Rambam - 3 Chapters a Day

This law does not apply with regard to a loan supported by an oral commitment alone. For in such a situation, if the borrower claimed that he repaid the loan, his word would be accepted (Chapter 11, Halachah 1).

The Shulchan Aruch (Choshen Mishpat 106:1) states that the lender must pay for the messenger. Afterwards, these costs are added to the debt and demanded from the borrower if he is held liable by the court.

In Talmudic times, this was referring to an instance where the debtor was not geographically far away from the court, and a messenger could be sent to him with little difficulty or expense. There is a difference of opinion among the Rabbis with regard to the distance mentioned. Rabbenu Asher maintains that we are speaking about a distance in which a messenger can go and return within 30 days. The Rashba, however, maintains that we are speaking about a distance of one day’s travel. The Shulehan Arueh (Choshen Mishpat 106:1) quotes Rabbenu Asher’s view.
Today, with the breakthroughs in communications and technology, there is a question whether there are any situations where the difficulty of notifying the borrower mentioned in this halachah applies.

The rationale for this ruling is that a person’s property is consider as an arev, guarantor, for him. And, as stated in Chapter 22, Halachah 1, a person may not try to collect payment from a guarantor unless he first seeks to obtain payment from the debtor himself.

This oath resembles an oath required by Scriptural Law and must be taken while holding a sacred article, i.e., a Torah scroll or in certain instances, tefillin.
For were the borrower to be present and to claim that he had repaid the debt, the lender would have to take an oath to substantiate his claim (Chapter 14, Halachah 2). In this situation, since the borrower is not present, the court advances this claim on his behalf. If, however, the promissory note contains ne’emanut, a clause stating that the creditor’s word will be accepted regardless of the claims issued by the debtor, the creditor is not required to take an oath [Kessef Mishneh; Shulehan Arueh (loc. cit.)].

Based on a responsum of the Rivash (353), the Ramah (loc. cit.) rules that these laws apply with regard to the borrower himself, but not to his heirs. If the borrower dies, property that belonged to him may not be expropriated from his heirs outside of their presence.

If people would know that a borrower could either delay or avoid repayment of a debt by moving to another city, they would be far more hesitant in giving loans.

For we suspect that it might be a forgery. The processes through which the authenticity of a promissory note can be verified are described in Hilehot Edut 6:1.

Within a 30 day (or a 1 day) journey as mentioned in the notes on the previous halachah.

I.e., he must prove that the property is reputed to be owned by the debtor. He does not, however, have to show how the debtor acquired that property (a responsum by Rabbenu Asher quoted by the Kessef Mishneh).

This refers to security that is not an article that is required by the borrower. For such articles may not be sold, and must instead be returned to the borrower whenever he needs them. See Chapter 3, Halachot 5 and 6.

As stated in Chapter 3, Halachah 6, a lender is not entitled to sell security until 30 days have passed since it was given to him. He must make this statement to the court as well.
In his Kessef Mishneh, Rav Yosef Karo mentions these concepts and also quotes the Rivash (Responsum 396), who states that the Rambam’s words could be interpreted as implying that the creditor may sell the security without notifying the debtor, even if they are both in the same city. Nevertheless, he favors the interpretation (which is also advanced by the Maggid Mishneh) that if the borrower is in that city, the court must notify him. In his Shulchan Aruch (Choshen Mishpat 73:12), Rav Karo quotes only this latter view.

Instead, it grants him permission to sell the property.

For the property is presently in his physical possession. Hence, based on the principle of miggo, we accept his word that it was given to him as security, provided he takes an oath, as the Rambam continues to explain.

In his Kessef Mishneh, Rav Yosef Karo continues quoting the Sefer HaMekach cited in the responsum of the Rivash, which states that from Chapter 3, Halachah 6, it appears that although the sale need not be made in the presence of the court, the security must first be evaluated by a court. The term “court,” however, does not necessarily refer to a judicial body, but a body of three knowledgeable business people - even if they are unlearned who can properly evaluate the article.
In his Kessef Mishneh, Rav Karo states that he does not accept this interpretation and states that the sale should be made in the presence of the court, but there is no need for the court to evaluate the article. In his Shulchan Aruch (Choshen Mishpat 73:15), however, he quotes the opinion of the Rivash. See also the Siftei Cohen 73:40, who discusses this ruling at length and maintains that the sale must be conducted by a court of expert judges who have had the value of the security appraised carefully.

In a manner where the price for which he sold it cannot be disputed.

And the heirs state that the article in their possession is security that belongs to the borrower.

In Chapter 17, Halachah 3, the Rambam states that when heirs inherit a promissory note, in a situation where the borrower dies before the lender, the heirs are not given the opportunity of collecting the debt. Nevertheless, in this instance a distinction is made, for as the Rambam states, the heirs are taking payment from property that is already in their possession.

I.e., they must take an oath that the deceased had not told them the debt that is secured by this collateral had already been repaid (Kessef Mishneh). See Chapter 17, Halachah 2.

These additions and the interpretation of the passage are based on the Maggid Mishneh’s understanding, for he and all the other commentaries see difficulties in the version found in the printed text.

And his word would have been accepted. Hence, based on the principle of miggo, his word is also accepted when he claims that the property is security for a loan.

A less stringent oath. Seemingly, this oath would be appropriate, for an oath administered while holding a sacred article is required when a person seeks to expropriate property, while in this instance, the security is in the possession of the lender. He does not desire to return it, and the borrower demands that he does. Hence, it would appear that a sh’vuat hesset is appropriate, for that is the oath required when a person does not admit to a claim by a plaintiff who desires to take property from him.

And he wants to receive that money by selling the security.

I.e., a severe oath taken while holding a sacred article.

I.e., the principle of miggo is effective in allowing the borrower to maintain possession of the property, instead of having to return it. It does not, however, free him of the responsibility for taking the oath, for the reason the Rambam explained.
The concept that the principle of miggo cannot free a person from the obligation to take an oath is first stated by the Rambam in Hilchot Shluchin 9:4 and Hilchot Sechirut 2:8. The difference between the two situations can be described as follows. When there is a financial obligation under discussion, and the plaintiff desires to expropriate money from the defendant, the principle of miggo is employed as a means of clarifying whether the defendant is under obligation or not. An oath, however, is itself a means of clarifying whether or not an obligation exists, and it is a more effective means of clarification than the principle of miggo. Hence, we employ it rather than the principle of miggo.
The Rambam’s ruling is accepted by the Sephardic authorities and cited by the Shulchan Aruch (Choshen Mishpat 72:17. The Ashkenazic authorities (see Tur and Ramah) differ with the Rambam and maintain that a person is not required to take an oath in this situation.

