Siman 73

One who lends to his fellow without specification and did not set a time for repayment, if there is a custom in the city regarding how long an unspecified loan lasts, we follow the custom. And if there is no custom in the city, he has a time of thirty days, for he cannot claim it from him before thirty days, whether it is a loan with a document, or a loan by word of mouth, or with a mashkon, or without a mashkon. However, regarding the legal presumption that "a person does not pay within his time," we do not say this regarding an unspecified loan, as will be explained in siman 78. And if the lender stipulated at the time of the loan that he may claim it whenever he wishes, he has the authority to claim it even on the day of the loan. And similarly, if one sold an object and did not set a time for the payment of the money, he has a time of thirty days. But an unspecified borrowing of an object, he can claim immediately, for specifically a loan, which is given to be spent, and similarly a sale, where he needs to bring money, requires time for this; but the borrowing of an object which he returns as is, why does it need time for this? And even though there are some of our teachers who hold that even an unspecified borrowing is thirty days [Rabbeinu Tam and the Ittur at the beginning of the 23rd chapter of Shabbat, as the Tosafot and the Ran wrote there], nevertheless, all the Rishonim do not hold so [and so it is evident from Chagigah 22b]. And even if he borrowed from his fellow something that does not return as is, such as wine or oil, if he said "lend me (hash'ileni)," the time is not thirty days, and if he said "lend me (halvini)," the time is thirty days [as is evident from Shabbat there according to the explanation of Rashi, and the Rosh, and the Ran, see there]. And regarding borrowing, even though he can claim it immediately, nevertheless, he must leave it for his use at least one time [Urim VeTummim], and see in siman 341 [see Yerushalmi at the beginning of the 3rd chapter of Ma'aser Sheni].

One who lends to his fellow may request of the borrower that he write him a document, and if he does not wish to, he must return his money to him immediately, for presumably such was the intention of the lender at the time he lent to him, even if he lent to him without specification. And it appears to me that he cannot compel him to write him a document with witnesses, but only a document in the borrower’s own handwriting; for since he borrowed from him orally, he cannot compel him to make it a debt by document with which he could collect from purchasers [and see what I wrote in siman 39, section 5, and perhaps this is the intention of the Taz, and so it appears from the proof he brought from Perek Af Al Pi, see there, and see the glossator there; and according to what I wrote they do not disagree at all, and so it appears from the Levush, and so wrote the Urim VeTumim, and reflect on this].

One who lends to his fellow and set for him a time of more than thirty days, even though they did not perform a kinyan from the hand of the lender, he cannot claim it from him before the time, whether it is a loan by word of mouth or by a document, whether with a pledge or without a pledge. And even if he set the time for him after the loan, the lender cannot retract it, for this is like a mechilah that he forgave him the money for this time, and mechilah does not require a kinyan, as was written in siman 241 [Shach]. And even if the lender died, the heirs are not able to claim before the time. And even if the borrower died, neither the lender nor his heirs can claim from them before the time if his heirs are of means like him. And even if they are not of means, if they want to give good securities or to establish a secure guarantor for the loan, they cannot force them to pay before the time. But without this, they can force them to pay earlier, for the claim of the lender is correct, as he fears that he will not have anything from which to collect. And even though there are some of the great authorities who doubt this, nevertheless, such is the primary ruling [Urim VeTumim]. And even the borrower himself, if he is wasting his assets or they are collapsing, he can claim from him before his time, since his situation has changed from the time of the loan [it appears to me], and see in section 15.

If the lender claimed and said that today is the end of the time he established, or for thirty days in an ordinary loan, and the borrower says until ten days from today, the borrower swears a shevuat hesset, for there is no difference regarding an oath between a denial of the monetary sum and a denial of the time. Therefore, if there is one witness who testifies like the lender, the borrower swears a shevuat de'oraita to deny the witness. And if the witness testifies according to his words, he is a supporting witness and exempts him from the oath entirely. And if there is also a denial between them regarding the essence of the money, where the lender says "I lent you one hundred and today is the time" and the borrower says "fifty and the time is after ten days," the borrower shall swear immediately a shevuat de'oraita according to the law of one who admits to a part, and he shall include in it also the oath regarding the time. And if the lender admits to the borrower regarding the matter of the time, he cannot compel him to swear regarding the fifty immediately, but rather he shall swear when the time arrives [Urim VeTumim, not like the Shach]. And such is the law when the lender says that the time is after five days and the borrower says after ten days; he cannot compel the borrower to swear immediately, but rather we say to him: wait five days, and then you may have him swear a shevuat hesset that he has five days remaining. And it is a great principle that until the time has arrived, he cannot have him swear, for perhaps he will admit by the time [Sma].

