Siman 98

The order of debt collection is as follows: when there is no denial between the lender and the borrower, one arranges for him as was written in the previous siman. If he requests time for repayment, we grant him thirty days, as will be explained in siman 100. If there is a denial between them, if it is an oral loan, the borrower swears a hesat oath and is exempt. If it is a loan via a deed and it is not validated, and the borrower claims it is forged, the lender must validate it. If it is validated, we do not accept any claim from the borrower, as was written in siman 82, and we tell the borrower to pay him. Even if he waited several years and did not claim it, we do not say that he waived it, and there is no need for an oath regarding this, for a waiver in the heart is not a waiver. Even if we heard that he despaired of the debt, such that he said, "Woe for the loss of money," it is not considered despair regarding a debt because it is not the way to despair, and what he said was merely by way of a complaint and is not true despair; in siman 163 it will be explained whether despair is effective regarding a debt. Even if the deed of debt is not produced from the hand of the lender, if only the debtor admits that he has not yet paid him, but it is said that he waived it because he did not claim it for a long time, we do not say so. If the borrower claimed that he waived it, this was explained in siman 82, section 15. Even if the lender saw that he wrote all his properties to his sons while he was ill and wrote for the lender only a minimal amount of land and he remained silent, even so we do not say that he waived it; and even though regarding a ketubah we say so, as was written in Even HaEzer siman 106, this is from the leniencies of a ketubah and not for a creditor. Nevertheless, regarding an old deed, the judge must perform a search and inquiry as to why he did not produce it until now, and the judge should see a good pretext for why he did not claim it until now. If it appears to him that there is an element of deceit in this, he shall give a written and signed document to the defendant stating that no judge shall attend to this. See what I wrote in siman 15.

One does not descend to the properties of the borrower until they first notify him. Even when it is known to the beit din that the document is valid and has not yet been paid, nevertheless, it is necessary to notify the borrower and not to descend to his properties without his knowledge. The reason is because a person's properties are like guarantors for him, and one does not collect from a guarantor until the borrower is first claimed from, as I wrote in siman 129. And even if the borrower is not in the city, if he is at a distance where it is possible to give him notice and receive a response from him within thirty days, they are obligated to notify him. And if the judge erred and brought the lender down to the properties of the borrower before he notified the borrower, they remove the judge from his authority, for this is like claiming from a guarantor in the place of the borrower [Bava Batra 174a].

If the borrower claimed and said, "This shtar that was validated before you is forged, and I will bring proof and invalidate it, for I have witnesses in such-and-such a place and they are so-and-so and so-and-so," if it appears to the beit din that there is substance to his words, they set a time for him to bring his witnesses. They give him the time according to their assessment, and if they cannot clarify and estimate how much time is needed for this, they give him thirty days, which is the time of the beit din. And if it appears to the beit din that there is no substance to his words, that he only comes with a pretext and with spurious claims, they say to him, "Pay, and afterwards, if you bring proof such that he would be obligated according to the law to return it to you, he shall return it to you." And if the lender was powerful and violent, and perhaps it would not be possible to extract it from him, they place the money for the time being in the hand of a third party for up to thirty days; if he clarifies his words within the thirty days, the third party shall return it to him, and if not, he shall hand it over to the lender. And if the beit din does not have the ability to determine whether he comes with a pretext or not, they give him a time of thirty days.

