Malveh veLoveh - Chapter 16

I.e., in contrast to an entrusted object, a loan is the borrower’s responsibility even if the money was lost due to factors beyond his control.

Since the lender appointed him, he acts in the lender’s stead with regard to all matters.

The Hebrew term lo, “to him,” is lacking in the standard published texts of the Mishneh Torah. It is, however, found in several of the authentic manuscripts and appeared in the text used by the Maggid Mishneh.
The question is not merely one of semantics. “To him” is interpreted to mean “into his domain.” If the borrower merely threw the money in the direction of the lender, he is not freed of responsibility until the lender actually takes possession of the funds. This interpretation is also borne out by the Rambam’s Commentary on the Mishnah (Gittin 8:3). The Shulchan Aruch (Choshen Mishpat 120:1) and commentaries, however, do not appear to accept this understanding.
See also the Ramah (Choshen Mishpat 120:1), who comments on the second half of this halachah and states that if the money lands within four cubits of the lender when he is in a lane or at the edge of the public domain, he acquires it. It is considered as if it fell within his own domain.

See Hilchot Ishut 4:22; Hilchot Gerushin 5:14.

As the Rambam explains in those sources, the intent is not physical closeness, but rather the ability to protect the article. If the money can be protected by the lender, it is considered “close” to him. If it can be protected by the borrower, it is “close” to him.

The rationale is that once an agent is given money and instructed to bring it to the lender, it is considered as if he acted as an agent of the lender and acquired it on his behalf.
The commentaries note that, as stated in Hilchot Zechiyah UMatanah 4:4, if a person gave an agent a present for a colleague and instructed him to give it to him with these words, he would have the option of retracting. Only when he explicitly told the agent: “Acquire it on behalf of so-and-so,” could he not retract. The difference between the two instances is, however, obvious, for the debt is owned to the lender, while the present is not.

Because the lender did not give him permission to send it to him with that agent.

Rabbenu Yitzchak Alfasi (as quoted by the Maggid Mishneh) explains that if the lender cannot collect the debt from the debtor, he may demand payment from the agent. The agent shares in the responsibility, for he gave money that had already been acquired by the creditor back to the debtor. Nevertheless, the lender may not approach the agent for payment without first approaching the debtor.
The Maggid Mishneh adds that if the agent was compelled to return the money to the lender by force, he is not held liable at all. The Shulchan Aruch (Choshen Mishpat 125:1) quotes the interpretation of the Maggid Mishneh as law. Significantly, however, he also cites the Rambam’s words as a second opinion, implying that they are different conceptions.

Such a transfer is called a maamad sheloshtan. It is a Rabbinical ordinance instituted to allow for a freer flow of financial dealings. Ordinarily, none of the participants can retract. See Hilchot Mechirah 6:8.

Had Levi known that Reuven was incapable of paying, he would never have accepted the transfer. Hence, the transaction was carried out under false premises and is nullified for that reason.
Sefer Me’irat Einayim 126:26 quotes the Tur, from which it appears that even if Shimon did not deceive Levi - for he did not know that Reuven was poor - if in fact Reuven was poor at that time, the transaction is nullified. The Siftei Cohen 126:43, however, raises questions regarding this ruling.

The Siftei Cohen 126:44 states that the prevailing assumption is that he did not know of Reuven’s state. For if he had known, it would have been ridiculous for him to accept the transfer.

In the former instance he has nothing to complain about, because he knew of Reuven’s state. And in the latter instance, it is his misfortune that he suffered the loss. Since there was no deception involved, the transfer is binding.

This expression indicates a decision the Ramba:n reached through deduction, without having an explicit source in previous Rabbinic literature.

The Maggid Mishneh explains that this refers to an instance where Levi has a promissory note from Shimon regarding the debt, in which instance Shimon must prove that he has not paid the debt. If, however, the debt is supported by a verbal commitment alone, the burden of proof is on Levi. For if Shimon had claimed that he paid the debt himself, his word would have been accepted provided he supported it with a sh’vuat hesset. Accordingly, based on the principle of miggo, his word is accepted if he claims that he did not deceive Shimon about Reuven’s financial position and takes a sh’vuat hesset to that effect. These concepts are quoted by the Shulchan Aruch (Choshen Mishpat 126:11).

