Malveh veLoveh - Chapter 11

Unless the lender establishes an explicit stipulation to that effect.

As our Sages required of all defendants who deny entirely the claims made against them.

Similarly, property sold to other people should not be expropriated to pay such debts.

For the lender can justly claim: “If you repaid me, why did you leave the promissory note in my hands?”

See Chapter 14, Halachah 2.

The testimony of two witnesses is acceptable evidence in court. Nevertheless, such testimony is not sufficient to change the status of a loan, as the Rambam explains. Sanhedrin 29b states that even when a person makes an admission in front of three witnesses - and in certain situations, three people can be considered to be a court of law - the status of the loan is not changed.

To see if he still desires to give the lender the promissory note.
The Ra’avad differs with the Rambam and maintains that once the borrower gives instructions to the witnesses, there is no need to consult with him again. Although our Sages mentioned such a requirement with regard to a person who writes a ketubah for his wife, they did not say so with regard to the acknowledgment of a debt. The Shulchan Aruch (Choshen Mishpat 39:2) mentions both opinions without stating which one should be followed.

This refers to a kinyan chalifin [the exchange of a handkerchief or other article (Hilchot Mechirah 5:5)]. As Hilchot Mechirah explains, such a legal act can be performed to affirm the existence of an obligation or the details of other business relationships. This is important with regard to a loan, because unless such an act was carried out, the lender may not expropriate property on lien to the loan from other creditors. Since the act is effective with regard to the expropriation of such property, it is also effective with regard to the lender himself.

Sefer Me’irat Einayim 39:1 and the Siftei Cohen 39:1 discuss the statement of the Hagahot Ashurei that the borrower’s admission must include a date when the loan must be repaid.

The Shulchan Aruch (Choshen Mishpat 39:3) states that even if the witnesses waited a long time before composing a promissory note, they may do so when asked to by the lender.

Before giving it to the lender.

In which he admits to an obligation that he owes a creditor.

The Siftei Cohen 40:8 states that the intent is that on the note they write testimony confirming the authenticity of the statements of the document, not that they verify the authenticity of the borrower's handwriting.

Without the transfer of the note being observed by witnesses.

Hence, if the debtor claims to have paid the debt and the creditor denies receiving payment, the creditor’s word is accepted. Similarly, this status makes it possible for the note to be used to expropriate property on lien to the debt that that debtor had sold to others.

This represents a fundamental difference of opinion in the Talmud (Gittin 86a). Rabbi Eliezer maintains that the witnesses required by the Torah for a bill of divorce are the witnesses in whose presence the document is transferred. Rabbi Meir, by contrast, maintains that witnesses whom the Torah requires are those who sign the document.
All authorities agree that with regard to a bill of divorce, the halachah follows Rabbi Eliezer’s view. The question is whether or not other legal documents - e.g., the promissory notes mentioned here - are governed by the same rules. As reflected in this halachah, the Rambam maintains that Rabbi Eliezer’ s view is followed with regard to all legal documents. This is also the view of Tosafot (Gittin 4a) and other prominent Ashkenazic authorities. Significantly, Rabbenu Yitzchak Alfasi (whose perspective the Rambam follows on many occasions) states that Rabbi Eliezer’s position is accepted only with regard to a bill of divorce, but does not mention other legal documents. The Shulchan Aruch (Choshen Mishpat 40:2, 51:7) follows the Rambam’s ruling.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 40:2) speaks of “[the borrower’s] handwriting.” The intent is that since it is written in the handwriting of a private individual, it cannot easily be forged (Sefer Me’irat Einayim 40:6).

Rav Hai Gaon and Rav Sherirah Gaon, as recorded by the Ba’al Haltur.

Our translation is based on the gloss of the Kessef Mishneh, which quotes a responsum (393) of the Rashbash, which explains that either of these activities is sufficient. Once either of these activities is performed, the creditor can collect the debt as if a promissory note were written. The Kessef Mishneh adds that he interprets “signing,” not as signing as a witness to the promissory note, but as signing a separate statement that the promissory note was transferred in their presence.

The Maggid Mishneh explains that giving these instructions will cause the matter to publicized and thus enable the creditor to use the promissory note to expropriate property on lien to the loan that was sold to others.

Note the Shulchan Aruch (Choshen Mishpat 69:1), which writes that if the borrower writes the note himself, it is not necessary that he sign it.

