Malveh veLoveh - Chapter 23

For example, if the loan was given in Nissan, but the promissory note was dated in Adar, the lien on the purchasers’ property should not start until Nissan. If, however, the promissory note states Adar, he will be able to use it to expropriate property sold from that month.

I.e., to refer to the above example: even though he would not be able rightfully to expropriate property from purchasers from Adar, he should have that privilege from Nissan. Nevertheless, our Sages denied him that privilege entirely, as a penalty for preparing an improper document.
Nevertheless, from the Rambam’s wording, it would appear that he accepts the promissory note as valid in these instances, in contrast to the approach of Tosafot (Bava Metzia 72a), which maintains that the promissory note is disqualified entirely and that the loan is considered to be backed by a verbal commitment alone. The Maggid Mishneh offers several explanations to justify the Rambam’s position. The Rambam’s position is quoted by the Shulchan Aruch (Choshen Mishpat 43:7), and that of Tosafot by the Ramah.

I.e., documents written on a date later than that of the loan, or documents written on the day of the Joan, but dated afterwards.

The Tur (Choshen Mishpat 43) states that postdated promissory notes are acceptable only when they include a clause stipulating that any property to be purchased after the loan was made is also on lien to the debt. (See Chapter 18, Halachah 1.) If such a clause is not included, property that was purchased after the date of the loan, but before the date written in the promissory note, would not be covered by the lien. Nevertheless, from the promissory note itself, it would appear that it is, for that property was in the debtor’s possession on the date written in the promissory note. Hence, that property could be expropriated in an unlawful manner.
The Maggid Mishneh notes that the Rambam’s teacher, Rav Yosef MiGash also mentions these concepts, and it would seem that they would be accepted by the Rambam as well. Accordingly, he asks: Why does the Rambam rule that such promissory notes are acceptable without stating that they must include the above-mentioned stipulation?
Based on these objections, the Shulchan Aruch (Choshen Mishpat 43:12) writes that postdated promissory notes that do not contain this stipulation are unacceptable, unless it is explicitly stated that they are postdated. When they state that they are postdated, they are acceptable, because the creditor will have to prove that the property was in the borrower’s possession at the time the loan was given before expropriating property.

And thus bearing the date of the day.

According to the Jewish calendar, the date changes at nightfall. Hence, since the promissory note was not signed until the night, the lien does not take effect until that date. Thus, the promissory note is considered predated.

Since they were negotiating the matter during the day, the sale attracted public notice from that time, and any purchasers of the property should have protected their interests accordingly.

Yom Kippur. It is forbidden to write on these days. If witnesses signed a promissory note on this day, they would be disqualified for transgressing a Scriptural commandment, and the legal power of the promissory note would be nullified.

This reflects a general principle in Jewish business law: When a promissory note or any other legal document is signed by acceptable witnesses and presented to the court, we assume that it is acceptable unless there is clear evidence to the contrary. If a person seeks to disqualify it, he must bring witnesses who testify that it is invalid (Maggid Mishneh). See also the notes on Chapter 27, Halachah 15.

When quoting this law, the Shu! chan Aruch (Choshen Mishpat 43:14) mentions - after adding the preface “There is an opinion that states...” - the view of the Baal Haltur, who maintains that in such an instance, the defendant can require the plaintiff to take an oath that the promissory note is acceptable.

And have it signed by witnesses. Unless the promissory note is signed by witnesses, it has no legal power at all.

I.e., when the borrower comes alone and asks that a promissory note be composed, the scribe has him enter into a kinyan in the presence of witnesses. That kinyan obligates him and his property for the sum in question. Afterwards, the promissory note is composed and given to the borrower. If and when he gives it to the lender, the lien begins from the time of the kinyan.
We compose this promissory note even though the lender is not present, because it is to his advantage that it be composed. Nevertheless, if he protests and asks that it not be composed, it is not composed against his will [Ramah (Choshen Mishpat 39:13)].

