Rambam - 3 Chapters a Day

The following laws apply when a lender comes to expropriate property on the basis of a promissory note in his possession and the borrower is not present: If it is possible to send a messenger to the borrower and notify him so that he can confront the lender in judgment, we send a messenger and notify him.

If it is impossible to notify the borrower speedily, we instruct the lender to take an oath, and then to expropriate property belonging to the borrower, either landed property or movable property. We do not consider the possibility that the borrower repaid the debt and the lender gave him a receipt.

This law is an ordinance of the Sages, enacted so that people at large would not take money belonging to a colleague and go to dwell in another city. For this would hinder the possibilities of loans being granted in the future

The lender must bring proof of three matters to the court before he can expropriate property from the borrower outside his presence:

a) he must verify the authenticity of the promissory note in his possession;

b) he must prove that the debtor is in another city and is not present to defend himself in court;

c) he must prove that the property that he wishes to expropriate belongs to so-and-so, the borrower.

The following rules apply when a lender comes to the court, bringing security that is in his possession and says: "This security belongs to so-and-so, and I desire to sell it to receive payment of the debt he owes me." The court does not take action and does not tell him: "Wait until the borrower comes and lodges his claim." The rationale is that had the lender desired to say that the security had been purchased his word would be accepted. The court advises him to sell the security in the presence of witnesses, so that the borrower will know for how much the security was sold.

Similarly, when a person gives a loan to a colleague and receives security in return, and then both the borrower and the lender die - regardless of whether the borrower or the lender dies first the lender's heirs may take an oath and collect the debt.

The lender's heir must take an oath holding a sacred object, before he takes payment from the security, as is done by all those who take an oath and collect their due. His word is accepted, because he is taking payment from property that is in his physical possession. Had he desired, he could have said that he had purchased the property.

Why is the creditor not required only to take a sh'vuat hesset? Because he is not taking an oath that the security is his, but rather that the money is owed him. If he lodged a claim concerning the article itself, saying "You sold it to us," or "You gave it to us," he would be able to take a sh'vuat hesset and be freed of responsibility. If, by contrast, there were witnesses who would testify that this article was given to the lender as security, but they did not know for what amount, he would be able to collect the money only after taking an oath. Since there are no witnesses, the lender would be able to claim: "It is mine." Therefore, we accept his word when he says: "So-and-so much money is owed to me and this is security for that debt," provided that he takes the same oath he would take if there were witnesses who would testify that the article was given as security.

We do not free him of the responsibility of the oath, because we do not employ the principle of miggo to free a person of the responsibility to take an oath, but only to free him of financial responsibility - i.e., he is not required to return the security before he takes what he claims.

The following rules apply when a person lends money to a colleague and receives security for the loan. Should the security be lost or stolen in a manner that is not beyond the lender's control, the lender is liable for the value of the security, as explained. If the lender says: "I lent you a sela for that security, but it was worth only two dinarim" and the borrower says: "You lent me a sela for that security, and it was worth a sela" the lender must first take the oath taken by watchmen that the article is not in his possession. The borrower then must take a sh'vuat hesset that the security was worth the amount of the debt, and he is freed of responsibility.

If the lender says: "I lent you a sela for that security, but it was worth only two dinarim" and the borrower says: "You lent me a sela for that security, and it was worth three dinarim" the lender must first take an oath that the article is not in his possession. Afterwards, the borrower must take a Scriptural oath how much the article was worth; this is required because he acknowledged a portion of the plaintiff's claim. He then pays the dinar that he admits to owing.

If the borrower says: "You lent me a sela for that security, and it was worth two sela'im" and the lender says: "I lent you a sela for that security, and it was worth a sela" the lender must take an oath that the article is not in his possession and include in that oath that the security was worth only the amount of the debt.

If the borrower says: "You lent me a sela for that security, and it was worth two sela'im," and the lender says: "I lent you a sela for that security, and it was worth only five dinarim, the lender must take an oath that the article is not in his possession and include in that oath that the security was not worth more than five dinarim. He must then pay the dinar.

