Siman 86

It is written in Vayikra regarding the denial of funds that a person denies to his fellow and then confessed, that he is obligated to return it to him, and it is written: "to him to whom it belongs shall he give it on the day of his guilt." And in Naso this law is also written, and it is written there: "and give it to him against whom he has trespassed." And the verse changed the wording, and our sages of blessed memory derived from this that if Reuven has a claim against Shimon for a maneh, and Shimon against Levi, we extract from Levi and give to Reuven. And the explanation of the verse is "to him against whom he has trespassed"—to the one to whom the principal belongs, for "asham" is the principal, as is explained there in the parsha. And this is the derivation of R. Natan cited in all places, that we obligate based on the rule of R. Natan. And its explanation is that we extract from Levi and give to Reuven. And there is no difference whether Levi was already indebted to Shimon at the time he borrowed from Reuven, or if he became indebted to him afterwards. And there is no difference in this between a loan with a shetar and a loan by word of mouth, since both borrowers admit each to his lender. And in any manner that they became indebted to one another, whether by way of a loan, or by way of buying and selling, or by way of hiring, or a debt of damages, or from theft and robbery, or from a deposit. And it is not necessary that the two claims be of the same type, for even if Reuven's claim against Shimon is from a loan and Shimon's claim against Levi is by way of a deposit or some other type of obligation, since in any event Shimon's money or objects are found with Levi, we extract from Levi and give to Reuven. And even when the debt is only from the laws of garmi, it is also equal to all other claims. And even according to the one who holds that the laws of garmi are only rabbinic and due to a fine, there is no difference in this, for whatever the sages enacted, they enacted similar to a Torah law. And regarding this rule of R. Natan, there is no difference between a matter whose obligation is from the Torah and a matter whose obligation is rabbinic [Shach]. Except that if Shimon gave to Levi as tzedakah, the law of R. Natan does not apply to this. And even if they gave tzedakah to Shimon himself, Reuven is unable to collect these funds from Shimon [ibid.], for there is no lien of property in this, as they gave it to him for tzedakah and not for the payment of debts; only upon Shimon himself does the obligation lie to pay his debts from everything that comes into his hand if he has more than the arrangement for a debtor that will be explained in siman 97 [Netivot HaMishpat]. But the beit din does not have the power to collect from tzedakah that they gave to him. And all the more so if the giver gave him the tzedakah explicitly for one specific detail, for then even the recipient himself is forbidden to change from the intent of the giver, as is explained in Yoreh Deah siman 253. And it was further explained there that if they gave to someone a document stating that he is a debtor and he collected tzedakah with this document because he is indebted to creditors, beit din collects from him and pays the creditors, since in his document it is explained that he is a debtor, presumably the givers gave to him so that he should pay the creditors. And everything is according to the document of his collection according to the assessment of the beit din and according to the estimation of the intent of the givers [it appears to me].

And there are those who asked a great question regarding this: why do we need a verse for the shiaubuda of R. Natan, that we extract from this one and give to that one? For we hold that shiaubuda is from the Torah, and consequently all the assets of the borrower are encumbered; so why do we need the verse "to whom the guilt belongs," and what did R. Natan innovate for us? And one cannot say that from this verse we learned the primary law of shiaubud nechasim, for shiaubuda we learned from the verse "he shall bring out the pledge to you" [Rashbam Bava Batra 175b]. In truth, they are two distinct matters, for shiaubud nechasim is not from the Torah except for the assets he possessed at the time of the loan, and not what he acquired afterwards, as written in siman 112. The reason is that a person's assets are like guarantors for the person himself, and only the assets he had then became guarantors. However, by reason of the shiaubuda of R. Natan, it applies even to assets he acquired afterwards [Ktzot HaChoshen], for in any event it is his, and we extract from his borrower and give to his lender. Furthermore, by reason of shiaubud nechasim, he has the ability to pay him with money, but because of the shiaubuda of R. Natan, Levi does not have the ability to pay Reuven with money if Shimon deposited or lent him an object, and Reuven takes the object; for it is not by reason of encumbrance, but rather it is literally like his own [ibid.]. And so too there is the reverse, where shiaubud nechasim applies and the shiaubuda of R. Natan does not apply, such as where the borrower sold his assets; for by reason of R. Natan, the lender would not extract from purchasers, since the borrower does not have a debt against them and this is not included in "to whom the guilt belongs." But because of shiaubud nechasim, we extract from purchasers even if the seller has nothing with which to pay them, for they should not have taken the lender's guarantee [it appears to me]. And so too regarding collection from orphans, there is a practical difference between these two reasons [see Chiddushei Rashba at the end of Kiddushin].

