so, when he said "acquire," it is as if he wrote and delivered [Shach subsection 2 in the name of the Ritva]. And this opinion holds that this which the sages, of blessed memory, said, "his speech to the Most High is like delivery to an ordinary person," applies also to the hekdesh and charities of this time. And this is the opinion of Rav Hai Gaon in the book Mekach U'Memchar, gate 56, who wrote, and this is his wording: And know that a sale is established by speech alone in a known manner, and that is that the seller says, "Behold this object is holy and I shall take its value," the sale is already established and behold the object is holy by that speech alone. Thus far his words. And he is referring to the hekdesh of this time, as he wrote there at the beginning of the gate, and this is his wording: The law of selling hekdesh; and it is not my intention to speak of the meal-offerings etc. because they are not practiced in these days, but my intention is for what we need now in this time, such as the sale of a synagogue and the hekdesh of the assembly and what is for the poor. Thus far his words. And so wrote the Ran in the first chapter of Kiddushin. And our teachers, the authors of the Shulchan Aruch in Yoreh Deah there, did not bring this opinion at all because the matter was simple in their eyes that regarding the hekdesh of this time we do not say "his speech to the Most High is like his delivery to an ordinary person," as our teacher, the Beit Yosef, wrote in siman 125 and in Yoreh Deah there in his great book. And had they seen that Rav Hai Gaon wrote so explicitly, they certainly would have brought his opinion at any rate. And even according to the first opinion, nevertheless, he is liable by reason of a vow, as will be explained in siman 212 section 9; see there. And it appears to me that it is a legal doubt [and the Shach correctly brought the opinion of the Ritva, and not as the Urim VeTummim and Netivot HaMishpat and Ketzot HaChoshen wondered about him, and it seems that they also did not see the words of the Gaon]. And from the words of the Rif in the fourth chapter of Bava Kamma there is no proof to one who examines there well. And what the Me'or wrote there regarding the opinion of Rav Hai Gaon in a responsum is a different matter regarding one who vows, and see in the Milchamot.