Alternatively, written by another person and signed by the borrower (ibid.).

I.e., witnesses testified in court that the note was written in the borrower’s handwriting (Maggid Mishneh).

In contrast, if the note were given the status of a promissory note, the borrower would be required to make restitution, as stated in Halachah 1.
The rationale is that since witnesses did not sign or testify concerning the promissory note, it is not considered to have become a matter of public knowledge. Accordingly, he cannot use it to expropriate property from other people.
Since this note cannot be used to expropriate property from others, it does not receive the status of a promissory note with regard to the borrower himself. To explain: When a borrower claims to have paid a debt supported by a promissory note, the lender can rebut him, saying: “Why then is your promissory note in my hands?” In this instance, however, the borrower can answer him: “Since the promissory note is worthless, for it cannot be used. to collect from the heirs or other people, I did not bother collecting it” [Shulchan Aruch (Choshen Mishpat 69:2)].

This applies even if the borrower dies without claiming to have paid the loan. Since according to Scriptural Law, his word would have been accepted if he made this claim, we advance this claim on behalf of his heirs. Note, however, Halachah 6, which mentions certain exceptions to this principle (Kessef Mishneh).

In contrast to a loan supported by a promissory note, as explained in the following halachah and notes. This ruling applies even if the borrower admits that he did not repay the debt. Since the note was not signed by witnesses, the debt did not become public knowledge. Hence, the purchasers were not forewarned that the property might be expropriated from them. Also, we fear that the borrower and the lender might be entering into collusion to expropriate the property from the purchasers unjustly (Sefer Me’irat Einayim 69:5).

Perhaps the world kol, which implies an inclusion, is included to imply that even if the promissory note does not mention a lien on the borrower’s other property, the lien is still established. See Hilchot Gezelah Va’Avedah 18:1.

See Chapter 18, which explains that when a person takes a loan, all the landed property in his possession is considered on lien to that debt. Even if the property is later sold to another person, the lender may still expropriate it as payment for the debt.

For the lien on the property was established before it entered their possession. This applies only when the conditions mentioned in Halachah 6 are met.

This is a Rabbinic safeguard. According to Scriptural Law, all of a person's property is on lien whenever he borrows money. Nevertheless, our Sages ordained that a lien on a loan supported by an oral commitment alone not be exercised for the following reasons. Generally, when people borrow money, they do not publicize the matter. Hence, if a promissory note was not composed, it will be unlikely that the matter will become public knowledge. Thus, the purchasers of the property will not have been forewarned about the lien before making the purchase and will not realize that property may be expropriated from them.

For the witnesses who signed it will tell others.

The Rashbam (Bava Batra 175b) explains that this concept is derived from Deuteronomy 24:11: “The debtor will bring the security out to you,” which indicates that a lender has a right to the borrower’s property. See also Chapter 18, Halachah 1.

See Chapter 21. If the creditor expropriates property from a purchaser and there is other property that the debtor-seller sold afterwards, the purchaser of the first property may expropriate the second property from the second purchaser.

Hence, any person who purchased property from the seller afterwards should have known that he had sold other property, and if that property would be expropriated from the purchaser, he will seek to expropriate other property to retrieve his funds. If the second purchaser did not take this factor into consideration, it is his loss.

Otherwise, we suspect that the deceased paid the debt before passing away.

I.e., in the illness from which he died.

In such an instance, we assume that the debt was not paid by the deceased and hence should be paid by his heirs.
Hilchot To’en V’Nit’an 6:7 mentions that a person may say that he is liable to someone in his dying hours even though such an obligation does not exist, so that his sons will not view themselves as wealthy. Such an obligation is not binding. In this instance, however, there are witnesses who substantiate the fact that a loan was made. Hence, the obligation is binding.

It is common practice to maintain possession of money until one is required to repay it (Bava Batra 5b).

This is understood as evidence that the debt was not repaid.

This applies whether the heirs are above or below majority.

Since the word of the deceased would have been accepted if he had advanced this claim, we advance it on behalf of his heirs.

That is not signed by witnesses, nor was it transferred in the presence of witnesses.

See Halachah 3.

As stated in Chapter 1, Halachah 4, when a borrower owns both movable property and landed property, the movable property should be taken first to pay the debt.