See Hilchot Sechirut 10:1, which explains that a person who holds an article as security for a debt is considered to be a paid watchman. And a paid watchman is liable in instances of lost and theft.
The Rambam’s wording is quoted by the Shulchan Aruch (Choshen Mishpat 72:2). Rabbenu Asher and the Tur differ in certain contexts as will be explained in the notes that follow.

Which is worth four dinarim.

This version is found in the authentic manuscripts of the Mishneh Torah and is logically correct. The standard printed text states “It was worth a shekel.”

See Hilchot She’ilah UFikadon 5:7,6:1, which states that this oath is required lest the watchman (in this instance, the lender) have desired the article and taken it for himself.
In his Commentary on the Mishnah (Sh’vuot 6:8), the Rambam emphasizes that this oath is required only when the security is not a standard article that can easily be found in the market-place. For if it is easily available, we assume that the lender would purchase it rather than misappropriate the security.

The rationale is that the lender is demanding payment of the remainder of the debt, and the borrower is maintaining that he does not owe the lender anything (for the value of the security was worth the entire amount of the debt). As the Rambam states in Hilchot To’en V’Nit’an 1:3, when a defendant denies entirely the claim a plaintiff issues against him, he must take a sh’vuat hesset and then he is freed of responsibility.

This is also a correction of the standard text.

A person who admits a portion of the plaintiff’s claim (a modeh b’miktzat) is required to support his claim with an oath as is required by Scriptural law (Hilchot To’en V’Nit’an 1:1).

The borrower thus becomes the plaintiff, because he maintains that the security was worth more than the debt and that difference should be returned to him by the lender.

According to the Rambam, since the lender is considered to be a paid watchman, these rules apply. Rabbenu Asher and the Tur (Choshen Mishpat 72) maintain that the lender is considered to be a paid watchman only with regard to that portion of the article that is equal to the amount of the debt. With regard to the worth of the article that exceeds the debt, the lender is considered to be an unpaid watchman. The Ramah quotes their opinion (Choshen Mishpat 72:12). According to this view, this law is speaking about a situation where the security was destroyed due to the lender’s negligence.

He is then freed of responsibility, as is the case when a person denies entirely the claim lodged against him.

The commentaries raise a question concerning this ruling: In this instance, the borrower is claiming that the lender owes him a sela (the difference between his assertion of the value of the article and the amount given as a loan), while the lender admits owing only a dinar. This is a case of modeh b’miktzat. Hence, it would appear appropriate that the first oath taken by the lender be that of a modeh b’miktzat, for that oath is required by Scriptural Law, while the oath that the security is not in his possession is Rabbinic in origin. Hilchot To’en V’ Nit’an 1:14 states that if a person is required to take two oaths, he should take the more severe oath first.
The Derishah (Choshen Mishpat 72) offers the following resolution: As long as we suspect that the article is in the lender’s possession and its value can thus be determined by appraising it, we do whatever possible to have the article revealed, instead of trying to have the article’s value established by an oath.
The Tur and the Shulchan Aruch (Choshen Mishpat 72:12) do not accept this rationale and maintain that the lender must first take the Scriptural oath and then take the Rabbinic oath. The Rambam was obviously aware of the existence of another perspective and in his Commentary on the Mishnah (Sh’vuot 6:8), he emphasizes that his father and also his teacher, Rav Y osef MiGash, would administer the oaths in this order. See also Siftei Cohen 72:46.

Ordinarily, in such a situation, the lender would not be required to take an oath to reinforce his claim. Nevertheless, in this instance, since he is required to take an oath that the security is not in his possession, because of the principle of gilgul sh’vuah (that while taking one oath, he must also take an oath with regard to any other claim advanced by the other litigant), he must also include an oath regarding the article’s worth (Maggid Mishneh).
When quoting this law, the Shulchan Aruch (Choshen Mishpat 72:11) adds that if there are witnesses who support the lender’s claim that the object was lost or stolen, or if the promissory note stipulates that the lender’s word would be accepted in such an instance, the lender may collect the money he claims without having to take an oath at all.

Since he does not know whether or not the security was worth the amount of the debt, he is unsure whether or not he is still liable for the debt. In such an instance, since the lender claims with certainty that the borrower is liable, the borrower must pay, as stated in Hilchot To’en V’Nit’an 1:9.
The instances mentioned previously are stated in the Talmud (Sh’vuot 43a). This and the following rule are not explicitly stated in that passage, but derived by the Rambam through deductive reasoning.

And whenever a person states that he is unsure whether or not he obligated himself for a debt, he is not liable, as stated in Hilchot To’en V’Nit’an 1:8. Ordinarily, he would be required merely to take a sh’vuat hesset. Nevertheless, because of the principal of gilgul sh’vuah, he must include this point in the severe oath that he is already taking (Maggid Mishneh).
Sefer Me’irat Einayim 72:39 explains that in this instance, we do not apply the principle that a person who is required to take an oath, but cannot take the oath, must pay. Instead we allow the lender to take an oath that he does not know the article’s worth. The rationale is that this principle is applied only when the oath the defendant is required to take is of Scriptural origin. If the oath is of Rabbinic origin (as is the original oath required of the lender in this instance - i.e., the oath that the article is not in his possession), this principle is not applied.

The oath required of a person who admits a portion of the claim (modeh b’miktzat).

For he does not know how much the article is worth. A person may not take a Scriptural oath that he does not know what is obligated of him. Hence, since he cannot clarify his claim that he is not obligated by taking an oath, he is required to make restitution.

Hilchot To’en V’Nit’an 4:7.
The Ra’avad differs with the Rambam here, restating a difference of opinion that he had stated previously in She’ilah UFikadon 5:6. The Ra’avad objects, because he makes a fundamental difference between the situation described in this halachah and that described in Hilchot To’en V’Nit’an. In Hilchot To’en V’Nit’an, the defendant knew the sum that he was charged with at the outset. Hence, we accept the possibility that he is claiming that he did not know, to avoid having to pay the full amount. In the instance described in this halachah, by contrast, the watchman never knew how much produce was entrusted to him, and he could honestly claim that he did not know. For that reason, the Ra’avad maintains, we grant the watchman a certain measure of protection and require the owner to take an oath before expropriating the money he claims to have deposited.
In this instance, Rabbenu Asher and the Tur (Choshen Mishpat 72) quote the Rambam’s opinion, and his is also the ruling cited by the Shulchan Aruch (Choshen Mishpat 72:12).

This is a measure enacted by the Geonim to protect the rights of the defendant.

Once the term of the loan is agreed upon, the lender cannot renege, claiming that he had not intended to commit his funds for such a long period.

More precisely, either or both the borrower and the lender.

