Translation:Shulchan Aruch/Choshen Mishpat/108

Paragraph 1- An oral loan can only be collected from inheritors in one of three ways, which are: the obligated party confessed and while he was sick he informed us that so and so has a debt against him, the loan had a repayment date which has not yet arrived or the borrower was ostracized until he repaid and he died while still ostracized. In all these cases, we can collect from inheritors without an oath. If, however, witnesses came and testified that the their father owed this person a maneh, the lender cannot collect anything from the inheritor because the father may have paid back. If, however, the orphans claimed that their father never borrowed, it is as if they said the debt was not collected and since there are witnesses that he borrowed they would be obligated to pay, as is explained later in seif 15 in this Siman. Similarly, if the lender produces their father’s handwriting stating that he owes him money, the lender cannot collect anything because the father may have paid back. See above Siman 69. If the lender died, and the inheritors come to collect from the borrower and it is one of the aforementioned three cases, the inheritors can collect without an oath, even though the borrower died while the lender was still alive. If it is not of the three cases, they cannot collect from the borrower’s inheritors, even if they do not make any claim, because we make a claim for them that their father paid back. If creditors incurred medical expenses on the deceased while he was sick, it has the same rules as any other debt in that if we know how much was spent and that it was not collected in the debtor’s lifetime, they can collect from the orphans. Otherwise, they cannot collect. The deceased’s wife is not believed [to say he did not pay back- Sma].

Paragraph 2- There are those that say that if one is obligated by a court to pay money because of snitching to the authorities and he died, they may collect from the inheritors. If, however, they obligated him to pay a penalty, they would not penalize his children in his place.

Paragraph 3- We would not collect any loan incurred by the father of minor orphans so long as they are minors and not 13 years old, even if the creditor had a verified document with a believability clause and every condition in the world, because they may have proof that would negate the document, unless this loan was of the three aforementioned cases. Even an oral loan can be collected from minor orphans in one of the three aforementioned cases. In the case of where it was before the deadline to repay, the testimony must have been accepted while their father was still alive, because otherwise we would not accept testimony against a minor, even in the minor’s presence. If the orphans were adults and the creditor produced a verified document, he can collect without an oath, even if it was not one of the three cases, if the document has an explicit believability clause on the borrower and his inheritors or those that come via the borrower because inheritors are included in those that come via the borrower. If the document does not contain a believability clause, however, or even if it has a general believability clause without saying that is effective against his inheritors or those that come via the borrower, the creditor must swear a biblical-type oath while grasping a holy item. If he does not want to swear, the law is as was explained in Siman 82.

Paragraph 4- If one produces an iska document against inheritors, half of the money has the status of a loan and the lender would swear and collect and the other half he would not be able to collect, even with an oath, because had their father been alive he would be believed to say he returned the money with a migu that an unavoidable accident occurred so in this case the court makes the claim on behalf of the inheritors. This is only where the inheritors did not have an appointed guardian. If, however, they had an appointed guardian we first see if he will make this claim on their behalf. If he does not, the court will make it for them. The lender cannot place an oath on them but rather a general cherem. If, however, we are unable to claim on their behalf that their father returned it, such as where their father confessed that he did not return it, he died before the repayment deadline or where he granted believability to the lender in a case where the lender says the borrower did not return it, we would not be able to make a claim that an unavoidable accident occurred. There are those that say we would make the claim on their behalf that an unavoidable accident occurred. If some of the business arrangement was still in existence and there are witnesses that it belongs to such arrangement or was traded for such arrangement, the lender can collect without an oath. If there was any profit, the borrower’s inheritors would take their share. We already explained above that we cannot accept testimony against minor orphans unless the testimony was already accepted in their father’s lifetime. See later 110:9.

Paragraph 5- If the lender died and his inheritors come to make a claim on the document from the borrower and the borrower says he paid back their father and the inheritors respond that they don’t know, we tell the borrower to go pay. If the borrower says swear to me and the document granted believability to the lender and his inheritors, they would collect without an oath. If he did not grant believability, the inheritors would swear while grasping a holy time that their father did not instruct them via a third party, did not tell them verbally and they did not find a receipt among the father’s documents stating this loan was repaid. Had the inheritors found a receipt on the loan, the loan would be presumed to be repaid, so long as the document was found among torn up documents as was explained earlier. They would include in their oath that their father did not tell them that he had a repaid document among his documents. Even if the inheritor was a minor in the crib when the deceased died, he would swear when he becomes an adult and collect. Such a minor, however, would only have to swear that he did not discover a receipt, but would not have to swear that his father did not instruct him because he was not capable of being instructed by his father.

Paragraph 6- If the minor has a guardian that was appointed by his father and was seeking repayment of the minor’s debt, the guardian must swear that the orphan’s father did not instruct him and that he did not find among the deceased’s documents that this document has been repaid. If the court appointed him, he would only have to swear to that he did not find among his documents that this document has been repaid.

Paragraph 7- If the minor has older brothers, they do not have to wait until the minor becomes an adult. Rather, the older brothers would swear and collect everything and give the minor his share. If the minor died, they would swear and collect his share and their share.

Paragraph 8- If one of the inheritors says that his father told him this document was repaid and the others say he did not tell us and the document was produced by the one that said it was repaid, he would be believed on the entire debt with a migu that had he wanted he could have burnt the document. If it was not him that produced the document, he would only be believed on his share. There are those that say that even where the document was produced by this inheritor that says it was paid back, he will only be believed on his share.

