Siman 85

Reuven produced a promissory note against Shimon, and Shimon produced a deed of sale showing that Reuven sold him his field after the due date of his note arrived. Shimon says: "I paid your note, and afterwards I purchased the field from you." Shimon's proof for this is that if it were not so, when I purchased your field from you, you should have collected payment from me and not sold me the field. If it is in a place where the custom is that the buyer gives money and afterwards they write him a deed, his claim is a valid claim, for Reuven should not have written a deed of sale after he received the money. Therefore, Shimon is believed to say "I paid and I had a receipt and it was lost." Even if the note contains a clause of trustworthiness, and even if he trusted him like two witnesses, it is of no avail, for the sale of his field is like an admission from him that he was already paid by Shimon, and against one's own admission no clause of trustworthiness is relevant. This is specifically when Shimon claims "I paid," then he is believed; but if he claims "it is forged," he is not believed, since the note is authenticated. Even though there is a proof from the sale of the field, nevertheless, what do proofs avail since it is authenticated and certainly not forged? And although there is one who disagrees in this, the primary ruling is that he is not believed in a claim of forgery [Shach]. And if it is in a place where the seller writes the deed and afterwards the buyer gives money, his claim of payment is not a valid claim, for Reuven can say to him: "I only sold you the field so that I would have something from which to collect my debt. For you smuggled money and movable property away from me, and I had nothing from which to collect my debt; I sold you land so that I could collect my debt from the land." And even if Shimon has other lands, and why should Reuven have to sell his field because of this—he should have collected from the lands that he already has—nevertheless, Reuven can say: "I feared lest there are prior debts upon you before mine, and when I come to collect, they will collect." And Shimon cannot say to him: "If so, if that was your intention, why did you not deliver a notification (moda'ah) before the sale in front of witnesses, saying: 'Know that I am selling my land to Shimon because of this concern'?" For Reuven can say: "I feared to deliver a notification lest it become known from this, for 'your friend has a friend,' and the sale would be cancelled. Therefore, since I have a promissory note in my hand, I relied on the promissory note and did not want to deliver a notification." Also, Shimon cannot say to him: "What benefit did you achieve in this? Was it not in my power to sell it to another after I purchased it, and from the buyer you would not have collected your debt if 'that which I shall acquire' (de'ikne) was not written in the lien of your promissory note?" Nevertheless, Reuven can say to him: "I did not fear this; one does not sell land in a single moment, and until you would sell it, I would collect it from you for my debt; whereas money and movable property, one hides them in a moment" [Chavat Yair in Turei Zahav]. Similarly, if the time for payment of the promissory note had not yet arrived, Shimon's claim is no claim at all, for Reuven was in need of money and was forced to sell his field. And even if it was on the day the time was completed, nevertheless, he could not compel him to pay him on that day, and he was forced on that day for money, and therefore he sold it [Sma]. And in a place where Shimon's claim is a valid claim and they exempt him from paying Reuven, nevertheless, he must take an equitable oath (hesset) that he paid him, since there is a note in Reuven's hand. But in the case of an oral loan in such a circumstance, an oath is not required; rather, the lender can impose a ban (herem stam) upon whoever withholds his money [Later Authorities].

And all this is specifically when there are witnesses or a deed that he sold him his field, but if there are no witnesses and no deed, even if Reuven admits that he sold it to him, he is believed with a migo that he could have said that he did not sell it to him [Shach]. Therefore, when Reuven sold Shimon movables, even in a place where they give money and afterwards pull the object, Shimon cannot say, "Why did you not withhold my money for your debt?" For since the sale of movables is not public, Reuven can say, "I relied on the migo." And even if he sold to him before witnesses, there is no proof from the sale of movables, for perhaps the objects did not please him and he sold them; this is not the case with land, for a person does not sell his land except due to financial pressure [so it appears to me, since the sages of blessed memory in Ketubot 110a mentioned only land, and see in Netivot HaMishpat]:

