Siman 99

<b>[How one administers an oath to a borrower regarding whether he possesses assets, and placing a ban on anyone who knows he has property, and whether he is upright or a deceiver, and if he gave his property as a gift; and it contains 8 sections]:</b> If the borrower had no claim against the debt, whether in a document or oral, but rather says he has nothing with which to pay, by Torah law, when no property is found for him and he is not established as a deceiver, the lender has nothing against him. However, when deceivers increased, the Geonim, of blessed memory, enacted that even when they arrange the arrangement of a debtor, if it is not sufficient for the payment of the entire debt, they administer a severe oath to the borrower with a sacred object, similar to a Torah oath, that he has nothing more than what he showed before the beit din that arranged for him, or that he has nothing at all, and that he did not hide anything in the hands of others, and that he did not give a gift to another on condition to return it (the Rambam). And even if he handed it over to another absolutely as a complete gift because he is certain that the other will return it to him afterward as a gift, in order not to pay debts with this, and his intention was to smuggle it from the creditor, this oath applies [as mentioned above, and that which they questioned regarding this is well-settled]. And in section 4 more will be explained regarding this. And he includes in this oath that everything he earns and everything that comes into his hand or into his possession from that which his hand attains, he shall not feed from it his wife nor his children, nor clothe them, nor provide for them, nor give a gift to any person in the world; rather, he shall take out from all that his hand attains food for thirty days and clothing for twelve months—food fitting for him and clothing fitting for him, not the eating of gluttons and drunkards or princes, and not the garments of governors and nobles, but rather according to his way, as written in siman 97. And all that is in excess of his needs he shall give to the creditor, the first first, until he collects his entire debt. And if he did not swear regarding the future to give him all that his hand attains, he has the power to administer an oath to him every thirty days if he did not earn. Therefore, the early authorities enacted that he should include in his oath also regarding the future, so that he will not need to swear many times and utter the Name of Heaven constantly. And before the oath, they place a ban on anyone who knows that this borrower has assets, revealed or hidden, movable property or land, that he must inform the beit din; and if he does not inform, he violates the ban. And if he has many creditors, he does not need to swear to each and every one, but rather one oath for all of them, for this oath is an enactment of the Geonim, and we are not exacting to be stringent but rather to be lenient (the Tur).

And a debtor who is established as being poor and an upright man who walks in integrity, and the matter is revealed and known to the beit din and to most of the people, and the creditor comes to adjure him according to this enactment, and according to the assessment the claimant has no doubt whether the debtor has the means to pay him or not, but rather his desire is to distress him with this oath, to cause him anguish and to shame him in public in order to take revenge on him, or so that he will take his wife's property which does not belong to him and give it to him until he is saved from this oath—it is forbidden for the judge to adjure him, for they only enacted this oath because of deceivers. And if he adjured him, he has violated a Torah prohibition of "do not be to him as a creditor." And not only that, but it is proper for the judge to rebuke the claimant and to dismiss him. And we have already explained this among the general matters of oaths in siman 15, see there. And in Yoreh Deah siman 253 it was explained regarding a poor person who collected money with a collection document and they gave him donations, whether he must pay the creditor from this, see there.

And so too the opposite: one who is established as a deceiver and whose ways are corrupt in his business dealings, and he is estimated to have money but claims he has nothing and is running to take an oath, one should not administer the oath to him. Rather, the dayan must compel him with all types of compulsions until he pays him. The general principle of the matter: whatever the dayan does regarding these matters, and his intention is to pursue justice, he is authorized to do it and receives reward for this, provided that his intention is for the sake of Heaven and he understands the matter well, as has been written regarding this in siman 16; see there.

