Rambam - 3 Chapters a Day

For failing to pay his debt.

Even in such an instance, where the fact that the lender released the borrower on the person’s request does not generate a binding commitment.

The rationale is that the lender originally gave the loan without the guarantor’s making a commitment. Afterwards, when the guarantor did make the commitment, he did not formalize it in any manner or form. Hence, a binding obligation was never created.

As reflected by the contrast to the following halachah, this refers to a situation where the court is not in the process of taking action, and the guarantor’s commitment does not generate any immediate satisfaction for him.
Based on the statements of the Hagahot Maimoniot and the Ramah (Choshen Mishpat 129:1), Sefer Me’irat Einayim 129:3 rules that if the person acts as a guarantor and pays the debt upon the request of the borrower, the borrower is liable to reimburse him. He cannot claim: “Since you were not liable to pay the debt, I am not bound to reimburse you.” See Chapter 26, Halachah 6, for a discussion of this issue.
The Ramah (ibid.:3) qualifies the exclusion implied by the Rambam, stating that if the lender frees the borrower of responsibility entirely and transfers the responsibility to the guarantor, the guarantor is liable. Similarly, the guarantor is liable if he has money belonging or due to the borrower in his possession.

For the kinyan itself is sufficient to demonstrate the seriousness of the guarantor’s commitment and thus create a binding obligation.
The commentaries question whether this obligation also creates a lien on the guarantor’s property to the extent that even after it is sold, it may be expropriated from the purchasers and given to the lender. The Nimukei Yosef explains that when a legal document securing the guarantor’s commitment is not composed, such a lien is not established. We fear that since the guarantor’s commitment does not involve his personal obligation, it will not become public knowledge. Thus, the purchasers may not have known about the matter and could not be expected to take the necessary cautions. From his statements in Chapter 26, Halachah 1, it appears that the Rambam follows this view.
The Ramah differs and maintains that since a kinyan was undertaken, the awareness of the matter will spread, and the purchasers will be informed. Hence, the lien is extended to such properties. See also the Shute han Aruch (Choshen Mishpat 129:6), which quotes both opinions.

The Ramah (Choshen Mishpat 129:2) rules that the guarantor becomes liable even if he makes less specific statements. As long as he asks the lender to make the loan and assures him that his money will be returned, he is obligated.

Since the lender gave the money because of the guarantor’s commitment, it is obvious that the commitment is serious and a lien is established.

Note, however, the contrast to an erev kablan mentioned in the following halachah.

See Chapter 26, Ha1achah 4, which adds particulars concerning this situation. See also Chapter 3, Halachah 7, which describes how security can be taken from a guarantor.

I.e., that the lender can seek payment from the guarantor.

As long as the borrower cooperates with the court, the lender may not seek payment from the guarantor.
Similarly, it applies even when the borrower possesses property of inferior quality [Shulchan Aruch (Choshen Mishpat 129:8)] and even in an instance where he is bankrupt, and property that he sold to others must be expropriated to pay the debt (Sefer Me’irat Einayim 129:27 in the name of Rabbenu Tam). See also the notes on the following halachah.
Nevertheless, the Maggid Mishneh emphasizes that even if the borrower does own property, but it is located in a foreign land, and it would require great effort and expense for the lender to collect it, or the borrower himself is overseas, the lender may seek payment from the guarantor.

See Chapter 22, Halachah 3.

And thus he has a right to approach the guarantor.

The rationale is that the borrower’s property is also on lien to the debt - and indeed, that obligation is also based on the principle of a guarantor (Kessef Mishneh, Chapter 18, Halachah 1). Hence, that lien is exercised before the guarantor is approached.
As stated by the Tur and the Shulchan Aruch (Choshen Mishpat 129:14), this principle is not accepted by all authorities. There are opinions that maintain that since such a stipulation was made, the lender is given this option.
The Maggid Mishneh questions: According to the Rambam’s opinion that the lender is not granted this right, what is the difference between an ordinary guarantor and one who accepts such a stipulation? He explains that with regard to an ordinary guarantor, even if the borrower is not known to possess any property, the lender must sue him and prove bankruptcy before approaching the guarantor. When, by contrast, the guarantor accepts this stipulation, as long as it is not known by people at large that the borrower possesses property, the lender may approach the guarantor. He need not sue the borrower first. This conception is reflected in the ruling of the Shulchan Aruch (Choshen Mishpat 129:8).

By adding the word "first," he clarifies his intent. Hence, if the guarantor agreed, the lender is granted this right.

The word kablan has its roots in the word, kabel, “to accept” - i.e., he accepted responsibility for the debt. Perhaps the most appropriate English translation would be “underwriter.”

As stated in Chapter 26, Halachah 3, the fact that the lender may approach the guarantor first does not release the borrower from his obligation. If the lender desires, he may demand payment from him first.

Since he uses the same wording with regard to himself that he uses with regard to the lender, it is obvious that he accepts full responsibility. It is as if the lender acted as his agent and gave the money to the borrower on his behalf (Rashbam, Bava Batra 174a; Kessef Mishneh).

The Tur and the Ramah (Choshen Mishpat 129:18) state that such a statement defines the person as a kablan.

In all of these situations, it appears that the guarantor’s intent is “If the borrower does not pay you, I will pay you” (Kessef Mishneh).

As the Maggid Mishneh mentions in his gloss on Hilchot Ishut 17:9, this applies only to the basic obligation of 100 or 200 zuz. With regard to the nedunyah, the resources that the woman brings to the new home, a guarantor is liable if he undertakes a commitment, for in this instance the woman is actually committing resources of financial value.

He enabled the couple to marry, which is a mitzvah.