All this is when the lender sold his land to the borrower; but if the borrower sold his land to the lender, and the lender gave him money for his land, and the borrower claims: "If your shtar chov is not paid, why did you not pay me with your shtar chov?" the law is as follows: If it is in a place where they write a shtar and afterwards give money, certainly the borrower can say so. And if it is in a place where they give money and afterwards write a shtar, there is a dispute among the poskim. For some say that in this case as well, the borrower can say: "If I were indebted to you, why did you have to purchase it from me? Why did you not collect it in payment of your debt, since the time for payment had already arrived?" And some say that in such a case there is no proof from this at all, because it was the lender's desire to purchase this land, and if he had collected it for his debt, the borrower would not have let him and would have given him money; therefore, he was forced to purchase it, since they give money and afterwards write a shtar [ibid.]. And the first opinion holds that since, in any event, the strength of his shibud is weakened by this—for if the land remained in the hand of the borrower, he would have had a shibud from which to collect his debt, and now that he purchased it, he lost his shibud—certainly the lender would not do so merely to fulfill his desire to purchase this land. Therefore, if other lands remained to the borrower, even the first opinion admits that there is no proof from this in a place where they give money and afterwards write a shtar, for it is possible to say truly that he desired this land and purchased it [Urim VeTummim]. And so too, if the borrower sold movables to the lender, he cannot say: "If I were indebted to you, why did you not claim these movables from me for your debt?" because the lender can say to him: "If I had claimed them, you would have hidden them from me, and I desired these movables; therefore, I was forced to purchase them" [Taz].

Reuven produced a promissory note against Shimon, and Shimon produced a promissory note against Reuven, and Shimon's document is later than Reuven's document, and the time for Reuven's payment arrived before he borrowed from Shimon—Shimon can say to him: "If I were indebted to you, why did you need to borrow from me? You should have collected from your debt." And specifically when Reuven's document is clear and has no uncertainty, but if there is some uncertainty in it, such as a concern of asmakhta or the like, Reuven can say: "I feared perhaps I would not be able to collect it quickly because of the uncertainty within it, and I required funds and did not have the leisure to litigate with you, and I was forced to borrow from you."

Some say that in this matter there is no distinction whether the custom is that the lender gives the money and afterwards the borrower writes him the promissory note, or that he writes the note and afterwards takes the money; for the borrower can always say, "If I were indebted to you, you should have collected from your debt." And even though if they write the note and afterwards take the money, the lender could say, "What was I to do? I was pressed for money, and I did not have the leisure to litigate and press him," as in the case of the sale of land in section 1—for there he was forced to do so in order that he would have that from which to collect his debt, as I wrote there—but here, that same exertion that he exerted with him so that he would lend to him, he could have exerted to summon him to beit din so that he would pay him, since there is no doubt regarding the note. And some disagree in this, for certainly to collect a debt involves great exertion, and since he needed the money, he was forced now to borrow from him. And there is no proof except in a place where they receive the money beforehand, for then it is certainly proof that he already paid him, for if not so, who forced him to write a note after the receipt of the money?

