Rambam - 3 Chapters a Day

The lender must have the authenticity of the promissory note validated before any collection procedures are started (Maggid Mishneh). The laws governing the validation of the signatures of the witnesses to a legal document are explained in Hilchot Eidut, Chapter 6.

We grant him this time, because even if the property would be sold by the court, the sale would take a certain amount of time as evident from Halachot 9-11.

Movable property.

I.e., if the creditor thinks the debtor possesses movable property, he may have a conditional ban of ostracism - a measure devised by the Geonim - issued by the court to induce the lender to pay.

The adrachta is a bill granting the lender power of attorney to seize property belonging to the borrower. Rashi interprets the root of the word as meaning “pursue” and cites a parallel in Judges 20:43. Sefer HaTerumot explains that the root is the word doreich, which means “exercise authority,” and the Ramah (Choshen Mishpat 98:5) interprets it as a derivative of the word madrich meaning “instruct”- i.e., we instruct the lender to collect his debt from the property of the borrower. More particulars concerning an adrachta are discussed in Halachah 6.

As explained in Chapter 11, Halachah 4, since there is no promissory note supporting the loan, the lender may not attach property that has already been sold to others. For this reason, an adrachta is composed immediately. For it enables a creditor to expropriate any landed property that might be sold by the debtor.

I.e., to lend credibility to his claim, he must mention the names of the witnesses he intends to bring.

This is a matter that is left to the judges’ discretion.

It would appear that the time is established according to the particulars involved (Maggid Mishneh). The Tur and the Ramah (Choshen Mishpat 98:4) state that ordinarily [when the court cannot estimate the time required (Sefer Me’irat Einayim 98:7)] the debtor is given 30 days.

I.e., if he brings those witnesses to substantiate his claim.

The Or Sameach cites a responsum of Rabbenu Yitzchak Alfasi that states that the same law applies if the creditor is a poor person and the money will not remain in his possession for a significant time.

I.e., his reputation is such that the court thinks he might refuse to return the money if the defendant’s claim would be vindicated in the suit that he will bring.

The third party should maintain possession for a limited amount of time. If the defendant does not bring witnesses in that time, the money should be given to the plaintiff. Sefer Me’irat Einayim 98:8 states that when the judges do not feel that the defendant’s claim is of substance, they instruct the third party to hold the money for 30 days. If the plaintiff is a man of force and the judges feel that the defendant’s claim has substance, they should give the defendant up to 90 days to prove his assertions.

These are the days on which the court would sit in session.

From Hilchot Sanhedrin 25:5, 8 it would appear that a peticha is a court document intended to make known the ban of ostracism. Sefer Me'irat Einayim 98:10 explains that it is the first of the legal documents composed in the series leading to the expropriation of property.

See Hilchot Talmud Torah, Chapters 6-7, which describes the restrictions of this ban.

I.e., in addition to the time that he was granted previously (Maggid Mishneh).

We assume that he sought to borrow money, was unable to find a lender, and hence began looking to sell his property.

Halachah 1 states that a person who asks for time to gather payment is granted only 30 days. In this instance, he is granted 90 days. The rationale is that he claimed the promissory note is a forgery. Although he is not given unlimited time to prove his claim and is placed under a ban of ostracism, we take that claim into consideration and grant him more time (Sefer Me’irat Einayim 98:11).

He is released from the ban of ostracism because the entire purpose of that ban was to induce him to pay the debt.

Bava Kama 112b states that this time is granted to enable the court to send a messenger to inform the defendant and for him to appear in court before the next session. On the basis of his version of that passage, the Tur [and his opinion is quoted by the Shulchan Aruch (Choshen Mishpat 98:5)] writes that we are speaking of a 1-day journey. The Shulchan Aruch does, however, also mention the opinion of the Rambam after the preface: “There are those who say....”

For he has already been given ample time to deal with this question.

Note the contrast to the following halachah.

He is not granted any time at all, not even the initial 30 days (Sefer Me’irat Einayim 98:15).