The woman did not suffer a direct financial loss by marrying. For she did give her husband any money, and indeed, she also desired to marry. It was not the promise of the guarantor that caused her to make this decision. All that was necessary was a gentle push. This was his intent; he did not seriously make a commitment.
The Ra’avad does not accept this ruling and maintains that if the person affirms his commitment with a kinyan, he is liable. The rationale is that according to the Rambam, the commitment described in this halachah is an asmachta - a promise made without a serious commitment - and a asmachta is not binding even when the person affirms it with a kinyan. The Ra’avad, by contrast, maintains that the commitment is genuine. The Shulchan Aruch (Even HaEzer 102:6) quotes the Rambam’s view, while the Tur and the Ramah quotes that of the Ra’avad.

Because of the connection a father shares with his son, when he makes such a commitment and affirms it with a kinyan, he is liable. The Ra’avad differs in this instance as well, and maintains that the obligation is established even when it is not affirmed by a kinyan.

In Hilchot Ishut, loc. cit., the Rambam defines a kablan as someone who tells a woman: “Marry this man, and I will pay the ketubah.” He is liable even when he does not affirm his commitment with a kinyan.

I.e., if a creditor of Reuven’s expropriates it from Shimon, Levi agrees to make restitution to Shimon.

I.e., we assume that Levi took for granted that Reuven would pay his debts. Thus, he never intended to undertake this obligation.
The Ra’avad objects to the Rambam’s ruling, maintaining that the person is making his commitment to act as a guarantor when the money is being paid. Hence, the commitment should be binding, as stated in Halachah 2. The Maggid Mishneh defends the Rambam’s decision, explaining that there is a difference when a person decides to guarantee a loan and when he guarantees a sale.
When a person guarantees a loan, his guarantee centers on the money itself. Hence, it is when the loan is given that the guarantee must be made. With regard to the sale, he is guaranteeing the land - i.e., if the land is taken from the purchaser, the guarantor will compensate him for his loss. Hence, the moment of importance is not when the sale is made, but when the land is expropriated. And at the time, a commitment was not made.
Moreover, in such a situation, even if he affirmed his commitment with a kinyan, he is not bound by it. For in most instances, a kinyan does not validate an asmachta.
The Kessef Mishneh offers a different distinction. When a person guarantees a loan, he knows that the loan will be spent, and therefore undertakes the responsibility with a knowledge of his obligation. When he guarantees the sale of property, once the buyer takes control of the property, the seller does not expect the land to be expropriated. Hence, his commitment is not serious.
The Tur gives a further explanation for the Rambam’s position, citing as a parallel the fact that there are times that people purchase a field without demanding that the seller undertake financial responsibility. They are satisfied to use it for only a limited period.
The Shulchan Aruch (Choshen Mishpat 131:9) quotes the Rambam’s view, while the Tur and the Ramah cite that of the Ra’avad.

I.e., he does not accept responsibility for the land. Regardless of how much the land is worth, he guarantees only the money involved in the sale.

For in this instance, his commitment is explicitly for the money and not for the land, and the kinyan indicates the sincerity of his pledge.

In one of his responsa, the Rambam quotes Rav Yosef MiGash as ruling in this manner.

The Tur clarifies this statement, explaining that every commitment to act as a guarantor is - to a certain degree - an asmachta. For the guarantor desires the borrower to repay the debt. Nevertheless, when there is no condition involved, he accepts the possibility that he may be held responsible. When, however, there is a condition involved, he presumes that the condition will (or will not) be met, and thus he will not be held liable. Hence he does not make a sincere commitment.

Our translation follows the understanding reflected by the traditional version of the Mishneh Torah. The Tur, however, quotes a slightly different version, from which it appears that the intent is that the person restated the stipulation, stating it in a negative manner after stating it in a positive manner, as is required with regard to a conditional agreement. (See Hilchot Ishut, Chapter 6.)

The Tur also states - and seemingly, the Rambam would accept this view - that if the guarantor states that he accepts responsibility me’achshav, “from the present time onward,” he does become responsible.
In contrast to the Shulchan Aruch (Choshen Mishpat 131:10), which mentions only the Rambam’s view, the Tur and the Ramah mention the view of the Ra’avad, who maintains that a commitment to act as a guarantor is never nullified because of the concept of asmachta.

Or accepted an article for safekeeping together [Maggid Mishneh; Ramah (Choshen Mishpat 77:1)].

The Maggid Mishneh quotes the Ramban as explaining that they are considered guarantors, but not kablanim. The creditor cannot approach the guarantor for payment until he first approaches the principal. Significantly, the Tur - perhaps because the version of the Mishneh Torah that he possessed was different from ours - differs and maintains that the creditor has the right to collect the entire debt from either one without asking the other for payment.
In his Kessef Mishneh and Beit Yosef, Rav Yosef Karo objects to the Tur’s understanding, and in his Shulchan Aruch (Choshen Mishpat 77:1), he quotes the Rambam’s view.

The fact that they included their debts or sales in the same legal document indicates that they consider them dependent on each other.

When stating this Jaw, the Shulchan Aruch (Choshen Mishpat 77:2) quotes the Ramban, who states that the Rambam’s ruling applies only when the partner agrees that the Joan or purchase was made for the sake of the partnership, or witnesses testify that this is so. If, however, he denies that contention and the other partner cannot prove it, he is not liable.
The Tur and the Ramah state that even if the partner admits that the money was taken for the sake of the partnership, if there is no money in the coffers of the partnership, the partner cannot be forced to take individual responsibility for the debt.

I.e., we do not say that each one of them guaranteed only half the debt. Instead, each one is responsible for the entire amount.
The Ra’avad differs with this ruling and maintains that each of the guarantors is required to pay only half the debt. The Tur and the Shulchan Aruch (Choshen Mishpat 132:3) quote his opinion together with that of the Rambam. Even according to the Rambam, after the lender collects the entire debt from one guarantor, that guarantor can sue the other for half (Sefer Me’irat Einayim 77:11; Siftei Cohen 132:5).

From the same lender or from other lenders.

