Malveh veLoveh - Chapter 17

I.e., the court does not require him to take an oath. Instead, it considers the promissory note in his possession to be an indication that the loan is still outstanding. An heir is always judged more leniently than the person whose estate he acquired. If that person had been able to collect the debt without taking an oath, certainly an heir is granted this privilege.

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

This oath is referred to by the Sages (Sh’vuot 45a) as “the oath of the heirs.”

Just as the lender would have had to take a severe oath before collecting the oath; so, too, this is required of the heir. Nevertheless, while the lender himself could take an oath that the debt was unpaid, the heirs cannot state that with certainty. They can, however, state unequivocally that to their knowledge the debt was unpaid.

Before his death.

As stated in the notes at the conclusion of the previous chapter, for a promissory note to be invalidated, the note itself must be found among promissory notes that have been paid, or a second note must be found stating that the promissory note has been paid.

If, however, the lender died first, different rules apply, as stated in the following halachah.

In this instance, the court obligates the lender’s heirs to take the oath. The rationale is that since the borrower would have had this prerogative, the court acts on behalf of his heirs and requires the lender’s heirs to support their claim by taking this oath.

Similarly, if a person has no sons, and his brother inherits his estate, the brother must take an oath: “My brother did not tell me...,” My brother did not instruct me....” (Sh’vuot 48b).

The Shulchan Aruch (Choshen Mishpat 108:9) states that the lender’s heirs must also include in their oath that the borrower did not pay them themselves.

Needless to say that the oath is not taken until the heir attains the age of majority.

The Shulchan Aruch (Choshen Mishpat 108:5) states that in such a situation, he must take an oath only that he did not find a note saying that this promissory note was paid, because it is highly unlikely that the lender would have spoken to the infant about his finances. Sefer Me’irat Einayim 108:23 adds that he must also take an oath that he was not informed by others, because it is a distinct possibility that the lender had advised a friend about his financial affairs.
Our text of the Mishnah (Sh’vuot 45a) quotes Rabbi Yochanan ben Beroka as saying that even when the heir was born after the lender died, he is required to take this oath. The Maggid Mishneh states that the Rambam’s wording implies that he does not accept Rabbi Yochanan ben Beroka’s view. In his Commentary on the Mishnah (Sh’vuot 7:7), however, the Rambam emphasizes that the halachah follows Rabbi Yochanan’s view.

The rationale is that we assume that a person will not make false statements on his deathbed. Since the promissory note is itself considered an indication that the debt is outstanding, the lender’s statements provide the added clarification that would otherwise be contributed by the oath.

Without taking that oath. Even if the lender took that oath before passing away, his heirs cannot collect the debt if there was a possibility that he was paid after taking the oath [Ramah (Choshen Mishpat 108:11)]. Sefer Me’irat Einayim 108:36 interprets this as referring to an instance when the lender took the oath in the borrower’s lifetime, and then the borrower died. In such an instance, he would have had to take another oath to the borrower’s heirs before collecting the debt from them.

They cannot state that their father was never paid with the certainty an oath requires.

I.e., the oath mentioned in Halachah 2.

The question of whether the heirs are allowed to collect the debt in such a situation is the subject of a difference of opinion between the Amoraim in Sh'vuot 48b. Since there are opinions that maintain that the borrower's heirs are not required to pay the debt, at the outset we do not obligate them to pay. Nevertheless, if a judge erred and required them to pay, we do not expropriate the money from the lender's heirs, because there are opinions that maintain that the money should be given to them.
The Shulchan Aruch (Choshen Mishpat 108:11) also states that if the lender’s heirs seize the money that was owed them from the property of the borrower’s heirs, it should not be expropriated from them, based on the same rationale.

And in this way prevent it from being used to collect the debt in the future.
The Rambam’s words appear to imply that a judge before whom the case was brought should not tear the promissory note for the reason to be stated. The Ramah (Choshen Mishpat 108:11) quotes the opinion of the Remo, who maintains that the instruction not to tear the promissory note is addressed to the heir’s guardian. If he finds such a promissory note in the estate, he should not tear it. If, however, such a promissory note is taken to court, the judge should rule in favor of the borrower’s heirs and allow them to maintain possession of the money. Afterwards, he should have the promissory note torn to prevent the matter from being brought before another court.