In an attempt to appear bankrupt and thus forestall payment of the debt.

When quoting this law, the Tur and the Shulchan Aruch (Choshen Mishpat 101:7) use slightly different wording, stating: “There are those who say that if the borrower has a reputation [of having resources]... he should be compelled...”

This is an injunction ordained by the Geonim to protect the creditor’s interests. It is hoped that anyone who knows of such an attempt at deception will be intimidated by the ban of ostracism and will notify the court.

If the debtor owns several properties of different values, our Sages ordained an order of priority: the properties of the highest value are used to pay damages, those of intermediate value are used to repay loans, and those of lowest value are used to pay the man’s wife the money due her by virtue of her ketubah.

See Chapter 19, Halachah 1.

One might think that since the movable _property did not come into the physical possession of the heirs, they could be taken in payment. Hence, the Rambam clarifies that this is not the case.

During the lifetime of the debtor, all of his movable property is on lien to the debt, as stated in Halachah 4. After the debtor passes away, however, his heirs do not have a binding obligation to pay his debts. (It is desirable that they do, as stated in the following halachah, but there is no legal obligation incumbent upon them or on the movable property left them.)
The debtor’s landed property is, however, considered to be on lien to the loan even after his passing. The rationale is that it is considered to be a guarantor - i.e., the lender had in mind that he would be able to collect payment from this property if it would not be possible for him to collect payment from the borrower himself. This does not apply, however, to the borrower’s movable property, for the lender could not reasonably assume that he could collect his due from that property, for it could be hidden by the lender, lost or given away. (See Rashi, Bava Metzia 67b.)
As stated in Halachah 11, the Geonim ordained that a creditor may collect his due from the movable property in a person’s estate.

Our Sages state that it is a mitzvah to repay a loan. This applies even after the debtor’s death.
This halachah continues the concepts stated in the previous one. Although movable property left to an heir is not on lien to a debt, it is a mitzvah for the heirs to pay the debt from that property.

The mitzvah is an expression of honor and respect to their parent that his debts should not be left unpaid. Therefore, the mitzvah applies only with regard to property left to the heirs in the deceased's estate. There is no mitzvah to pay from their own personal resources. The Rashba differs regarding this point and maintains that it is a mitzvah for the heirs to pay the estate's debts even from their own resources.

Chulin 110b explains this concept as follows: As mentioned above, repaying the debt is an act of respect to one’s parents. Now, with regard to the mitzvah of honoring one’s parents, Exodus 20:12 states: “Honor your father and mother, so that your days will be lengthened.” Thus, this is included in the category of “positive mitzvot whose reward is made known by the Torah.” Our Sages established the principle that a court will not compel a person to perform such mitzvot.
The Rashba differs and maintains that the heirs should be compelled to pay the deceased’s debt from the movable property left in his estate. Although legally, that property enters the domain of the heirs, they should use it to pay the debts of the estate. The Shulchan Aruch (Choshen Mishpat 107:1) favors the Rambam’s view. This difference of opinion is, however, not relevant in the present age, because, as the Rambam states in Halachah 11, the Geonim instituted the practice of considering movable property on lien to a debt just like landed property, and the halachah follows that ruling.

Since the property never came into the physical possession of the heirs, the creditor is able to collect his due from it.

And thus he has the right to expropriate his due from it.

And hence, it must be returned to the heir, who has the option of paying the debt whenever he desires.

By bringing witnesses who testify that the property was taken after the debtor’s death.
The creditor is given the benefit of the doubt, based on the principle of miggo. Since there is no proof that he seized the property after the debtor’s death, if the creditor had desired to lie, he could have claimed that he purchased it during the debtor’s lifetime. Therefore, when he supports his claim with an oath, we accept his statement that he seized the property during the debtor’s lifetime.

I.e., if the heir does not bring witnesses who provide such testimony.

The Beit Yosef (Choshen Mishpat 107) maintains that all that is required is a sh’vuat hesset, while the Bayit Chadash maintains that an oath must be taken while holding a sacred object.

Because the principle of miggo applies only with regard to the amount the article is worth.

Owed to the debtor by other people.