The Tur (Choshen Mishpat 132) states the same law slightly differently, saying: “When [the guarantor] pays the lender, he should notify him for which of the two he is paying.”

The Maggid Mishneh writes that this law is a product of deduction, but there is no explicit source for it in the Talmud.

This would be beneficial in a situation where the lender would not accept the person making the request of the colleague as a guarantor, but would accept the person of whom he makes this request.

The Maggid Mishneh states that this applies even when the second guarantor does not affirm his commitment with a kinyan. Just as the first guarantor becomes liable when the money is transferred because of his word; so, too, the second guarantor becomes liable when the commitment of the first guarantor takes effect.

The Rambam’s ruling echoes his decision in Hilchot Mechirah 11:16, where he states:
[The following rules apply when a person] accepts an obligation on himself that is unlimited in nature - e.g., he says: “I obligate myself to feed you...” or “... to clothe you for five years.” Even though he affirms his commitment to [the recipient] with a kinyan, he is not liable.
As mentioned in the notes on Hilchot Mechirah, the Rambam’s opinion is not accepted by all authorities. Here too, the Ra’avad takes issue with the Rambam and states that we accept the guarantor’s promise to the extent that we would ordinarily expect him to commit himself.
The Maggid Mishneh differs with the Ra’avad and maintains that a larger principle is involved: Can a person undertake an unlimited commitment or not? If he can, then he should be held liable for the entire amount. Moreover, the determination of the extent to which a person would ordinarily commit himself is a very sensitive issue and difficult to decide. Hence, he prefers the opinion of the Geonim mentioned by the Rambam.
Although the Shulchan Aruch (Choshen Mishpat 131:13) quotes the Rambam’s view, he states that all the authorities who followed him differed with his opinion and maintained that when a kinyan is made, the guarantor’s commitment is binding. The Shulchan Aruch maintains that these other views should be adhered to.

A person does not make empty statements. If he made such a commitment, his intent was to pay (Maggid Mishneh).

The Ra’avad differs with the Rambam, maintaining that since the guarantor made a firm commitment to pay if he did not bring the borrower to court, he is liable. The Maggid Mishneh quotes supports for both opinions and states that he does not see himself capable of deciding between the two approaches. The Rambam’s view is quoted by the Shulchan Aruch (Choshen Mishpat 131:12), while the Ramah cites the Ra’avad’s view.

I.e., he signed the promissory note below - and after - the witnesses did.

Chapter 25, Halachah 1, which states that, even though a loan has already been given, a guarantor is liable if he affirms his commitment with a kinyan.

Because the statement of the witnesses did not include the guarantor’s commitment.

According to the Rambam, this is speaking about a situation where the loan was given before the promissory note was signed. Therefore, the guarantor must affirm his commitment with a kinyan (Maggid Mishneh).

This applies in a situation where the guarantor affirmed his commitment with a kinyan. If he did not do so, his commitment is not binding at all (Maggid Mishneh).

In this instance as well, although the witnesses signed the promissory note afterwards, since the statement concerning the loan and that concerning the guarantor’s commitment are not associated together, one might think that the witnesses did not speak of the guarantor’s commitment [Tur, (Choshen Mishpat 129)].

I.e., when the promissory note was written, the letter vav was added, thus connecting one phrase with another [Shulchan Aruch (Choshen Mishpat 129:7)].

In this instance as well, despite the fact that the guarantor’s name is associated with that of the borrower in the promissory note, if the guarantor does not affirm his commitment with a kinyan, his commitment is not binding at all (Maggid Mishneh).

Sefer Me’irat Einayim I29:27 interprets this phrase as meaning that there were also no properties that the lender had sold to others.

The Maggid Mishneh cites the source as Chapter 22, Halachah 1, which states that the borrower is given 30 days to sell his property to amass the funds to pay the debt. The Siftei Cohen 129:23 states that, if that were so, the Rambam should have qualified his words and stated that they apply only in a situation where the guarantor does not have cash on hand. He explains that the Rambam is referring to Chapter 13, Halachah 5, which states that unless specified otherwise, the duration of a loan is 30 days. It is as if the guarantor has taken a loan beginning at this time. He is given 30 days to repay it.

For as mentioned several times, any stipulation made with regard to financial matters is binding.

Chapter 25, Halachah 4, states that the lender has the right to approach the guarantor first. This halachah clarifies that he is not obligated to do so.

The Beit Yosef (Choshen Mishpat 129) notes that the Rambam’s wording implies that this applies only to a kablan, but not to an ordinary guarantor. Even if the guarantor was the one who took the money from the lender, the lender must first demand payment from the borrower. The Tur, however, quotes the opinion of Rabbenu Asher, who maintains that in this mater, there is no difference between a guarantor and a kablan. The Shulchan Aruch (Choshen Mishpat 129:19) cites both views without stating which should be followed.

He should not approach him at all. All his dealings should be with the kablan. It is as if the lender lent the money to the kablan, and the kablan must repay him.
The Maggid Mishneh quotes Rabbenu Tam, who explains that if the guarantor is bankrupt, the lender may demand payment from the borrower. For the borrower would have been obligated to the guarantor, and thus, employing the principle shi’budo D’Rabbi Natan (Chapter 2, Halachah 6), that lien can be transferred to the lender. This ruling is also cited by the Shulehan Arueh (loc. cit.).

The Shulehan Arueh (loc. cit.:10) states that this applies to any place with a 30-day journey. Accordingly, today with the advances in modern travel and communications, this law has ceased to apply.
In his Kessef Mishneh, Rav Yosef Karo also adds that this law applies only in a situation where the borrower does not have any property in this country. If he does have property that can be attached, that should be expropriated before the guarantor is approached. He also cites this law in the Shulehan Aruch (loc. cit.).

In his Kessef Mishneh, Rav Yosef Karo notes that, as evident from Halachah 5, this law applies only with regard to a loan supported by a promissory note, and not a loan supported by a verbal commitment alone. In his Shulehan Arueh (loc. cit.:12), he explains and qualifies this ruling.