In what case are these matters stated, that the oath is upon the borrower? In a loan by word of mouth without a pledge. But in a loan with a document or with a pledge, and the lender claimed that he did not set a time for him or that today is the time, the lender shall swear a shevuat hesat and collect his debt immediately. And even though in the previous siman it was explained several times that the oath of a lender regarding a pledge is with a sacred object, nevertheless, regarding the matter of the time, a hesat is sufficient [Urim VeTummim]. And so too here, he only swears when he says today is the time, but when he says in another five days, we do not allow him to swear until the time he says, for perhaps until that time he will concede to the borrower [it appears to me].

A borrower who reached a compromise with his creditors that he would pay them when "the Lord broadens his borders," and afterwards he became slightly wealthy and they claim from him, and he says that he did not intend for such a situation—if in the speech of people it is called that "the Lord broadened his borders," there is nothing in his words. And more than this, the beit din must understand according to the standing of the man and his business what is called for him a broadening of borders [Noda BiYehudah]. And so too when he died and left property to his heirs, his heirs must pay even if perhaps while he was alive it would not have been called for him, according to his standing, a broadening of borders; however, when he died and there is from what to pay, certainly the property became obligated at the time of his death and not to leave it to his heirs, for this is a broadening of borders when he does not need his property for his livelihood [It appears to me].

One who swears not to pay his debts, it is a vain oath and he is liable for lashes when the Beit HaMikdash existed, and the oath does not take effect upon him, for one who swears to annul a mitzvah, the oath does not take effect, as is written in Yoreh Deah siman 239. And even if at the time he swore he was not indebted to any person, and it would be possible to say that the oath takes effect because he is not swearing to annul a mitzvah since his intention was that he should not borrow [Urim VeTummim], this is not so; for if so, he should have sworn not to borrow. But this language constitutes the annulment of a mitzvah, for if not so, in the case of one who swears not to make tzitzit, the oath would take effect because it is possible for him not to bring himself to the point of obligation by not wearing a four-cornered garment [Ketzot HaChoshen]; and one who swears not to recite Birkat HaMazon, the oath would take effect because it is possible for him not to eat bread; and one who swears not to return a stolen object, it would take effect because it is possible for him not to steal. Rather, it is certainly so that even in such a case it is called annulling a mitzvah. And also one cannot say that it should take effect through inclusion because since it takes effect regarding a star-worshipper it should take effect also regarding an Israelite [ibid.], for regarding doing harm to others, even through inclusion it does not take effect, as is written there in siman 236. However, if he swore not to sell his properties, if at the time he swore he had no debt upon him and afterwards he borrowed and has no money to pay, the oath takes effect, for when he swore it was not to annul a mitzvah. But if at the time he swore there were debts upon him, the oath does not take effect even if he had money then, for since he is a debtor, all his properties are liened by the Torah to the creditor and he is obligated to pay with everything he has, and how can his oath take effect upon the properties of others? But when he was not a debtor at the time of the oath, even if he swore not to sell his properties to pay a debt, the oath also takes effect, for it is within his power to pay with money if he borrows, and automatically the oath takes effect. And furthermore, certainly his intention was that he should not sell his properties even for the payment of a debt, and all the more so not for the payment of a debt, and if so, the oath takes effect through inclusion. And a case came before the Rosh, of blessed memory, regarding Reuven who swore not to sell of his own to pay any debt, and afterwards he swore to pay Shimon at a certain time, and when the time arrived he claims "I have no money and I have already sworn not to sell of my own to pay any debt." And the Rosh, of blessed memory, ruled that if Shimon's debt preceded the oath not to sell, the oath did not take effect, and they lash him if he does not want to pay. And if the oath preceded Shimon's debt and the first oath took effect, the second oath is found to be a vain oath, since he swore that he would pay at a certain time and he is obligated to fulfill his oath and sell even his properties and pay, yet he is unable because of the first oath, and therefore they lash him. And if out of the fear of the lashes he regrets it and finds an opening for the first oath, they shall permit it for him and he shall sell and fulfill the second oath. Thus far his words. And as for why he required an opening even though regret is sufficient, as is written in Yoreh Deah siman 228, perhaps he wanted to be stringent upon him, or he holds that regarding an oath regret is not enough [the Acharonim found difficulty with his words, but according to what I have written his words are clear; and delve into it].