If the lender says: "I lent you a sela for that security, but it was worth only two dinarim" and the borrower says: "I do not know how much it was worth," the lender must take an oath that the article is not in his possession and include in that oath that the security was worth only two dinarim. The borrower must then pay the remainder of the debt. The rationale is that he definitely knows that he is liable for the two dinarim and does not know whether or not he repaid the debt.

If the borrower says: "You lent me a sela for that security, and it was worth two sela'im" and the lender says: "I lent you a sela for that security, and I do not know how much it was worth," the lender must take an oath that the article is not in his possession and include in that oath that he does not know that the security was worth even a p'rutah more than the debt. He is then freed of responsibility, because he did not obligate himself at all. If, however, the lender said; "I know that the security was worth more than the loan, but I do not know how much more," he must pay everything that the borrower demands; the borrower is not even required to take an oath. This resembles an instance when a plaintiff lodges a claim for a 100 zuz, and the defendant responds: "I owe you 50, but I do not know whether or not I owe you the other 50." Such a person is obligated to take an oath, but cannot take the oath. Therefore, he must pay, as will be explained. He may, however, have a ban of ostracism issued against anyone who makes a false claim.

When a person lends money to a colleague and establishes a date when the loan must be repaid, even though he does not affirm the matter with a kinyan, he may not demand payment until the conclusion of that period of time. This applies regardless of whether the loan is supported merely by an oral commitment, by a promissory note, or by security, or whether the borrower or the lender dies.

When no other term is mentioned, the term of a loan is 30 days. This applies regardless of whether the loan is supported merely by an oral commitment, by a promissory note or by security. If the lender stipulated that he could demand payment whenever he desires, he has the right to demand payment even on the day the loan was given. The rationale is that this is a stipulation involving monetary issues.

If the lender claims: "Today is the conclusion of the term I established for the loan," and the borrower responds: "You granted me another ten days," the borrower must take a sh'vuat hesset to support his claim. If there is one witness who testifies that the loan was due that day, the borrower must take a Scriptural oath, as is the law with regard to other claims.

If the lender claims: "There are only five days left before the loan is due," and the borrower responds: "There are ten days left," we tell the lender: "Wait until the end of the five days and then have the borrower take an oath that five days remain."

If the loan was supported by a promissory note and the borrower claims: "You established a time for me to pay the debt," it appears to me that the creditor should take a sh'vuat hesset that he did not place any time limit on the loan. He may then collect the loan immediately.

Payment for a loan may be demanded in any place.

What is implied? When a person lends money to a colleague in a settled place and demands payment from him in a desert, the borrower may not postpone payment. Instead, he is obligated to pay him wherever he demands payment.

If the borrower seeks to repay the loan in the desert, the lender is given the option. If he desires, he may accept payment. If he desires, he may tell him: "Pay me back only in a settled area, just as I gave you the money in a settled area." The money then remains the borrower's responsibility until he pays the lender in a settled area.

In the following situations, despite the fact that he possesses a promissory note, a lender may collect payment only after taking an oath that resembles one required by Scriptural Law:

a) a person who impairs the legal power of a promissory note;

b) a person who produces a promissory note that one witness testifies has been paid.

c) a person who seeks to collect payment outside the borrower's presence;

d) a person who expropriates property from purchasers;

e) a person who seeks to collect a debt from heirs, whether below majority or above majority.

When such a person comes to take the oath, we tell him: "Take the oath and collect your due." If the loan was not due until a specific time, and he demands payment on the day the loan was due, he may collect payment without taking an oath. Once the day the loan is due has passed, he may collect payment only after taking an oath.

The following rules apply when a person demands payment from a colleague for a debt recorded in a promissory note, the borrower claims that he paid this promissory note, and the possessor of the note claims that he did not pay anything. The court tells the borrower: "Pay him."