The burden of collection from Levi is not placed upon Shimon and Reuven to exert themselves and collect from Levi; rather, if he is able, they shall compel him through beit din. And if it is impossible to collect from Levi without Shimon, it is obvious that the obligation is placed upon Shimon to exert himself on his behalf [it appears to me]. And all the more so if Shimon wrote to Reuven in his document that he is obligated to handle and endeavor to deliver to Reuven cash, for then too the obligation is upon him to extract his money from Levi and deliver it to Reuven [Sma]. And some say that in any case, the obligation is placed upon Shimon to exert himself and extract from Levi and deliver to Reuven, and anyone who does not do so is included in "the wicked borrows and does not repay" [Shach, and so it appears from Rashi, Kiddushin 15a, s.v. "and not to a creditor, the master is not obligated etc."]. And as for that which our sages, of blessed memory, used the language "they extract from this one and give to this one," which refers to the beit din, certainly it is so if Shimon and Levi do not wish to do so, as with all civil laws where the burden is placed upon the beit din to fulfill the law of the Torah. For behold, the verse placed the obligation only upon Levi, as it is written: "and he shall give to him against whom he has trespassed," for the primary obligation is upon him.

Reuven does not have the ability to extract from Levi prior to the time that Shimon lent to him, or leased to him, or rented to him. However, if he deposited a deposit in the hand of Levi, even if he deposited it for a set time, we extract it from Levi even prior to the time, for this is not a loss to Levi since he does not have permission to use it. And even if Shimon possesses land, we extract the deposit, which is not the case regarding a loan, as will be explained. Therefore, if he gave him permission to use it, we do not extract it from him prior to the time. But when the time arrives, we extract it even if Shimon possesses land, since Levi has no loss:

In what case is this said, that the beit din attends to extracting from Levi the loan and handing it over to Reuven? When Shimon has no other assets to pay Reuven, such as when the beit din arranged for him and administered an oath to him and found nothing but this debt. And even if he has assets in another country, it is like anyone who collects from purchasers, who is able to collect from them even when the borrower has free assets in another country, as I wrote in siman 111. But if Shimon has assets in this country, the beit din does not attend to extracting from Levi for Reuven, for why should we cause a loss to Levi? And even if the time for payment has arrived, Levi can say, "I will appease him so that he extends the time for me." And even though the lien of Rav Nachman applies even when the borrower has assets—for behold, from the Torah it is literally his own, as if Levi is indebted to Reuven, and in any case it is no worse than a total guarantor—nevertheless, just as one does not collect from liened assets in a place where there are free assets, so too in this matter: if Levi says that he has a loss in this, such as saying that Shimon extended the time for him or waived it for him entirely, if Reuven is only able to collect from another place, we do not extract from Levi. But when Shimon has no other assets, we do not pay attention to anything he says, and we collect from him upon the arrival of the time that was clarified by a deed or witnesses, and we hand it over to Reuven. However, Reuven must swear that he was not paid by Shimon, according to the law of anyone who seizes from liened assets, who does not collect except with an oath [Shach]. And so too, if Shimon had assets and lost them, the beit din collects from Levi, for Levi's debt is always liened to Reuven. And so too, if Shimon is a violent person, even if he has assets, the beit din extracts from the hand of Levi and gives to Reuven. And therefore, when Shimon has no other assets, he does not have the power to waive for Levi nor to extend the time for him, for behold, Shimon's lien over Levi has expired and became liened to Reuven. But before the time he established at the time of his loan, he does not have the power to extract from him, for every borrower can do with his assets as he wishes, and even if he gave his movable property as a gift, one does not collect from them; and only when Reuven claims against him, then he has no permission to do anything with what is in Levi's hand. And if he waived or extended the time for Levi and Reuven did not protest because he thought that Shimon had other assets, and afterwards it became known to him that he does not have any, his waiver or extension is void [Netivot HaMishpat]. And so too, if Shimon says that it is a deed of trust or paid, he is not believed without clear proof to cause a loss to Reuven.

