Translation:Shulchan Aruch/Choshen Mishpat/115

Paragraph 1- If when the creditor comes to seize property from the purchaser the borrower had written that the creditor can collect from future properties the borrower would acquire, the creditor may also seize the value that the field appreciated, whether the appreciation occurred on its own, such as where trees sprouted in the field or the value went up, or the appreciation was due to an incurred expense. The only difference is that where the appreciation was on its own the lender may seize the entire amount. There are those that say that in all cases the creditor may only collect half the appreciation, and this seems to me to be the primary view. Nevertheless, if the creditor wrote explicitly to the purchaser that he would not collect from future properties, the purchaser would have no rights to the appreciation. If the properties appreciated due to an incurred expense, the creditor can seize half the difference between the expense and appreciation. There are those that say that the creditor does not have to pay at all for the expense because his debt corresponds to the principle with the appreciation. The purchaser would then go and collect the principle from the seller’s properties, including those that were sold or gifted to third parties after the date the seller sold his field to him. The purchaser cannot, however, collect the appreciation that the creditor seized other than from unencumbered properties. This is all in reference to appreciation that occurred while the seller was still alive. If, however, the properties appreciated after the seller had died, the creditor would have no claim to the appreciation and all of it would remain with the purchaser. The fruits that the purchaser consumed would not be seized from him. Fruits that are attached to the ground, however, may be seized by the creditor just as he seizes appreciation, even if they do not need the ground, such as grapes that are ready to be harvested. If the purchaser wants to remove the creditor he is able to do so, both from the field and appreciation, if the lender did not specifically designate the field for collection. If, however, the lender did specifically designate the field for collection by saying you can only collect from this field, the purchaser would not be able to remove him.

Paragraph 2- If a creditor seized the appropriate amount of principle and half-appreciation from the purchaser as payment for his debt, we analyze whether the remaining property has any use to the purchaser. For example, if a field is the size of 9 kavin or a garden is the size of a half kav, the creditor and purchaser would be partners in the property. If the amount remaining would not be enough to have the name of the field on the entire field in the event it were divided, the creditor must pay money to the purchaser if the purchaser prefers. There are those that say that the same would apply where the amount of the debt only corresponds to the principle but not the appreciation, in which case the entire appreciation would remain with the purchaser, and the same law would apply. This is only where the seller did not specifically designate the field for collection. If, however, the seller did designate the field for collection, the creditor would even collect the appreciation, but would just need to compensate the purchaser for his expenses. If the expenses were more than the appreciation, he would only be paid for the amount of appreciation.

Paragraph 3- The foregoing was only stated with respect to a purchaser. With respect to a gift recipient whose property appreciated due to an incurred expense, however, the creditor would not be able to collect anything from the appreciation. Rather, we evaluate how much the property was worth at the time of the gift and the creditor collects it. If the property appreciated on its own, the creditor can collect the entire property. There are those that say that the lender cannot seize the property even in a case where the appreciation was on its own, unless the borrower specifically designated this field for collection, which will be explained below as having the same status as orphan-property. If the donor guaranteed the gift, the creditor can collect from the property just as he could from a purchaser. If the buyer explicitly stated that he has no guarantee against the seller, it would have the same status as a gift recipient.

Paragraph 4- Similarly, if orphans caused their properties to appreciate, the creditor would not be able to collect anything. If, however, the properties appreciated on their own, the creditor can collect the entire appreciation. There are those that disagree and hold that the creditor cannot collect from orphans just as he can’t collect a gift, unless the borrower specifically designated the property for collection, in which case he can also collect the appreciation.

Paragraph 5- If a creditor comes to seize appreciation as a result of an expense from orphans and the orphans say we caused the appreciation and the creditor says your father may have caused the appreciation, the burden of proof is on the orphans. There are those that say that if the father did not specifically designate the property for payment, the creditor has the burden of proof.

Paragraph 6- If the orphans brought proof that they caused the appreciation, we would evaluate the appreciation and expenses and they would take the lesser of the two with a cash payment. When is this true? When the borrower designated this property for collection. There are those that say that this is only where the debt did not correspond to the principle and appreciation. If, however, the debt corresponded to both, the creditor would take the entire amount and not pay for any expenses. If, however, the borrower did not designate the property for collection and the orphans prefer, they may remove the creditor with money. If the orphans want, they can take their portion of the appreciation in the property.