Sefer Me’irat Einayim, op. cit., states that we do wait 30 days if the watchman claims that the legal document is a forgery and the object was never entrusted to him. He is granted that time to bring witnesses who will support his claim.

A loan is given for the recipient to spend. Hence, the creditor must take into consideration the fact that the debtor may have difficulty returning the money. An object entrusted for safekeeping, however, should not be taken by the watchman and there is no reason for its return to be delayed (Maggid Mishneh).

For landed property will always remain intact. The possibility that the creditor will damage the property and then not have the means to make restitution is not taken into consideration. Nor does the court reckon with the possibilities that the land will decrease in value, as mentioned by the Rambam at the conclusion of the halachah, because it is uncommon that such a decrease will take place.

If, however, he does not make such a claim, we do expropriate his movable property (Maggid Mishneh). Why shouldn’t we? He admits owing the money, and all of the property in his possession - movable and landed - is on lien to the debt.

I.e., one might think that since landed property has an intrinsic value - and can be expropriated even if sold - the borrower will always have a source from which to recover his property.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 98:7) adds the ruling of the Tur, which states that although we do not give the creditor the borrower’s movable property for the reasons stated by the Rambam, we do entrust that movable property to a third party.
The previous halachah states that when a defendant refuses to come to court, an adrachta is composed against his movable property. The measure of consideration mentioned in this halachah is not shown to him, because of his refusal to comply with the court. Were he to come to court and follow the court’s guidelines, he would be shown consideration. Since he does not, the court does not take precautionary measures to protect his interests.

Sejer Me’irat Einayim 98:20 asks why the Rambam does not mention ripping up the promissory note, as he does in Halachah 13.

In Halachah 9, the Rambam states that the public sale of property that has already been sold by the debtor should be announced for thirty days before it is sold. If, however, the property has not been sold to another person, the matter is left to the discretion of the court [Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 98:9)]. Sefer Me’irat Einayim 98:19 quotes other authorities, who maintain that in this instance as well, the sale should be announced for thirty days.

This addition is made on the basis of the gloss of the Maggid Mishneh, who explains that if there are buyers at or above the price for which the portion of the field was appraised, it should be sold to them. Any amount in addition to the debt is given to the owner/debtor. If, however, there are no buyers, the field is given to the creditor, as the Rambam proceeds to explain.

I.e., the portion of the field appraised as being equivalent to the debt owed the creditor.

This prevents the possibility of the creditor’s taking the promissory note to another court and suing the debtor a second time. See Halachah 13.

I.e., the date of the promissory note. For all properties in the debtor’s possession at that time are on lien to the debt.

If the debtor possesses property that has not been sold, then property that has been sold may not be expropriated. Only property that was sold after the lender incurred the debt may be expropriated.

For the same reason stated above.

The root of this term is the Hebrew toreif, which means "expropriate."
The Rambam’s ruling is quoted almost verbatim by the Shulchan Aruch (Choshen Mishpat 98:9). It must, however, be emphasized that the version of Bava Batra 169a (the source for this halachah) in the standard printed texts of the Talmud states that a tirpa precedes an adrachta.

The borrower.

The lender.

The purchaser.

See Chapter 21, Halachah 1.

See Chapter 12, Halachah 8. In both instances, the purpose of these announcements is to find a person who will pay more for the field so that the purchaser will receive more.

If, however, the borrower is not present, we do not delay the expropriation of the property until he comes and takes this oath.

See a parallel in Chapter 2, Halachah 2. This oath was not ordained by the Sages of the Mishnah, but by the Geonim in a later era, to prevent the borrower from shirking his responsibilities [see Tur, (Choshen Mishpat 99)].

This is an ordinance of the Sages of the Mishnah, enacted to prevent the lender from exacting payment when he is not entitled to do so.
The Shulchan Aruch (Choshen Mishpat 114:4) quotes the Tur, which states that the lender should also include in the oath that the loan was actually given and that the promissory note was not composed merely on faith.

