Siman 83

If the lender admits that he received from the borrower the funds of the shtar, but says that he received them for another oral loan that he had against him, and the borrower denies it, this was explained in siman 58. And if the borrower admits that the lender has another loan against him, but says that the lender received those monies for this debt, and the lender says that he received them for the other debt—and there is a practical difference in this, such as if the lender has more security for one loan than for the second, such as for one debt he has a guarantor or a mashkon or a shtar and for the other debt he does not, and the lender wants to apply what he received toward the debt for which he has no security, and the borrower wants to apply it toward the secured debt and demands his mashkon or his shtar or that he release his guarantee—the law is with the lender. And even if the borrower said at the time of payment, "Behold, I am paying you for such-and-such debt," and the lender remained silent and received them, he can afterwards say, "I received them for the other debt, and that which I remained silent, I did not admit to your words, but rather I was forced to remain silent until I received the monies from you." But if at the time of the act the lender admitted to the borrower that he is receiving them for the debt that the borrower says, and now he wants to retract, he cannot retract. And it is simple that he is unable to claim a "sitrai" claim, as I wrote in siman 58. And if he received them explicitly for a debt for which he has a mashkon, he is obligated to return his mashkon to him, and he cannot withhold it for the sake of the other debt for which he previously trusted him without a mashkon, unless the situation of the borrower changed, it appears that he can withhold the mashkon for the sake of the other loan; and regarding a guarantor and a shtar, this is not applicable. And if the lender submitted a moda'ah before witnesses beforehand that he is forced to admit to the borrower that he will receive them for the secured debt and in truth this is not his will, his moda'ah is a moda'ah, and there is no need to recognize his duress because it is revealed to all [it appears to me].

Moreover, even if the debtor sent money to others via the creditor and in the presence of witnesses, and said to him, "Take this maneh to so-and-so," and the creditor remained silent and received them, he can afterwards say, "I am receiving them for myself." Even though he does not have a migo, since he gave them to him in the presence of witnesses, nevertheless he can withhold them for himself if his debt is known or if the sender admits that he owes him, for he can say, "I did not intend at all to acquire the money for the other person, but rather I took them for myself, and as for my silence, my intention was so that you would give me the money." But if he admitted that he received them from his hand to take them to so-and-so and now wishes to retract, he cannot, for that so-and-so acquired them immediately upon his receipt. And all the more so if he said so explicitly, that he would not withhold them for himself, unless he issued a moda'ah before witnesses beforehand, as I have written [it appears to me]. And specifically when the sender said to him, "Take these funds to so-and-so" or "Give them to him," for then he cannot retract when he says explicitly that he receives them on behalf of so-and-so, because that so-and-so acquired them immediately upon his receipt, for "take" and "give" are like "acquire." But if he said to him, "Go out and pay so-and-so," he can even afterwards retract and withhold them for himself, for that so-and-so has not yet acquired them through this person's receipt. And all this is when his debt is known or the sender admits it, but without this, he cannot in any case withhold them for himself even if he remained silent at the time of his receipt, unless he gave them to him not in the presence of witnesses, for then he has a migo, since if he wanted, he could have said, "You did not give them to me." However, even in such a case, if he admitted that he took them explicitly to take them to so-and-so and the sender said to him "give" or "take," he cannot retract even if he has a migo, for what does the migo avail him? Ultimately, according to his admission, that so-and-so has already acquired them. And the laws of "take" and "give" being like "acquire" will be explained in siman 121. And that which we said, that when he said to him "Go out and pay so-and-so" he can withhold them for himself even if his debt is not known if he has a migo of "I did not receive them," the same applies when he has a migo of "I returned them to you," and this migo avails even when he gave them to him with witnesses, for he does not specifically need to return them to him with witnesses. However, when he said to him "take" or "give," he does not have a migo of "I returned them," for he would not have been able to return them to him, since that so-and-so acquired them upon his receipt, as I have written [it appears to me]. And all this is when he withholds them for himself because of his debt. But one who sent a messenger and gave him money and said to him, "Give to this one such-and-such and to this one such-and-such," and the messenger gave the entire sum to one of them, or one of them seized them from the messenger, we remove them from his hand and divide them according to what the sender said; for as soon as he said to him "Give to this one such-and-such etc.," the messenger acquired them on behalf of all of them, even when he remained silent at the time of receipt [Sma and Shach]. But if he said to him "Go out and pay," he did not acquire on behalf of all of them immediately upon his receipt, as I have written [Shach]. And if he gave them to one of them, or one of them seized them from the messenger and clarifies that the entire sum he seized is due to him, his seizure is a valid seizure.