Paragraph 9- The same rules that apply to the lender’s inheritor coming to collect from the borrower, apply when they come to collect from the borrower’s inheritors if the borrower had died, except that where they make a claim against the borrower’s inheritors thye must also swear that they themselves did not collect from the borrower. If the borrower’s orphans claim that their father told them he paid back the lender himself, the lender’s inheritors would not have to swear that they themselves did not collect the debt.

Paragraph 10- If the inheritors that were required to swear the inheritor-oath died, there are those that say that their inheritors would not be able to collect. There are those that say their inheritors would also be able to swear that their father and grandfather did not instruct them and then can collect.

Paragraph 11- When is this true that the lender’s inheritor would swear and collect from the borrower’s inheritors? When then lender died and then the borrower died. If, however, the borrower died while the lender was alive and then the lender died, the inheritors would not be able to collect anything, whether they are sons, brothers or other inheritors, because the lender was already obligated to swear to the borrower’s inheritors as is the rule when one collects from orphan’s properties- even if the lender already swore it would be of no effect if there is a concern that he collected following the oath- and a person cannot bequeath to his children money that can only be collected with an oath. If the judge went ahead and had the lender’s inheritors swear and collect the debt, we would not take the money away from them. Similarly, if the lender’s inheritors went ahead and took possession of the money, we would not remove it from them. Thus, a loan document of orphans being used to collect from other orphans where the borrower died first, would not be ripped up and would not be used to collect with. This is only with respect to the guardian. With respect to the court whom this document is produced in front of, however, they would certainly rip up the document because they have ruled not collect with it. If, however, they did not rip it up and they then go to another court who collects with it, what’s done is done. Even if there was a co-signer and the borrower died first, the lender’s inheritors would not collect from the co-signer if the borrower left properties because if they were to collect from the co-signer the co-signer would then go and collect from the borrower’s inheritors since their father left properties. There is no distinction between a co-signer and a kablan with respect to this rule. There are those that say that if the co-signer is an inheritor himself, they would collect from him.

Paragraph 12- If the document was collateral and their father had possession of it, he was able to collect without an oath and thus, if he dies, the inheritor may collect.

Paragraph 13- When is it true that the inheritors cannot collect when the borrower died in the lender’s lifetime? Where there is no believability clause in the document. If, however, there is a believability clause in the document where the borrower granted believability to the lender and anyone that comes via the lender, the inheritors would swear and collect because their father did not have to swear to the borrower or the inheritors. If the borrower granted believability to the lender’s children, they would collect without an oath even if the lender was required to swear to the borrower on another claim.

Paragraph 14- This law that we said that a person cannot bequeath an oath to his children should not be used for similar cases. Rather, in a case where one impairs his document and then dies, although he can only collect with an oath, his children can swear that their father did not instruct them via a third party, that he did not tell them orally and that they did not find a document among their father’s documents stating that the entire document was paid, and they would collect from the remainder of the document, whether collecting from the borrower or his inheritors, such as in a case where the borrower did not die before the lender. Similarly, if one comes to collect outside the presence of his counterparty or from third party buyers or where a solo witness testifies that the document was paid back, and the lender dies before swearing, while the borrower is still alive, the inheritors can collect with an inheritor-oath. If two witnesses testify that some of the document was repaid, the inheritors would swear that their father did not instruct them that more than that which the witnesses testified had been paid back. Only in the aforementioned cases where the inheritors have the document would they swear and collect. In the cases of a hired worker and theft victim where there is no document and a heses oath that was flipped to the plaintiff, and the plaintiff died, the inheritors would not swear and collect.

Paragraph 15- If a lender or his inheritors come to collect from the borrower’s inheritors and they claim that their father said I never borrowed with document, the lender or inheritors can collect without an oath, even if the borrower died in the lender’s lifetime and then the lender died, and even if the lender granted the borrower with believability to say he paid back.

Paragraph 16- If a minor inheritor had a loan document of his father’s and a receipt was produced after his father’s death, we would not rip up the document nor would we collect with it until the orphan becomes an adult because this receipt may be a forgery which is why the borrower did not produce it in the lender’s lifetime. Even if there are witnesses testifying that they remember the repayment, their testimony is not valid because we do not accept testimony outside the presence of the counterparty. Even if the signatures of the receipt have been verified and even if it was from the signatories themselves who said we signed it and there is a hole next to such and such letter, we would not accept their testimony because we do not accept testimony outside the presence of the counterparty.

Paragraph 17- We cannot collect from inheritors’ properties other than with an oath, even if the inheritors are adults. If one collected without an oath, we would place a nidui on him until he swears.

Paragraph 18- We only collect inferior properties from inheritors, even if they are adults. Even if they made a condition that the lender can collect superior or average properties, the condition would not apply to the inheritors. If the borrower explicitly wrote that the lender can collect superior or average properties from me or my inheritors, the condition would take effect.

Paragraph 19- This that we say that the lender collects from the inferior properties is only where the property produces more fruit than the cost of its work, because otherwise it would not have the status of real property but of uninhabitable land.

Paragraph 20- If the creditor seized averaged properties while their father was still alive, such as where their father borrowed a maneh and he borrowed a maneh from their father and the orphans have inferior properties and the counterparty has average properties and the orphans come to collect the average properties for his debt and give inferior properties for their debt, the counterparty may retain the average property for his loan. If, however, the seizure occurred after their father had died, such as where the counterparty purchased his average property after their father had died, the seizure would be of no effect.

Paragraph 21- If a damage victim comes to collect damages and the defendants are minors, he may only collect from inferior properties. If they are adults, he can collect from the superior properties, as is the standard rule for damage.