In a case where Reuven's shtar remains in force, such as where there is a doubt regarding his shtar as written in section 4, or in a place where they write a shtar beforehand according to the latter opinion in the previous section, and the sum of money in both shetarot is equal, and both shetarot must come to collection and neither has money, and each is forced to collect land from his fellow: if both have equal land, such as if both have idit, or beinonit, or ziborit, each remains with his own and they tear the two shetarot. And similarly, even when one has idit and beinonit, or beinonit and ziborit, and the second has ziborit and they never had idit [Bach and Shach], since then he does not need to give the creditor the beinonit, as will be explained in siman 102, they also each remain with his own. And the owner of the ziborit cannot say, "I will collect first from the idit or from the beinonit of this one, and he will collect from me from the ziborit," for we hold that they appraise based on his own [property], as is written there, and for me, since I only have ziborit, the beinonit that I collect will be like idit, and automatically I will pay him in ziborit; for on the contrary, the second can say to him, "Since both of us are to collect from one another, I will collect first from your ziborit, and automatically my beinonit will be considered like idit since even at the time of the loan I had no other, and you will collect from me your ziborit, and what benefit is there in this?" Therefore, each remains with his own. But if one has idit and beinonit, or had them at the time of the loan even if now he only has beinonit, and the second has only ziborit and did not have idit even at the time of the loan, then this one collects and that one collects, and the owner of the ziborit has a profit either way. For if the owner of the ziborit collects first, he will collect from beinonit and for him it will be like idit, and his fellow will collect from him the ziborit which for him is judged as beinonit. And even if the second collects first from him the ziborit, when the owner of the ziborit afterwards collects from him, he will collect from him the beinonit. And one should not ask according to this for those who disagree in the previous section, where we said that in a place where they receive the money beforehand it is a clear sign that he already paid—for when Reuven has ziborit and Shimon has land better than this and they had no other fields even at the time of the loan, could Reuven not say, "Therefore I lent to him so that I may collect from him the good field and he will collect from me the ziborit"? For the truth is that Reuven is unable to say so, for if his desire was to collect the good field from Shimon, why was he forced to lend to him? Behold, even without this he would collect from him the good one for his debt since he has no other. And if his desire was to remove the ziborit from his hand, why did he need to borrow specifically from Shimon? He should have borrowed from another and had him collect the ziborit. And furthermore, it is not the way of people to borrow in order to remove their properties from their hand, even when they are ziborit. Therefore, it is a sign that his shtar was already paid.

If the date of the shtar that Shimon produces against Reuven was before the time for payment of Reuven's shtar arrived, then in any such case, this one collects and that one collects. And even if the date of Shimon's shtar was on the final day of the term of Reuven's shtar, Shimon cannot say to Reuven, "If I were indebted to you, why did you obligate yourself for the sake of one day?" For Reuven can say, "I was compelled for money on that day, and it was not in my power to compel you to pay then; therefore, I was compelled to borrow from you." And since the law is that this one collects and that one collects, therefore we also practice as I wrote in the previous section: that when there is no advantage in their collection, each one remains with his own, and when there is an advantage for one, this one collects and that one collects.

And know that in all this that we have said, that when there is no profit in the matter each one stands with his own, this is specifically when both documents have already expired their time. However, if one has expired its time and the second is still within the time, we collect from this one whose time has passed, and for the second we wait for its collection until the time passes. And similarly, when there is a profit for one, such that this one collects and that one collects, if the one is still within the time and the other has expired its time, this one collects and that one waits until the expiration of the time.

If the loans are not similar to one another, such as when one is an iska and the second is a gemach, or if in the second deed there is some strengthening of power compared to the first, such as if he stipulated that he would collect from him from ziborit, or if the first was a strengthening of power for the lender where he stipulated that he would collect from idit, or other matters of strengthening power, this one collects and that one collects. However, in a case where the second loan is for a longer term than the first, such as if the first was for five years and the second was for ten years, nevertheless, since the second loan was after the conclusion of the term of the first—even though he is able to say that for this reason he borrowed from him and did not collect his debt, so that he would have this person's money in his hand for ten years, and it was his intention to collect his loan from his fellow after some time—nevertheless, this is not a claim, for we are witnesses that a person does not do this, to be "a servant to the lender" with a deed at a time when he is able to collect his own money [as is implied in the Gemara ibid. which says: "But rather, the first for five and the second for ten etc. what is the reason," and examine it closely].