I.e., if the borrower dies, the lender (or his heirs) may not demand payment from the borrower’s heirs until the original term of the loan is concluded. Note the parallel and the explanation in Hilchot She’ilah UFikadon 1:5. Since the money was given to the borrower for a specific period, it is considered his - or his estate’s - until the conclusion of that period. For this same reason, the lender’s heirs cannot compel the borrower (or his heirs) to pay the loan before it falls due.
When quoting this law, the Shulchan Aruch (Choshen Mishpat 72:2) states that it applies provided the borrower’s heirs share the same financial status as the borrower did. If, however, they are not that affluent, the lender may demand payment immediately, lest the estate be dissipated. The Siftei Cohen 73:6 states that although there is a logical basis for the addition of the Shulchan Aruch, none of the previous Halachic authorities mentioned this point.
See also Hilchot Sh’luchin V’Shutafim 5:11, which states that with regard to a business or an investment partnership, the partnership can be dissolved if one of the partners dies.

The lender may not demand payment before this time passes. This applies provided that there is not a conflicting local custom [Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 73:1)].

We do not say that the fact that the lender took the trouble of having a promissory note composed indicates that he had given the loan out for a longer period (Sefer Me’irat Einayim 73:3).

And all stipulations involving monetary issues that do not contradict Torah law are binding.

We do not say that since the borrower is admitting that he owes the debt, there is no reason for him to take an oath. For having the loan for an additional few days is worth money, and therefore the borrower is required to take the oath.

The Shulchan Aruch (Choshen Mishpat 73:4) states that this law applies only with regard to a loan secured by an oral commitment alone. If the loan is secured by a promissory note or security, the lender is given the option of taking an oath and collecting his due. See the following halachah and notes.

Whenever a plaintiff’s claim is supported by the testimony of one witness, the defendant is required to take a Scriptural oath; otherwise, the plaintiff’s claim is accepted (Hilchot To’en V’Nit’an 1:1).

We do not require the borrower to take an oath until the time stated by the lender has passed. The rationale is that there is the possibility that the borrower may admit his obligation by the time the date on which the lender claims that the debt is due arrives (Sefer Me’irat Einayim 73:10).

Which does not mention the term of the loan, implying that it can be collected whenever the lender desires.
In his Kessef Mishneh, Rav Yosef Karo states that the same laws would apply if security were given for the loan. He notes that this concept is also stated by the Tur (Choshen Mishpat 73), and he rules in this manner in his Shulchan Aruch (Choshen Mishpat 73:4). The Siftei Cohen 73:10, however, states that the Rambam’s ruling applies only with regard to a promissory note and not with regard to a loan supported by security.

And payment may not be demanded until that time.

The Rambam uses this expression to refer to a law for which there is no direct source in the Talmud or other Rabbinic works of that era, but is instead arrived at through deductive reasoning.

The creditor is given the option of supporting his claim in this instance, because the promissory note supports his claim.
The commentaries have questioned why a sh’vuat hesset is mentioned, for such an oath is generally required only of a defendant in an instance when he denies entirely the claim issued against him. No where is such an oath taken to expropriate money from others. Indeed, for this reason, the Kessef Mishneh suggests the possibility of a scribal error, maintaining that the word hesset could be an accidental addition. Without that addition, the intent would be that just as when a lender presents a promissory note for payment and the borrower claims that he already paid, the lender may collect his debt. Nevertheless, should the borrower demand that the lender take an oath that the debt was not paid, the lender is required to do so. Similarly, in this instance, should the borrower demand that the lender take an oath that the payment is due now, the lender must take that oath.
The Kessef Mishneh, however, offers a different interpretation, which preserves the meaning of the standard text (and is desirable, for the authentic manuscripts of the Mishneh Torah contain the word hesset). He explains that it is as if the borrower were demanding that the lender extend the loan for an additional time. The lender denies that he is obligated to do so. Hence, he is required to take a sh’vuat hesset to support that denial.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 74:1) states that this applies provided the borrower has enough financial resources to meet his own needs. See also the Siftei Cohen 74:1, who states that when a lender demands payment from a borrower in a place other than the place of the loan, and the borrower does not have money at his disposal, the borrower is not required to bring money to that place.

The Maggid Mishneh states that this ruling applies only when the loan was given in a settled area. If the loan was given in the desert, the borrower may compel the lender to accept payment in the desert.

For in the desert, it is possible that the money will be lost or stolen by thieves.

The borrower may, however, pay the lender in any settled area, even if it is not the lender’s home town, nor the place where the loan was given [Shulchan Aruch loc. cit.)].

This refers to a situation where the lender has a promissory note for 1000 zuz. The borrower claims to have repaid the entire debt. The lender admits to receiving a partial payment (e.g., 500 zuz), but maintains that there is still money owed him. Ketubot 87b explains that we assume that a person who pays a debt is careful and knows how much he has paid, while a person who has been paid may not have been mindful of the sum he was given. Therefore, he is required to take an oath, so that he will focus his attention on the matter.

I.e., the borrower claims that he paid the debt entirely and he has one witness who supports his claim. The lender denies receiving any payment. He is not required to take an oath mandated by Scriptural Law to deny the testimony of the witness, for such an oath is taken only by a defendant, and we are speaking about a plaintiff. Nevertheless, in this situation, our Sages required the plaintiff to take an oath in order to placate the defendant.

As stated in Halachah 2, even if none of the factors mentioned in this halachah were involved, if the borrower demanded that the lender take an oath before collecting the debt, he would be required to do so. Hence, if the borrower is not present, we make this demand on his behalf.

I.e., the court; in the above instances, even if the defendant himself does not demand that the plaintiff take an oath, the court makes that demand on his behalf.

The court requires the lender to take an oath only when the borrower demands that he do so. This constitutes the difference between the case described in this halachah and those described in the previous halachah (Maggid Mishneh).

See Halachah 12, which states that the borrower is required to bring payment for the debt to court before the lender is required to take the oath.

The Maggid Mishneh [and the Shulchan Aruch (Choshen Mishpat 82:2)] emphasize that this law applies only when the borrower claims certainly (ta’anat beri) that he repaid the debt. If he is unsure of the matter, the lender is not required to take an oath.

The Rambam’s words imply that the lender had originally claimed that the borrower did not pay him at all, and only afterwards, when he was required to take the oath, did he admit receiving partial payment. (For otherwise, he would be considered to be one who “impairs his promissory note,” who, as mentioned in the previous halachah, is required to take an oath even when the borrower does not demand that he do so.) Nevertheless, the fact that he changes his claim does not cause us to doubt his honesty, and he is allowed to take the oath as long as his statements were not contradicted by witnesses. See Lechem Mishneh.

As a token of respect for his scholarship, the court does not require him to take an oath, for that would make it appear that they suspect that he is making a false claim in court. On the other hand, they do not expropriate the money from the borrower for him. If he desires to take an oath on his own initiative, he may, and then he is allowed to collect the money he claims. Alternatively, if he seizes the money, it is not expropriated from him [Shulchan Aruch (Choshen Mishpat 82:6)].