I.e., if there are no others who desire to purchase the property being offered for sale. If, however, there are people who are willing to pay more, they are given the right to purchase the land, and the extra money is given the purchaser. If they desire to pay only the sum for which the field was evaluated, the lender is given the option of taking either the land or the money.

The root of this term is the word yrid, which means “bring down”- i.e., we bring the lender down to the field and allow him to manifest ownership of it.

The Maggid Mishneh notes that from certain sources, it might appear that before the horadah, a second legal document called a shuma recording the assessment of the field is composed. See also the notes on Halachah 13. The Rambam's words are quoted by the Shulchan Aruch (Choshen Mishpat 98:9).

The lender.

I.e., instead of the purchaser.

As mentioned in the notes on Halachah 11, this could be interpreted as a separate legal document evaluating the sale. Or, as the Maggid Mishneh (gloss to Halachah 11) states, it could be interpreted as a reference to the horadah, which also makes mention of the assessment of the field.

As mentioned above, a previous document must be tom up, so that the plaintiff does not present it to a second court of law to expropriate other property.

100 zuz.

And we accept the evaluation of the other two experts. Since they agree, the other opinion is ignored entirely.

When the three opinions are all different, we follow the midpoint between the two extremes. We do not take an average of all three opinions. Sefer Me’irat Einayim 103:5 differs and maintains that since two opinions maintain that the property is not worth more than 100, it is evaluated at that sum.

See Hilchot Mechirah 13:9; Hilchot Sh’luchin 1:2.

The Ra’avad states that this law applies when the sale of the property was not announced. The Shulchan Aruch (Choshen Mishpat 103:4) states that this ruling applies even when the sale was announced.
The Maggid Mishneh notes that the Rambam’s source is a responsum of Rabbenu Yitzchak Alfasi. He, however, quotes the Rashba, who raises a difficulty, citing the law regarding the evaluation of property belonging to heirs, where the Rambam states that if the court errs by less than a sixth in its evaluation, the sale is allowed to stand.
The Maggid Mishneh explains as follows: Heirs have an obligation to pay the debts of the person whose property they inherit from his estate. Therefore, they are willing to accept a small loss to satisfy this obligation. Purchasers, by contrast, have no obligation to repay the debts of the seller; it is only that the property that they purchased is on lien. Hence, if they are made to suffer the slightest loss, they can protest, claiming that the court did not perform its responsibility as an agent.
In his Kessef Mishneh, Rav Yosef Karo applauds this resolution and he quotes the Rambam’s ruling in his Shulchan Aruch (Choshen Mishpat 114:5). The Ramah, however, quotes the Rashba’ s view.

This applies provided that the property was not designated as an ipotiki.
The Tur and the Ramah (Choshen Mishpat 103:9) quote the opinion of Rabbenu Asher, who maintains that after property is expropriated from a purchaser, he does not have the right to buy it back. This approach is motivated by the realization that the purchaser knew the risk involved when purchasing the property, for it was known that the property was on lien to the debt.

From the Rambam’s wording, the Kessef Mishneh derives the concept that it is not necessary for the original owner or the purchaser to repurchase the property formally, and a new deed of sale need not be composed on his behalf.

Implied is that this law does not apply with regard to movable property expropriated to pay a debt [Maggid Mishneh; Tur and Ramah (Choshen Mishpat 103:9)].

When quoting this law, the Shulchan Aruch (Choshen Mishpat 103:9) emphasizes that the property can be taken back from the creditor even though he had been in possession of the property for several years.

This verse is a general charge to act ethically beyond the measure of the law. We give the owner or the purchaser the chance to redeem the property, because in essence, they desired land. The creditor, by contrast, lent money. Hence, there is no need to do anything more than give him money in return. And the original owner is given the chance to redeem the property because land is a family heritage, remaining in the family for an extended time.

Hence, just as the original owner has the right to redeem the property from the first creditor, he has the right to redeem it from the second.
When quoting this law, the Shulchan Aruch (Choshen Mishpat 103:10) follows the ruling of the Tur, who explains that if the field was expropriated from the original owner for a debt of 100 and from his creditor for a debt of 200, the original owner must pay 200 when redeeming it.