Reuven who claims from Shimon with a shtar chov to pay him, and Shimon replied to him: "Behold, you paid me money days ago, and why did you not withhold it for your debt?" and Reuven says: "I trusted you," he is believed with a migo, since he could have said "I did not pay you" or "I paid you before the time arrived for me to collect." For specifically when one borrows with a shtar, we say that it is a sign that it was already paid, for if not so, he would not have enslaved himself with a shtar when he has a shtar against that same man from whom he borrowed; but in an oral loan, since he has a migo, this is not a cancellation of his shtar. However, when both loans are oral, even though regarding the first loan he said to him "do not pay me except in the presence of witnesses," such that he does not have a migo of "I paid," nevertheless he is not believed with a migo, for we do not say migo to extract [Netivot HaMishpat]. And according to the poskim who hold that we do say migo to extract, here too we say migo. And if the latter loan was for a longer duration than the first, certainly this is not a receipt for the first, even according to us who hold that we do not say migo to extract. And specifically regarding a shtar we said that he would not make himself a "slave to the lender" as I wrote in the previous section, but in an oral loan, no [it appears to me]. And so it appears to me that regarding a shtar without witnesses, only with the signature of the borrower, if there is any empowerment there, even with an extension of the time, it is not a receipt for the first, and each stands with his shtar, and this one collects and this one collects. For there are some of the poskim who disagree with the very essence of this law that we wrote in the previous section regarding two shtarot, and they hold that this one collects and this one collects [Shach]. However, the great Acharonim decided like what our teachers, the authors of the Shulchan Aruch, wrote, that an extension of time is not an empowerment for the reason we wrote; and if so, in a shtar without witnesses, they would admit that this one collects and this one collects, and "give [it to us] and let us not add to it."

A case occurred involving a woman who consecrated her properties and commanded that her daughters should dwell in the houses and pay rent to the hekdesh, and they did so. Afterward, one of the daughters produced a deed of gift predating the consecration. The other daughters said to her: "If your deed were true, why did you pay rent until now?" The Rosh, of blessed memory, ruled that if she provided an amatla for the rent, the law is with her, and if not, the law is with them. It appears that what they said, "If your deed were true, etc.," the intention is not that it is certainly forged, for in any case, if the deed is not validated, even without this claim it is nothing; and if it is validated, they lack the power to say it is forged, as I wrote in section 1. Rather, their intention is that it is not true because you certainly returned and gave her the gift or waived it to the hekdesh [so it appears to me].

In a case where both deeds are in force, if one of them died and left orphans and did not leave lands, according to the law of the Gemara, the movable property of orphans is not encumbered to a creditor. According to this, the orphans collect the movable property from the second party and he loses out. If he is clever, he settles with them by giving them land, and then turns back and collects it from them, for orphans who collected land for their father's debt, a creditor turns back and collects it from them, as was written in siman 107. However, now that the Geonim have enacted that the movable property of orphans is encumbered to a creditor, as was written there, each one remains with his own and they tear both deeds. And even if the orphans are minors, and one does not attend to the property of minor orphans as was written in siman 109, nevertheless we do not say that they shall collect immediately and for him they shall wait until they grow up; for since he seized during the lifetime, he does not have to return them. For that which we do not attend to minor orphans applies when one comes to extract from their possession, but not that through this they should extract that which according to the law he also must take from them. And according to this that we said, that it is as if he seized during the lifetime, even according to the law of the Gemara they have no right to collect from the second party at all [it appears to me, and the difficulty of the Taz is answered, and such is the explanation in the Tur].

Two people who each hold a deed against the other for a maneh, and it was in a situation where the law is that each should remain with his own because both have equal assets as has been explained, and one of them sold his debt to another, and the buyer came to claim from the borrower, and the borrower replied to him: "Since the law between us is that each should remain with his own, the deed is as if it were paid, and just as he is unable to extract from me, so too you who come from his power"—they do not listen to him. For in truth the deeds are not as if they were paid, but rather the beit din does not attend to them because since the matter would perforce return to how it was, what gain is there from this? But in any case, his sale is a sale, and the buyer collects from the borrower, and the borrower goes back and collects from the seller with his deed that he has against him. And if the seller has no assets, neither land nor movable property, if the buyer collected land from him, he goes back and collects it, for this land is liened to him for his debt that he lent to the seller, as he collects from the liened assets of his borrower, who is the seller, and he collects it from the buyer. And this is specifically when the earlier lender sold the deed of debt, and automatically that land of the borrower himself became liened to him as well when he lent to his lender, and he says to the buyer: "You collected my lien, and therefore I shall collect it for my debt." But when the later lender sold his deed of debt and the buyer collected land from the borrower, this borrower is unable to collect it for his earlier loan, for this land became liened to his lender after the loan, and it is like one who borrowed, purchased, and sold, where the lender does not extract from the hand of the buyer unless the earlier borrower wrote to him that he liens to him the assets he will purchase afterwards, or according to that opinion which holds that even without his writing, his assets that he purchased after his loan became liened, as will be explained in siman 112 [Sma and Urim VeTumim]. And some say that even in such a case, the earlier lender collects his land from the buyer of the later deed, for he does not extract it by reason of a lien, but rather from the rule of Rabbi Nathan which will be explained in siman 86, that we extract from this one and give to that one. And therefore we extract from the later lender and give to the earlier one since they owe each other, and automatically we also extract from the one who purchased from him [Bach and Shach and Taz and Ktzot HaChoshen], for at the time it was in his hand, it was as if collected in his hand by the rule of Rabbi Nathan, since he has nothing from which to collect from the seller for his debt.