If the beit din set a time for him to bring evidence to void the document and the time arrived and he did not come, they wait for him through Monday, Thursday, and Monday, and they warn him with three warnings on these days of Monday-Thursday-Monday, one warning each day. And if he did not come after Monday-Thursday-Monday, they write a peticha against him, which is a shamta, and they place him under a ban. And he remains in his ban for ninety days [and now the ban is abolished by government decree]. If the ninety days were completed and he did not come, the beit din writes an adrakhta for the lender against the assets of the borrower, which is a document where the beit din directs him toward the assets of the borrower to collect his debt, and they release his ban. Since they write the adrakhta for him and the lender is secure in his debt, why must we keep the ban upon him? And why do we require ninety days? Because we say that perhaps during the first thirty days he is toiling to obtain funds, and during the second thirty days we say perhaps he did not obtain funds and is looking to sell from his assets, and during the last thirty days we say that the one purchasing from him is toiling to obtain funds. And even though it will be explained in siman 100 that they write an adrakhta after thirty days when he requests time to obtain funds, nevertheless here, since he said that the document is forged, even though we do not believe him, nevertheless regarding this matter we give him the power that they do not write an adrakhta against him until ninety days have passed over him. And they do not write the adrakhta until they send and inform him, and this is provided that he is within one day's distance of the beit din, and there is one who says two days. And if he was further away than this, they do not need to inform him. And why do they only give him a time of a day or two? Because they already gave him much time, ninety days.

In what case is this said, that they give him a period of ninety days? When the borrower was evading for the entire ninety days and saying, "I will bring evidence and nullify the document," and he is not brazen. But if he said, "I am not coming to beit din," they do not give him any time at all; since he acted brazenly, they write an adrakhta for the lender immediately against the assets of the borrower, whether against lands or against movables. And regarding a document of pikadon, they do not give any time, but rather write an adrakhta against his assets immediately, for only regarding a loan is it necessary to give time to obtain money or to sell his assets, but a pikadon he is obligated to return immediately. However, this is specifically when he denies the pikadon and it is found that he denied it falsely; but if he does not deny the pikadon, but rather says that he was negligent with it and is obligated to pay and needs to obtain money, they give him a period of thirty days [Nimukei Yosef, chapter 10 of Bava Kamma], and more than thirty days they do not give him. And likewise, if he says that he will bring evidence that the document of pikadon is forged, they do not give him more than thirty days [Sma].

That which we have said, that if he does not come at the end of ninety days we write an adrakhta, this is specifically regarding lands; but regarding movable property, even after the ninety days we do not write an adrakhta as long as the borrower says that he will bring evidence and nullify the deed. For how is it possible to hand over movable property to the lender? Perhaps he will bring evidence and the deed will be nullified, and this one [the lender] will consume or lose the movable property and he [the borrower] will have nothing from which to collect. And even if the lender currently possesses land, we fear perhaps it will be ruined or blasted; for since there is substance to the words of the borrower according to the perception of the beit din, granted that we do not give him more time than ninety days, this is regarding the land of the borrower, for we do not fear that the lender will destroy it with his hands, and if it is ruined on its own, would it not also be ruined if it were in the hand of the borrower? But to hand over movable property to him is not within our power until it is clarified that there is no substance to the protest of the borrower. And what is the remedy for this when the borrower has no land? We place the movable property of the borrower in the hand of a third party, and the beit din gives the borrower time according to their perception, such that after this time, when he does not clarify his protest, the third party shall hand them over into the hand of the lender. And if the lender is so powerful and violent that even land would be difficult to extract from him, the beit din does not write an adrakhta for him even after the ninety days, and they delay the adrakhta until it is clarified that there is no substance to the protest of the borrower. Or, if the borrower is not here, they delay the adrakhta until they inform the borrower, even if he is in a distant place, even though it is necessary to delay twelve months or more [Sma], for as long as there is substance to his protest, they must be careful with the adrakhta. And if it is clarified to the beit din that it is not the will of the borrower to respond to the beit din from afar, and he pushes off the beit din with fabricated claims, they write an adrakhta for the lender if the borrower is not prepared to come here [it appears to me].