In these instances, the purchaser or the recipient took possession of the land with the intent that it become his property. In contrast to the creditor, who basically sought repayment of his debt, they desired the property. Hence, the owner is not given the opportunity to redeem the property (Bava Metzia 35a).

In contrast to the situation mentioned in the previous clause, where the property was expropriated by the court, in this instance the creditor willingly paid his creditor with the property. There is an unresolved difference of opinion between the Sages concerning this question in Bava Metzia, ibid. Accordingly, the person in physical possession of the property (the creditor’s creditor) is allowed to maintain ownership.

The Tur and the Ramah (loc. cit.) quote the opinion of Rabbenu Asher, who maintains that this law applies only when the property is given to the heir in the lifetime of the owner.

This refers to property that he accepted as nichsei milog. Different laws would apply with regard to property he accepted as nichsei tzon barzel. See Hilchot Ishut, Chapter 16, for a definition of these two terms.

In payment of her debts.

I.e., he is not required to return property expropriated by his wife if the previous owner desires to redeem it.

If property had been expropriated from the woman, her husband may not demand the right to redeem it.
Our Sages debated whether a husband should be considered to be a person who inherits

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.

Chapter 23, Halachah 5.

For as explained in that halachah and notes, from the time the kinyan was performed, the lien on the borrower’s property was established.

For the deed of sale is only to the purchaser’s benefit; it cannot cause him any loss. If he does not desire the purchase, he can destroy the deed.
From the Rambam’s wording, it appears that this law applies even when the sale is not affirmed by a kinyan (Maggid Mishneh). When citing this ruling, however, the Shulchan Aruch (Choshen Mishpat 238:1) adds the comments of the Tur, who states that this law applies only when the witnesses saw the recipient of the field (or his agent) acquire the field through a valid kinyan, or the seller testifies that it was acquired through a valid kinyan. This opinion is also based on the rulings of Rashi, the Ramban and the Rashba.
The rationale is that, like a promissory note, the deed of sale could have been composed before the sale was completed, and the possibility for deceit arises. For example, a deed of sale could have been written in Nissan, but not given to the purchaser until Sivan. In the interim, the seller could have sold the field to another person in Iyyar. In Sivan, when the first deed of sale is received, the first purchaser can expropriate the property from the second, because his deed of sale makes it appear that he purchased the property first.
Sefer Me’irat Einayim 238:2 explains that the Tur’s ruling is intended to negate an opinion that maintains that when the witnesses sign the deed of sale, they effect the transfer of the property. It is not clear, however, that the Rambam accepts that view.

A receipt that a promissory note was paid.

For this situation can certainly not cause the borrower a loss.

A receipt stating that she received the money due her by virtue of her ketubah.

For the husband cannot suffer a loss under these circumstances.

For the decision whether or not to divorce is solely the man’s. The woman has no say in the matter whatsoever according to Scriptural and Talmudic law.

This refers to an agreement regarding the commitments of the groom’s and bride’s families to provide money and objects for the new couple. Since the agreement mentions the obligations of both families, each of the parties involved must be present.
The Tur (Even HaEzer 51) quotes opinions that state that even when both parties agree, a formal legal document should not be composed, because the commitment is not powerful enough to establish a lien on property sold to others. Significantly, he maintains that the Rambam would also share this view.
These statements are dependent upon the Rambam’s previous rulings (see Hilchot Zechiyah UMatanah 6:17). There the Rambam states that these commitments “are not appropriate to be written down.” The Maggid Mishneh, however, interprets those statements to mean that a record of these commitments does not - and cannot - have the power of a formal legal document and establish a lien binding on properties that have been sold.

This refers to the ketubah, the document that mentions the husband’s obligations to his wife and her obligations to him.

Since these agreements involve two sides, neither can have the agreement drawn up without the other.