I.e., the court verified the authenticity of the signatures of the witnesses.

A promissory note that involves interest is not binding.

I.e., interest forbidden by Rabbinic law.

I.e., the borrower had the promissory note written and entrusted it to the lender, believing that he would not demand payment unless he actually gave him the loan.

The borrower continues, explaining: “I was carrying this promissory note and lost it, and it was discovered and given to the borrower” (Beit Yosef, Choshen Mishpat 82). This distinguishes this instance from the previous one.

As described in the previous halachah.

Rabbenu Yitzchak Alfasi and Rav Yosef MiGash.

Hence, there is a reasonable basis to suppose that the borrower is telling the truth.

Claiming that he took this money unjustly.

As is required of any defendant who denies entirely a claim lodged against him. A sh’vuat hesset is a far less severe oath than the oath that resembles a Scriptural oath.

This is also the opinion cited in the Shulchan Aruch (Choshen Mishpat 82:10). See also the Siftei Cohen 82:22, who writes that when the borrower claims that the promissory note is a forgery, the lender is not even required to take a sh’vuat hesset, because the note’s authenticity had already been established by the court.

Rashbam (Bava Batra 128b) explains that the witnesses gave their testimony after the borrower had admitted owing a portion of the money. If the borrower’s admission came after the witnesses testified, he is not required to take an oath (Sefer Me’irat Einayim 82:50; Siftei Cohen 82:37). Note the Bayit Chadash, who differs.

I.e., an oath of Scriptural origin that he repaid half the debt. The rationale is that the testimony of the witnesses nullifies the legal power of the promissory note. (That is significant, because a Scriptural oath is never taken with regard to a claim supported by a promissory note.) Hence, the situation is considered to be a loan supported by an oral commitment, in which the lender claims that no payment has been made, and the borrower admits claims that he has paid half.

Which he agrees is outstanding.

Hence, despite the testimony of the witnesses he is held liable, because we follow the principle: “The statement of a litigant is equivalent to that of 100 witnesses.”

Who is not required to take an oath, because he is essentially doing a favor to the owner of the article. Had the person not returned the article, its owner would have no possible way to recover it. Similarly, in this case it might be argued that since the witnesses testify that the debt has been paid, the owner would have no way of receiving payment. Hence, the borrower's admission is essentially a favor, and he should not be required to take an oath. (See Gittin 51b.) This comparison is not accepted for the reason the Rambam continues to explain.

I.e., he had no knowledge that the witnesses would testify that the debt was paid entirely.
The Siftei Cohen 82:39 [based on the Maggid Mishneh (Hilchot To’ en V’Nit’an 7:5)] states that if - after hearing the testimony of the witnesses - the borrower states: “I remember paying the entire debt,” his word is accepted.

By testifying that it has been paid. With regard to the purchasers, we assume that the borrower repaid the debt in two installments, which the witnesses observed. Although the borrower remembered giving only one payment, the witnesses recalled them both (Sefer Me’irat Einayim 82:51).

I.e., he cannot find witnesses to testify to the authenticity of the signatures of the witnesses.

I.e., any other claim, which if accepted, would free him all obligations - e.g., the loan was given with the stipulation that repayment was dependent on the fulfillment of a condition, and the condition was not met [Shulchan Aruch (Choshen Mishpat 82:1)].

I.e., the promissory note is a forgery.

As Ketubot 19a states: “Although [the borrower] admits [that he wrote] a promissory note, [the lender] must verify its authenticity.” Otherwise, based on the principle of miggo, the borrower can claim that he repaid the debt [Tur (Choshen Mishpat 82)]. And extending the principle of miggo further, the other claims are also acceptable.

And he can use it to expropriate property from the borrower or people who purchased his property.
From this ruling, the commentaries derive that even after the borrower takes an oath, the lender is allowed to maintain possession of the promissory note. We are not concerned with the fact that afterwards, it may be demonstrated that the oath that he took was false (Siftei Cohen 82:4).

And he produced the forgery so that the borrower would admit his obligation.

Neither property in the borrower’s possession, nor property that had been sold to others.
This halachah provides us with a fundamental principle: A plaintiff cannot expropriate property on the basis of the principle of miggo. To explain: Had the plaintiff desired to lie, he could have claimed that the promissory note was genuine. Nevertheless, we do not use this is an indication of the truth of his statements and disqualify the promissory note [Rambam’s Commentary on the Mishnah (Sh’vi’it 10:5)].
The Maggid Mishneh quotes the Ramban and the Rashba, who accept the principle of miggo even in this instance. The Shulchan Aruch (Choshen Mishpat 83:4) follows the Rambam’s ruling. See also the comments of Sefer Me’irat Einayim 83:10 and the Siftei Cohen 83:7-9.
Significantly, Bava Batra 32a, the source for this halachah, states that if a similar situation occurred with regard to landed property - that a person would desire to remove a squatter from property that is known to have been his, the squatter would produce a deed of sale, the former owner would claim that the deed is a forgery, and the squatter would agree, but explain that he had once had a valid deed of sale - the squatter’s claim would be accepted. For in this instance, the principle of miggo is being used to enable the continued possession of the land.

I.e., an object of no value.

This applies even if the first loan was paid back on the day that it was given, and the second loan was given on that same day (Maggid Mishneh). Although in such a situation, there is no difficulty with the date of the promissory note, it is unacceptable for the reason the Rambam proceeds to state.

The implication is that the promissory note is not just proof that a debt exists, but that it creates a lien on the debtor's property to enable that debt to be repaid. Hence, if a promissory note is repaid, that lien is nullified and a new promissory note has to be written to create a lien for the second debt.

Not only can it not be used to expropriate property from people who purchased property from the borrower, it may not be used to expropriate property from the borrower himself (Rivash, Responsum 382). Sefer Me’irat Einayim 48:1 differs with this deduction and maintains that the lender can collect his due from the property in the borrower’s possession on the basis of such a promissory note. On this basis, a conceptual sequence can be seen to the laws mentioned in the previous halachah. In those instances, a document that looks like an acceptable promissory note is disqualified, because of the lender’s statements. In this instance, a promissory note that was in fact acceptable is nullified, because it was already repaid once. The Siftei Cohen 48:2 differs with Sefer Me’irat Einayim and substantiates the ruling of the Rivash.

As explained in the previous halachah. Hence, the borrower is required to take only a sh’vuat hesset and then he is freed of all obligations.
The Siftei Cohen 57:8 explains that we do not believe the lender’s statements, because of the principle of miggo - i.e., had he desired to lie, he would have denied receiving payment. The rationale is - as stated in the notes on Halachah 6 - we do not use the principle of miggo as a basis on which to expropriate property.

The Maggid Mishneh states that this ruling applies even if the coins would be accepted as legal tender, albeit with difficulty. Since the lender did not realize the problem when he accepted the coins, and had he realized it he would not have accepted them, the lien is not nullified.