One who swears to his fellow that he will pay him what is owed to him before a certain time passes, even though he did not claim it within the time and he did not violate the oath—since the oath does not take effect unless the lender claims it—nevertheless, the oath remains in place, so that if he claims it even after the time, he is obligated to pay him immediately. And if not, he violates his oath, for just as one who borrows for a set time and the time passes is obligated to pay after the time, so too regarding an oath. Therefore, the borrower must be careful that at the time the money should be ready in his hand, so that if he claims it, he will pay him immediately, for if he delays, he will violate his oath. In Yoreh Deah siman 228 and siman 232 many such laws were explained. And it is called a claim even when he claimed from him before the time that he should pay him at his time, and when he did not pay at his time, he violated his oath. And also if he claimed from him by way of a letter, it is a claim [Urim VeTumim].

One who owed a maneh to his fellow and swore to pay him at a certain time, and this lender owed a maneh to another, and the ruler of the city seized a maneh from this borrower on behalf of the other, he is considered under duress and does not need to pay his lender, for it is a strong legal assessment that he did not swear regarding such a circumstance. Therefore, even though monetary duress is not called duress regarding an oath, nevertheless, since he certainly did not swear regarding such a circumstance, he is exempt [Shach]. And so too, if the beit din knows that from this lender a maneh is due to another, and the lender has nothing from which to pay, they extract it from this borrower and give it to that one by the law of Rabbi Nathan, as mentioned in siman 86, and they do not heed his oath. Furthermore, he does not transgress the oath since he is under duress by the side of Torah law, and he did not swear regarding such a case [it appears to me].

One who owed a maneh to his fellow and swore to pay him on a certain day of the month, and that day occurred on Shabbat, is obligated to pay him before that day. And if he did not pay him beforehand, he must give a mashkon on Shabbat and they shall appraise it, for this is a matter of a mitzvah which is permitted on Shabbat, as is written in Orach Chaim siman 306. Without an appraisal, it is not a payment and he has not fulfilled his oath [Sma]. And it is possible that an appraisal is not required except to transfer ownership to him of the body of the object according to the measure of the debt [Bach], and he shall give it to him as a payment. And all this is specifically when he claimed it before Shabbat, or even if he claimed it on Shabbat; for although the claimant committed a prohibition by claiming money on Shabbat, nevertheless, since he claimed it in any event, he violates the oath and is obligated to give a mashkon as has been written. But if he did not claim it, he does not violate it, as has been written in the previous section [and the difficulty of the Taz is answered, and see in Urim VeTummim]. And if he swore to pay him coins, there is no remedy for this except that he shall transfer ownership to him of the room where the coins are placed, and he shall acquire the coins by way of chatzer [Urim VeTummim]. But the prohibition of muktzeh they did not permit for him, to move coins on Shabbat even though through this he will violate his oath. And even if he moves them via a gentile, which is a shevut d'shevut in a place of a mitzvah, nevertheless, it is forbidden for the lender to receive them [it appears to me].

One who swore to pay his fellow, and according to the law he was not liable to him—if he knew that according to the law he was exempt and nevertheless swore, he is obligated to fulfill his oath. But if he says that he erred because he believed he was liable according to the law, he is exempt from paying, for whenever one is exempt from the law of repayment, he is also exempt from the oath, and it is an oath of error. And more than this: even if he swore to repay by a certain time, and within that time the lender forgave him, he does not need to pay for this reason; for whenever one is exempt from the aspect of repayment, he is also exempt from the aspect of the oath. For specifically when he knew that he was exempt from the aspect of the law and swore, he has accepted it upon himself, and it is like one who swears to give a gift, who is obligated to fulfill his oath. And so too, if he swore to repay by a certain time and in the meantime the shemittah passed, he is exempt also from the aspect of the oath if they practice shemittat kesafim in that place and the lender did not write a pruzbul, and he did not remember the shemittah at the time of his oath. For if he remembered then and nevertheless swore, he is obligated to fulfill his oath [it appears to me]. And so too, one who swore to give a gift to his son-in-law, and the gift was not an obligation upon him prior to the oath, and afterwards his son-in-law initiated a quarrel with his daughter—if there is a concern that if he gives him the gift he will initiate more quarrels, he is exempt from giving it to him, for it is a strong assessment that he did not swear with this in mind. And so too, even if he promised him a gift beforehand, if from the aspect of Torah law without the oath he would not be obligated to give it to him because of the quarrel, then he is exempt also from the aspect of the oath, as I have written [see Shach, subsection 28].