So that the lender does not use it to expropriate property unlawfully from the borrower or from people who purchased property from him. Even if the lender tells the scribe and the witnesses: “Compose the promissory note and sign it. Keep it in your possession until the borrower comes later today. Perform a kinyan with him and then give the promissory note on him for me,” they should not follow his directives. For we do not compose a document that is unacceptable at the time it is being written (Maggid Mishneh). This interpretation is quoted by the Shulchan Aruch (Choshen Mishpat 39:13).

That we compose a promissory note for the borrower although he is not accompanied by the lender.

Sefer Me’irat Einayim 39:39 states that this issue reflects one of the differences in approach between the Rambam and his teacher’s mentor, Rabbenu Yitzchak Alfasi, from one perspective, and Rabbenu Asher and the Ashkenazic authorities from the other perspective. Rabbenu Asher maintains that once witnesses signed a legal document, that document is binding. Even if it never reaches the person for whom it is intended, it is as if the document has already been given to that person. As reflected in this ruling, Rabbenu Yitzchak Alfasi and the Rambam differ and maintain that the composition and the signing of a legal document is not sufficient to create a binding obligation.
Sefer Me’irat Einayim also mentions a third opinion, that of Rabbenu Yerucham, which maintains that with regard to a matter that a person cannot complete on his own - e.g., the instance at hand, a borrower and a loan - we say that although a kinyan was not performed, when the witnesses sign the promissory note, it does not become effective until it reaches the possession of the person for whom it is intended. Nevertheless, when it reaches his possession, it is considered retroactively as if the lien began from the time the promissory note was signed.
The Siftei Cohen 39:39 differs with Sefer Me’irat Einayim and explains that Rabbenu Yerucham and Rabbenu Asher share the same approach and maintain that a promissory note is not effective until it reaches the possession of the lender.

I.e., in and of itself, a kinyan is a binding legal act that creates an obligation incumbent on the borrower and his property.

This act in itself is sufficient to create a binding obligation. Similarly, it is possible to give the promissory note to others acting as the lender’s agents.

I.e., he will be asking for the scribe to compose the promissory note in anticipation of a loan that was not given yet. This is undesirable, for without the performance of a kinyan, the composition of a promissory note in and of itself does not bring about a binding obligation. Hence, with such a promissory note, the creditor could unlawfully demand expropriation of property sold by the debtor after the date of the promissory note.

I.e., it was not until Tishrei that the loan was given, and the lien on the borrower’s property does not take effect until then.

The Shulchan Aruch (Choshen Mishpat 43:18) states that the wording of the legal document should be “we performed an act of kinyan with so-and-so on this-and-this date,” so that the document does not look false.

I.e., the date the document was signed. The rationale is that since the transaction takes effect from the time the kinyan was performed, the date the document was composed is entirely insignificant.

The Shulchan Aruch (Choshen Mishpat 43:19) implies that if the witnesses do not remember the exact day on which the kinyan took place, but remember the approximate time when the kinyan was made (which is earlier than the date the legal document was composed), they may date the legal document from that time. For example, the may date a legal document “the latter half of Tishrei.”

I.e., this law also involves a difference between the particulars of the kinyan and the legal document.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 43:20) states that it applies only when the witnesses do not remember the date of the kinyan and date the document from the day they sign it. If, however, they remember the date when the kinyan was carried out and include it in the legal document, they should also include the place where the kinyan was carried out.

The word toreif implies expropriating property from purchasers, but not from the owner himself. We do not worry that if the seller maintained possession of the property, the purchaser would be able to expropriate the property from him. For when the seller repurchased the property, he should have demanded the return of the postdated deed of sale. If he did not take such precautions, he must suffer the consequences (Rambam La’Am).
If, however, the deed of sale specifically states that it was postdated, it is acceptable, for in such an instance the interests of the purchasers are protected [Shulchan Aruch (Choshen Mishpat 43:13, 239:2)].

