Malveh veLoveh - Chapter 13

This law does not apply with regard to a loan supported by an oral commitment alone. For in such a situation, if the borrower claimed that he repaid the loan, his word would be accepted (Chapter 11, Halachah 1).

The Shulchan Aruch (Choshen Mishpat 106:1) states that the lender must pay for the messenger. Afterwards, these costs are added to the debt and demanded from the borrower if he is held liable by the court.

In Talmudic times, this was referring to an instance where the debtor was not geographically far away from the court, and a messenger could be sent to him with little difficulty or expense. There is a difference of opinion among the Rabbis with regard to the distance mentioned. Rabbenu Asher maintains that we are speaking about a distance in which a messenger can go and return within 30 days. The Rashba, however, maintains that we are speaking about a distance of one day’s travel. The Shulehan Arueh (Choshen Mishpat 106:1) quotes Rabbenu Asher’s view.
Today, with the breakthroughs in communications and technology, there is a question whether there are any situations where the difficulty of notifying the borrower mentioned in this halachah applies.

The rationale for this ruling is that a person’s property is consider as an arev, guarantor, for him. And, as stated in Chapter 22, Halachah 1, a person may not try to collect payment from a guarantor unless he first seeks to obtain payment from the debtor himself.

This oath resembles an oath required by Scriptural Law and must be taken while holding a sacred article, i.e., a Torah scroll or in certain instances, tefillin.
For were the borrower to be present and to claim that he had repaid the debt, the lender would have to take an oath to substantiate his claim (Chapter 14, Halachah 2). In this situation, since the borrower is not present, the court advances this claim on his behalf. If, however, the promissory note contains ne’emanut, a clause stating that the creditor’s word will be accepted regardless of the claims issued by the debtor, the creditor is not required to take an oath [Kessef Mishneh; Shulehan Arueh (loc. cit.)].

Based on a responsum of the Rivash (353), the Ramah (loc. cit.) rules that these laws apply with regard to the borrower himself, but not to his heirs. If the borrower dies, property that belonged to him may not be expropriated from his heirs outside of their presence.

If people would know that a borrower could either delay or avoid repayment of a debt by moving to another city, they would be far more hesitant in giving loans.

For we suspect that it might be a forgery. The processes through which the authenticity of a promissory note can be verified are described in Hilehot Edut 6:1.

Within a 30 day (or a 1 day) journey as mentioned in the notes on the previous halachah.

I.e., he must prove that the property is reputed to be owned by the debtor. He does not, however, have to show how the debtor acquired that property (a responsum by Rabbenu Asher quoted by the Kessef Mishneh).

This refers to security that is not an article that is required by the borrower. For such articles may not be sold, and must instead be returned to the borrower whenever he needs them. See Chapter 3, Halachot 5 and 6.

As stated in Chapter 3, Halachah 6, a lender is not entitled to sell security until 30 days have passed since it was given to him. He must make this statement to the court as well.
In his Kessef Mishneh, Rav Yosef Karo mentions these concepts and also quotes the Rivash (Responsum 396), who states that the Rambam’s words could be interpreted as implying that the creditor may sell the security without notifying the debtor, even if they are both in the same city. Nevertheless, he favors the interpretation (which is also advanced by the Maggid Mishneh) that if the borrower is in that city, the court must notify him. In his Shulchan Aruch (Choshen Mishpat 73:12), Rav Karo quotes only this latter view.

Instead, it grants him permission to sell the property.

For the property is presently in his physical possession. Hence, based on the principle of miggo, we accept his word that it was given to him as security, provided he takes an oath, as the Rambam continues to explain.

In his Kessef Mishneh, Rav Yosef Karo continues quoting the Sefer HaMekach cited in the responsum of the Rivash, which states that from Chapter 3, Halachah 6, it appears that although the sale need not be made in the presence of the court, the security must first be evaluated by a court. The term “court,” however, does not necessarily refer to a judicial body, but a body of three knowledgeable business people - even if they are unlearned who can properly evaluate the article.
In his Kessef Mishneh, Rav Karo states that he does not accept this interpretation and states that the sale should be made in the presence of the court, but there is no need for the court to evaluate the article. In his Shulchan Aruch (Choshen Mishpat 73:15), however, he quotes the opinion of the Rivash. See also the Siftei Cohen 73:40, who discusses this ruling at length and maintains that the sale must be conducted by a court of expert judges who have had the value of the security appraised carefully.

In a manner where the price for which he sold it cannot be disputed.

And the heirs state that the article in their possession is security that belongs to the borrower.