If after Levi became obligated to Reuven in a beit din, or even without a beit din, only that Reuven warned him not to pay Shimon, and it became clear to Levi that it is owed from Shimon to Reuven, and he transgressed and paid Shimon, and Shimon already consumed or lost the money, or he is a violent person and it is not possible to extract it from him, Levi is obligated to pay Reuven. However, Reuven must swear to him as has been written. And even if there is a clause of trustworthiness in his document that Shimon gave him, he is not exempt without an oath, for regarding purchasers trustworthiness is not effective, as has been written in siman 71, and the same law applies here.

And so too, one who refuses to descend to beit din, or descended to beit din and was found liable and does not wish to fulfill the command of the beit din, and the beit din placed a lien on his money that is in the hand of another, and that other person transgressed and handed them over to the refuser—if the claimant cannot find from where to collect from another place, this person who handed them over to the refuser is liable to give to the claimant the money that he returned to the refuser. The principles of these laws were explained in siman 73; see there.

Reuven is not called "muhzak" in the debt that Levi owes Shimon until it is clarified in beit din that Shimon is indebted to him. As long as it has not been clarified, Levi is not subordinated to Reuven by the rule of Rabbi Natan. Even if Reuven protested to Levi that he should not pay Shimon, he is not called "muhzak" by this, and whatever Levi did is done—for example, if he extended him time, or waived the debt, or paid him—since his debt has not yet been clarified. However, when the matter was well-known that it is owed from Shimon to Reuven, it does not require clarification of beit din. So too, if Reuven claims a "bari" claim that Levi knew of this, that it is owed to him from Shimon, and he warned him not to pay him and he caused him loss by this in that he handed it over to him: if Levi admits, he is liable to pay, and if he denies him, claiming that he did not know of this or that he did not warn him, Reuven can administer to him a "hesset" oath [it appears to me].

If Shimon is not in his home and Reuven comes to collect with his document from Levi, we also see: if Shimon has other properties, we do not collect from Levi when he says that he has some loss from this, as has been explained. But if Shimon has no properties, we collect from Levi, and Levi can administer an oath to Reuven as has been explained. And specifically with a validated document; but if his document is not validated, we do not pay it any heed. And even when it is validated, if it is not a document with witnesses but rather with the signature of Shimon—and even if witnesses validated his signature, if they did not testify regarding the essence of the matter—then this does not have the law of a document, and he is believed to say "I paid," as has been explained in siman 69. Therefore, when Shimon is not in his home, the beit din claims on his behalf: perhaps Shimon paid you.

If Shimon died and his heirs remained, and Levi claims that Shimon's document is paid, and there is no trust clause in the document for Shimon's heirs, and Levi claims that the heirs must swear—they swear the oath of the heirs: that they did not hear from their father and did not find in his writings that the debt due from Levi is paid, and they collect from Levi, and Reuven then collects from them with an oath. And if they did not want to swear, Reuven returns to them if they have properties that they inherited from their father, but from their own properties he does not collect, even though they cause him damage by the absence of their oath [Sma and Acharonim]. And if they have no other properties that they inherited from their father and they say that they are unable to swear the oath of the heirs because they know the opposite, that it is paid, they swear a shevuat hesset that they have nothing in their possession with which to pay the debt of their testator from the properties of their testator. And even though one does not swear on a claim of doubt, nevertheless, because their claim is weakened since the document of indebtedness is in their hand and it appears that it is not paid [Sma], therefore they swear even on a claim of doubt. And this, that they only swear a shevuat hesset and not with a sacred object according to the enactment of the Geonim in siman 99, is because the enactment was not made concerning heirs [ibid.] and a shevuat hesset is sufficient for them; and they shall swear that no properties remained from their father with which to pay and that this document is paid. And there are those who disagree with all of this and hold that we do not pay attention at all to the words of the heirs or to their oath, and even if they do not wish to swear that the document is not paid, nevertheless Reuven collects from Levi, for the lien of Rav Nachman is as if the document were in the hand of Reuven, and only Reuven swears to Levi that his document is not paid and collects his debt [Shach].

