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Shabbat, 27 Av 5774 / August 23, 2014
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Rambam - 1 Chapter a Day

Rambam - 1 Chapter a Day

Malveh veLoveh - Chapter 22

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Malveh veLoveh - Chapter 22

Halacha 1

This is the order in which debts are collected: When the creditor brings his promissory note to the court and the authenticity of the witnesses' signatures are verified, we tell the borrower: "Pay." We do not attach his property until the creditor demands this. If a judge errs and gives the creditor access to the borrower's property before he demands it, we remove the creditor from it.

If the borrower responds: "I will pay. Establish a date for me, so that I will have time to borrow money from another person, offer my land as collateral, sell property and bring the money," we grant him 30 days. We do not require that he bring security to the court. For if he possessed movable property, the court would expropriate it immediately.

If the creditor desires, he may have a conditional ban of ostracism issued against anyone who possesses money or movable property and uses arguments to avoid payment. We do not require the borrower to bring a guarantor until he pays.

If the borrower has not brought payment when these 30 days are concluded, the court composes an adrachta. Similarly, if at the outset, when the lender demanded payment of him, he said: "I will not pay," we compose an adrachta against his property immediately and do not grant him any time. Similarly, if what is involved is a loan supported by a verbal commitment alone and the borrower admits his obligation, we compose an adrachta against the property that is presently in his possession.

Halacha 2

The following rules apply when the borrower claims: "The promissory note concerning which the signatures of the witnesses was validated is a forgery. I will bring proof and nullify the matter The witnesses are located in this and this place and their names are so-and-so and so-and-so." If it appears to the judges that there is substance to his words, a time is established in which he must bring his witnesses to court. If it appears to them that he is merely raising deceptive arguments and fallacious claims, they should tell him: "Pay." Afterwards, if he brings proof of his claim, the money should be returned to him.

If the creditor is a man of force and it is possible that the money will not be able to be recovered from him, it should be entrusted to a third party.

Halacha 3

When a time was established for the borrower to bring proof and nullify the promissory note, that time came and he did not come to court, we wait for three court sessions Monday, Thursday and Monday. If he does not come, we compose a peticha against him and place him under a ban of ostracism.

We give him a further respite of 90 days while he is under the ban of ostracism. The first 30, for perhaps he is seeking a loan, the middle 30, for perhaps he is seeking to sell property, and the final 30, for perhaps the person who purchased his property is seeking to bring him the money.

When these 90 days are completed and the borrower still does not appear in court, the court composes an adrachta against his property and releases him from the ban of ostracism.

Halacha 4

If the borrower lives within a two-day journey or less from the court, we do not compose an adrachta until we send messengers and inform him of this impending step. If he lives further away, it is not necessary to inform him.

When does the above apply? When throughout the entire 90 days he would procrastinate and say: "Just now, I will bring proof that nullifies the promissory note." If, however, he says: "I refuse to appear in court," we compose an adrachta against both his movable and his landed property immediately. Similarly, if a person is being sued on the basis of a legal document recording an object entrusted to him for safekeeping, we do not wait 90 days and instead, we compose an adrachta against his property immediately.

Halacha 5

The statements made above - that if the borrower does not come at the conclusion of the 90-day period we compose an adrachta - applies only with regard to landed property. With regard to movable property, by contrast, different rules apply. Even after 90 days, as long as the borrower says: "I will bring a proof and nullify the promissory note," we do not allow the lender to expropriate movable property.

The rationale is that the alleged lender might consume it and afterwards, the borrower will bring the proof that nullifies the promissory note, and then he will not find property belonging to the alleged lender that he can collect for repayment. This applies even if the lender possesses landed property, for perhaps that property will decrease in value or become dried out.

Halacha 6

How is the adrachta composed? If we are expropriating property that is in the borrower's possession, we write in that document:

"So-and-so was obligated by a judgment to pay so-and-so this amount. He has not made this payment on his own volition. Hence, we have composed this adrachta against this and this field that he possesses."