If the borrower demands: "Have him take an oath for me that I did not pay him and then collect the debt," the court requires the lender to take an oath while holding a sacred object, that he did not pay him at all or that he paid him only such-and-such. Afterwards, he may collect his claim. If the lender is a Torah scholar, the court does not require him to take an oath.

There is a difference of opinion among the Geonim in the following situation. The lender produces a promissory note whose authenticity has been verified. The borrower claims: "This promissory note is false, I never wrote it," "This promissory note involves interest," "... or a shade of interest," "It was given on faith," "I wrote it with the intention of borrowing, but I never took the loan" - i.e., he issues a claim that if acknowledged by the lender would nullify the promissory note. The lender maintains that the promissory note is genuine and that the borrower is issuing a false claim. The borrower demands that the lender take an oath before collecting.

There is one opinion that rules that the holder of the promissory note is obligated to take an oath that resembles a Scriptural oath, just as when the borrower claimed that he paid the debt. My teachers by contrast ruled that the lender should not be compelled to take an oath unless the borrower claims that he paid him. The rationale is that he acknowledged the validity of the promissory note, and that debt is fit to be repaid. We do not, by contrast, accept the borrower's word with regard to all these other claims to nullify the legal power of a promissory note whose authenticity has been verified. Instead, the borrower should pay, and afterwards lodge any claim against the lender that he desires. If the lender acknowledges the claim, he will return the money to him. If he denies it, he will take a sh'vuat hesset. My opinion also leans towards this view.

Our Sages issued these rulings in the following situation: A lender produced a promissory note, demanding payment from a colleague. He claims that he was not paid at all. The borrower claims that he repaid half the debt, and witnesses testify that the entire debt was repaid. The borrower must take an oath and then pay the other half. The rationale is that he admits to owing a portion of the debt. He is not considered to be comparable to a person who returns a lost object, because the promissory note causes him to be afraid. The lender may expropriate this half of the debt only from landed property that is within the borrower's possession. He may not attach property that has been sold. The rationale is that the purchasers will say: "We rely on the testimony of the witnesses and they have nullified the legal power of this promissory note."

The following rules apply when a lender produces a promissory note whose authenticity he is not able to verify, and the borrower says: "It is true that I wrote this promissory note, but I repaid it," "It was given on faith," "I wrote it with the intention of borrowing, but I never took the loan," or another claim of this nature. Since the borrower could have claimed, "This never happened," and our acceptance of the promissory note is dependent on his statements, his word is accepted. He may take a sh'vuat hesset and be freed of responsibility.

If the lender is able to verify the authenticity of the promissory note afterwards in court, it is considered as any other promissory note.

The lender's claim is not accepted in the following situation. The lender produces a promissory note whose authenticity has been verified, and the borrower claims: "It is a forgery, and I never wrote it," or "It was given on faith." The lender states: "That is true, but I had an acceptable promissory note and it was lost." Although it was the lender who invalidated his promissory note, and had he desired, he could have said: "It is not a forgery," for its authenticity was verified by the court, he cannot use it to expropriate property at all. Instead, the borrower may take a sh'vuat hesset and be freed of responsibility, for the promissory note is likened to a shard.

When a promissory note was used for a loan and then repaid, it may not be used again. For the lien it created was already waived, and it is likened to a shard.

The following laws apply when the lender produces a promissory note whose authenticity has been verified demanding payment from a colleague, the borrower replies: "Did I not pay you," and the lender answers: "You did, but I returned the money to you and then lent it to you a second time." The promissory note that he repaid is nullified, and it is likened to a shard.

If, however, the lender says: "I returned the money to you, because the coins were not good so that you could exchange them," he did not nullify the promissory note, and the lien it created still exists.