By tearing it, we would prevent this possibility.

Sh’vuot 48b states that although the more lenient opinion should be followed in the previous instance, we should not make any logical extensions and apply the concepts to similar cases. Another parallel could be an instance where one witness testifies that the promissory note has been paid. If the lender dies before taking an oath, his heirs may take the oath mentioned in this halachah and then collect the debt (Maggid Mishneh). The Shulchan Aruch (Choshen Mishpat 108:14) explains that this principle applies only in instances when the claim of the lender's heirs is supported by a promissory note. Otherwise (e.g., the heirs of a worker or a person who claims that property was stolen from him), the heirs are not given the opportunity of taking an oath.

I.e., who states that the borrower paid a portion of the debt stated in the promissory note, as explained in Chapter 14, Halachah 1 and notes.

As required by Halachah 2.

In his Kessef Mishneh, Rav Yosef Karo states that the Rambam’s words can be interpreted as meaning that when the lender dies before the borrower and then the borrower dies, the lender’s heirs may expropriate the money from the borrower’s heirs on the basis of the oath mentioned by the Rambam. If, however, the lender dies after the borrower, the lender was obligated to take an oath to the borrower’s heirs, and such an oath cannot be bequeathed to an heir. And in his Shulchan Aruch (Choshen Mishpat 108:14), he states this interpretation as halachah.

I.e., the oath required of an heir mentioned in Halachah 2. The Shulchan Aruch (Choshen Mishpat 108:15) states that this law applies even if the lender died during the lifetime of the borrower.

A person who does not admit incurring a debt will certainly not have repaid it. Hence, we interpret the borrower’s objection that he never incurred the debt as an admission that he never repaid it. (See Hilchot To’en V’Nit’an 6:3.) On the other hand, we do not accept his word that the debt was never incurred. Since the lender has produced a promissory note that has been verified by the court, we assume that the debt has been incurred. And since the statement of the borrower’s heirs is interpreted as an admission that the debt was never repaid, the lender’s heirs are not required to take an oath before collecting.

The law that follows is not explicitly stated in the Talmud, but is derived from the previous law, which is. The rationale is that if the lender himself were required to take in oath in such a situation, an oath would also be required of his heirs (Maggid Mishneh).

See Chapter 15, Halachah 6. Although the lender stipulated that he would accept the borrower’s word with regard to repayment, in this instance the borrower is not stating that he repaid the debt. On the contrary, his statements are interpreted as an admission that he never repaid the debt (Maggid Mishneh).

As stated in Chapter 15, Halachah 6.

I.e., the legal power of the promissory note is dependent on the borrower's statements.
Our translation is based on the standard published text of the Mishneh Torah. The Rambam La’Am cites a passage from Rabbenu Yitzchak Alfasi on which basis he reads akar instead of ikar, which allows for the interpretation of the phrase as: “The promissory note is uprooted by the stipulation.”

Although a claim against an heir is generally judged more severely than a claim against a principal, an exception is made in this instance, because the legal power of the promissory note is entirely contingent on the borrower’s admission that he has not repaid the debt.

The Maggid Mishneh cites a difference of opinion among the commentaries. Rabbenu Yosef MiGash, the Rambam’s teacher, maintains that this applies even though the lender did not demand payment of the debt before his death. Since the borrower was in possession of a receipt, he should have brought it to court and nullified the promissory note. The fact that he did not do so casts suspicions on the validity of the promissory note. The Rashba differs and maintains that as long as the lender did not demand payment of the promissory note in his lifetime, we do not question the borrower’s intent.
The Beit Yosef (Orach Chayim 108) states that the Rambam follows Rav Yosef MiGash’s understanding. The Siftei Cohen 108:31 states that it is not imperative to say so.

I.e., we do not automatically accept the validity of the receipt and on that basis destroy the promissory note.