If the lender has two debts against the borrower, as mentioned in section 1, and there is a denial between them—where the borrower says that the lender explicitly received them for the debt that has a guarantee, and the lender denies him—if he paid him not in the presence of witnesses, the lender is believed to collect with his shtar from the borrower and from the guarantor with an oath, by virtue of a migo of "the things never happened," even if the second loan is a loan by word of mouth. And when there is a clause of trustworthiness in the shtar, he collects without an oath. And if he paid him in the presence of witnesses, if the debt that the borrower said he paid is a loan by word of mouth, the borrower is believed with a shevuat hesset, for behold, he has a migo of "I paid." And even if he borrowed in the presence of witnesses, he does not need to return it in the presence of witnesses, as has been explained in siman 70. And when the borrower swears, the guarantor is also exempt; and even if he was an arev kablan, since the lender admits that he received money and the borrower is believed with a hesset that he received them for this debt, and the borrower is exempt from this debt, it follows that the guarantor is also exempt, as has been explained in siman 49. And if both debts have two shtarot upon them and he paid him in the presence of witnesses, and even if the witnesses testify that he received them as a payment and the lender has no migo, nevertheless, since they do not know for which shtar he received them, the lender is believed to say that he received them for the debt that has no guarantee, and he swears and collects his debt from the borrower or from the guarantor. And if there is a clause of trustworthiness in it, he collects without an oath.

Regarding all that has been explained above, if one of the debts is still within its time and the other debt’s time has passed, neither of them is believed to say that he received payment for the debt within its time, for we are witnesses that he certainly paid him for the debt whose time has passed. And even if one is an unspecified loan whose time is thirty days, and regarding this we do not say the presumption that "a person does not pay within his time" as was written in siman 78, nevertheless, he certainly paid him more from the debt for which he has the power to claim from him, and within thirty days he does not have the power to claim from him [Netivot HaMishpat]. And likewise, if one debt is what he borrowed himself and the second debt is what he guaranteed for his fellow, we are also witnesses that he certainly paid what he borrowed himself [ibid. in the name of the Ritva]. However, if witnesses testify regarding all the aforementioned that it was not so, we listen to their words and we do not presume them to be liars; for even though there is a presumption that a person does not pay within his time, nevertheless, it is possible for it to be so.

If he produced a validated shtar against him and the borrower said, "It is forged, and they also forged the validation," or "It is a shtar amanah," and the lender said, "Such is the case, but I had a valid shtar and it was lost," the borrower swears a shevuat hesset and is exempt. For since the shtar is nothing even according to the words of the lender, he is unable to collect with it by means of a migo, as we do not say migo lehotzi. And some say that it is a safeka dedina [Shach], and if the lender seized [assets], even with witnesses, we do not remove it from him. And even if the shtar is not validated now, nevertheless, when he validates it afterwards, he is believed regarding what he already claimed, for he would have been believed with a migo since he is now the muhzak [ibid.]. And so too, if the dayan took action and collected the debt for the lender, what he did is done [ibid.]. And if the lender admitted that the shtar was post-dated but that he lent to him upon it, and the borrower says that he did not borrow upon it at all, it also depends on these two opinions; for according to the one who holds that we do not say migo lehotzi, the borrower swears a shevuat hesset and is exempt, and according to the one who holds that we say migo lehotzi, the lender swears and collects with it. Therefore, according to the opinion of the "some say," it is also a safeka dedina as I have written. And we have already written in the rules of migo that the opinion of most poskim is that we do not say migo lehotzi, and our teachers, the authors of the Shulchan Aruch, wrote here only the first opinion. And there is one who says further that even according to the one who holds that we say migo lehotzi, nevertheless, he does not collect here with this migo, since the lender admits that his initial coming to beit din was to sue him with an invalid shtar. And we only say migo to prove that the claim he claimed initially is true, and since he himself admitted that his primary claim, which is the shtar, is false, he does not collect with it even with a migo [Sma; and regarding what the Shach challenged in subsection 7, that according to the conclusion of the sugya in Bava Batra 32b that the halacha is like Rabbah regarding land one cannot say this, it can be said that according to the Rashbam's explanation there that it is because of a safeka dedina, one can say this; and such is the opinion of the Rif there, who wrote that regarding 'forged' one cannot say [migo] even when he has a migo, see there and delve into it].