In Chapter 17, Halachah 3, the Rambam states that when heirs inherit a promissory note, in a situation where the borrower dies before the lender, the heirs are not given the opportunity of collecting the debt. Nevertheless, in this instance a distinction is made, for as the Rambam states, the heirs are taking payment from property that is already in their possession.

I.e., they must take an oath that the deceased had not told them the debt that is secured by this collateral had already been repaid (Kessef Mishneh). See Chapter 17, Halachah 2.

These additions and the interpretation of the passage are based on the Maggid Mishneh’s understanding, for he and all the other commentaries see difficulties in the version found in the printed text.

And his word would have been accepted. Hence, based on the principle of miggo, his word is also accepted when he claims that the property is security for a loan.

A less stringent oath. Seemingly, this oath would be appropriate, for an oath administered while holding a sacred article is required when a person seeks to expropriate property, while in this instance, the security is in the possession of the lender. He does not desire to return it, and the borrower demands that he does. Hence, it would appear that a sh’vuat hesset is appropriate, for that is the oath required when a person does not admit to a claim by a plaintiff who desires to take property from him.

And he wants to receive that money by selling the security.

I.e., a severe oath taken while holding a sacred article.

I.e., the principle of miggo is effective in allowing the borrower to maintain possession of the property, instead of having to return it. It does not, however, free him of the responsibility for taking the oath, for the reason the Rambam explained.
The concept that the principle of miggo cannot free a person from the obligation to take an oath is first stated by the Rambam in Hilchot Shluchin 9:4 and Hilchot Sechirut 2:8. The difference between the two situations can be described as follows. When there is a financial obligation under discussion, and the plaintiff desires to expropriate money from the defendant, the principle of miggo is employed as a means of clarifying whether the defendant is under obligation or not. An oath, however, is itself a means of clarifying whether or not an obligation exists, and it is a more effective means of clarification than the principle of miggo. Hence, we employ it rather than the principle of miggo.
The Rambam’s ruling is accepted by the Sephardic authorities and cited by the Shulchan Aruch (Choshen Mishpat 72:17. The Ashkenazic authorities (see Tur and Ramah) differ with the Rambam and maintain that a person is not required to take an oath in this situation.

See Hilchot Sechirut 10:1, which explains that a person who holds an article as security for a debt is considered to be a paid watchman. And a paid watchman is liable in instances of lost and theft.
The Rambam’s wording is quoted by the Shulchan Aruch (Choshen Mishpat 72:2). Rabbenu Asher and the Tur differ in certain contexts as will be explained in the notes that follow.

Which is worth four dinarim.

This version is found in the authentic manuscripts of the Mishneh Torah and is logically correct. The standard printed text states “It was worth a shekel.”

See Hilchot She’ilah UFikadon 5:7,6:1, which states that this oath is required lest the watchman (in this instance, the lender) have desired the article and taken it for himself.
In his Commentary on the Mishnah (Sh’vuot 6:8), the Rambam emphasizes that this oath is required only when the security is not a standard article that can easily be found in the market-place. For if it is easily available, we assume that the lender would purchase it rather than misappropriate the security.

The rationale is that the lender is demanding payment of the remainder of the debt, and the borrower is maintaining that he does not owe the lender anything (for the value of the security was worth the entire amount of the debt). As the Rambam states in Hilchot To’en V’Nit’an 1:3, when a defendant denies entirely the claim a plaintiff issues against him, he must take a sh’vuat hesset and then he is freed of responsibility.

This is also a correction of the standard text.

A person who admits a portion of the plaintiff’s claim (a modeh b’miktzat) is required to support his claim with an oath as is required by Scriptural law (Hilchot To’en V’Nit’an 1:1).

The borrower thus becomes the plaintiff, because he maintains that the security was worth more than the debt and that difference should be returned to him by the lender.

According to the Rambam, since the lender is considered to be a paid watchman, these rules apply. Rabbenu Asher and the Tur (Choshen Mishpat 72) maintain that the lender is considered to be a paid watchman only with regard to that portion of the article that is equal to the amount of the debt. With regard to the worth of the article that exceeds the debt, the lender is considered to be an unpaid watchman. The Ramah quotes their opinion (Choshen Mishpat 72:12). According to this view, this law is speaking about a situation where the security was destroyed due to the lender’s negligence.

He is then freed of responsibility, as is the case when a person denies entirely the claim lodged against him.