One who swears to his fellow to repay him on a certain day, and the time arrived and the lender is not in the city, he is exempt until the lender or his agent arrives; for even now if he were in the city, if he did not claim it from him, he is exempt, as I wrote in section 8. However, even if he claimed it from him when he was here before its time, or claimed it via a letter, nevertheless he is not obligated to bring him the money to another place. And he cannot give it to another, neither to his son nor to his wife if she is not engaged in her husband's business affairs; but when she is engaged, he is obligated to give it to her, and her hand is as his hand [Shach]. Therefore, the borrower should be careful that the money be ready in his hand, lest he come and claim them and he violate his oath, as I wrote there. And that which we said, that he does not need to bring him the money, this is specifically when the lender's residence has changed now from what it was at the time of the oath, or even if it did not change but he is not in his city where he was at the time of the oath, having traveled for his business and the like. But if he is in the city where he was at the time of the oath, even if his residence is not in the place of the borrower, he must bring the money after him, for certainly when he swore, his intention was that he would bring him the money to the place where he resides there; for if not so, he should have specified at the time of the oath that the lender shall come to his place. And even if there is a doubt in this, a doubt regarding a prohibition is resolved stringently. And even if his residence is now in another place, only that the distance from the borrower is equal to the first place and there is no concern between this path and that path, he is obligated to bring his money to the place where the lender resides now; and even if he mentioned the name of the first place at the time of his oath, for this is nothing but a mere sign because he resided there then. However, when there is a difference between the two paths, he is not obligated to bring it there [Urim VeTumim].

One who swears to pay on a certain day may pay even at the end of the day. Similarly, one who swears to pay on Hanukkah may pay even at the final moment of the last day, and likewise regarding all times. If he swore to pay on Rosh Chodesh and there were two days of Rosh Chodesh, he must pay on the first day of Rosh Chodesh. The reason is because the first day belongs to the previous month and the second day belongs to the coming month, and in the common parlance of people both are called Rosh Chodesh; there is a doubt as to which of them he intended since they are not from one month, and a doubt regarding a prohibition is resolved stringently. Thus ruled the Rashba, of blessed memory. And even though since in the common parlance of people both are called Rosh Chodesh, and if so when he used the term Rosh Chodesh they are as one day and he should be able to pay even at the final moment of the second day—and certainly when he mentioned the name of the month, such as if he said "on Rosh Chodesh Adar," for the primary count of Adar is from the second day—for one could say that on the contrary, since the days are divided, as the first belongs to the past and the second to the future, they are not of one matter; even though in the common parlance of people they are equal in language, nevertheless perhaps this man's intention was for one of them [see Urim VeTumim and the Shach and Taz, Yoreh Deah, end of siman 228]. And if he swore to pay in Adar and the year is intercalated, he must pay in the first Adar due to the stringency of an oath; and see what I wrote at the end of siman 43 and in Yoreh Deah siman 220.