Since the witnesses mention that the money was given as repayment for a debt, their testimony is sufficient to negate the legal power of the promissory note.

The Rambam’s wording implies that the promissory note is nullified and it is no longer of any legal value. The Tur and the Ramah (Choshen Mishpat 58:2) maintain that although the lender is not given the right to expropriate property on the basis of this promissory note, it is still significant. If the lender seizes property belonging to the borrower, he can defend his possession on the basis of this promissory note.

Moreover, if there were no witnesses who observed the payment, the lender’s claim is accepted [Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 58:1)].

Since his statements contradict the testimony of two acceptable witnesses, we assume that he is lying. Note the parallel to Hilchot To’en V’Nit’an 6:2.

For we assume that the money he received was given as payment for the debt.

For he is not contradicting the testimony of the witnesses, but rather focusing on a particular that was not specifically dealt with in their testimony.

I.e., since the witnesses were not told that the money was given as payment for the debt, it is not considered as if the debt were paid in their presence.

Kin’at Eliyahu notes that this instance, the lender’s word is accepted based on the principle of miggo - i.e., had he desired to lie, he would have said that the money was given to him as a present. On the basis of this miggo, the lender is given the option of expropriating property from the borrower. Seemingly, this contradicts the principle stated in the notes on Halachah 6, that we never use the principle of miggo to expropriate property. Kin’at Eliyahu explains that in the instance described in this halachah, the basis for the lender’s claim is the promissory note. Since there is some reason - the testimony of the witnesses - to suspect whether the promissory note is still valid, the lender needs the miggo to support his claim. Nevertheless, his primary support is not the miggo, but the promissory note. In Halachah 6, by contrast, the promissory note has been invalidated, and the lender’s entire rationale for the expropriation of the property is the miggo.
The Ramban maintains that even when the witnesses do not know the reason why the borrower paid the lender, the legal power of the promissory note is nullified. Sefer Me’irat Einayim 58:15 explains that his rationale is that it is uncommon for a person to give a present of money. In particular, this is true when he owes a debt to the lender. The Ramah (loc. cit.) quotes this view.

In his commentary on Sh’vuot 42a, Rav Yosef MiGash (the Rambam’s teacher) writes: “You sat in my butcher store and collected the money for that meat (from my customers).”

Hence, the lien of the debt that is mentioned in the promissory note is nullified, and any other claim the lender makes is considered an independent matter.

It is considered as if the lender admitted that the debt mentioned in the promissory note was nullified. This admission is sufficient to nullify the lien. Rabbenu Asher differs and maintains that it is necessary for witnesses to have observed the repayment of the debt. Although the Shulchan Aruch (Choshen Mishpat 58:3) quotes both views, it appears to favor that of Rabbenu Asher. The Ramah explicitly states that Rabbenu Asher’s view should be followed.

There is a general principle (see Hilchot To’en V’Nit’an 1:1) that whenever, because of the testimony of two witnesses, a person would be required to make financial restitution, testimony from only one witness would necessitate that he take an oath. Accordingly, the Rambam maintains that although a promissory note signed by one witness does not have the legal power to require the borrower to make financial restitution, it does have the legal power to require him to take an oath. As mentioned by the Maggid Mishneh, there are authorities who do not accept the Rambam’s perspective and maintain that the signature of one witness alone does not endow a promissory note with such legal power. Both opinions are quoted by the Shulchan Aruch (Choshen Mishpat 51:2).

In Hilchot To'en V'Nit'an 4:8, the Rambam states that when a defendant is required to take an oath because of the testimony of one witness, the oath he takes must contradict the testimony of the witness. In this instance, he cannot take such an oath, because he admits - as the signature of the witness implies - that the promissory note was valid. Although he claims that he repaid the debt, that information cannot be included in the oath the borrower takes. Hence, he is required to make financial restitution.
Note the Ra’avad in his gloss on Hilchot To’en V’Nit’an 4:8, where he explains that this refers to a situation where the defendant originally denied the existence of the debt. See also the gloss of the Kessef Mishneh in that source, which explains that this does not appear to be the Rambam’s intent.

For as long as the defendant does not take an oath to nullify the promissory note, its legal power is still intact.

In Halachah 2.

If, however, he makes the denial outside a court, it is not significant.

The rationale is that whenever a person says: “I did not take a loan,” it is an accepted presumption that he did not repay it. Hence, if we accept the testimony of the witness, we must assume that the debt was never repaid. Thus, to avoid being required to pay, the defendant must take an oath to contradict the testimony of the witness.

To contradict the testimony of the witness and state that he never took the loan.

For he now agrees with the witness that he took the loan. Had he originally admitted taking the loan, he could have offered any of these arguments. For even if there had been two witnesses who testified that he took the loan, his word would have been accepted if he claimed that he repaid the loan. And since he could claim that he repaid the loan, he could also have offered any of the other claims. Moreover, had his original testimony not been contradicted by that of a witness, he would have been able to change his claim. Once his testimony has been contradicted, he is no longer able to offer any of these claims, because he cannot withdraw his original statement (Ra'avad).
In his Kessef Mishneh, Rav Yosef Karo quotes a responsum of the Rashba, which maintains that the defendant is able to change his claim despite the testimony of the witness brought by the plaintiff. Nevertheless, in his Shulchan Aruch (Choshen Mishpat 75:13), he quotes only the Rambam’s view.

But left it in the lender’s domain.

The Rambam’s wording appears to imply that the court orders the defendant to bring his money to court whether or not the plaintiff makes such a request. The Tur (Choshen Mishpat 82) states that the defendant is required to bring his money to court only when the lender makes such a request. Sefer Me’irat Einayim 82:17 states that it is possible to explain that there is not a difference of opinion between the two, and the Rambam is speaking about an instance where the defendant demands the return of the promissory note if the lender does not take the oath.

For there is no point in administering an oath to the lender if the borrower will not be able to pay (Maggid Mishneh).

See Chapter 2, Halachah 2. I.e., we do not say that the defendant should not be required to take the oath, because perhaps the lender will never take his oath and thus the defendant will have taken an oath for no reason (see Tur, loc. cit.).

As stated in Chapter 11, Halachah 1, when a debt is affirmed by a kinyan, a promissory note can be composed without the borrower’s consent. Nevertheless, as the Rambam states in Chapter 23, Halachah 11, when a lender states that a promissory note is no longer in his possession, we assume that the debt was repaid or the lender waived the borrower’s obligation.

And then he is freed of responsibility entirely. Despite the fact that a promissory note had been written, no attention is paid to it or to the witnesses, because of the rationale to be stated by the Rambam.
The Ra’avad takes issue with the Rambam, maintaining that the lender should be given the option of collecting the debt after taking an oath. The Rambam’s perspective is, however, followed by the Maggid Mishneh, the ShuZchan Aruch (Choshen Mishpat 41:4) and the other authorities.