And date it from the time he received payment.

For it will appear that there were in fact two loans, one that was paid - and hence, a receipt was given for it - and one that is still outstanding, and supported by the promissory note.

Hence, we do not negate all postdated promissory notes, because the borrower himself is responsible for the possibility of such a loss.
On the surface, one might ask: Why do we not nullify postdated promissory notes, because of the loss that could be suffered by people who purchased property from the debtor? Although the debtor was negligent, they were not and they should not be forced to suffer the loss. The Rambam La’Am explains that this has a very low probability, for it involves several extraordinary factors: a) the promissory note was postdated, b) the debtor paid the debt before it was due, c) he agreed to accept a receipt that was dated, and d) the debtor was bankrupt. Hence, our Sages did not feel it necessary to institute a safeguard in such a situation.
The Maggid Mishneh quotes the Ramban, who questions why a measure is not instituted to protect the interests of the purchasers of the property mentioned in the first clause. If the seller repurchases the property, he could be given a deed of sale without a date. Thus, if the original purchaser try to reclaim the property from him with the postdated deed of sale, he could produce his deed of sale and deter him.
He offers two resolutions: a) If creditors of the purchaser will expropriate the field from the seller, the seller will not be able to use his deed of sale to expropriate property from others who purchased property from him; b) if the purchaser sells the field a second time and composes a deed of sale with a date, the person who acquires it will be able to take possession of it.

See Hilchot Mechirah, Chapter 10, which explains that when a person notifies two witnesses that he is being forced to sell his property against his will, that sale is nullified.

Hence, when that other person compelled him to sell it, it was no longer his property. As reflected by the Rambam’s rulings in Hilchot Mechirah, loc. cit., even if the first sale is nullified, the sale that is performed against the person’s will is not binding. For the first sale is an obvious sign that the owner did not want to sell it to the person compelling him.

I.e., if the seller does not have the cash to repay him, he cannot use the deed of sale as a promissory note on expropriate property that the seller had sold to others.
When stating this law, the Shulchan Aruch (Choshen Mishpat 70:6) goes further and maintains that if the owner claims to have repaid the person who compelled him to sell the field, the owner’s claim is accepted. The fact that the seller possesses the deed of sale is of no significance whatsoever. The Siftei Cohen 70:26, however, questions this extension.

Hence, the person who compelled the seller to write it is not given any privileges.

From the thief, or from the persons who purchased it from the thief.

For the son is merely exercising the right to which his father was entitled.

I.e., because property can be expropriated by the son of a creditor on the basis of verbal testimony alone.

I.e., Ya’akov lent money to Yehudah. Yehudah sold property to Reuven and composed two deeds of sale. Afterwards, he also sold property to Shimon and to Levi. Ya’akov tried to collect his debt. Yehudah pleaded bankruptcy and therefore the court ruled that Ya’akov should expropriate the property that Yehudah sold to Reuven. Before Ya’akov could do so, he died. Yosef, Yaakov’s son, expropriated the property from Reuven. Reuven then expropriated the property that Shimon had purchased from Yehudah.

This will destroy the first deed of sale that Reuven possesses.

This is possible, for the second court will not necessarily know that the witnesses have already testified.

I.e., Reuven will take the second deed of sale and expropriate the property from Levi.

I.e., the easiest thing would be for him to have a second deed of sale composed. That, however, cannot be done in the ordinary manner, for the reason explained above.

When quoting this Jaw, the Tur and the Shulchan Aruch (Choshen Mishpat 239:1) rule that this deed of sale should be dated from the original date of the sale. Otherwise, if the purchaser sold the field back to the seller, the purchaser could use the second deed of sale to prove that he purchased it a second time.

I.e., if the creditors of the person who sold him the property expropriate it from him, he may not use the deed of sale to expropriate property from others who purchased property from that seller, or even from that seller himself. With this clause, our Sages safeguarded the situation described previously in this halachah from taking place, while protecting - to a certain degree - the rights of the purchaser.