This refers even to an ordinary guarantor, not only a kablan.
The Rambam’s statements with regard to a borrower who left heirs below majority are not accepted by all authorities. The Maggid Mishneh quotes the Ramban as stating that in such a situation, the lender may not collect from the heirs or the guarantor until the heirs reach majority.

See Chapter 2, Halachah 2.

I.e., the borrower will claim bankruptcy and thus require the guarantor to pay. He and the lender will then divide this money.

The Maggid Mishneh states that this law applies to a kablan as well as to an ordinary guarantor. The Siftei Cohen 129:32 notes that the Bayit Chadash does not accept the position of the Maggid Mishneh. Nevertheless, the Siftei Cohen maintains that had the Bayit Chadash seen all the opinions that support the Maggid Mishneh, he would not have differed.

The lender is not given the option of taking an oath and collecting the debt. The rationale is that the borrower’s word would be accepted if he claimed that he paid this debt (Chapter 11, Halachah 1). Hence, the lender must prove his assertion. Proof of this can be derived from the fact that, as stated in Chapter 13, Halachah 2, the lender may not expropriate the borrower’s property with regard to a loan supported by a verbal commitment alone (Maggid Mishneh).
When quoting this law, the Shulchan Aruch (Choshen Mishpat I29:I2) adds that in situations when we are more or less certain that the debt was not paid - e.g., the due date had not come before the borrower left, on his deathbed the borrower stated that the debt was not paid, or he was placed under a ban of ostracism for not paying and died while under that ban - the guarantor is required to pay.

As reflected in the following halachah, to receive payment from the borrower, the guarantor must pay the lender in the presence of witnesses.

The Maggid Mishneh states that the Rambam’s wording leads to the inference that if the borrower asked a person to serve as a kablan, the heirs are responsible if the kablam pays the debt on his own initiative. The rationale is that since the lender has the right to demand payment from the guarantor before approaching the borrower, the guarantor is not considered as having paid a debt that is not incumbent upon him.
This leads to a further concept. If the borrower had already been called to court, and it was discovered that he was bankrupt, even an ordinary guarantor may later demand payment from the borrower, despite the fact that he paid the debt without the borrower’s instructions. For in such a situation, the court would require the guarantor to pay the debt. Hence, the obligation is considered to be his own.

In such an instance, the guarantor should pay the debt only when required to do so by the court.

The Ra’avad differs with this ruling, maintaining that whenever a person who accepted the responsibility of serving as a guarantor pays a debt, he deserves to be reimbursed by the borrower. The Tur follows the Ra’avad’s view. The Shulchan Aruch (Choshen Mishpat 130:2) quotes both opinions without favoring one over the other.

Although the Tur differs concerning this ruling as well, most authorities agree that even those who differ with the Rambam with regard to the previous law should accept his ruling in this instance. This is also the perspective of the Shulchan Aruch (Choshen Mishpat 128:1).

See Chapter 11, Halachah 6 and notes, where it is explained that in these situations, we assume that a loan has not yet been repaid.

See Chapter 22, Halachah 3.

There is a difference of opinion among the commentaries if the intent is all heirs, including those above the age of majority, or only those below the age of majority. The Maggid Mishneh explains that the Rambam’s intent is that this applies with regard to all heirs, even those above the age of majority, while the Tur and the Ramah (Choshen Mishpat 130:6) state that it applies only when the heirs have not reached majority.

The fact that he paid the debt before notifying the heirs indicates that he was given resources, as explained in the following note. Otherwise, we assume he would make sure that he would be reimbursed before paying.

Since it is known that the gentiles seek payment from the guarantor before approaching the borrower, we assume that a person would not agree to serve as a guarantor for such a loan unless the borrower first gave him security that could be sold for the amount of the debt. This would enable him to pay the gentile if he was required to do so.

Similarly, if the court obligates the guarantor to pay, it is considered as if he notified the heirs first [Ramah (Choshen Mishpat 130:7)].

Although Bava Batra l74b, the source for this halachah, refers to heirs, the same concepts apply with regard to the borrower himself (Maggid Mishneh).

I.e., witnesses who testify that he paid the debt [Shulchan Aruch (Choshen Mishpat 130:3)].

It is not sufficient for the guarantor to take an oath that he paid the debt.

The commentaries note that the conclusion of the passage in Bava Batra states: “If the promissory note states (i.e., the lender wrote to the guarantor on the promissory note) ‘I received [the sum] from you,’ [the guarantor] may collect [his due].” As the Shulchan Aruch (Choshen Mishpat 130:4) writes, there are opinions that maintain that the guarantor has the right to expropriate property from people who purchased the borrower’s property. Others maintain that he may expropriate property only from the borrower himself. They all agree that such a statement creates an obligation. Why, then, they ask, does the Rambam ignore the matter?

I.e., the guarantor does not desire to pay the debt, and the borrower seeks that he does.

In this situation, the guarantor seeks to be repaid for paying the debt, and the borrower - based on the principles mentioned in the previous halachah - desires to avoid having to pay him.

I.e., if the defendant denies the claim entirely.

A Scriptural oath is never taken with regard to a claim supported by a promissory note. Nevertheless, even when the loan is supported by a promissory note, the guarantor’s obligation does not have that status. Hence, such an oath may be administered.

At which time they receive an independent financial capacity. Until then, their financial capacity is subservient to that of the master or the husband. Nevertheless, as evident from the contrast to Halachah 11, even while a servant is subjugated to his master and a woman is married, he or she possesses a financial capacity. Hence, after the master’s or husband’s control is lifted, they are liable (Sefer Me'irat Einayim 132:2).

Based on Hilchot Mechirah 29:6, the Maggid Mishneh states that this applies only to a child who is above the age of six. When a child is younger, he is considered totally irresponsible financially, and a person giving him the Joan is considered to have thrown his money away.