We ordinarily act on the assumption that a person will not pay a debt until it falls due (Chapter 11, Halachah 6).

And it was not entrusted to him by the lender. See ShuZchan Aruch, loc. cit.

The promissory note itself, however, is given neither to the borrower nor to the lender (Bava Metzia 13a, b).

For on the contrary, the very fact that he was careless with the promissory note and allowed it to fall indicates that the debt has been paid. For people are not careless with articles worth money. The Ra’avad also contests this ruling, but again it is the Rambam’s decision that is accepted by Shulchan Aruch, loc. cit. and the later authorities.

As the Rambam states in his Commentary on the Mishnah (Bava Metzia 1:1), the oath is worded in a manner that will conform to the court’s ultimate ruling. Even though the claimant might be willing to take an oath that the entire amount is due him, he is not asked to take an oath for more than he will receive.

This law results from the discussion of the opening Mishnah in Bava Metzia. Since the ownership of the promissory note is a matter of question, and neither has full possession, it is divided between the two claimants. As the Rambam explains in Hilchot To’en V’Nit’an 9:7, the oath is a Rabbinic safeguard instituted to prevent people from seizing property belonging to their colleagues and claiming it as their own.
The Maggid Mishneh quotes the opinion of the Rashba, who states that the ruling depends on which portion of the promissory note the person is holding. If the portion of the note that the borrower holds contains all the relevant information regarding the debt (hatorej) and the portion the lender holds contains merely legal formalities (hatofess), the lender is not allowed to collect anything. The Shulchan Aruch (Choshen Mishpat 65:15) quotes this view and the Rambam’s view, without stating which perspective should be followed.

As stated in Halachah 5.

As required by a person who denies an obligation entirely.

The defendant is not changing his initial claim, for he did not say that he never borrowed any money from the lender. Even “I do not owe you anything” can be interpreted as meaning “I have already paid you.”

Note the parallel to Chapter 13, Halachah 4. Since the lender would be allowed to collect the loan if he produced the promissory note, the borrower's oath would be in vain. Hence, we take the precautions explained by the Rambam.

And thus my claim does not have any more legal power than a loan supported by an oral commitment alone.

So that it can no longer be used to expropriate money.

If you do not want to nullify the legal power of the promissory note.

A protective measure instituted by the Geonim.

Based on the commentary of the Ra’avad, Sefer Me’irat Einayim 70:11 states that this stipulation must be made in the presence of witnesses. Otherwise, the borrower’s claim that he repaid the loan outside the presence of witnesses would be accepted because of the principle of miggo. For had he desired to lie, he could have denied that such a stipulation was ever made.

I.e., any witnesses, not necessarily the ones in whose presence the loan was given.

If, however, the lender does not make such a stipulation, the borrower need not repay him in the presence of witnesses, even if the loan was given in the presence of witnesses, as stated in Chapter 11, Halachah 1.

The commentaries debate whether this ruling applies in instances when the borrower did not agree to this stipulation. The Maggid Mishneh states that the Rambam maintains that the stipulation is binding upon the lender even if he does not explicitly accept it, because “the borrower is the servant of the lender.” The Ramban, by contrast, claims that if the lender makes such a stipulation after the loan was given, and the borrower protests, this stipulation is not binding upon him. (If, however, he remains silent, it is.) Sefer Me’irat Einayim 70:12 quotes this understanding, but follows the Rambam’s ruling.
The Siftei Cohen 70:9, however, states that it is not necessary to explain the Rambam’s words in this manner. On the contrary, in general, when the Rambam speaks of a stipulation, he refers to a condition agreed upon by both principals. Rabbenu Asher, the Tur and others also rule that the borrower must accept the stipulation.

I.e., he gives the names of two acceptable witnesses. The Rashba (Vol. IV, Responsum 128) states that if the borrower does not mention the names of the witnesses in whose presence he claims to have repaid the debt, his word is not accepted.

The Maggid Mishneh quotes the Rashba, who mentions the possibility of the witnesses’ journeying overseas, but not of their dying. The Rambam’s ruling is, however, quoted by the Shulchan Aruch (Choshen Mishpat 70:3).

If, however, the borrower claimed that he paid the lender in private, his word is not accepted [Shulchan Aruch (Choshen Mishpat 70:3)]. The commentaries explain why this claim is not accepted on the principle of miggo - i.e., had he desired to lie, he could have said that he had repaid the loan in the presence of witnesses who died. The Maggid Mishneh explains that since the borrower admits accepting the lender’s condition, by saying that he paid him in private, he acknowledges that he did not keep to the terms of the loan. Hence, his statement is not binding.
Sefer Me’irat Einayim 70:13 offers a different rationale: Since the lender specified that the borrower must repay him in the presence of witnesses, we assume the borrower would do so to remove any possibility of doubt.

I.e., two witnesses who are specified explicitly.

The Rambam’s rulings are based on a passage from Sh’vuot 41a, b. The standard printed text of the Talmud reads as follows:
Rav Yosef would teach as follows: Rav Yehudah related: “Rav Assi said: When a person lends money to a colleague in the presence of witnesses, he does not need to repay him in the presence of witnesses. If he told him: ‘Do not repay me except in the presence of witnesses,’ he must repay him in the presence of witnesses. When I recited [this teaching] in the presence of Shmuel, he told me: ‘He could say: I paid you in the presence of so-and-so and so-and-so, and they journeyed overseas.’” A question arises based on the Mishnah, which states: [The lender claims:] “You owe me a maneh.” [The borrower] agrees. The lender tells him: “Do not repay me except in the presence of witnesses.” On the morrow, if the lender says: “Give me [the money you owe me],” and the borrower says: “I gave it to you,” he is liable, because he must repay him in the presence of witnesses. This appears to raise a contradiction to the teaching of Shmuel. Shmuel would answer. The matter is the subject of a difference of opinion among the Sages.... Rabbi Yehudah ben Beteira states: “He can say I repaid you in the presence of so-and-so and so-and-so, and they journeyed overseas....”
Rav Pappi states in the name of Ravva: “The halachah is that when a person lends money to a colleague in the presence of witnesses, he does not need to repay him in the presence of witnesses. If he told him: ‘Do not repay me except in the presence of witnesses,’ he must repay him in the presence of witnesses. If he said: ‘I paid you in the presence of so-and-so and so-and-so and they journeyed overseas,’ his word is accepted.”
[A lender] told [a borrower]: “When you repay me, repay me in the presence of Reuven and Shimon.” He went and repaid in the presence of two other witnesses. Abbaye says: “He told him to pay him in the presence of two witnesses and he paid him in the presence of two witnesses.
Ravva told him: “This is the reason he told him to pay him in the presence of Reuven and Shimon, so that he would not be rebuffed.” [A lender] told [a borrower]: “When you repay me, repay me in the presence of two [witnesses] who study Torah Jaw.” He went and repaid him in private.
This is the version of the text that the Rambam followed. Rabbenu Yitzchak Alfasi and Rav Yosef MiGash, the Rambam’s teachers, had a different version of the text. As can be seen in the Halachot of Rabbenu Yitzchak Alfasi, with regard to Ravva’s ruling concerning the teaching of Shmuel, their version of the text read: “His word is not accepted.” On the basis of that version, they conclude that Ravva’s statement: “This is the reason he told him to pay him in the presence of Reuven and Shimon... “applies even if the other witnesses testify, because if not, it would be redundant. For it would not contribute any further understanding than his previous ruling. Similarly, in the final teaching quoted above, instead of “he paid him in private,” their version of the text reads: “He paid him in the presence of witnesses (i.e., ordinary witnesses, who are not scholars),” implying that even if such witnesses testified that payment was made, there would be room for argument.
The later authorities acknowledge the existence of the different versions of the text. The Rambam’s version is accepted by the Shulchan Aruch (Choshen Mishpat 70:3). The argument regarding the validity of the two positions is carried on by the later authorities.