If one swore in writing, there is a dispute whether it constitutes a shevuah or not, because regarding a shevuah it is written "to express with the lips," implying that specifically speech constitutes a shevuah. There is no doubt that one must be stringent due to the severity of the sin of shevuah. Furthermore, regarding money or any obligations where a person obligates himself or encumbers himself to his fellow, if he obligates himself in writing, he is liable just as if he had obligated himself with his mouth; on the contrary, one who obligates himself in writing, his obligation is more powerful, as he does not need to say "you are my witnesses" and he cannot say "I was mocking you." If so, his shevuah in writing also avails regarding monetary matters. Behold, even regarding a get for a woman, the opinion of the Rambam, of blessed memory, in chapter 2 of Hilkhot Gerushin is that it avails in writing. Similarly, a tekiat kaf has the law of a shevuah and must be fulfilled. However, if he did not swear himself but sent a messenger to swear or give a tekiat kaf on his behalf, it appears that it is not effective, for regarding the acceptance of a prohibition upon oneself, it is not relevant to say "a person's messenger is like himself." And even though if one appointed a messenger to consecrate a sacrifice it is consecrated [Temurah 10a], and consequently if he trespassed in it he is liable for slaughtering outside the Sanctuary, this is because "speech to the Most High is like delivery to a commoner," and just as if his messenger gave a gift to his fellow the gift is valid, so too with speech to the Most High. And that which we said, that one must be stringent regarding a shevuah in writing, this is specifically when he wrote "Behold I swear" or "I accept upon myself with a shevuah," but when he wrote that he swore—meaning that he admits in his writing that he already swore, and not that he is swearing now in his writing—he can say "I did not swear" when he gives an explanation for his words as to why he wrote so [Sma and Urim VeTumim]. And if he was under duress regarding his shevuah, this is a "shevuah of duress," and it was explained in Yoreh Deah siman 232. And even though monetary duress is not called duress, regarding a shevuah, nevertheless, we are witnesses that he did not swear with such an intention [Urim VeTumim]. And one who accepted upon himself with a shevuah to pay ten gold coins to so-and-so on such-and-such a day, and if he does not pay he will give ten gold coins to tzedakah, and he did not pay the entire ten in full at the time he established, he is obligated to pay the fine to tzedakah [Taz]. And regarding tzedakah there is no issue of asmakhta, as written in Yoreh Deah siman 258 and below in siman 207.

One who holds a shtar against his fellow for a set time, and comes within the time to beit din and says, "I have found some of the assets of so-and-so, and I fear that if they come into his hand he will smuggle them from me and I will not find a place to collect my debt"—if the dayan sees a basis for his words, that it is possible he will not have anything from which to collect his debt when the time arrives, it is a mitzvah upon the dayan to distrain the money until the time of the shtar arrives. And such is the law regarding a borrower for a set time, and within the time the lender or the guarantor sees that the borrower is squandering his assets and has no land, or that the borrower wants to go to a province overseas, and the lender or the guarantor claims his own or that he should provide a good guarantor, they listen to him; for it is not according to the law that he should wait until the time and lose his money. And the same applies in any place where it appears to the beit din to distrain the money of the defendant, the authority is in their hands, and this matter depends upon the sight of the eyes of the dayan, and it is impossible to explain all the details in writing. Our teacher, the Rema, wrote that from this the custom spread to distrain even though there is not such a great need for it. And if the beit din sends to Reuven to withhold the money of Shimon that is in his hand, if Shimon says that he fears he will suffer a loss from this, that they distrain the money of Shimon, he is not obligated to accept the distraint. And similarly, specifically when they see that the borrower wants to commit an injustice, the beit din should distrain; but if he is an upright man, only that his businesses are about to collapse and he will not have anything with which to pay, the beit din should not perform a distraint before the time of payment [Shach and Urim VeTumim]. But after the time they may distrain, for behold, they take from this one and give to that one, as will be explained in siman 86, and all the more so they are obligated to distrain. And also this one, in whose hand is the money of the borrower or his merchandise, cannot push himself away from the distraint unless he shows a clear loss, for then he is not obligated to lose for the sake of his fellow [it appears to me]. However, the lender himself, when he sees the assets of the borrower collapsing, it appears to me that he can sue him even before his time, for it is not according to the law that he should wait until his time and lose, as I wrote in section 3. And if the claim concerns orphans, the beit din must exert themselves greatly to distrain on their behalf so that they do not lose, and such is the custom.

If the plaintiff does not dwell in the city of the defendant, the plaintiff shall go to the place of the defendant, as written in siman 14. And if the defendant's money is found in the city of the plaintiff, if it appears to the beit din that the defendant will obey the law in his own city, they shall not withhold his money found here or his merchandise; rather, he shall go to his place and sue him in court. But if the beit din in the plaintiff's city fears that perhaps this defendant will not obey the law in his city, they may attach his money or his merchandise that is here. And when it appears to the beit din to attach them, they must notify the defendant, as written in siman 106. But if the defendant's residence was here and he left to dwell in another city and left his property here, the plaintiff can compel him to litigate here, so that every borrower from his fellow shall not uproot his residence and go to another place; therefore, they attach his money and notify him. And it is simple that regarding one who does not want to go to court, they attach whatever is within their power.