And so too, one who employs a ruse or a stratagem to evade a creditor, it is incumbent upon the judge to extract his swallow from his mouth. For example, one who is indebted to his fellow and gave all that he has to another as an absolute gift in order to evade his debt, his ruse shall not avail him, and the creditor shall collect his debt from the recipient of the gift, even if it is an oral loan. And even if he gave it to a minor, they collect it from him. And they shall administer an oath to the recipient of the gift according to the understanding of the beit din, without ruse or deception, as to how much of a gift he received from the debtor, and the beit din shall collect them for the creditor toward his debt. And even though we do not have a claim of certainty against the recipient, nevertheless, we administer an oath to him in order to reveal the truth; since he joined with a wicked person to evade the money of others, he is like him. And if this recipient of the gift made a profit through trade or interest with that gift, they do not collect it from him, for even regarding real property encumbered to a lender, if the purchaser or the recipient of the gift consumed the produce for several years, the creditor does not extract the produce he consumed [see Shach and Urim VeTumim]. And so too, even if prior to the loan he wrote all his properties to another, and afterwards borrowed from others, and when the lender comes to collect his debt he commanded to produce the deed of gift that preceded the debt, and everyone sees that even though he wrote all his properties to another, he retains possession of them and conducts business with them, and they never left his domain, and he only intended to smuggle them from the creditor so they would find nothing from which to collect and he would consume the money of others—the gift is void, and the creditor collects from it even though it preceded the loan. And so too, even if the recipient of the gift holds the properties and conducts business with them, but it is known that he gives the profit to the one who gave it to him and does not hold it as his own except on the surface to hinder the repayment of the creditor, the creditor collects from it even though it preceded the loan. However, if it appears to the beit din that they did not intend a ruse but rather an absolute gift, the recipient has acquired it, since the gift preceded the loan and he gave them as an absolute gift, for he had no properties at the time of the loan. And if the loan preceded the gift, even in such a case the gift is void; even if he intended an absolute gift, nevertheless, since his intention was to evade the debt, it is not within his power, for his properties were already encumbered to the creditor from the time of the loan, and he is one who damages the encumbrance of his fellow, which is worse than the laws of garmi [see Tosafot Gittin 41a, starting with "BeMazik," and the Maggid Mishneh chapter 7 of Malveh VeLoveh; and the words of the Rema in section 6 should be in section 7, and so it appears from Tosafot Ketubot 79a, starting with "Asa'um," and from the Gemara there, and examine it closely]. And so too, one who purchased land and stipulated at the time of the acquisition that his wife shall not have an encumbrance of the ketubah on this land, or who commanded to write the deed of acquisition in the name of his brother, it has availed nothing, and his wife collects her ketubah from this land and the creditor his debt. For anyone who comes to evade Torah law and the enactment of the sages of blessed memory through ruses and stratagems, and all the more so to rob others, the sages of the generation are obligated to void his intention, even though there is no clear proof here but only well-proven assessments. And in similar cases of other ruses and stratagems, as it is impossible to explain every ruse and stratagem that a deceiver is capable of doing, the beit din is obligated to void his ruse and his stratagem and to pay the creditor.

Reuven administered an oath to Shimon, this being an oath according to the enactment of the Geonim, but he did not swear him regarding what he might earn in the future. Afterward, Levi sued him, whose contract is later than Reuven's contract, and he swore him also regarding the future, that whatever he earns beyond his expenses he shall give to him. Afterward, Reuven came and wants to also swear him regarding the future, and Shimon says that he already swore to give it to Levi. Reuven claims that his contract is earlier and he should take first. If he had not sworn, they would divide it, for the law of priority does not apply to a thing that is not yet in the world and is destined to come at a later time, because the lien takes effect for both of them equally at the time it comes into his hand. Since he swore to give it to Levi, he must fulfill his oath. And even though it could be said that the oath does not take effect to cause a loss to Reuven's money, nevertheless, since he has no right of priority, and it was within the power of the borrower not to involve himself and not to earn, therefore his oath took effect, for it is like one who swears that he will involve himself for the later creditor and not involve himself for the earlier creditor [Taz]. Furthermore, since he has no right of priority and without the oath they would divide it, it turns out that the oath took effect on Levi's half, and automatically the oath takes effect even on Reuven's half by means of inclusion [Urim VeTummim]. According to this, if he wrote to Reuven in his contract "that which I shall acquire" and liened to him also movable property incidental to landed property, such that he has the law of priority, then according to that opinion which will be explained in siman 112 that the borrower cannot retract, the oath does not take effect. But according to the opinion there that he can retract, the oath takes effect, for when he swore to Levi and did not swear to Reuven, he automatically retracted from what he liened to Reuven. There are those who disagree with the essence of this law and hold that the beit din should not pay heed to his oath, and it is not within his power to expropriate the money of others by means of an oath, and they divide it between them; only if Levi seized them, they do not remove it from his hand, for even without this there are opinions who hold that we do not remove from the later creditor when he seized, as written at the beginning of siman 60, see there [so it appears to me; and regarding what is written in the Shulchan Aruch "they shall compel Levi," perhaps it should be "to the borrower," and see in Urim VeTummim; and the words of the Shach require further study; or perhaps it deals with a case where he wrote to both of them "that which I shall acquire" and movable property incidental to landed property, and he borrowed and borrowed and then acquired, in which case they divide, and the Shulchan Aruch follows his own reasoning that seizure is not effective, as written in Shach siman 60, subsection 8; but for us, it is certainly a legal doubt and it is a double doubt, and it is obvious that we do not remove it].