The commentaries raise a question concerning this ruling: In this instance, the borrower is claiming that the lender owes him a sela (the difference between his assertion of the value of the article and the amount given as a loan), while the lender admits owing only a dinar. This is a case of modeh b’miktzat. Hence, it would appear appropriate that the first oath taken by the lender be that of a modeh b’miktzat, for that oath is required by Scriptural Law, while the oath that the security is not in his possession is Rabbinic in origin. Hilchot To’en V’ Nit’an 1:14 states that if a person is required to take two oaths, he should take the more severe oath first.
The Derishah (Choshen Mishpat 72) offers the following resolution: As long as we suspect that the article is in the lender’s possession and its value can thus be determined by appraising it, we do whatever possible to have the article revealed, instead of trying to have the article’s value established by an oath.
The Tur and the Shulchan Aruch (Choshen Mishpat 72:12) do not accept this rationale and maintain that the lender must first take the Scriptural oath and then take the Rabbinic oath. The Rambam was obviously aware of the existence of another perspective and in his Commentary on the Mishnah (Sh’vuot 6:8), he emphasizes that his father and also his teacher, Rav Y osef MiGash, would administer the oaths in this order. See also Siftei Cohen 72:46.

Ordinarily, in such a situation, the lender would not be required to take an oath to reinforce his claim. Nevertheless, in this instance, since he is required to take an oath that the security is not in his possession, because of the principle of gilgul sh’vuah (that while taking one oath, he must also take an oath with regard to any other claim advanced by the other litigant), he must also include an oath regarding the article’s worth (Maggid Mishneh).
When quoting this law, the Shulchan Aruch (Choshen Mishpat 72:11) adds that if there are witnesses who support the lender’s claim that the object was lost or stolen, or if the promissory note stipulates that the lender’s word would be accepted in such an instance, the lender may collect the money he claims without having to take an oath at all.

Since he does not know whether or not the security was worth the amount of the debt, he is unsure whether or not he is still liable for the debt. In such an instance, since the lender claims with certainty that the borrower is liable, the borrower must pay, as stated in Hilchot To’en V’Nit’an 1:9.
The instances mentioned previously are stated in the Talmud (Sh’vuot 43a). This and the following rule are not explicitly stated in that passage, but derived by the Rambam through deductive reasoning.

And whenever a person states that he is unsure whether or not he obligated himself for a debt, he is not liable, as stated in Hilchot To’en V’Nit’an 1:8. Ordinarily, he would be required merely to take a sh’vuat hesset. Nevertheless, because of the principal of gilgul sh’vuah, he must include this point in the severe oath that he is already taking (Maggid Mishneh).
Sefer Me’irat Einayim 72:39 explains that in this instance, we do not apply the principle that a person who is required to take an oath, but cannot take the oath, must pay. Instead we allow the lender to take an oath that he does not know the article’s worth. The rationale is that this principle is applied only when the oath the defendant is required to take is of Scriptural origin. If the oath is of Rabbinic origin (as is the original oath required of the lender in this instance - i.e., the oath that the article is not in his possession), this principle is not applied.

The oath required of a person who admits a portion of the claim (modeh b’miktzat).

For he does not know how much the article is worth. A person may not take a Scriptural oath that he does not know what is obligated of him. Hence, since he cannot clarify his claim that he is not obligated by taking an oath, he is required to make restitution.

Hilchot To’en V’Nit’an 4:7.
The Ra’avad differs with the Rambam here, restating a difference of opinion that he had stated previously in She’ilah UFikadon 5:6. The Ra’avad objects, because he makes a fundamental difference between the situation described in this halachah and that described in Hilchot To’en V’Nit’an. In Hilchot To’en V’Nit’an, the defendant knew the sum that he was charged with at the outset. Hence, we accept the possibility that he is claiming that he did not know, to avoid having to pay the full amount. In the instance described in this halachah, by contrast, the watchman never knew how much produce was entrusted to him, and he could honestly claim that he did not know. For that reason, the Ra’avad maintains, we grant the watchman a certain measure of protection and require the owner to take an oath before expropriating the money he claims to have deposited.
In this instance, Rabbenu Asher and the Tur (Choshen Mishpat 72) quote the Rambam’s opinion, and his is also the ruling cited by the Shulchan Aruch (Choshen Mishpat 72:12).

This is a measure enacted by the Geonim to protect the rights of the defendant.

Once the term of the loan is agreed upon, the lender cannot renege, claiming that he had not intended to commit his funds for such a long period.

More precisely, either or both the borrower and the lender.