A promissory note is disqualified in the following situation. A lender produces a promissory note whose authenticity has been verified that indicates that the borrower owes him a maneh. The borrower states: "Did I not pay in the presence of so-and-so and so-and-so." Those witnesses come and testify that the borrower indeed repaid the lender, but did not mention the promissory note. The lender replies: "It is true that you paid me, but you repaid me for another debt that you owed me." The lender's word is not accepted, and the promissory note is nullified.

When does the above apply? When the witnesses testify that the borrower gave the lender the money as repayment of a debt. If, however, they saw him give him money, but did not know whether it was given as repayment of a debt, for safekeeping or as a present different rules apply.

If the possessor of the promissory note says: "He never repaid me," he is established as a liar, and the promissory note is nullified. If he says: "It was payment for another debt," his word is accepted. He must take an oath and then he may collect the money mentioned in the promissory note. The rationale is that the borrower did not repay him in the presence of witnesses. Hence, since the lender can claim: "You gave them to me as a present," his word is accepted if he says that the money was given to him as repayment for another debt.

A promissory note is, by contrast, nullified in the following situation. The borrower told the lender: "This promissory note was composed for the price of a steer that I purchased from you, and you collected the money for its meat already." The lender replied: "Yes. The promissory note was composed for that purpose, but I collected the money for that debt with the understanding that the promissory note would apply to another debt that you owe me." The rationale is that the lender himself admitted that the debt mentioned in the promissory note was for the meat of the steer, and that he received payment for that debt. This applies even if there are no witnesses that the money was given for the payment of that debt. Hence, all that is necessary is that the borrower take a sh'vuat hesset that he paid the debt. Similar principles apply in all analogous situations.

When a lender produces a promissory note that is signed by one witness and the borrower claims that he paid the debt, the borrower is obligated to take an oath. And since he cannot take that oath, he must make financial restitution.

If the borrower demands of the lender: "Take an oath that I did not pay the debt," he must take the oath. The rationale is that even if two witnesses were signed on the promissory note and the borrower demanded: "Take an oath that I did not pay the debt," the lender would be obligated to take that oath, as we have explained.

Similarly, my teachers ruled that when a person denies a loan supported by an oral commitment in a court, and one witness testifies that he borrowed the money, the defendant is required to take a Scriptural oath. If the defendant reversed his position and said: "Yes, I took the loan, but I repaid it," "... the lender waived payment in my favor," or "... owes me money because of another matter," we consider him to be a person who is required to take an oath, but who cannot take the oath, and must therefore make financial restitution.

The following rules apply when a defendant claims that he paid a promissory note, but says: "Let the lender take an oath. If he does, he can collect the debt." We tell the defendant: "Bring your money to the court. Then he will take the oath and collect the debt." If the defendant does not have the funds to pay, we require him to take an oath, as ordained by the Geonim, that he has no financial resources. When he acquires resources, he must pay the creditor, but first he may require him to take an oath that the debtor did not repay him previously. Afterwards, the debtor must pay him.

The following laws apply when a person is owed a debt by a colleague that is supported by a promissory note, the promissory note becomes lost, but the witnesses are still present. Even though the debt was affirmed in the presence of the witnesses by a kinyan, if the borrower claims that he paid the debt, he is required only to take a sh'vuat hesset.

My teachers ruled that even if the debt was given for a specific time, and the due date had not yet arrived, when a promissory note was written, it is no longer in his possession and the borrower claims that he repaid the debt, the borrower's word is accepted provided that he takes an oath that he paid the lender. The rationale is that we suspect that he paid him and for that reason he tore the promissory note or destroyed it by fire.

Similarly, my teachers ruled that even if the promissory note is in the possession of another person and the borrower claims: "It fell from my possession after I paid it," he must take a sh'vuat hesset, and then he is released from all obligations. This applies even if the due date of the promissory note has not arrived. Since the promissory note is not in the possession of the lender, we do not operate under the presumption that the debt is outstanding.