If he cannot prove his claim, he must make financial restitution, provided Shimon takes a severe Rabbinic oath [Shulchan Aruch (op. cit.) and commentaries].

I.e., the agreement that Reuven should pay Levi is equivalent to a receipt. Just as the borrower would have to prove the authenticity of a receipt; so, too, he must verify this claim.

Hilchot Mechirah 6:9.

I.e., any one of the three may retract.

Since he was not under any obligation to Reuven, there was no debt that was transferred.

Since he was the original debtor.

We do not say that since he began paying him, he is obligated to pay the entire debt. Shimon can require Reuven to reimburse him for the portion he paid as the Rambam states above (Sefer Me’irat Einayim 126:10).

That he did not receive payment.

That he gave the money that the employer requested him to give.

In both instances, the plaintiffs are issuing a definite claim against the employer, and he is unsure of whether he paid them or not. Ordinarily, in such a situation, the plaintiff’s word would be accepted without an oath (see Hilchot To’en V’Nit’an 1:9). Nevertheless, since the employer is certainly suffering a loss, our Sages required that an oath be taken. Although one of the claimants is unquestionably taking a false oath, the court is not concerned and requires that both oaths be administered. (See Sh’vuot 47b.)

The employer - and the court - have no way of determining which of the claimants is lying. The other claimant, by contrast, does know. By requiring each one to be present when the other takes the oath, the person lying will be embarrassed, for a person who knows that he is not being truthful will be present when he takes the oath (Maggid Mishneh).
The Ramah (Choshen Mishpat 91:1) states that if one of the two claimants is not present, the other is not required to wait until his return before taking the required oath.

For example, a person told a colleague “Lend me $100 and pay it directly to my creditor,” the creditor claims never to have received the funds, and the person claims to have made the payment [Shulchan Aruch (Choshen Mishpat 91:1)].

I.e., although the store-keeper would not ordinarily be required to take an oath, an exception is made in this situation to placate the feelings of the employer, who is forced to pay twice.

Without taking the prescribed oath.

This law is not stated explicitly in the Talmud, but is derived by the Rambam (and other commentaries) based on the rationale stated further on (Maggid Mishneh).

The Ramban and the Ramah differ and maintain that the storekeeper must take an oath before collecting the money he claims. The Shulchan Aruch (Choshen Mishpat 91:2) quotes the Rambam’s view, while the Ramah mentions the other opinion.

For he is denying the store-keeper’s claim entirely.
Rabbenu Nissim maintains that the employer is not required to take an oath at all. Since even if the owner agreed that he made this statement, the store-keeper would have to take an oath before he collected the money he claimed, this is not considered a claim that requires an oath. The Shulchan Aruch (Choshen Mishpat 91:6) quotes the Rambam’s view.

If that person denies receiving payment, he is required to take a sh’vuat hesset and is then freed of responsibility.

This is the legal process used to transfer ownership of a promissory note, as stated in Hilchot Mechirah 6:11.

See Hilchot Mechirah 6:14. In this instance, a deed of transfer is not required. As stated in the notes on that halachah, this opinion is not accepted by all authorities

This applies even if there are no witnesses to the transfer of the promissory note, provided that the original creditor does not protest and claim that the promissory note was not sold. If he lodges such a protest, the purchaser must bring either the deed of transfer or witnesses who testify concerning the sale. This reflects the approach of the Rambam’s teacher, Rav Yosef Migash, and is indicated by the Rambam’s ruling in Hilchot Mechirah 6:11. As the Maggid Mishneh and the Tur (Choshen Mishpat 66) state, many other Rishonim differ and maintain that the purchaser must also produce evidence of the sale of the promissory note in all instances, even when the original creditor does not lodge a protest. See also Hilchot Nachalot 9:10 where this issue is discussed.
The Shulchan Aruch (Choshen Mishpat 66:11) quotes the Rambam’s approach as well as that of the other authorities, without stating which should be followed. The Ramah, however, favors the approach of the other authorities.

And the note itself is considered proof that the debt was not paid.

As is his privilege, as stated in Chapter 14, Halachah 2.