In the introduction to the Mishneh Torah, the Rambam states that he composed the text in the year 4937 (1177 CE). In that same text, he mentions the approximate date of the composition of the Babylonian Talmud as 4125 (465 CE). (Other sages explain that its composition was a lengthy process and the final compilation of the text was almost a century later.) Thus, while the ancient manuscripts of the Talmud the Rambam obtained were by no means the original text, they were written not long after its compilation.

In support of the position of Rav Yitzchak Alfasi, it can be explained that by stipulating that the payment must be made in the presence of two particular witnesses, it is as if the lender stipulated that all other witnesses would be disqualified from testifying. The Ra’avad reinforces this position, citing the concept of ne’amanut. (See Halachah 3.) In such instances, since the borrower accepts the word of the lender, the lender’s word is binding even if there are several witnesses who testify otherwise.
Rabbenu Asher rejects this logic, explaining that the reason that the lender singled out witnesses was not to nullify all other witnesses, but to prevent the borrower from lying and claiming that he repaid the debt in the presence of witnesses who are not present.

They were just not able to testify in court.

I.e., how could he be compelled to bring those witnesses to court.

I.e., were this perspective to be followed.

I.e., the testimony that the loan was given on the condition that the lender be repaid in the presence of witnesses.

The Ra’avad and the Mordechai state that in such a situation, the lender may state: “I accepted the money as payment for another loan that you owed me.” (See Chapter 14, Halachah 9.) Since the lender did not accept the testimony of other witnesses with regard to this loan, their testimony does not have full legal power. The Ramah (Choshen Mishpat 70:4) quotes this view.
Our understanding follows that of the Siftei Cohen 70:19. There are, however, authorities who maintain that the Ramah does not differ with the Rambam, and even the Rambam would accept his view.

The Maggid Mishneh states that the Rambam is describing a stipulation made at the time the loan was given. Nevertheless, the same principles would apply afterwards if the agreement was affirmed by a kinyan.

This concept is referred to as ne’amanut. Unless it is stated otherwise, when such a stipulation is made we assume that the lender is requesting that his word. be accepted without an oath, for generally a person seeks to avoid taking an oath that is not required. This refers both to a debt supported by a promissory note and one supported by a verbal commitment alone.
The Shulchan Aruch (Choshen Mishpat 71:1) quotes this understanding. The Ramah states that this applies only when there are witnesses to the fact that this stipulation was made. Otherwise, we accept the borrower’s word because of the principle of miggo - i.e., had he desired to lie, he could have denied accepting the loan entirely.

For unless an explicit stipulation is made otherwise (see the following halachah), we assume that the borrower would not grant the lender such extensive power.

The Sefer HaTerumot (Shaar 26, quoted by the Siftei Cohen 71:2) asks: Although the borrower accepted the lender’s word as that of two witnesses, he did not give it any greater legal power than that. Now, when there is a case where the testimony of two pairs of witnesses contradicts that of each other and the money in question is in the hands of one of the parties, we allow that person to maintain position. Hence, in the situation at hand, it would appear that the borrower should be allowed to maintain possession of the money.
The Sefer HaTerumot explains that in such a situation, when the debt is supported by a promissory note, we say that since the testimony of the witnesses and the lender contradict each other, we do not pay attention to either. Instead, we follow the assumption that if the lender has a valid promissory note in his possession, it has not been paid, and on that basis we allow the lender to collect the debt.
Moreover, even in the case of a loan supported by a verbal commitment alone, the lender’s word is accepted. We consider it as if the borrower agreed to reject any testimony other than that of the lender. It is as if he told him: “As far as I am concerned, everything depends on your word.” Since he made - or accepted - such a stipulation, it is binding even if witnesses later testify on his behalf.

Once two witnesses testify regarding a matter, we accept it as true. There is no necessity - and no difference in law - if other witnesses also affirm the same facts.

If, however, the stipulation is made: “Your word is accepted as the statements of a court of three judges,” the lender’s word is accepted despite the testimony of witnesses (Siftei Cohen 71:6).

Since he mentioned a number of witnesses, we assume that they agreed that if there were more witnesses who testified to the payment of the debt, their word would be accepted.

How can he prevent himself from being forced to pay the debt a second time?

And thus the lender’s claim is no longer based on a valid promissory note.

The Shulchan Aruch (Choshen Mishpat 71:4) states that the borrower should have the lender write a receipt on the legal document that states that the lender’s word would be accepted as that of two witnesses.
Mishneh LaMelech question why the acknowledgment must be made outside the presence of the borrower. [Significantly, when quoting this law, the Shulchan Aruch (Choshen Mishpat 71:3) does not mention the need for the acknowledgment to be made outside the presence of the borrower.]
Mishneh LaMelech explains if the situation had been reversed and a borrower acknowledged a loan when the lender is not present, his acknowledgment is not binding, because there is the possibility that he made this statement so that he does not appear wealthy. (See Hilchot To’en V’Nit’an 7:1.) The Rambam is teaching that when a lender makes an acknowledgment, such an argument cannot be offered. See also the following note.

The Rambam makes a distinction between the testimony of witnesses with regard to payment of a debt and their testimony with regard to the acknowledgement of payment, maintaining that the stipulation agreed to by the borrower includes the former instance, but not the latter. Other Rishonim (including the Ramban and Rav Zerachiyah HaLevi) do not accept this distinction and maintain that the testimony of witnesses is never effective in nullifying such a debt.
The Tur explains the Rambam’s position, stating that the borrower accepted the lender’s word against his own - e.g., against any claim dependent on the borrower’s acts. The lender’s acknowledgment, by contrast, is an independent matter that does not stem from the borrower’s initiative. Perhaps this is the reason why the Rambam requires that the admission be made outside the presence of the borrower.
The Shulchan Aruch (loc. cit.) and the Ramah quote the Rambam’s position. The Siftei Cohen 71:8, however, argues in favor of the other view.