The following laws apply when both the borrower and the lender are holding on to the promissory note, and the lender says: "It is mine and I took it out to demand payment from you," and the borrower says: "I repaid you and it fell from my possession." If the authenticity of the promissory note can be verified, both claimants are each required to take an oath that no less than half the value of the promissory note belongs to them. The borrower then pays half. If the authenticity of the promissory note cannot be verified, the borrower must take a sh'vuat hesset, and then he is released from all obligations.

Our Sages ordained that precautions be adopted to protect the borrower's interest in the following situation. A person claims of his colleague: "You owe me a maneh." The colleague responds: "I do not owe you anything" or "I paid you." The plaintiff demands: "Take a sh'vuat hesset for me," and the borrower responds: "You have a promissory note concerning this debt. You want to compel me to take an oath first and then produce the promissory note and use it to collect payment."

We tell the lender: "Produce the promissory note." If the lender says: "I never had a promissory note against this person," or "I had a promissory note and I lost it," my teachers ruled that we tell the lender: "Nullify the legal power of any promissory note you possess until the present time. Afterwards, you can require him to take a sh'vuat hesset. Alternatively, have a conditional ban of ostracism issued and go and seek until you find the promissory note.

When a person lends money to a colleague in the presence of witnesses and tells the borrower: "Do not repay me outside the presence of witnesses," the borrower must repay him in the presence of witnesses because of this stipulation. This applies whether he made this stipulation at the time the loan was given or after the loan was given.

If the borrower claims: "I fulfilled the stipulation and repaid you in the presence of so-and-so and so-and-so, and they journeyed overseas or died," his word is accepted. He may take a sh'vuat hesset, and then he is freed of responsibility.

Similarly, if the lender states: "Repay me only in the presence of Torah scholars," or "... in the presence of doctors," and the borrower claims: "I repaid you in their presence, but those witnesses in whose presence I repaid you died or journeyed overseas," his word is accepted. He may take a sh'vuat hesset, and then he is freed of responsibility.

If, however, the lender stipulates: "Do not repay me except in the presence of so-and-so and so-and-so and so-and-so," and the borrower claims: "I repaid you in the presence of other witnesses, and they died or journeyed overseas," his word is not accepted. Indeed, the lender stipulated: "Do not pay me except in the presence of Reuven and Shimon," who are standing with him, so that the borrower will not rebuff him, saying: "I repaid you in the presence of other people, and they journeyed away."

There are versions of the Talmud that state that when a person tells a colleague: "Do not repay outside the presence of witnesses," and the borrower claims: "I fulfilled the stipulation and repaid you in the presence of so-and-so and so-and-so, and they journeyed overseas or died," his word is not accepted. This is a scribal error. For this reason, the halachic authorities erred because of those texts. I have researched ancient versions of the text and I found that they state that the borrower's word is accepted. In Egypt, a portion of an ancient text of the Talmud written on parchment, as was the custom in the era approximately 500 years before the present era, came to my possession. I found two versions of this law among those parchments. Both state: "If he claims: 'I fulfilled the stipulation and repaid you in the presence of so-and-so and so-and-so, and they journeyed overseas or died,' his word is accepted."

Because of the error that occurred with regard to some texts, there are several Geonim who ruled that if the lender stipulates: "Do not repay me except in the presence of so-and-so and so-and-so," and the borrower repaid him in the presence of others, the borrower's word is not accepted even if he brought witnesses, and they testify that he paid him in their presence. This is also a great mistake. The true law is that if witnesses come and testify that he paid the lender in their presence, the borrower is freed from responsibility; there is no place for suspicion.

This ruling also stems from those texts that state with regard to a lender who tells his colleague: " 'Repay me in the presence of witnesses who study Torah law,' and the borrower repaid him in the presence of ordinary witnesses...." This is also a scribal error. In the above-mentioned parchments, I found it written: "And he went and paid him in private."