I.e., if this amended deed of sale was not composed, the seller could take advantage of the purchaser if he realized that the purchaser lost the deed of sale. The seller could claim that he never sold the property to the purchaser, and that the purchaser was merely a squatter. And the seller would support his claim by bringing witnesses that the property once belonged to him.
Bava Batra 169a, b, the source for this halachah asks: Why isn't the purchaser's interest protected more? A second bill of sale could be composed without any of these restrictions, but at the same time another document could be composed, nullifying all bills of sale concerning this property other than the final one. That document would be given to the seller to protect himself against deception perpetrated by the purchaser.
The Talmud rejects this proposal, explaining that it is possible that the purchaser will find the initial deed of sale and try to expropriate property from two purchasers. Since they will not possess this legal document, their interests will not be protected.
This argument is also challenged, because ultimately both purchasers will come back to the seller, and he will show them the legal document that prevents the purchaser from using the initial deed of sale. Our Sages then explain that first of all, in the meantime, the purchaser would benefit from the produce of the land, and that might be difficult to collect from him. Alternatively, he might expropriate property from purchasers who acquired the property on the condition that the seller is not financially responsible to them. In such a situation, they might not check with the seller and discover that a legal document protecting their interests had been prepared.

The Shulchan Aruch (Choshen Mishpat 41:3) states that even when witnesses testify that the promissory note was lost, we do not compose a second one for the creditor, because we suspect that he may find the original one. If, however, witnesses testify that the promissory note was burnt, a second promissory note should be composed for him.

In contrast to a deed of sale, which can be used to protect the purchaser against the seller’s claim, a promissory note’s sole value is to collect money from the borrower. Hence, we do not compose a second document, lest the lender use it to collect payment unlawfully.
The Ra’avad differs with the Rambam and maintains that since the time for the repayment of the loan has not arrived, a second promissory note should be written. When the lender collects it for payment, the borrower should have him write a receipt, so that if he was lying and still possesses the original promissory note, he will not be able to use it to collect payment.
The Maggid Mishneh supports the Rambam’s argument, citing Chapter 14, Halachah 13, which states that when a promissory note is lost, we do not write a second promissory note even if the borrower agrees that the loan was not repaid. The Shulchan Aruch (loc. cit.) quotes the Rambam’s ruling.

I.e., we suspect that the lender returned the original promissory note and now seeks to have a second note prepared so that he can collect money from the borrower unlawfully.

Despite the fact that the due date has not arrived, we do not write a second promissory note. Generally, we follow the assumption that a person will not pay a debt until the due date comes. In this instance, however, since the lender claims the promissory note has been lost, our suspicions are aroused and we do not grant him such consideration.

See Hilchot To’en V’Nit’an 6:1, which states that when a person denies taking a loan from a colleague, witnesses testify that he took the loan and then he claims to have repaid it, his word is not accepted. The rationale is that whenever a person states he has not taken a loan, he is making a tacit admission that he has not repaid it.

The Rambam is speaking about a situation where the original note is still legible, but will soon be obliterated. Significantly, the Rashbam (in his commentary on Bava Batra 168a, the source for this halachah) interprets this as referring to a situation where the promissory note was obliterated entirely, but the witnesses remember what was written on it. The Shulchan Aruch (Choshen Mishpat 41:1) quotes the Rambam’s view, while the Ramah cites that of the Rashbam.

The Tur and the Shulchan Aruch (loc. cit.:2) state that this applies only in a situation where the document is obliterated by forces beyond the lender’s control. If, however, the lender willingly allows the promissory note on be obliterated, we assume that the debt was already repaid. Otherwise, he would not have been so careless with the promissory note. Hence, another legal document may not be composed.

Even after the writing on the promissory note is obliterated.