One who buys a field or a house from his fellow and challengers emerged against it, and the buyer came to beit din and says, "I fear lest the field be taken from me and I lose my money, and I will not find a place from which to collect them; therefore, it is my desire that the seller shall purchase land with my money so that I may seize it if they seize from me what I bought," they listen to him. Even if the seller is not squandering his assets, nevertheless, since there is a flaw before us from the challenge that emerged and the seller is not wealthy, they must be concerned for his money. But if the seller is wealthy and an upright man, they do not attend to the buyer with this claim.

After the time he set for him has passed, or after thirty days in an ordinary loan, if he lent without specification upon a mashkon, he may sell it by authority of a beit din through an assessment, as will be explained. Only if the borrower is in the city, the beit din must inform him that if he does not pay immediately, they will grant permission to sell the mashkon. If he is not in the city, the beit din does not attend to this, nor do they say to the lender "wait until the borrower arrives and presents his claim," for even without this the lender could say "it is purchased in my hand." Nevertheless, it is good advice that he should sell the mashkon before witnesses, so that the borrower will not later say that he received for it more than the assessment [Shach]. If the mashkon is continuously deteriorating, he may sell it in a beit din through an assessment even within thirty days, whether the borrower is here or is not here. Even though the mashkon is not worth more than the debt and there is no loss to the borrower now from what will be spoiled, nevertheless, must we not be concerned for the loss of the lender? Furthermore, a debt will remain upon the borrower for whatever is lacking from the sum of the debt, if the spoilage of the mashkon is by accident and not by the negligence of the lender.

There is no difference between a pledge of land and movables, and even regarding land, when the time has passed, one sells. However, regarding land where the creditor consumes the produce, some say that since the creditor suffers no loss, he should wait until a year. Also regarding movables, some say that the creditor must wait to sell until thirty days have passed from the claim, whether in an unspecified loan or when a time was set. Reason dictates this, for if the debtor had requested time to pay, the beit din would have given him thirty days; why should he be worse off when there is a pledge, where the creditor is secure in his debt? And the custom has already spread thus, to wait thirty days after the claim. However, it is not necessary to claim from him specifically in beit din; it is sufficient even if he claimed from him before witnesses, and even if he claimed from him privately, if the debtor admits that he claimed from him, it is sufficient that he waits thirty days thereafter and sells it according to the assessment of a beit din. But when he did not claim from the debtor at all, he is not permitted to sell it, unless the debtor is not here, in which case he informs the beit din and that is sufficient. Similarly, one who gave a pledge for tzedakah into the hand of the gabbai or for other needs of the city, they have the power to sell the pledge according to the law of an individual who lent upon a pledge.

Our teacher, the Rema, wrote that there are those who say that in a place where the custom is that one who lends to a gentile on a mashkon cannot sell it in less than a year, we also judge similarly regarding an Israelite who lent to his fellow on a mashkon, for we follow the custom in this matter. Thus far his words. And even though according to the law he may sell it after thirty days, and how can we follow this custom? Nevertheless, since an unspecified loan is lent according to the custom, it is as if he stipulated thus [Urim VeTummim]. However, if the custom is such only regarding a mashkon where interest is taken, one who lends without interest is not obligated to wait more than thirty days, unless it is a loan of profit according to a hetter isaka [Levush]. Indeed, if the custom is to wait a year even for a gemilat chesed loan, if it is a fixed custom, one must act accordingly even with an Israelite borrower. And so too, if the custom is to sell after a year even without a claim from the borrower, one should do so even with an Israelite [Shach]. And when he has waited a year and claims from him, he does not need to wait thirty days after the claim [Taz], but rather sells it immediately according to the assessment of a beit din.