A minor who causes damage to a colleague’s property is not held liable (Hilchot Chovel UMazik 4:20). Nevertheless, in this instance, since the minor himself derived benefit from the Joan, he is obligated to pay when he comes of age (Maggid Mishneh).
The Shulchan Aruch (Choshen Mishpat 235:15) quotes the Rambam’s opinion, but also two other opinions - one that maintains that the minor is not held liable when he comes of age, and one that he is liable if he borrowed for the sake of his livelihood, but not if he borrowed for other purposes.

As Ketubot 19a states (see Hilchot Mechirah 29:9), when witnesses sign a legal document, we assume that it involves an adult.

Sefer Me’irat Einayim 96:15 states that this is derived from Ruth 4:7, which describes a kinyan with the words: “And a man shall remove his shoe....” Implied is that a kinyan must be carried out by a man.

Although a present given by a minor is binding (Hilchot Mechirah 29:6), making a commitment as a guarantor is a more complicated matter, and it is unlikely that a minor will understand the obligation he is undertaking. Hence, it is not binding upon him.

Her husband cannot prevent her from paying - as is the case when she borrows money while married. (See Halachah 9.) The rationale is that the lien on her property was established before she married.

Hence, just as the lender cannot expropriate property that was sold to others, he cannot expropriate property that has come under the husband’s control.

See Chapter 22, Halachah 17, Hilchot She’ilah UFikadon 2:11, Hilchot Zechiyah UMatanah 12:12.

The Maggid Mishneh raises questions regarding this ruling, explaining that such a principle would certainly hold true with regard to the return of an entrusted article or a stolen article, for they are always considered to be the owner’s property, even though they are in the physical possession of another person. A loan, by contrast, is given for the purpose that it be spent. As soon as the money changes hands, it is no longer considered to be in the possession of the lender. What difference then does it make whether or not the woman has spent the money she borrowed? The fact that she had the right to spend it causes it to be considered her own.

E. g., a document written in Hebrew, but in English characters.

I.e., it is written with ink that cannot easily be wiped out. Thus, if someone rubs out the writing and add anything to the document, the change will be noticeable.

See Chapter 24, Halachah 5.

For there is no need that a legal document be written in Hebrew.

As explained by the Maggid Mishneh and Sefer Me'irat Einayim 68:3, there are two types of legal documents:
a) documents that resemble bills of divorce, in which the document itself brings about the activity mentioned within it. For example, with regard to a bill of divorce, it is the transfer of that document that effects the divorce.
b) documents that serve merely as a legal record. For example, with regard to a deed of purchase, the transfer of the property is brought about through other kinyanim, and the deed is merely a record that such kinyanim were indeed carried out.
With regard to the first category of legal documents, since they effect a change of legal status, the signatories to the document must be Jews. For only Jews can bring about such changes of status. With regard to the second category, since all that is required is a legal record, it is not necessary that the signatories be Jews. As long as we are certain that the record is honest - hence, all the conditions the Rambam mentions - the document is acceptable.
Other authorities, including the Ramban, the Rashba, the Baal Ha’Ittur and Rabbenu Asher, maintain that all legal documents certified by an honest gentile legal authority are acceptable. The Rambam’s view is quoted by the Shulchan Aruch (Choshen Mishpat 68:1), while the other position is cited by the Tur and the Ramah.

I.e., in the presence of the witnesses.

We do not automatically assume this to be the case (Maggid Mishneh).
As mentioned above, Rabbenu Asher has a different conception of this issue. According to his view, the entire process, including the signing of the legal document, is carried out in the presence of the gentile legal authorities. As such, he maintains that it is unlikely that there will be any deception or falsehood involved.

If, however, they are composed with all the above qualifications, they are acceptable. Hence, in such a situation, the borrower’s word is not accepted if he claims to have repaid the debt. Such a document is not, however, used to expropriate property from purchasers, as the Rambam explains at the conclusion of the halachah.

The standard published texts of the Mishneh Torah also state “promissory notes,” butbased on a comparison to the preceding paragraph and the text in the authentic manuscripts and early printings - this appears to be a printing error.

This involves a situation where the waiver was not made orally beforehand. If that were the case, the legal document would not be necessary.

The rationale is that these legal documents are not merely records of transactions that took place, but they themselves formalize the matter. And the signing of a document by gentiles is not an acceptable kinyan.

There is a responsum from Rabbenu Yitzchak Alfasi - the teacher of the Rambam’s master, Rav Yosef MiGash - that reflects this view.

For it is the transfer of the money that brings about the kinyan.

The Ra’avad agrees with the Rambam’s master, explaining that since a promissory note signed by gentiles may not be used to expropriate property from purchasers, it is comparable to a handwritten statement of obligation signed by the debtor, which, as the Rambam states in Chapter 11, Halachah 3, does not convey any greater strength than a mere verbal commitment.
The Maggid Mishneh explains the opinion of the Rambam’s masters as follows: The actual transfer of the money establishes a loan, not the promissory note. Nevertheless, the promissory note gives the lender far greater power than he would have without it. Even if a borrower admits taking a loan, his word is accepted if he says that he repaid it. If the lender has a promissory note, by contrast, his word is not accepted. Hence, the Rambam’s masters maintain that gentile witnesses do not possess the legal power to convey this status to a legal document.

Significantly, in his Commentary on the Mishnah (Gittin 1:7, the source for this halachah), the Rambam mentions only that deeds of sale prepared by gentile authorities are acceptable. In that source, he does not mention promissory notes, apparently indicating that he originally followed the approach taught by his teachers.

The Maggid Mishneh explains that the Rambam maintains that since the lien is established through the transfer of the money, the borrower should have asked for the promissory note to be returned if he paid the debt. The Shulchan Aruch (loc. cit.) cites the Rambam’s view. Note, however, the comments of the Siftei Cohen 68:3.