I.e., the judges will write a text confirming the validity of the promissory note, as stated in the following halachah. Needless to say, the lender may also bring the promissory note itself to the court (Maggid Mishneh).

For they have already carried out the mission with which they were originally charged and do not have the authority to compose a second promissory note (Sefer Me’irat Einayim 41:5).

I.e., the court will hear their testimony and then compose a legal document recording the debt.

They mention the date of the original promissory note. And thus, the lien on the borrower’s property still takes effect from that time. Needless to say, the court document also mentions the name of the borrower, the sum of the loan and its due date.

And if the original witnesses were not the witnesses who testified to the court that the promissory note was being effaced.

See Hilchot Edut, Chapter 6, which describes how the authenticity of the signatures of witnesses is verified.

I.e., we do not say that the very fact that the court had the document composed for him is itself proof of its validity. Instead, the authenticity of the witnesses’ signatures must be verified. One might ask: How is that possible if the original document is effaced? The Sefer Me’irat Einayim 41:10 answers that witnesses must testify concerning the original loan.

Unintentionally.

I.e., it can be read.

For a document would not be torn in this manner if it was still viable.

The Shulchan Aruch (Choshen Mishpat 52:1) also quotes a second view, that the promissory note was torn in a manner where the signatures of the witnesses, the date and the body of the promissory note will be torn. It also states that if the note is torn with a knife, it is unacceptable. Needless to say, if the document was rent in half, it is unacceptable.

For as stated above, they cannot take an initiative beyond that which they were originally charged. The Ramah 54:1, however, quotes views that maintain that once the date when payment was due passed, the original witnesses can compose another promissory note if the borrower consents.

Although the borrower will have the added difficulty of having to guard the receipt, since he was the one who desired to pay only a portion of the debt, the option is given to the lender.
Sefer Me’irat Einayim 54:1 states that the lender may prefer having the receipt written, so that the borrower will be afraid of losing it, and hence will pay his debt faster. On the other hand, he may desire to have a new promissory note composed, so that he would not be required to take an oath when demanding repayment, as would be the case when the previous promissory note is retained. See Chapter 14, Halachah 1.

Thus, if the lender ever finds the promissory note, the borrower will be protected and will not be able to be compelled to pay the debt a second time. The financial responsibility for composing the receipt is the lender’s.

The borrower cannot protest: “I will not pay the debt until he surrenders the promissory note” [Shulchan Aruch (Choshen Mishpat 54:2)]. Although the borrower must safeguard the receipt, and that involves a certain measure of difficulty, since he admits not paying the debt, he is required to pay.

The document itself is not worth anything. Hence, one might think that an oath is not required. Nevertheless, since even after the receipt was written, the borrower would pay for the promissory note to be returned - for then he would not have to safeguard the receipt - it is considered to be worth money, and an oath is required (Maggid Mishneh).

100 zuz.

This applies even if the debtor admits and/or witnesses testify that the debt has not been paid [Maggid Mishneh; Ramah (Choshen Mishpat 53:1)].

As stated in Chapter 14, Halachah 1, when the legal power of a promissory note is impaired, the lender must take an oath before demanding payment.

This clause also applies even when the court knows that the debt has not been paid (Maggid Mishneh; Ramah, loc. cit.).

The lender may call the borrower to court and demand that he pay both promissory notes at the same time. Nevertheless, the borrower can procrastinate, by saying, “I will pay you one today and the other next week.” The lender may willingly agree to this request rather than seek to expropriate payment through legal process. If the debt was written in one promissory note, the lender would be less likely to agree, for then he could be compelled to take an oath before receiving the second payment.

I.e., he claims to have been paid half of the debt, but claims that half is still outstanding.

For we fear that the lender will try to perpetrate deceit, as the Rambam continues to explain.

I.e., the lender did not return the promissory note, and instead, had a receipt composed for the borrower to prove that he paid the debt.

For which you do not have a receipt.