When one sells the mashkon, he should not sell it except by the authority of a beit din, and even a beit din of three laymen; for since the lender acquires the mashkon and only requires an assessment, laymen are sufficient. However, a deposit that has spoiled and one sells it requires a beit din that is fit for monetary laws [Urim VeTummim]. And they shall assess how much it is worth to sell in the market, and he shall sell it at that assessment which the experts assessed, and not for less. And if he sold it for more than this assessment, the surplus belongs to the borrower; therefore, they give him advice that he should sell it with witnesses so that the borrower shall not say that it was sold for more than the assessment. And if he sold it without the assessment of the three assessors, he has done nothing and the sale is void, even if he did not err. And if it is a case where it is impossible to return the sale, since he sold it without the assessment of experts, even though he notified the borrower, he is liable to pay according to what it was worth at the time of the sale, if there are witnesses who know how much it was worth at the time of the sale. And if they say it was worth more than his debt, he shall pay him the surplus. And if there are no witnesses and the lender says it was not worth more than his debt, or that it was worth such and such more than his debt, he shall swear a shevuat hesset that it is according to his words. And if he says that he knows it was worth more but he does not know how much, he is considered one who is obligated to swear and is unable to swear, and he pays, and the borrower takes without an oath [ibid.]. And if he says, "I do not know if it was worth more or not," or if he does not want to swear, the borrower shall swear a shevuat hesset how much it was worth, and the lender shall pay him how much he says it was worth beyond his debt. And the same law applies if the lender says that the borrower commanded him to sell it for this amount and the borrower denies it, the lender swears. And when he sold the mashkon without the assessment of a beit din, even though he has committed a prohibition and is like a robber, nevertheless, he is not disqualified either for testimony or for an oath, for to ordinary people it does not appear to them that there is a prohibition in this [our teacher, the Beit Yosef], and as written in siman 34 regarding testimony, that as long as a prohibition does not appear to them, they are not disqualified for testimony.

One who sells a mashkon in his possession by authority of a beit din is not permitted to retain the mashkon for himself at the appraised value because of suspicion, so that they should not say that he took it cheaply. And even though there is one who says that when he sells it by authority of an expert beit din he may retain it for himself, there is one who disagrees with this [Shach], and such is the opinion of many of the poskim [Urim VeTumim]. And if the lender stipulated at the time of the loan that he is lending to him on this condition—that he will not require the appraisal of a beit din, but rather he himself will appraise it, or if the lender tells him the appraisal of the object at the time of the loan and that if he does not pay him at the time he set, he will be able to retain it for himself, and the borrower agreed to this—any stipulation in monetary matters is valid. However, the lender must be careful not to appraise it at less than its value when he retains it for himself, for this is forbidden even with the consent of the borrower and is absolute ribbit. And even to sell to others, he must be careful to sell it at its value, according to what is given in the market, for if not so, even if the borrower accepted it upon himself, it is like an asmakhta and is similar to what will be explained in the next section [it appears to me].

Our teacher, the Beit Yosef, wrote in section 17: One who lends to his fellow upon a mashkon on the condition that if he does not redeem it by a certain time, he shall collect the amount of his debt from the mashkon and the remainder shall be a gift "from now," it is an asmakhta. And if he stipulated with him that if he does not redeem it by a certain time it shall be forfeited, it is also an asmakhta. And if he said to him, "acquire it from now if I do not redeem it by a certain time," there is one who says that it is not an asmakhta, and that if the borrower claims "the words 'acquire it from now' did not leave my mouth," the lender is believed with an oath. Thus far his words. And behold, regarding what he wrote that when he says "the remainder is acquired from now" it is an asmakhta, the Acharonim agreed because this is like a penalty and is a complete asmakhta [Shach]. Furthermore, this is absolute ribbit, since he does not say that it shall be as a sale, but rather that he shall collect the debt and the remainder is a gift; you have no greater ribbit than this [it appears to me]. However, regarding what he wrote that when he stipulated that if he does not redeem it by a certain time it shall be forfeited it is also an asmakhta, they disagree with him, for a mashkon of movable property, since it is in the hand of the lender, is not subject to asmakhta even without "from now," and it is like a sale; and it was upon this condition that he lent to him, that if he does not redeem it, he shall acquire the mashkon. And in the Tosefta [Bava Metzia ch. 1] it is taught: One who lends to his fellow upon a mashkon and said to him, "If I do not give to you from now until a certain day, I have nothing in your hand," the time arrived and he did not give, the mashkon reaches him whether it is poor or whether it is fine. Thus far the words of the Tosefta. And the source of the law in the Shulchan Aruch is from the Tur in the name of the Rosh and his teacher Maharam of Rothenburg, as the Beit Yosef wrote in his great book in siman 207, see there. Therefore, it appears to me that certainly if the mashkon is not worth much more than his debt—meaning that sometimes when a seller is pressed for money he sells it at such a price—certainly there is no asmakhta in it. And so it is implied from the language of the Tosefta, that it only deals with such a case, from that which it teaches "whether poor or whether fine." And "poor" certainly does not mean that it is worth much less than the loan, for is the lender a fool? Rather, certainly it is worth approximately the loan, but it is not a good bargain; however, sometimes when a person needs the object he pays such a price, and automatically that which it teaches "whether fine" also means something similar to this. But when the mashkon is worth much more than the debt, it is an asmakhta, for the essence of asmakhta is when one exaggerates and does an excessive thing, as will be explained in siman 207. Therefore, without "from now" and a prominent beit din it is not effective, as is written there. And if so, without "from now," even though the lender has the mashkon in hand, nevertheless the borrower certainly intended it only as an asmakhta, unless he said "from now," for then it is a complete sale. And the words of our teachers are well-settled.