When the lender collects the debt, he is not required to take an oath, as stated in Halachah 3. For by making the stipulation, the borrower waived the potential to require the lender to take a severe Rabbinic oath. He did not, however, waive his right to require him to take a sh’vuat hesset afterwards, as the Rambam states here. The Shulchan Aruch (Choshen Mishpat 7I:5) writes that the lender can, however, have the stipulation worded in a manner that will prevent him from having to take a sh’vuat hesset afterwards.

The Ramah (Choshen Mishpat 7I:5) quotes the opinion of Rabbenu Asher, Rav Yosef MiGash and others, who explain that this ruling applies even in a situation when witnesses testify that the borrower paid the lender. For otherwise, of what value would the original stipulation be?
The Siftei Cohen 71:3 states that at the outset, the lender’s word is accepted only when he claims to have taken the money from the borrower as payment for another debt (sitrei). If he claims never to have received the money, we accept the testimony of the witnesses. His rationale is that afterwards, the borrower will be able to sue the lender, claiming that he paid him twice, and he will bring these witnesses to support his claim. On the basis of their testimony, the court will accept the fact that the lender received money from the borrower, and the lender will be required to explain why he received the money or to return it. If the lender claims that he accepted it as payment for another debt, his word will be accepted. Otherwise, he will have to return it.
Since ultimately this scenario will be played out, the Siftei Cohen argues that to prevent the legal process from being prolonged, we render this judgment at the outset. This view, however, is not accepted by all authorities.

We are speaking about a loan supported by a promissory note. If the loan is supported by a verbal commitment alone, the borrower’s word is accepted even if the lender does not agree to such a stipulation. See Chapter 11, Halachah 1.

The Maggid Mishneh mentions that this law is not mentioned in the Talmud, but rather has its origins in the works of the Geonim, because it is extremely uncommon for a lender to accept the borrower’s word. Nevertheless, if he does agree to this stipulation, it - like any other stipulation involving financial law - is binding.
The Maggid Mishneh states that in this clause - as in the following clause of the halachah - the borrower is required to take a sh’vuat hesset. Rabbenu Yitzchak Alfasi explains the rationale for this ruling as follows: The stipulation that the borrower’s word would be accepted nullifies the power of the promissory note. Nevertheless, the lender still claims that he is owed a debt. To negate that claim, the borrower must take a sh’vuat hesset.

Since that property was in the borrower’s possession at the time of the loan, it is on lien to the debt. Nevertheless, we do not require the purchaser to surrender the property. The rationale is that the court advances all the arguments that the defendant himself could have advanced on behalf of his heirs or persons who purchased property from him (Maggid Mishneh).
Rabbenu Asher does not accept this rationale with regard to the borrower’s heirs, and maintains that unless the heirs bring witnesses who testify that, before his death, the owner of the estate stated that the debt was paid, it must be paid from the borrower’s estate. The Shulchan Aruch (Choshen Mishpat 71:22) quotes both opinions without stating which one is favored.

Ordinarily, the property would be expropriated from the purchaser. In this instance, however, an exception is made because of the rationale stated by the Rambam.

I.e., we suspect that even though the borrower repaid the lender, he will say he did not, so that the lender will be able to expropriate the property of the purchaser and then divide it between them.

From this we learn that the stipulation of ne’emanut applies even with regard to only a portion of the debt (Maggid Mishneh).
The Rambam’s ruling is, however, somewhat problematic, because in this instance, the borrower is not considered a modeh b’miktzat, a person who admits a portion of a claim, although seemingly, that is precisely his circumstance. Why, the commentaries ask, is he required to take only a sh’vuat hesset, and not a Scriptural oath?
The Bayit Chadash (Choshen Mishpat 71) resolves this difficulty, explaining that, as Bava Metzia 3a states, a modeh b’miktzat is required to take a Scriptural oath because we suspect that he borrowed the entire amount and is lying by denying having done so. Nevertheless, since the lender did him a favor and lent him the money, he could not be so brash as to deny the debt entirely. Therefore, he admits only a portion. By compelling him to take the oath, we force him to confront the truth. This rationale would not apply in the case at hand, because since the lender accepted the borrower’s word, there is nothing to stop him from being brash and denying the debt entirely. Since he does not do so, and instead accepts a portion of the obligation, our suspicion that he is lying is not strong enough to require a Scriptural oath.

The Kessef Mishneh emphasizes that we are speaking about heirs who have reached the age of majority. Until they reach that age, no claim may be lodged against them, as stated in Chapter 12, Halachah 1.

This refers to a Rabbinic oath resembling a Scriptural oath, as required of anyone who desires to expropriate property from the possession of heirs.
Sefer Me’irat Einayim 71:31 explains the rationale for this ruling. The borrower accepted this condition because he trusted that the lender would not brazenly ask for money that had already been paid. Nevertheless, the fact that he did not agree to this stipulation with regard to his heirs indicates that he did not trust the lender to that extent.

According to Rabbinic ordinance, a lender is given the opportunity to expropriate property of intermediate value from the borrower in repayment of the debt. (According to Scriptural Law, he may expropriate only the least valuable property.) In this instance, because of the stipulation, he is granted the opportunity to take possession of the more valuable property.

The Maggid Mishneh explains that this applies only when the borrower explicitly agrees that the stipulation will also affect his heirs. Otherwise, our Sages’ ordinance that the property of least value is always expropriated from the estate inherited by heirs applies.

I.e., collect a loan given with the above stipulation.

The purchaser of his property.

A person has the privilege of accepting a stipulation that will compromise his own rights, or those of the heirs of his estate. That money is his, and he can do with it whatever he desires. This does not apply with regard to property that he sold. Although the property he sells to a purchaser is on lien to his debts, he cannot compromise the purchaser’s position without his consent.
The Ra’avad differs with the Rambam’s ruling, explaining that when a person purchased the property after this stipulation was made, he is bound by it. For a promissory note is considered to be public knowledge, and we assume that before purchasing the property, the person considered the consequences. If he went on with the purchase, he must accept the stipulations agreed to by the borrower.
The Shulchan Aruch (Choshen Mishpat 71:19) follows the Rambam’s view, and indeed goes further, stating that even if the promissory note states that the lender’s word should be accepted against the interests of the purchasers, he is required to take an oath. The Siftei Cohen 71:42, however, argues that if the promissory note states explicitly that the lender’s word is to be accepted against the interests of the purchasers, that stipulation is binding.