When two litigants have a dispute and they choose not to bring their case before an established court, they may make up a court in the following manner. Each one chooses a judge, and those two judges choose the third judge. Since the choice of the judges is a matter concerning which both sides agree, and each person is allowed to change his selection until the document is composed, both must be present when the document recording the choice of the judges is composed [Shulchan Aruch (Choshen Mishpat 13:2)].

A scribe records the claims each of the litigants offered before the court of law. Each of the litigants has the right to see this record and each must consent to the text of the document [Shulchan Aruch (Choshen Mishpat 13:3)].

The general principle is that the person who receives the greater benefit from the matter must pay for the composition of the legal document.

For he desires to receive the loan, and that would not be possible if a promissory note had not been composed.

For he desires to purchase the property, and the deed of sale serves as a record that it becomes his own. Hilchot Mechirah 30:1 states that this law applies even when a person sells his field because it is of inferior quality. Although in this instance the seller is happy to rid himself of the property, our Sages maintained a uniform practice.

According to Scriptural Law, the husband should is responsible for paying for the divorce. Nevertheless, our Sages feared that a husband might lack the financial resources to have the bill of divorce composed and cause the woman to wait unnecessarily (Bava Batra 168a).

For the purpose of this document is to make sure that they receive their share of the crops or their wages from the owner of the field or the employer.

For these documents are not to the advantage of either litigant over the other.

Even in the present age, when it has been common to use family names, according to Torah law, a person is identified in a legal document using his or her father’s name.
The commentaries mention that the Rambam’s words could be interpreted as teaching that the witnesses must recognize the name of the principal’s father, and it is not sufficient for the principal to give them that information themselves. This, however, is not the common practice.

I.e., we fear that two people will deceitfully have a legal document drawn up stating an obligation that another person undertakes in favor of still another, and later uses that legal document to expropriate money or property from that person. The legal document will appear valid, for the signatures of the witnesses will be genuine. It will, nevertheless, be a forgery, because the people whose names are stated in the document will never have undertaken the obligation.
The Maggid Mishneh questions this ruling, stating that with regard to a promissory note, seemingly all that is necessary is to know the identity of the borrower. And with regard to deeds of sale, all that is necessary is to know the identity of the seller. He explains that the Rambam’s statements apply in an instance when the document is not affirmed by a kinyan. This interpretation is accepted by the Shulchan Aruch (Choshen Mishpat 49:2). The Perishah (Choshen Mishpat 49), however, differs with the Maggid Mishneh and justifies the simple interpretation of the Rambam’s words.

Formal testimony is not necessary to establish a person’s identity. It is sufficient that a woman or a minor identify the person (Hilchot Yibbum VaChalitzah 4:31).

It is highly possible that a person trying to assume a false identity would be discovered within a 30-day period. Hence, if a person has been able to maintain an identity for this time, we assume that it is true.

There would always be some reason to suspect a person’s identity.

Pointing to a person who is accompanying him.

Witnesses who testify to that effect.

I.e., he waits 30 days. At present, when photo ID’s and the like are common, these are accepted as proof of a person’s identity with regard to most financial transactions.

The laws governing situations when there are in fact two people in the city with the same name are mentioned in Halachah 8.
The Maggid Mishneh quotes the Ramban, who asks: “Why do we not suspect that the person came from another city where there was another person with that name? Thus, the witnesses could have signed a legal document in the proper manner, but it would be used deceitfully.”
The Ramban answers that we do not harbor such suspicions, because if so, there would be no limit to the matter. For surely, somewhere throughout the world, there is another person with that same name. Hence, we do not suspect that someone will come from another city to try to perpetrate deception. (Kin’ at Eliyahu questions whether this logic would apply in the present age as well. For now communication and travel between cities and countries are more common, and we have seen many instances of people from one city trying to defraud others.)

Since, as stated in Halachah 3, the witnesses must know the identity of the principals before they sign a legal document, we assume that the people whose names are mentioned within the legal document were in fact the ones involved in the transaction.

For this reason, if the witnesses who signed the promissory note testify later that the borrower was a minor, their testimony is not acceptable [Shulchan Aruch (Choshen Mishpat 46:38)].