If money is seen in the possession of the borrower before he swore or after he swore, and similarly if objects and movables are found in his possession, he is not believed to say that he also owes others and thereby diminish the power of this lender, except by way of witnesses or clear proof that he also owes others and that he has not yet paid them, such as if it is within its time and the like [Shach], for we should only accept the deeds and debts that were previously clarified in beit din and upon which they administered the oath to him, and not to add further debts unless the debts are clarified with absolute clarity. And even if the borrower swears that it is so, that it belongs to so-and-so, and also that so-and-so swears that it belongs to him, they are not believed without clear proof [it appears to me], for money is not taken by an oath except in cases where the sages enacted it, such as a hired worker and the like. And if he says regarding the money or regarding the objects and movables that they are a deposit in his hand from so-and-so, he is not believed even when he has a migo, unless the matter is clarified, because it is a migo in the place of a powerful chazakah, for the chazakah is that whatever is in a person's hand is his. And when it is clarified that they belong to so-and-so, the deposit shall be returned to so-and-so. And even when the deposit was money and he was permitted to use them, nevertheless another creditor does not take a portion of this, but it is returned to the owner of the deposit [Acharonim], and not like the one who disagrees with this. And similarly, if he says that this money belongs to so-and-so who gave it to him as an iska, he is not believed; but if he clarifies that so-and-so gave it to him as an iska, the owner of the iska collects all the money even from the half of the lender, and no creditor collects from this [Urim VeTumim], not like there is one who disagrees in this. And similarly, if it is only known that he has an iska from others, he is believed to say regarding money and merchandise in his hand that they are from the iska of so-and-so with a migo that he could have given them to him, and this is not a migo against a chazakah that we explained, since it is known that he has an iska from others. And similarly, if there were debt deeds written in the name of this borrower and he said they belong to others, or if he said "I have already designated them for others to whom I am indebted" or "they are an iska in my hand," we do not listen to him until he brings proof. And even with an oath they are not believed as I wrote, and even if he has a migo that he could have said "the matter never occurred," because it is a migo in the place of a chazakah as I wrote. And there are those who disagree in all this and hold that when he has a migo he is believed with an oath, and so one should rule [ibid.], not like there is one who disagrees in this, for in such a case it is not a powerful chazakah and we certainly say migo. And specifically when the migo was before it was established in beit din or witnesses saw it, but if they already saw it or it was established in beit din and only now he has a migo, he is not believed [ibid.]. And even according to this opinion that he is believed with a migo, it appears to me that he is not believed except with an oath, and as I wrote [as is evident from the responsa of the Rif brought there].

And all this is when money or movable property is seen in his possession, but if others did not see it and he says that he has additional debts, he is believed. The practical difference is that when he profits, these debts will also take their portion, for there is nothing for which to suspect him. For specifically when it is seen in his possession do we fear that his desire is to commit collusion so as not to pay in full, but when he has nothing, what benefit does he derive from it? And if it is because perhaps money is hidden with him and his desire is to commit collusion, if so, who forces him into this collusion? Let him give secretly to whomever he wishes. Rather, certainly the truth is so [Bach and Urim VeTummim]. And that we should suspect him that he fears lest the matter be discovered that he has property and therefore it is better for him to commit collusion—this is a remote concern. And some say that even in such a case he is not believed without proof [Shach and Ketzot HaChoshen], for in any place where a debt affects others, he is not believed to admit to another debt to someone else such that a liability to others will result from this at a later time, even where there is no concern of collusion.

Reuven gave an object to Shimon to sell, and Levi, a creditor of Shimon, came and took it for his debt; if it is known by witnesses that this object belongs to Reuven, and they testify that in their presence Reuven delivered the object to Shimon so that he should sell it, Levi must return the object to Reuven. And even when there are no witnesses of seeing, and even though without witnesses of seeing Shimon would have been believed to say "it is purchased in my hand" with a migo of "I returned it," nevertheless, we do not claim this for a creditor. For specifically when Shimon would have been believed by virtue of a chazakah do we also claim this for a creditor, but when the credibility is only because of a migo, and Shimon claims that the object belongs to Reuven, and Reuven himself knows that he did not return it, if so, by what power shall he seize Reuven's object [Acharonim], not like the one who disagrees in this. And so too, if the object is in Shimon's hand and he has a migo, he is believed to say that he did not purchase it and that the object belongs to Reuven [Netivot HaMishpat]. But when it is not known by witnesses that he gave it to sell, we do not extract it from Levi. And if Reuven claims to Levi, "You know that this object is mine," Levi must swear a shevuat hesset that he does not know. And so too, if Shimon is a broker who buys for others, all the objects found in his house that stand to be sold are not in the chazakah of being his such that his creditor would have the ability to distrain them, and the broker or the owner of the object is believed with an oath; and they are obligated to swear even when Levi does not claim with certainty that the objects belong to Shimon [Shach], for a creditor has the status of a purchaser and an heir, such that one who comes to extract from their hand must swear even against a claim of doubt. And all this is regarding objects that are not typically lent or rented, but when they are typically lent or rented, if there are only two witnesses that these objects previously belonged to Reuven, Shimon is believed to extract the vessels and the creditor does not have the ability to distrain them for his debt, and even an oath is not necessary [it appears to me], and only a cherem stam may be cast upon him. And if he has only one witness that it is his, it does not avail him to extract it from the chazakah of the creditor who distrained it [Tur and see Shach].