Malveh veLoveh - Chapter 22

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

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

Movable property.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Note the contrast to the following halachah.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For the same reason stated above.

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

The borrower.

The lender.

The purchaser.

See Chapter 21, Halachah 1.

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

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

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

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

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

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

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

The lender.

I.e., instead of the purchaser.

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

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

100 zuz.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In payment of her debts.

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

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