Levi’s word is accepted and Shimon is freed of responsibility. The rationale is that if Levi desired, he could waive the debt and free Shimon of responsibility, as stated in Hilchot Mechirah 6:12. The rationale is that the sale of a promissory note is binding only according to Rabbinic law. According to Scriptural Law, the debt is still owed to Levi - despite the fact that he sold the note - and he has the right to waive the debt.

He must pay the full amount stated in the promissory note. This applies even if he sold the promissory note for less. For we assume that he received payment after the promissory note was sold. Even if he states that he was paid before the sale, thus admitting the sale was a deception, he must pay the entire amount. The rationale is that the reason Levi's word is accepted and Reuven is not entitled to collect the debt from Shimon is that Levi has the right to waive payment of the debt. If he waived payment, he would be liable to pay the entire amount of the debt (Hilchot Chovel UMazik 7:10). Hence, when he admits accepting payment, he is required to pay the entire amount (Maggid Mishneh).
Similarly, if the original creditor does not admit accepting payment from the debtor, but refuses to take the oath, he is required to pay the purchaser (Maggid Mishneh).

He also states that the debt has been paid, and thus Shimon is no longer responsible.

For what is involved is a claim that Reuven lodges against Levi, and Levi denies entirely. Our translation follows the interpretation of Sefer Me’irat Einayim 66:33.
In his Kessef Mishneh and Beit Yosef (Choshen Mishpat 66), Rav Yosef Karo offers a different interpretation, stating that Levi claims that the debt is unpaid, and that he lost the promissory note and it was found by Reuven. Hence, he requests payment from Shimon. Shimon, by contrast, maintains that he already paid the debt, received the promissory note in return, and that he was the one who lost it. In such an instance, Shimon’s word is accepted, as stated in Chapter 14, Halachah 13.

I.e., we follow the principle of miggo. If the debt was still outstanding and the third party desired to defraud the creditor, he could simply have destroyed the promissory note. By entrusting a promissory note to a third party, a creditor makes a tacit agreement to accept his word.

In contrast to the following halachah, this is speaking about an instance when the note that was discovered is not signed by witnesses.

As mentioned in Hilchot To'en V'Nit'an 6:7, a lender can claim that his admission that a debt was paid was facetious. See Sefer Me'irat Einayim 56:12, which explains that the note could have been written in anticipation of the creditor's paying the debt.

It is not ordinary that a lender will have the authenticity of the witnesses’ signatures verified. Hence, we assume that the borrower paid the debt, the lender gave him the promissory note, he had the witnesses’ signatures verified and then returned the note to the lender for safekeeping (Sefer Me’irat Einayim 65:63).

We assume that the lender prepared the receipt for the borrower before he actually paid him, as mentioned in the notes on the previous halachah.

These additions are made on the basis of the gloss of the Kessef Mishneh and that of the Maggid Mishneh on Chapter 17, Halachah 2.

It appears that the Rambam’s text of Bava Metzia 20b) stated peruyim, “paid.” The standard printed text of that passage states keruyim, “torn.”

For otherwise, why was it placed together with the other notes that had been paid?

Sefer Me’irat Einayim 65:70 states that this law applies even when the lender protests that the loan was never repaid.

Nor the lender (Sefer Me’irat Einayim 65:71).

This does not refer to a debt that is owed to him, but rather a promissory note recording a debt owed one colleague by another colleague.

I.e., he does not recall who entrusted it to him, the borrower or the lender, nor does he know whether or not the debt was paid.

The Maggid Mishneh quotes the Rashba, who compares this to a promissory note that fell and was discovered by a third party. In such an instance, even if the borrower admits that he did not repay the debt, it should not be returned to the creditor, for we fear that he will use it dishonestly to expropriate property that the borrower sold. The Shulchan Aruch (Choshen Mishpat 65:3) quotes this opinion, but also quotes another view that maintains that if the borrower and the creditor agree, we should follow their requests.

For each of the borrowers can claim that it is his note that was not paid, and the lender cannot prove otherwise. In each case, the borrower is given the benefit of the doubt.

In which instance, one of the promissory notes is certainly unpaid.

For the debtor is given the benefit of the doubt.
The Ramah (Choshen Mishpat 65:23) states that if a receipt for the lesser one is found, that note is considered to have been paid and not the greater one.

For the wording he used could imply that the borrower has paid his entire debt to the lender.