Afterwards, three experts evaluate a portion of that field equivalent in value to the debt that he owes, and its prospective sale is announced according to the appraisal until those who add to the estimation make their bids. If there are no buyers, we transfer ownership of that portion of the field to the creditor because of his debt and rip up the promissory note, if such a document existed. If there was no landed property in the borrower's possession, we compose the adrachta which states:

So-and-so undertook an obligation to so-and-so as recorded in the promissory note possessed by the creditor. The debtor has not paid this debt. We have not found property that is presently in the debtor's possession. We have already torn up the promissory note that the creditor possessed and have given him license to seek out and research whether there are any properties that the debtor sold from this and this date and onward, with the intent that his hand be raised over them. He has license to derive payment and expropriate his debt from all such properties.

Halacha 7

After this adrachta is composed, the lender goes and seeks property belonging or that once belonged to the borrower. If he finds property that is in his possession, they are evaluated for him. If he finds only property that has been sold after the date of his promissory note, he may expropriate it. We tear up the adrachta and write a tirpa.

Halacha 8

How is the tirpa composed? We write:

Because of the debt of this and this amount that so-and-so owes him, so-and-so won in court the right to expropriate this and this field that so-and-so purchased for this and this amount at this and this time. We have already torn up the adrachta that was in his possession, and we have given him license to expropriate this and this amount from this property.

Halacha 9

After the tirpa is written so that the lender may expropriate the property, we bring three experts to that field who evaluate that field and appraise how much of the field should be given to him for the principal and half of the field's increase in value, as explained. We then announce the property's sale for thirty days in the same manner as we announce the sale of property inherited by orphans.

Halacha 10

Afterwards, if the borrower is with us on the land, we require the borrower to take an oath that he is bankrupt, as ordained by our Sages. We also require the person expropriating the property to take an oath while holding a sacred object that he did not collect payment for this debt, that he did not waive payment of it, and that he did not sell it to another person. Afterwards, we give the lender possession of the purchaser's according to the assessment of the debt owed him, and we compose a horadah.

Halacha 11

How is this document composed? The judges write:

After we had an evaluation of the property made for so-and-so, because of the debt he was owed, we announced the sale of the property as is fitting, and we required both the person expropriating the property and the debtor to take the appropriate oaths, we have given so-and-so possession of this and this field. He may use it as a person uses property that he has acquired.

Halacha 12

From which time may the person who seeks to expropriate this property derive benefit from its produce? From the time the days of the announcement are completed.

Halacha 13

Whenever an adrachta does not state: "We have torn up the promissory note," it is not an acceptable adrachta. Whenever a tirpa does not state: "We have torn up the adrachta" it is not an acceptable tirpa. Whenever a shuma does not state: "We have torn up the tirpa," it is not an acceptable shuma.

Halacha 14

When three experts descend to evaluate a property, one evaluates it as worth a maneh and two evaluate it at 200 zuz, or one evaluates it at 200 zuz and the other two evaluate it as worth a maneh, the assessor who offers the lone opinion is considered insignificant.

If one assessor evaluates it as worth a maneh, another at 80 zuz, and the third at 120, it is considered to be worth 100. If one says 100, the second 90, and the third 130, it is considered worth 110. This is our pattern of evaluation.

Halacha 15

When the court evaluated property belonging to a purchaser on behalf of a person who sought to expropriate it and erred - even if the error was concerning the smallest amount - the sale if nullified. The rationale is that since the court is considered to be an agent of the person expropriating the property and the purchaser, they have permission to expedite the matter, but not to impair anyone's position as is the law applying to an agent. All of the Halachic authorities ruled in that manner.

Halacha 16

When the court evaluates and expropriates a property for a creditor -whether from property in the creditor's possession or property that was in the possession of a purchaser - and afterwards, the borrower, the person from whom the property was expropriated, or their heirs, acquires financial resources and pays the creditor his money, the creditor is removed from that landed property. For property that was evaluated and expropriated should always be returned to its owners, as mandated by Deuteronomy 6:18: "And you shall do what is just and good."

Halacha 17

When the court evaluates and expropriates a property for a creditor and then evaluates and expropriates a property for a creditor of that creditor, the original owner can redeem it. The legal power of the second creditor is no greater than that of the first.

When a creditor sold the property expropriated for him, gave it away as a present, gave it to his creditor voluntarily, or he died and the property was inherited, the original owner does not have the right to redeem it. If landed property was evaluated and expropriated for a woman and then she married, or property she owned was evaluated and expropriated from her and she married, her husband is considered to be a purchaser with regard to her property. He is not required to return it, nor must it be returned to him.

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