And all this is specifically when the purchaser collected land, but if he collected movable property, then even if the earlier creditor sold the promissory note, if the sold debt contains a lien on movable property incidental to land that he acquired and will acquire, and if so, this person could not have smuggled them from the second creditor, and automatically they are liened to him as well. And even though it was explained in siman 60 that one does not collect movable property from purchasers even when he wrote it in his lien because of the "market enactment," nevertheless here he collects from the purchaser since it was in his own hand, and they did not establish the "market enactment" in this case, just as with two borrowers where it is explained there that they did not establish the "market enactment" [it appears to me]. But if the sold debt does not contain a lien on movable property incidental to land and the borrower could have sold them and smuggled them, he is unable to collect them from the purchaser. And specifically when the loan was not with a deed but only with a kinyan; but when the loan was with a deed, then even if the sold deed does not contain movable property incidental to land, if only in the second deed there is a lien on movable property incidental to land and the sold deed is an earlier loan than the second deed, he can seize the body of the sold deed itself, for the body of the deed was liened to him via agav [Shach], and regarding deeds they did not establish "market enactments" as is written there, and also in this case the "market enactment" is not applicable as we have explained. And some say that it does not depend at all on what was written in the sold deed regarding movable property incidental to land, for the primary matter depends on whether the seller liened in his deed that he gave to the one from whom the purchaser collected movable property incidental to land that he acquired and will acquire; automatically he goes back and collects them from the purchaser [Sma], for we consider the movable property that he collected as if they came into the hand of the seller, for the purchaser collects through his power. And since the seller himself liened in his deed movable property incidental to land, this person goes back and collects them because of the lien of his deed that he has against the seller, and if he did not lien to him, he does not seize anything from him.

Reuven became indebted to Shimon for two hundred zehuvim, and Shimon became indebted to Reuven for a maneh, and Shimon already stood in judgment with Reuven regarding the maneh and was found liable in beit din. Shimon said: "You owe me two hundred; deduct this maneh, and my debt to you will remain only a maneh." Reuven replied to him: "I have not yet stood in judgment with you regarding the two hundred, and it seems to me that I have proofs that I am exempt from them; therefore, for the time being, give me the maneh for which you were found liable to me, and when I stand in judgment with you and am found liable to you, I will pay you the two hundred." If Shimon’s shtar is authenticated, the law is with him, for since it is authenticated, the status of a shtar is upon it, and it is nearly certain that Reuven owes him the two hundred; and if so, why should he pay him the maneh? But if it is not authenticated, certainly in such a case we attend to the claimant first and collect the maneh for him, and when Shimon authenticates the shtar and stands in judgment with him and prevails, he shall collect from him. And so too, if Shimon’s shtar is only in Reuven’s handwriting and he admits it is not a forgery, its law is like an authenticated one. And even if the shtar is not authenticated, this is specifically when Reuven is of means and it is certain that when he is found liable in judgment he will pay Shimon immediately; but if it is not so, certainly Shimon is not obligated to pay him the maneh until he stands in judgment with him regarding the two hundred, for it is no worse than "his assets being depreciated" which was explained in siman 24, where we do not attend to the claimant first in such a case, see there [it appears to me].