I.e., if the borrower dies, the lender (or his heirs) may not demand payment from the borrower’s heirs until the original term of the loan is concluded. Note the parallel and the explanation in Hilchot She’ilah UFikadon 1:5. Since the money was given to the borrower for a specific period, it is considered his - or his estate’s - until the conclusion of that period. For this same reason, the lender’s heirs cannot compel the borrower (or his heirs) to pay the loan before it falls due.
When quoting this law, the Shulchan Aruch (Choshen Mishpat 72:2) states that it applies provided the borrower’s heirs share the same financial status as the borrower did. If, however, they are not that affluent, the lender may demand payment immediately, lest the estate be dissipated. The Siftei Cohen 73:6 states that although there is a logical basis for the addition of the Shulchan Aruch, none of the previous Halachic authorities mentioned this point.
See also Hilchot Sh’luchin V’Shutafim 5:11, which states that with regard to a business or an investment partnership, the partnership can be dissolved if one of the partners dies.

The lender may not demand payment before this time passes. This applies provided that there is not a conflicting local custom [Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 73:1)].

We do not say that the fact that the lender took the trouble of having a promissory note composed indicates that he had given the loan out for a longer period (Sefer Me’irat Einayim 73:3).

And all stipulations involving monetary issues that do not contradict Torah law are binding.

We do not say that since the borrower is admitting that he owes the debt, there is no reason for him to take an oath. For having the loan for an additional few days is worth money, and therefore the borrower is required to take the oath.

The Shulchan Aruch (Choshen Mishpat 73:4) states that this law applies only with regard to a loan secured by an oral commitment alone. If the loan is secured by a promissory note or security, the lender is given the option of taking an oath and collecting his due. See the following halachah and notes.

Whenever a plaintiff’s claim is supported by the testimony of one witness, the defendant is required to take a Scriptural oath; otherwise, the plaintiff’s claim is accepted (Hilchot To’en V’Nit’an 1:1).

We do not require the borrower to take an oath until the time stated by the lender has passed. The rationale is that there is the possibility that the borrower may admit his obligation by the time the date on which the lender claims that the debt is due arrives (Sefer Me’irat Einayim 73:10).

Which does not mention the term of the loan, implying that it can be collected whenever the lender desires.
In his Kessef Mishneh, Rav Yosef Karo states that the same laws would apply if security were given for the loan. He notes that this concept is also stated by the Tur (Choshen Mishpat 73), and he rules in this manner in his Shulchan Aruch (Choshen Mishpat 73:4). The Siftei Cohen 73:10, however, states that the Rambam’s ruling applies only with regard to a promissory note and not with regard to a loan supported by security.

And payment may not be demanded until that time.

The Rambam uses this expression to refer to a law for which there is no direct source in the Talmud or other Rabbinic works of that era, but is instead arrived at through deductive reasoning.

The creditor is given the option of supporting his claim in this instance, because the promissory note supports his claim.
The commentaries have questioned why a sh’vuat hesset is mentioned, for such an oath is generally required only of a defendant in an instance when he denies entirely the claim issued against him. No where is such an oath taken to expropriate money from others. Indeed, for this reason, the Kessef Mishneh suggests the possibility of a scribal error, maintaining that the word hesset could be an accidental addition. Without that addition, the intent would be that just as when a lender presents a promissory note for payment and the borrower claims that he already paid, the lender may collect his debt. Nevertheless, should the borrower demand that the lender take an oath that the debt was not paid, the lender is required to do so. Similarly, in this instance, should the borrower demand that the lender take an oath that the payment is due now, the lender must take that oath.
The Kessef Mishneh, however, offers a different interpretation, which preserves the meaning of the standard text (and is desirable, for the authentic manuscripts of the Mishneh Torah contain the word hesset). He explains that it is as if the borrower were demanding that the lender extend the loan for an additional time. The lender denies that he is obligated to do so. Hence, he is required to take a sh’vuat hesset to support that denial.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 74:1) states that this applies provided the borrower has enough financial resources to meet his own needs. See also the Siftei Cohen 74:1, who states that when a lender demands payment from a borrower in a place other than the place of the loan, and the borrower does not have money at his disposal, the borrower is not required to bring money to that place.

The Maggid Mishneh states that this ruling applies only when the loan was given in a settled area. If the loan was given in the desert, the borrower may compel the lender to accept payment in the desert.

For in the desert, it is possible that the money will be lost or stolen by thieves.

The borrower may, however, pay the lender in any settled area, even if it is not the lender’s home town, nor the place where the loan was given [Shulchan Aruch loc. cit.)].