A promissory note is not like other movable property that has an intrinsic value of its own. Instead, it is worth the right to collect the debt from the debtor. That right is not attached to the physical possession of the promissory note and can be transferred only through writing a deed of transfer (Hilchot Mechirah 6:1 0-11). Thus, the fact that the creditor took the promissory note itself does not give him a right to collect the debt it describes.
What he is claiming, therefore, is that the promissory note entered his possession as security and, as stated in Chapter 3, Halachah 5, security held by the creditor is not considered to have entered the domain of the debtor’s heirs. Hence the heirs would have to pay the debt to him to receive the promissory note. See the further discussion of this issue in Chapter 16, Halachah 7.

Through the testimony of witnesses.

As such, the fact that he is in physical possession of the note is not significant. As stated in Halachah 11, the Geonim instituted the practice of considering movable property on lien to a debt just like landed property. According to that ruling, the promissory notes are also considered as being on lien to the debt [Shulchan Aruch (Choshen Mishpat 64:1)].

The creditor himself could not collect that debt.

This law is based on the principle of responsibility established by Rabbi Natan and explained in Chapter 2, Halachah 6 and notes - i.e., that if a person is owed money by one person and he himself is in debt to another, his creditor is considered to have a lien on the property of his debtor.
Tosafot (Pesachim 31a) ask: Why is the property able to be expropriated from the heirs, but the debt itself could not be collected? They explain that the landed property is under a full lien; even if it were sold, the creditor could expropriate it. A debt, by contrast, is considered to be movable property and cannot be expropriated from heirs.

For all of Reuven's property is on lien to the loan.

For as heirs, they have a right to that debt. And as of yet, Shimon had not paid Reuven or his heirs for the field that he purchased.

And thus the money that Shimon paid is not significant, because if the money had been paid to Reuven’s heirs, it could not have been expropriated from them by the creditor.

Or any other land (Maggid Mishneh).

Although generally, a loan cannot be paid with landed property when the debtor possesses movable property or cash, an exception is made in this instance, so that Shimon will not lose the money that he paid Reuven’s creditor (Maggid Mishneh).

If, however, Reuven had paid the heirs back with cash or movable property, he would not be able to demand its return. After the ordinance mentioned in the following halachah, this law is no longer relevant, because the movable property in the estate could also be expropriated as payment.

Otzar HaGeonim, Ketubot states that this ordinance was instituted by the Gaon, Rav Huna HaLevi.

In his commentary on Hilchot Ishut 16:7, the Maggid Mishneh states that this ordinance reflects a change in the socio-economic standards of the Jewish people. In the Talmudic era, land was commonly owned by the Jewish people. Thus, a lender would not feel secure unless his loan was backed by land. In the post-Talmudic era, the ownership of land was less common. Thus, movable property rose in importance, and a lender would feel secure even when he knew that all a debtor owned was movable property.

This refers to the Jewish community in North Africa and Spain, which was west of the main Talmudic centers of Babylon.

This provision is not as powerful as the provision to be mentioned in Chapter 18, Halachah 2, and does not give the creditor the option of collecting the debt from people who purchased movable property from the debtor. It is, however, sufficient to create a lien on the property inherited by the heirs (Maggid Mishneh).

The provision is binding, because any stipulation made by a principal to a business deal is binding upon him and his estate.

According to the ordinance of the Geonim, if the debtor's estate contained both landed property and movable property, the creditor would have to take the landed property. According to the provision, however, he would have his choice (Maggid Mishneh, based on Hilchot Ishut 16:8).

In Hilchot Ishut, loc. cit., the Rambam states: “This addition is a great asset. It was ordained by learned men of great stature.”

In his Introduction to the Mishneh Torah, the Rambam writes that in contrast to the ordinances of the Sages of the Talmud, an ordinance instituted by the Geonim is not binding unless it is universally accepted by the Jewish people.
In his Kessef Mishneh, Rav Y osef Karo cites the Rivash (Responsum 392), who states that even if a promissory note did not contain this provision, the creditor would be allowed to expropriate movable property inherited by heirs, as the Rambam states above: “This judgment is enforced universally in all courts of law.” This applies, however, only when the borrower knew of the ordinance of the Geonim. For in such an instance, we assume that he willingly accepted the terms of the ordinance. If the borrower was unaware of that ordinance, it is not binding upon him. In the present age, however, we assume that all borrowers know of this ordinance. Hence it is universally binding, as stated in the Shulchan Aruch (Choshen Mishpat 107:1; see Sefer Me’irat Einayim 107:3).