How is the adrakhta written? If they transferred the creditor to unencumbered properties, they write: "Person Ploni was found liable to Ploni in a judgment of such and such an amount of money, and he did not give it to him of his own accord, and we have written for the creditor this adrakhta on such and such a field of the debtor." Afterwards, three experts appraise that field against his debt and they proclaim upon it in the manner of the proclamation that will be explained in siman 109 regarding the properties of orphans [as per the Sma]. And some say that for this proclamation there is no fixed measure, but rather according to what appears to the beit din [the Rambam], until those who increase the bid cease, and they transfer the creditor to the portion that they appraised for his debt. And if the purchasers added to the appraisal, the creditor is forced to accept what they added; and if they decreased, they do not decrease for the creditor from the appraisal [the Maggid Mishneh, chapter 22 of Laws of Creditor and Debtor]. And they tear the shtar chov with the tearing of a beit din when there is a shtar for the debt, and they write in the adrakhta that they tore the shtar. And the shtar shall remain in the hand of the creditor, and he is obligated to guard it, for perhaps the debtor will find witnesses to invalidate the shtar if the debtor so claims [it appears to me]. And if the shtar is not present, how will they recognize the forgery? [Urim VeTummim]. And if the debtor does not have unencumbered properties but only encumbered ones, they write the adrakhta in this language: "Person Ploni was found liable to Ploni for such and such an amount of money according to a shtar chov with witnesses in his hand, and he did not give him his debt, and we did not find for the debtor unencumbered properties, and we have already torn his shtar chov so that he may not collect with it another time, and we have given to Ploni the creditor permission to seek and investigate and to have his hand extended over all the properties that he finds belonging to the debtor and over all the lands that the debtor sold from such and such a time onwards, for from all of these the creditor has permission to collect his debt from them." And after they write this adrakhta, the creditor goes and searches; if he found unencumbered properties for him, they appraise them for him. If he did not find unencumbered properties for him, but found properties that the debtor sold or gave after the time of his shtar, he seizes from them, and they tear the adrakhta and write for him a shtar tirpa. How do they write for him? "Person Ploni son of Ploni won the judgment to seize for a debt that Ploni son of Ploni owes him, the sum of which is such and such, in such and such a field that Ploni took from the debtor for such and such from such and such a time, and we have already torn the adrakhta that was in his hand and we have authorized him to seize from this for such and such." And the purchaser can remove the creditor with money, as will be explained in siman 103. And after they write the tirpa to seize, three experts go down to that field and appraise for him from it according to the measure of his debt from the principal and half of the improvement, as will be explained in siman 115. And they proclaim upon it for thirty days as with the properties of orphans. And afterwards, if the debtor is in the city, they adjure the debtor that he has nothing, as will be explained in siman 114. And they adjure the seizer with a scroll in hand according to the law of all those who take with an oath, that he has not been paid from this debt, and that he did not forgive it, and that he did not sell it to another [the Rambam and the Shulchan Aruch; and it requires further study, for since the shtar is before us there is no concern of this, as it is only acquired through delivery and a document as I wrote in siman 66]. And afterwards they transfer him to the properties of the purchaser according to his appraisal, and they write for him a shtar horada. And how do they write? "After we appraised for Ploni according to the appraisal that was in his hand, and we proclaimed for thirty days as is proper, and we adjured this creditor who is seizing and also the debtor, we have transferred the creditor to such and such a field to be using it in the manner that a person uses his acquisition, and we have torn the tirpa." And from when does the creditor eat the fruits of this field? From when the days of the proclamation cease. And if there is an error in the adrakhta, he does not eat fruits even from the day the days of the proclamation were completed. And they do not adjure the creditor and the debtor until after the appraisal, when the creditor receives the land.

Any adrakhta in which it is not written "we have torn the loan document" is not an adrakhta, for perhaps the beit din will leave the promissory note in the hand of the lender and he will go to another beit din and request from them an adrakhta on another field. And any tirpa in which it is not written "we have torn the adrakhta" is not a tirpa, and any shuma in which it is not written "we have torn the tirpa" is not a shuma, and all is for the reason that has been explained. And how an adrakhta is written regarding the property of orphans will be explained in siman 109 with the help of Heaven.