We do not rely on the word of the gentiles as legal testimony. On the other hand, since the word of one can be used to counterbalance the other, we assume that they are telling the truth.

When a legal document is signed by Jewish witnesses, we assume that word of it will spread throughout the Jewish community, and all potential purchasers will be able to take note of the matter. When, by contrast, the legal process is carried out by gentile witnesses, it is not obvious that Jews will know of these matters. Hence, it is not appropriate for the lien to be extended to property that was sold.

The rationale is that since the Jewish witnesses saw the transfer of the legal document, it is acceptable (Gittin 10b, 11a).
Rabbenu Asher does not accept this ruling and maintains that since gentile witnesses signed the document outside the presence of their legal authorities, the document is considered a forgery and is never acceptable. The Shulchan Aruch (Choshen Mishpat 68:2) quotes the Rambam’s opinion. However, it also quotes the opinion of the Remo, who stipulates that the gentiles’ nationality must be obvious from their names so that a person reading the document will not err and suppose that the gentiles who signed the document are in fact Jews.
The Kessef Mishneh notes that a legal document that is signed by Jewish witnesses who are disqualified - because of a family connection to the principals or for other reasons - that was transferred in the presence of acceptable witnesses is invalidated. He therefore questions why this document signed by gentiles is acceptable. He explains that when a legal document is signed by unacceptable Jewish witnesses, one might err and consider it valid even when it was not transferred in the presence of acceptable Jewish witnesses. When, by contrast, a legal document is signed by gentile witnesses, it will be obvious that it is not valid except when it was transferred in the presence of acceptable Jewish witnesses.
He does note that this explanation is not evident from the Rambam’s wording. He explains that it is possible that leniency was granted, because all that are involved is financial matters and not any of the Torah’s prohibitions.

I.e., the points mentioned in this and the ensuing halachot.

I.e., the information included in the last line is ignored when considering the intent of the document. Nevertheless, the document is not disqualified, and the other information is considered as having been stated in a legal document [Maggid Mishneh, in the name of the Ramban; Shulchan Aruch (Choshen Mishpat 44:1)]. The Tur and the Ramah, however, quote opinions that disqualify the legal document entirely.

I.e., we assume that after the legal document was composed and signed, a dishonest person might come and add a line between the signature of the witnesses and the legal document. To prevent this from happening, we say that the contents of the last line are of no consequence. In order to enable the contents of the last line of the actual text to be taken into consideration, our Sages ordained that after a document is completed, an extra line be written restating the matter.
The Shulchan Aruch (loc. cit.:4) quotes the ruling of Rabbenu Asher that states that if the legal document concludes hakol sharir v’kayam, “Everything is affirmed and valid,” we can take in consideration the content of the previous line. Since it has become customary to write sharir v’kayam at the end of every document, everything stated before that is part of the legal document.

Bava Batra 16lb states that our Sages feared that a person might cut off the original document that the witnesses signed and write anything else that he desired above their signatures.
Even if the witnesses state that nothing was added to the legal document, it is unacceptable, because it was not written according to the norms of standard documents (Rashba).
The Shulchan Aruch (Choshen Mishpat 45:7) quotes Rabbenu Yonah, who states that although such a legal document cannot be used to expropriate property that has been sold, nor can it be used against a borrower who claims to have paid the debt, it still has some value to the lender. If the borrower denies ever taking the loan, such a promissory note can be used to obligate him to pay.

For there is not enough space for him to write.

The intent is not the scribe and the witnesses who signed this particular document, but scribes and witnesses at large. Thus, with the term witnesses, the Rambam means ordinary people, individuals who are not trained to write professionally (Maggid Mishneh).

A scribe is trained to write, and his penmanship is more controlled than that of the witnesses. They, by contrast, will write more carelessly and require more space.

Whose top protrudes above the line.

Whose end protrudes below the line. Thus, we are speaking about room to write two lines and leave three spaces in between them: one for the protrusion above the line, one for the protrusion below the line, and one for the space between the two [Shulchan Aruch (Choshen Mishpat 45:9)].

These individuals must explicitly have the intention that they are signing not as witnesses, but merely to fill in the space. If they sign as witnesses, they disqualify the legal document. See Shulchan Aruch (Choshen Mishpat 45:12).

I.e., these individuals signed the document to fill in the empty space.

There is no possibility of the document being cut off and a new one being composed above the signatures of the witnesses.
The Maggid Mishneh quotes a difference of opinion among the commentaries when the others must sign to fill up the space. The Rashba states that the document must already be filled with the signatures before it is given to the purchaser or the lender. For otherwise, they are transferring an unacceptable legal document. Alternatively, it may be taken back from the lender or the purchaser, filled with other signatures and returned to him. In that instance, the document takes effect from the time it is returned to the lender or the purchaser.
The Ra’avad, by contrast, states that the purchaser or lender can have these signatures added on his own before he brings the document to court. The Shulchan Aruch (Choshen Mishpat 45:14) quotes both of these opinions without favoring one over the other. Both the Maggid Mishneh and the Shulchan Aruch (loc. cit.:15) emphasize that there is room for leniency with regard to legal documents that were affirmed with a kinyan. In certain situations, they can be corrected later, for the kinyan establishes the contractual agreement.

I.e., they acknowledged that the lines were added there with the full consent of both principals.

If the authenticity of the signatures of the witnesses is verified, there is no question that there was any forgery on that one line.

And yet they had no knowledge whatsoever of this second document.

As the Rambam proceeds to explain, we fear that the signatures of the witnesses below are genuine, but they had not signed on this legal document, but rather on another document that was cut off. The signatures of the witnesses on the same line as the document, by contrast, we fear are forgeries. Hence, we require the bearer of the legal document to validate those signatures for the document to be acceptable.

For which the witnesses below had signed.

I.e., the judges should sign on the margin to the right or the left of the legal document. In their statement, they must emphasize that the legal document is to their right or to their left.