See Halachah 7.

See the following halachah.

I.e., the witnesses. See Sefer Me’irat Einayim 45:7, which cites views that state that the punishment should not be meted out to the witnesses, but rather to the judge who had them sign the promissory note.

This is the standard punishment given for violating a Rabbinic ordinance.

Gittin 19b explains that such a practice was adopted in order to enable witnesses who were unable to write their signatures to sign a bill of divorce. (See the rulings of Hilchot Gerushin 1:23.) Nevertheless, that passage explicitly states that this leniency is granted only to enable a woman to receive a bill of divorce and thus remarry, but not with regard to other legal documents.
There is, however, a difference of opinion among the Rabbis with regard to the Rambam’s ruling that the promissory note is unacceptable. The Rashba maintains that although it is forbidden to sign a legal document other than a bill of divorce in this manner, the document is not disqualified. The Shulchan Aruch (Choshen Mishpat 45:4) cites the Rambam’s view, while the Tur and the Ramah mention the other opinion.

Sefer Me’irat Einayim 45:3 states that the judge saw the matter recorded in the legal document.

The Ra’avad interprets this as referring to a document recording a decision rendered by the court. The Maggid Mishneh infers that the Ra’avad is restricting this leniency to such documents. Hence, he takes issue with that view, maintaining that a head of a court may rely on his scribes with regard to other legal documents as well.

Implied is that the leniency is restricted to that scribe and does not include other people who might read before the judge, or that scribe and other judges (Gittin 19b).

I.e., if it is discovered that the scribe lied, he will lose his position and his reputation.

The Rambam’s decision is quoted by the Shulchan Aruch (Choshen Mishpat 45:2). The Tur and the Ramah cite opinions that maintain that if two people read a legal document for a witness (and translate it for him if he does not understand its contents), he may sign on it. For we assume that two people wiii not lie.

The Maggid Mishneh and the Shulchan Aruch (Choshen Mishpat 49:7) state that this applies only with regard to promissory notes affirmed by a kinyan. The Shulchan Aruch explains the rationale: When one of the persons named Yosef the son of Shimon produces a promissory note with the other’s name on it, the other can claim: “That promissory note was mine. It records the debt you owed me. I returned it to you after you paid me.”
The Ramah explains that this rationale applies whether the promissory was affirmed by a kinyan or not [and thus, he questions the approach of the Shulchan Aruch (op. cit.)]. He explains another reason that is relevant only when a promissory note was not affirmed by a kinyan: The promissory note can be written for the borrower, even though he is not accompanied by the lender. Yosef, the son of Shimon, who is being sued, can claim: “I never borrowed money from him. The person suing had the promissory note composed in order to borrow money.”

Because the defendant can always claim that he is not the person who undertook the debt.

The Maggid Mishneh quotes opinions that maintain that even when the witnesses come, the document is not considered a loan supported by a promissory note, because the promissory note itself does not have the legal power to cause property to be expropriated. The Maggid Mishneh rejects this argument, by stating that if the witnesses who signed the promissory note themselves testify concerning it, it has the strength of a promissory note, because it could be amended by them to include the third generation or another identifying factor. If, however, other witnesses come and testify concerning the loan, it is not considered a loan backed by a promissory note. This understanding is adopted by the ShuZchan Aruch (loc. cit.).

This applies only in a situation where the two woman also have identical names.

Because whenever either of them sues for payment, the debtor can produce the receipt.
The Maggid Mishneh quotes opinions that maintain that the two creditors can give each other power of attorney and in this way collect one of the debts. He explains, however, that if the debtor can claim that the receipt was written for both creditors, his claim is accepted. Moreover, the fact that the Talmud does not mention the issue implies that power of attorney is not acceptable. Note, however, the ShuZchan Aruch (loc. cit.).

I.e., they should mention their grandfather’s name in the legal document. For example, the person would describe himself as Yosef, the son of Shimon, the son of Ya’akov. In the present age, the inclusion of family names in legal documents also serves this purpose.