Although these texts have been carefully edited, this appears to be the ruling based on the judgment of the Talmud. Moreover, these concepts make sense: What should the borrower do? The lender told him: "Do not repay me except in the presence of witnesses," and he repaid him in the presence of witnesses. Should he have locked the witnesses in prison for their entire lives so that they do not depart? Besides, what could he do if they died? Thus, the borrower will be forced to pay the lender time after time until he brings witnesses to court. This makes this testimony equivalent to testimony recorded in a legal document. Thus, by saying: "Do not repay except in the presence of witnesses," the lender endows the loan with the strength of a loan recorded in a promissory note. There is no one who would think that this is correct.

Instead, certainly, if the lender stipulated: "Do not repay me except in the presence of so-and-so and so-and-so," the borrower caused himself a loss if he repaid the loan in the presence of other witnesses who departed. If, however, these witnesses come and testify that he repaid the debt, there is no question that the borrower should not be held responsible. This is the manner in which judgment should be rendered and instruction should be given.

If the lender had the borrower agree to the stipulation that the lender's word would be accepted whenever he claimed that the borrower did not pay him, he may collect the debt without taking an oath. This applies even though the borrower claims that he paid him. If, however, the borrower brings witnesses who testify that he paid him, the lender is not entitled to expropriate any funds.

If the lender had the borrower agree to the stipulation that the lender's word would be accepted as the testimony of two witnesses, even if the borrower brings witnesses who testify that he paid him, he may collect the debt without taking an oath. For he accepted his word as that of two witnesses. This law applies even if the borrower brought 100 witnesses that he paid the lender, for the legal power of two witnesses is the same as that of 100 witnesses.

If, however, the borrower told the lender: "I accept your word as that of three witnesses," since he mentioned a number, if the borrower pays the lender in the presence of four witnesses, we consider the debt to be paid. When a person accepted the lender's word as equivalent to that of two witnesses, how can he correct the matter? When he pays, he should have the promissory note ripped up, the lender testify that he nullifies every promissory note he has against so-and-so, the borrower, or the lender give testimony against himself outside the presence of the borrower that he received payment for all debts owed to him by so-and-so the borrower.

If the borrower pays the lender, the lender claims that he was not paid, and the borrower paid him a second time because of the stipulation, the borrower can lodge a suit against the lender claiming: "You owe me such and such, because I paid you twice." If the lender acknowledges the borrower's claim, he must repay him. If he denies the claim, he is required to take a sh'vuat hesset, stating that the borrower paid him only once. Similar principles apply in all analogous situations.

When the borrower had the lender agree to the stipulation that the borrower's word would be accepted whenever he claimed that he paid the debt, the lender may not collect this debt on the basis of this promissory note - neither from the borrower's heir, nor from a person who purchased property from him. Moreover, even if the borrower said: "I did not pay this debt," the lender may not use this promissory note to expropriate property from a person who purchased property from the borrower. The rationale is that we suspect that the lender and the borrower perpetrated an act of deception to take the purchaser's property.

If the borrower claims to have paid a portion of the debt recorded in this promissory note, and the lender claims that he did not pay anything, the borrower is required to pay the portion that he admitted to owing. With regard to the remainder, he is required to take a sh 'vuat hesset. The rationale is that the lender accepted his word. If he originally stipulates that his word would be accepted without having to take a sh'vuat hesset, he is not required to take that oath.

If the lender stipulates that his word will be accepted without his having to take an oath, he may collect the debt without taking an oath. If, however, he must collect the debt from the borrower's heirs, he must take an oath; only afterwards may he collect the debt. If, however, he stipulated that he would also be able to collect from the heirs without taking an oath, he may collect the debt from them without an oath.

Similarly, if the lender stipulates that he will be able to expropriate the most valuable property owned by the borrower, he may expropriate that property, even from the heirs. The rationale is that any stipulation made with regard to financial matters is binding.

If the lender comes to collect from a person who purchased property from the borrower, he may expropriate the property only after taking an oath. The rationale is that the borrower may not accept a stipulation that will cause a colleague a loss.