Here also when doing so, they state that the signatures of the witnesses to the document on the other side of the page are authentic. Otherwise, a new document could be written above their signatures.

I.e. the court’s statement. The document itself, by contrast, is still valid (Maggid Mishneh).

The Maggid Mishneh emphasizes that lines of ink are acceptable. If, however, the entire portion was covered with ink, it is not acceptable. We fear that a legal document had been written there that the witnesses signed. A person then blotted that document out and composed a new one above it that the witnesses never saw.

There is no fear that a false document will be written in the empty space, because it has been filled.

As we suspected with regard to the signature of witnesses. See Halachah 4.
The Rashba does not accept the Rambam’s ruling and maintains that even when judges position their signatures far from the document, that validation cannot be corrected. In his Beit Yosef, Rav Yosef Karo maintains that the Rashba’s position is also shared by Rabbenu Yitzchak Alfasi and Rabbenu Asher. Hence, he mentions both perspectives in his Shulchan Aruch (Choshen Mishpat 46:32). Sefer Me’irat Einayim 46:80 and the Siftei Cohen 46:88 do not accept that interpretation of the positions of Rabbenu Yitzchak Alfasi and Rabbenu Asher. And the Siftei Cohen argues both forcefully and at length in favor of the Rambam’s view.

I.e., when a portion of a document is written on a surface where there have been erasures, before completing the document and writing sharir v’kayam, the scribe must mention all the words that were written on the erased surface. In this way, the witnesses are attesting to the authenticity of the document as it appears before them.

The Maggid Mishneh notes that this addition teaches an important concept. With regard to words that are attached between the lines, the Tosefta (Bava Batra 10:5) states that if they are not validated, they are not considered, but the document as a whole is not disqualified. The same concept, the Maggid Mishneh postulates, applies when a word is written on a surface that was erased, and the word is not validated. That word is not considered, but the document as a whole is accepted.
The Tur (Choshen Mishpat 44) differs and maintains that it is possible that the person in possession of the legal document erased a point that ran contrary to his own interests and wrote something else instead. If the legal document was validated as is, the interests of the other party could thus be impinged. The Shulchan Aruch (Choshen Mishpat 44:5) quotes the position of the Maggid Mishneh, while the Ramah cites the Tur’s view.

I.e., the conclusion of the document where it is customary to state hakol sharir v’kayam, “Everything is affirmed and valid.”

I.e., we fear that the document originally ended before the place it ends at present. The person in possession of the document erased the words sharir v’kayam, added a clause that is to his benefit, and then wrote sharir v’kayam again. Thus, the signature of the witnesses will be genuine, but the document will have been falsified.
The Rambam’s wording implies that sharir v’kayam is written after the scribe mentions all the words written on surfaces where there are erasures. The Tur (Choshen Mishpat 44), by contrast, states that the scribe can mention the erasures after sharir v’kayam. See also the Maggid Mishneh and Sefer Me’irat Einayim 44:7, which mention this issue.

Thus, the court will be able to see that the surface on which the document itself was written has been erased twice, and the surface on which the witnesses signed was erased only once. Hence, they will disqualify the document.

There is a slight difficulty with this situation, for seemingly the witnesses would realize that the document was erased only once, and the place where they signed was erased twice. Note Sefer Me’irat Einayim 45:43, which offers two resolutions.

In such a situation, it is likely that they would realize that the document had been erased only once, and the place where they signed twice.

I.e., on the same piece of paper, but on a portion on which there had not been erasures previously.

I.e., the judges [Shulchan Aruch (Choshen Mishpat 46:33)].

I.e., because of the suspicion explained by the Rambam, we do not accept the previous validation of the document and require that the signatures of the witnesses be validated again.

See Halachah 7.

Sejer Me’irat Einayim 46:89 states that we do not suspect that the person erased the entire document and the signature of the witnesses, because such a large erasure would be distinguishable. See also Siftei Cohen 46:81.

To negate that supposition, the signatures of the witnesses that are in question must be validated.
The Shulchan Aruch (Choshen Mishpat 46:33) also quotes the opinions of Rabbenu Yitzchak Alfasi and Rabbenu Asher, who maintain that it is sufficient to validate the signature of the judges. The Shulchan Aruch does not state which of these views he favors.

In the future.

Thus, it will be possible to verify the authenticity of the signatures, and yet, the witnesses will never have seen the document written above their signatures.

Thus, the document and the signatures of the witnesses will look uniform. As stated in Halachah 9, such a document would be validated by the court.

For in this instance, the document could not be erased and another substituted in its place.

The Shulchan Aruch (Choshen Mishpat 45:21) rules that this is not merely a suggestion. If this statement is written above or below the signatures of the witnesses, the document is not acceptable.

If the statement were included after the signatures of the witnesses, it could be cut off and then the document could be erased. If it were placed above the signatures of the witnesses, it could be erased together with the entire document (Sefer Me'irat Einayim 45:46).

Since the signatures of the witnesses can be validated, the document will look authentic.

As stated in Halachah 9.

These laws are derived from the conduct of Abbaye, who, as Bava Batra 167a relates, carefully scrutinized two legal documents brought before him and discovered each of these types of forgery.

When quoting this law, the Tur and the Shulchan Aruch (Choshen Mishpat 42:3) state that for this reason, a scribe should compose a legal document using an ordered and even script.

The Ramah (Choshen Mishpat 42:4) states that one may write the masculine sheloshah, because that word ends in a hei. To forge the document, one would have both to erase and to rewrite, and such changes would be noticeable.

This is possible by adding two letters, a yud and a mem. The fact that the text of the document will then project slightly into the margin is not significant.
The Shulchan Aruch (Choshen Mishpat 42:4) adds that one should not write the numbers as letters - e.g., a bet for 2 - for a minor alteration can cause it to appear as a chaf, numerically equivalent to 20, or a reish, numerically equivalent to 200.