Reuven lent to Shimon via an oral loan, and Shimon lent to Levi via a shtar, and Levi sold all of his properties. If Shimon were to collect, he would collect from the purchasers of Levi. Now Reuven comes to seize from the purchasers of Levi through the power of Shimon. If Shimon admits to Reuven that he has not been paid by him, the purchasers cannot push him off and say, "Shimon paid you, and you and Shimon made a conspiracy against us, for behold yours is an oral loan where the borrower is believed to say 'I paid.'" For since Shimon admits to Reuven regarding his debt, and Shimon through his shtar had the ability to collect from them, automatically every right that Shimon has against Levi and his purchasers, Reuven also has by the rule of Rabbi Nathan. And all the more so that Levi cannot say this to Reuven. And Reuven shall swear a shevuat hesset that he was not paid by Shimon and seize from his purchasers, and all the more so from Levi himself. And there is one who says that if Shimon extended the time for the purchasers, perhaps they might find other properties for the borrower, Reuven is also forced to do so [Urim VeTummim]. And in my humble opinion, it does not appear so, for certainly if he did so before Reuven’s time arrived, what he did is done, and this is no novelty at all. But once Reuven’s time arrived, behold that which is in Levi’s hand is literally Reuven’s, as has been explained. And even if Reuven’s debt is an oral loan, they cannot say "you made a conspiracy between you" any more than if he had not extended the time, and they cannot say to Reuven, "you are not my litigant." And regarding what he inferred this law from the words of one of our teachers who wrote: "And Reuven does not collect from Shimon’s debt through the power of Shimon except where he could have collected through his own power," thus far his words [Hagahot Ashri, chapter 4 of Bava Kamma], it appears to me that its explanation is this: for example, if Shimon’s debt with Levi was an oral loan and there are witnesses that he has not yet paid him, if those witnesses are relatives of Reuven, Reuven is unable to collect, for their testimony is not accepted; since the money belongs to Reuven, they are disqualified for testimony.

Reuven has a promissory note against Shimon, and Shimon against Levi his brother, and Reuven came to collect from Levi, and Levi claimed that his brother performed an act of kindness for him and lent to him in order to support him and stipulated with him that he would not compel him to pay except for when Levi desires—if this condition is explicit in the note or if there are witnesses that he lent to him on this condition, his condition is valid and Reuven cannot compel him. And if it is not explicit in the note and there are no witnesses to this, even though according to the assessment of the situation his brother would not have pressed him and it is evident that the truth is so, that he would not have pressed him, nevertheless, since Shimon could have legally collected from him, Reuven may also collect from him. And even if there are witnesses that he later extended the time for him, this is nothing, for as soon as Levi became indebted to Reuven by the rule of Rabbi Nathan, it is not within Shimon's power to extend it for him, as I wrote in section 5. And if Shimon has the equivalent of money, it will be explained in siman 101 section 4 with the help of Heaven.

Regarding the lien of R. Nathan, there is no distinction between an Israelite and a gentile. Therefore, if Reuven holds a mashkon from a gentile and the gentile owes Shimon, Shimon may redeem the mashkon from Reuven, giving him the principal and the interest that has accrued upon it, and he collects his debt from the remainder, for the mashkon is liened to Shimon by the rule of R. Nathan. And if the gentile pawned it with him for a set time, Shimon must pay him all the interest that will accrue until that time, and he pays him the principal and the interest and receives the mashkon. Similarly, if Reuven holds a deposit from a gentile and this gentile owes others, they may extract the deposit from his hand by the rule of R. Nathan. And all this is specifically when it is known that no damage will come to Reuven from this; but if there is reason to fear that if he removes the deposit or the mashkon from his hand, the gentile will sue him in the secular courts and they will punish him financially or physically, one may not extract it from Reuven's hand. And this is not specifically regarding a gentile, for the same applies to an Israelite who holds a deposit or a mashkon from his fellow Israelite, and that Israelite is a violent man and does not obey the law, and the hand of the Israelite is not powerful, and it is possible that he will be punished if he removes the deposit or the mashkon from his hand—he is not obligated to remove it from his hand. Even though according to the law one must do so, nevertheless, this is certainly not the Torah law that he should suffer damage for the sake of his fellow's money, unless the one extracting it from his hand gives him guarantees for all the damages that could possibly happen to him because of this. And then, even if the object belongs to a gentile, he is obligated to remove it from his hand if according to Torah law it is possible to extract it from him. And see what I wrote in siman 194, section 13.