At which point they are deemed capable of protecting their interests in court.

I.e., the fact that he did not produce it during the lender’s lifetime - when the lender could have attested to or denied its authenticity - leads us to the suspicion that it might be a forgery. Hence, we wait until the lender’s heirs reach an age when they are capable of protecting their interests. If they desire to contest the matter in court, the borrower will have to verify the authenticity of the note against their claims.
Even if the borrower brings witnesses who verify the authenticity of the receipt before the lender’s heir comes of age, their word is not accepted. The rationale is that we do not accept testimony of witnesses unless it is made in the presence of the litigant. Since the litigant - the lender’s heir - is a minor, it is considered as if he is not present [Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 108:16)].
The Bedek HaBayit notes that although testimony against a minor is not accepted by the court until he reaches majority, the authenticity of a legal document is verified and the document accepted even if the party to which it applies is under age. The Bedek HaBayit explains that an exception is made in this instance, because of the suspicion created by the fact that the borrower did not produce the receipt in the lender’s lifetime.

At the outset, it is required that a promissory note - and similarly, other legal documents - contain the name of the place where the note is composed.

The coins used in Babylon were heavier than those used in Eretz Yisrael, and the Babylonian coinage was therefore more valuable. Needless to say, if the note explicitly stated that it was given in a specific coinage, the debt must be paid in that currency.
To relate these concepts to contemporary circumstance: Loans made to Americans in dollars in Canada. Are the dollars mentioned Canadian dollars or American dollars?

If the note does not state the type of coinage in which the loan was given, we assume that it was given in the local coinage.

See Hilchot Ishut 16:6, which states that with regard to a ketubah, a woman is always given the lesser sum.

For we assume that the loan was also given in that coinage. The Kessef Mishneh and the Ramah (Choshen Mishpat 42:14) quote Rabbenu Nissim, who explains that according to the Rambam, if the borrower can prove that he was in another place at the time that the loan was given, we assume that the loan was given in the coinage of that place.

As stated above.

To respond to the claim of the borrower. The Beit Yosef (Choshen Mishpat 42) compares this to a situation where the borrower claims to have repaid a portion of the debt. In such an instance, if the debtor asks that the creditor take an oath before collecting, he is required to do so (Chapter 14, Halachah 2).
The Siftei Cohen 42:33 explains the objections of Sefer HaTerumot to this ruling, stating that the borrower’s protest bears a greater resemblance to a claim that the promissory note was given on faith or that it was written in anticipation of a loan that was never given, than to a claim that the debt was paid. In those instances, as the Rambam states in Chapter 14, Halachah 3, the lender is not required to take an oath. Similarly, in the instance at hand, Sefer HaTerumot argues, the lender should not be required to take an oath.

I.e., if the promissory note says “X owes Y 100 pieces of silver” without specifying which coins are intended, the borrower can repay the loan using whichever silver coins he desires (Maggid Mishneh).

For the lender has no legal support to demand more.

It may not, however, be used to expropriate property from people who purchased property from the borrower [Shulchan Aruch (Choshen Mishpat 43:1)].

Hazamah refers to the nullification of the testimony of witnesses on the basis of the testimony of other witnesses who state that at the time a witness claims to have observed a particular event, that witness was together with them in another place and could not possibly have observed the event that he testified about. (See Hilchot Eidut, Chapters 18-20.)
Testimony that cannot be nullified through Hazamah is generally not acceptable (Sanhedrin 41a; Hilchot Eidut 1:5). In this instance, since the promissory note does not mention either the date or the place of the loan, there is no possibility of hazamah. Nevertheless, the promissory note is not disqualified, for the reason stated by the Rambam.

See Hilchot Eidut 1:4-5.

See Hilchot Eidut 3:1.

I.e., if a lender saw that the witnesses he brings are being subjected to rigid cross-examination, and as a result their testimony is disqualified, and he is consequently unable to collect his debt, he will refrain from giving loans to others in the future.

I.e., the date stated on the promissory note is later than the date when the note was actually composed.

Chapter 23, Halachah 1. See also Hilchot Eidut 19:3.