Rewriting either a portion of the text or the text in its entirety.

If necessary - i.e., if when the document is written a second time, a number comes out at the end of the line - the concepts should be restated again until all the numbers come out in the middle of the line (Sefer Me'irat Einayim 42:8).

100 zuz.

We assume that the person composing the document changed his mind in the middle and the final sum mentioned is what he agreed upon (Sefer Me’irat Einayim 42:11).
The Hagahot Maaimoniot [and his words are quoted by the Shulchan Aruch (Choshen Mishpat 42:5)] states that if the differences between the two portions of the document are not conflicting and can be easily resolved, we accept them both, for it is unlikely that a person composing a legal document would contradict himself.

For, as stated in Halachah 16, the bearer of a promissory note is always placed at a disadvantage, for he is trying to expropriate property from a colleague. In this instance as well, seemingly he should be given the lesser of the two amounts.

For in this instance, the two amounts are interrelated. There is obviously an error, and so, because of the doubt that is generated, the lender is given the lesser amount.

Because these are his final statements.
Together with the Rambam’s view, the Shulchan Aruch (Choshen Mishpat 42:5) also quotes the opinion of the Tur that maintains that when the upper portion of the document gives a detailed account of moneys owed, and the lower portion just mentions a total, if there is a discrepancy between the two, we follow the upper portion. We assume that the person erred while tallying the total.

Instead, the document is disqualified, because of the rubbed-out portion [Shulchan Aruch (Choshen Mishpat 42:6)].
Sefer Me’irat Einayim 42:17 writes that we disqualify a document when two letters have been rubbed out only when it is in the hands of a third party - e.g., a third party has a document whose upper portion states Chanani and its lower portion states Chan, and he is unsure whether to give the document to Chanani or Chan. When, however, the document is in the possession of either Chan or Chanani, they can use it to expropriate property.

An acronym for the words se’ah p’lag, meaning a se’ah and a half (the interpretation of Bava Batra 165b advanced by Rabbenu Yitzchak Alfasi and Rav Yosef MiGash).

An acronym for kav p’lag, a kav and a half (ibid.), a much smaller measure.

A kuf without its left leg is somewhat similar to a samech. In this instance, since there is a way that we can explain the contradiction between the two portions of the document, we accept that explanation rather than follow the amount stated in the lower portion of the document.
The intent is not that we expect a fly to rub out the ink of a letter and not to extend it, but that since there is a doubt, we grant the bearer of the promissory note no more than the lesser amount (Sefer Me’irat Einayim 42:21).

The rationale is, as stated in the following halachah, that since there is a doubt involved, and the bearer of the legal document seeks to expropriate property, he must prove his claim beyond any shadow of a doubt.
Note the conclusion of the following halachah, which states that in all situations where this general principle is applied, if the bearer of the promissory seizes movable property belonging to the borrower - since he is now in possession - he is given the benefit of the doubt.

A coin of the Talmudic period. The Rambam appears to share the opinion of Rabbenu Chanan’el and the Rashbam (Bava Batra 167a) that an isteira was equivalent to half a zuz. Significantly, Rav Yosef MiGash, the Rambam’s teacher, maintained that it was worth two zuz.

This applies with regard to questions concerning the intent of the promissory note. When, however, there is a question regarding the validity of the promissory note, we proceed on the assumption that it was written in an acceptable manner (Maggid Mishneh, gloss on Chapter 23, Halachah 4).

A copper coin of minimal value, the least valuable coin of the Talmudic era.

A zuz was worth 192 p’rutot. Instead of writing 600 p’rutot, the scribe would have written 3 zuz and 24 p’rutot. In contrast, since the value of an isteira is comparable to that of a zuz, it is likely to be considered independently.

I.e., the prevailing business practices within a community, whether or not they have their source in the Torah’s guidelines [Shulchan Aruch (Choshen Mishpat 42:15)].

M’ie is the plural of me’ah. Although usually, that term is used to refer to a silver coin worth one six of a zuz, in this instance, the intent is 100 copper m’ie. A copper me’ah is equal in value to a p’rutah.

I.e., we do not know if the intent is 100 isteira or 100 m'ie.

We assume that the 100 refers to m’ie, for that is the smaller sum. An isteira is worth 96 p’rutot. Thus, we can assume that the meaning of the promissory note was “an isteira, that is worth 100 m’ie.” For the value of the p’rutot were rounded off slightly.

I.e., since the money is in the possession of the borrower, the bearer of the promissory note cannot expropriate it unless he proves his claim. If not, “possession is nine tenths of the law,” and the borrower is allowed to retain possession of the money.

This applies when the person seizes movable property or money. If, however, he seizes landed property, he is forced to return it, for the above rationale does not apply (Siftei Cohen 42:16).

There are some opinions that maintain that this law applies only when there are no witnesses that the person seized the property. Their rationale is that in such a situation, we accept the bearer’s claim, because of the principle of miggo - i.e., had he desired, he could have denied taking the money entirely. Hence, when he says that he took it because it is due him, the borrower must prove that this is not so.
The Maggid Mishneh, however, states that this law applies even when the bearer of the promissory note seized the property in the presence of witnesses. He explains that, in the previous instance, the reason that the borrower was allowed to keep the money is that he was in possession. For that very same reason, should the bearer of the promissory note seizes possession, the borrower must prove the legitimacy of his claim. For in this situation, the borrower is considered as expropriating the money from the bearer of the note, who is now in possession.

For this was the smallest golden coin of the Talmudic era.

Since it uses the plural, we assume that at least two coins were involved.

We interpret the wording as meaning “the value in gold for two dinarim.” Since those dinarim are not specified as being of gold, we assume they were of silver. One golden dinar was worth 25 silver dinarim.
The Ramah (Choshen Mishpat 42:13) states that in all instances, the bearer of the promissory note is granted the lesser amount.