A description of the person, that he is tall or fat (Siftei Cohen 49:12).

Whether they are priests, Levites, or Israelites.

I.e., they should mention the names of their great-grandparents, and their great, great-grandparents, etc. until they find a generation in which their ancestors did not use the same name.
When discussing this law, the Ramah (loc. cit.) notes that the above applies only with regard to two people with the same name who come from the same city. He questions what to do when the two people with the same name come from different cities. Such concepts are particularly relevant today when the advances in travel and communications have made the world into a global village.

When quoting this law, the ShuZchan Aruch (Choshen Mishpat 50:1) emphasizes that the promissory note must be signed by witnesses.

I.e., instead of asking me to give you a loan, you should have asked that I repay the debt.
The Maggid Mishneh quotes opinions that state that this law does not apply in places where a loan is given before a promissory note is composed (see the following halachah), and the due date for the first loan has passed. For in such a situation, the recipient could certainly say: “I am accepting the money as payment of the debt you owe me.” The fact that he did not do so indicates that he is not owed any money. The Maggid Mishneh states, however, that we can understand why this law is omitted, because it is very uncommon to give a loan before a promissory note is composed.
The Tur and the Shulchan Aruch (Choshen Mishpat 85:3) also mention the opinion of the Ramah, who states that if the due date of one of the loans precedes that of the other, the person who was required to pay first can refuse to pay the other, claiming that instead of borrowing, he should have collected his debt. Nevertheless, they also quote the approach mentioned by the Maggid Mishneh. The Siftei Cohen 85:7,10-11 sharply rejects the Ramah’s understanding, and furthermore, maintains that the Rambam’s words should be understood simply, without the Maggid Mishneh’s emendation. Instead, in all situations, if there is some benefit in the expropriation of the debt and the transfer of the property, we carry out the court procedures.

If, however, there is a difference in the due dates between the two debts, there is an advantage to one over the other, and hence, the court deals with the matter.

I.e., if the standard court procedure was followed, the property each one possesses would be expropriated from him and given to the other. Since the properties are of equal value, no one stands to gain from such a transfer. Hence, the court does not become involved.

As is due a creditor; see Chapter 19, Halachah 1.

Since this is the only property the debtor possesses, the creditor has no alternative.
The Maggid Mishneh mentions that there is a difference of opinion among the Sages in Ketubot 110a. Rav Sheshet differs with the opinion quoted here by the Rambam, because once the one debtor expropriates the property of intermediate quality from the other, he will possess property of intermediate quality that can be expropriated from him. Thus, the other person will receive his property again in return.
Rav Nachman differs and maintains that for that person, the property of intermediate quality will be considered to be property of superior quality (for the only other property he possesses is of inferior quality). Hence, it should not be expropriated from him.
The Maggid Mishneh notes that the Rambam’s ruling in Chapter 19, Halachah 4, appears to follow Rav Sheshet’s opinion. He suggests that perhaps the Rambam’s text of Ketubot had a slightly different reading.

The Siftei Cohen 85:1 states that this law applies only when the authenticity of the deed of sale has been verified.

This refers to an instance when the date of the deed of sale is after the due date of the promissory note (Maggid Mishneh).

The Shulchan Aruch (Choshen Mishpat 85:1) quotes different opinions regarding the claim made by the alleged borrower. The Tur maintains that if the borrower claims that he paid the debt and was given a receipt, but lost it, his claim is accepted. If, however, he claims that the promissory note is a forgery, and the alleged lender is able to verify its authenticity, the promissory note is still viable. Rashi and Rabbenu Nissim, however, maintain that his word is accepted even when he makes such a claim. (Note, however, the Siftei Cohen 85:4 who rejects this interpretation of the position of Rashi and Rabbenu Nissim.)

I.e., and not composed the deed of sale until he was paid again.

In this way, if the purchaser claimed bankruptcy, the seller could seek to collect his debt from the property he sold the purchaser. There would be no necessity to seek to find other properties belonging to him.