Malveh veLoveh - Chapter 20

I.e., the person who received the promissory note first or who first engaged in a binding kinyan in the presence of witnesses.

The Maggid Mishneh states that if the lender possesses property, a lender whose loan is supported by a verbal commitment alone is given the same status as a person whose loan is supported by a promissory note.

Even when the due date of the second creditor precedes that of the first, if the second creditor expropriated the property and the borrower is unable to pay the first creditor, the first creditor may expropriate the property from the second creditor [Rashba, Responsum 1115; Shulchan Aruch (Choshen Mishpat 104:1)].

With regard to movable property, see the following halachah and notes.

Note, however, the following halachah which suggests a provision that extends the creditor’s rights.

Bava Batra 157b states that ideally, the properties should be equally divided among all the creditors.

The Beit Yosef (Choshen Mishpat 104:6) states that this ruling applies even if a creditor seized the property on his own initiative. Even though this is not what our Sages desired, since no other creditor has a greater claim than he, he is allowed to maintain possession. The Siftei Cohen 104:14 differs and maintains that it applies only in a situation where the debtor himself gave this creditor the property, or it was awarded to him erroneously by the court.

Since the field was already on lien to one creditor, the fact that the debtor took on another responsibility does not detract from that lien.

In one of his responsa (Responsum 61, quoted by the Beit Yosef, Choshen Mishpat 104), the Ramban writes that a person whose debt precedes another has the right to expropriate movable property before the person whose debt comes afterwards. It is only when a person whose debt was made afterwards has already expropriated the property that we say that there is no concept of precedence with regard to movable property. This approach is quoted as halachah by the Shulchan Aruch (Choshen Mishpat 104:3). The Sefer Me’irat Einayim 104:1 differs with this ruling and supports the simple meaning of the Rambam’s statements in Halachah 4.

Indeed, if the initial debtor seizes the movable property from the later debtor who expropriated it, it is removed from his possession and returned to the person who expropriated it (Shulchan Aruch, loc. cit.).

I.e., a person who is not himself a creditor.

Based on the principle that a person can act on his colleague’s behalf without that person’s knowledge, he seeks to acquire the property for him. Ordinarily, this would be acceptable, because it is as if he was appointed as an agent by him. Nevertheless, in this instance, since he is causing a loss to another person, this principle is not applied.
The Maggid Mishneh and the Shulchan Aruch (Choshen Mishpat 105:1) state that even when the lender explicitly appoints a person as his agent, when a loss is caused to another person, the agent may not expropriate property on behalf of the principle.

I.e., the other creditors who cannot acquire the property if it is being seized by this person.

If, however, the person seizing the property for his colleague is himself a creditor, since he would have the right to seize this property for himself, he may seize it for his colleague [Shulchan Aruch (Choshen Mishpat 105:2)].

I.e., there are no other creditors.

The borrower cannot protest: “I have no business with you. You have no right to expropriate my property.”
Rabbeinu Yitzchak Alfasi states that this law applies only in an instance where the creditor for whom the person is trying to acquire is likely to suffer a loss - e.g., the debtor is dying and all he owns is movable property, or the debtor is in a difficult financial position and may lose all his resources. If, however, the debtor is solvent and healthy, he can tell the person: “You are not an involved party. Let the creditor come to collect his debt himself.” This concept is also quoted by the Shulchan Aruch (Choshen Mishpat 105:4).

This applies even when this will cause the other creditors a loss. See Chapter 16, Halachah 2.

This applies to the date when the loan was given, at which time the lien begins. The date when the loan is due is not at all significant in this context (Sefer Me’irat Einayim 104:22).

In this instance, as in Halachah 1, it would be preferable at the outset for the property to be divided equally among all the creditors. If, however, one of the creditors seizes it, after the fact it is not expropriated from him. The Ra’avad and other authorities protest the Rambam’s ruling, maintaining that he should have stated that the property should be equally divided. The Tur and the Shulchan Aruch (Choshen Mishpat 104:8), however, follow the Rambam’s perspective.

This statement appears to imply that even at the outset, there is no concept of precedence with regard to movable property and it should be divided equally among all claimants. As mentioned above, there is a responsum from the Ramban, on which basis the Shulchan Aruch (Choshen Mishpat 104:1) rules that the creditor whose promissory note is dated first has the right to expropriate movable property first.
The Maggid Mishneh mentions that this law applies only to movable property on which the borrower did not establish a lien by virtue of the lien on the landed property.

In all these cases, none of the creditors is given priority over the others.

According to this perspective, the fact that one creditor is owed more than another is not significant and each are given equal shares. Thus, those that are owed more lose not only a greater amount, but a greater percentage of the amount they lent.

100 zuz.

For he has received all the money due him.

The commentaries question why the Rambam adds the word “only.” For this creditor has also received all the money owed him.

This approach is suggested by Rabbenu Chanan’el. The Shulchan Aruch (Choshen Mishpat 104:10) and the later authorities, however, all follow the approach explained by the Rambam (which is based on the teachings of Rabbenu Yitzchak Alfasi).

Note Sefer Me’irat Einayim 43:43, which states that the same laws apply even if Reuven’s promissory note is dated the 28th of Nissan.

Since Shimon’s promissory note does not explicitly state when his lien takes effect, Reuven’s claim supersedes his. For Reuven has a definite claim, while Shimon’s is not definite.

I.e., if in addition to the field that was in Levi’s possession, Levi had owned another field that he had sold in lyyar or afterwards. That field is on lien to the debts. Nevertheless, the purchaser can prevent Shimon from expropriating it from him by using the argument the Rambam advances.

The month after Nissan. If the field was sold during Nissan, Shimon does not have the right to expropriate the field, because the purchaser can claim that the field was sold before the debt was made.

The purchaser can claim that Shimon is not the one who should be presenting the claim to him. For Shimon should be given the field that had not been sold. He should expropriate that field from Reuven, and Reuven should then claim the property that the purchaser acquired.

If Reuven alone came demanding payment, the purchaser could also rebuff his claim, saying that the claim should be advanced by Shimon, and not Reuven. For he could claim that Reuven should receive the field that was not sold, and Shimon should seek to expropriate the field. It is only when one person comes demanding payment jointly on behalf of both creditors that he is forced to relinquish the field.

This halachah is based on a Talmudic passage from Ketubot 94b. Rashi interprets that passage as referring to a situation where a person sold the same field to two persons, as in the final instance mentioned by the Rambam. The Rambam interprets the passage as dealing with promissory notes as in the first instance he describes. As a corollary, however, he adds that the same principles would apply with regard to deeds of sale.