One who holds a mashkon from his fellow, and when the time arrived the borrower said to him, "Go and sell it," and he went and sold it, and afterwards the borrower came to nullify the sale and said that he only intended to put him off, his words are of no consequence and the sale stands. For when the borrower said to him, "Go and sell it," he made him an agent, and agency does not require a kinyan, as has been explained in siman 182. And since he fulfilled his agency and sold it, the sale stands. As long as he has not sold it, the borrower may retract his agency; and if the lender sold it after he protested against him, his sale is of no consequence. Similarly, if the lender pressures him to pay and the borrower says to him, "The mashkon shall be yours," he may retract it, as has been explained in siman 72.

If the creditor said to the debtor, "They will only give twenty gold coins for the pledge," and the debtor said to him, "Give it for this price," and it happened that the creditor traveled a long distance and took the pledge with him and sold it there for thirty—even though in their place it was truly only worth twenty, nevertheless the creditor cannot say, "The ten belongs to me because I traveled a long distance where it is expensive there." Rather, it all belongs to the debtor, and only the additional expense he incurred because of the pledge may he charge to the debtor and no more, since he had a journey there regardless. And if at the time the debtor said to him, "Give it for this price," the creditor said to him, "I will keep it for myself," and the debtor agreed to it, the pledge belongs to the creditor, and if he profited from it, he profited for himself. And if at the time the debtor said to him, "Give it for this price," the creditor did not say to him, "I will keep it for myself," but rather on his own he kept it for himself for this money, there is room for doubt if he subsequently profited from it as to whom the profit belongs. For seemingly one could say it belongs to the creditor, since he authorized him to sell for this price, what does it matter to the debtor if he sold it to others or to himself? Or perhaps the debtor can say, "I only authorized selling to others and not to yourself." And it is good to make a compromise between them.

A borrower who comes to redeem his mashkon from the hand of the lender, and the lender says to him, "Have you not already performed mechila for me?" there is nothing in the words of the lender, for mechila is only applicable to a monetary debt that is owed, where the money is not in existence but rather an obligation is incumbent upon the borrower to pay; in this case the language of mechila is applicable, for he forgives him the obligation. However, regarding an object that is in existence, such as a mashkon or a pikadon of an object or coins, how is the language of mechila applicable to it? It is only effective with the language of a gift, and it will be further explained in siman 241. And regarding a pikadon of money where he has permission to use it, some say that its law is like a loan even if it is still in existence [Shach and Taz], and some say that as long as it is in existence it is not like a loan and the language of mechila is not effective [Sma], and thus the great Acharonim agreed [Urim VeTumim and Chacham Tzevi], and such is the primary ruling:

A borrower who comes to redeem his pledge from the lender, and the lender says to him: "Did I not warn you to redeem it when the time arrived? And you said to me, 'Go and pledge it,' and I understood your intention was to say to pledge it for interest with a gentile, and so I did; now pay the principal and the interest and receive your pledge"—there is nothing in the words of the lender. Even if, in his opinion, the borrower intended this, they are "matters of the heart," and he should have asked him explicitly. Therefore, the borrower does not have to bear the interest. But if he said to him explicitly, "Go and borrow from a gentile for interest," the borrower must pay the principal and the interest. The lender must be careful to say to the one lending with interest that his primary reliance should be upon the pledge and not upon him, for if not so, it would be interest between them, as is explained in Yoreh Deah siman 168; see there.