Translation:Shulchan Aruch/Choshen Mishpat/121

Paragraph 1- If one sent his debt or deposit with a messenger, and the other party told him to send it with the messenger, and it was misplaced, he would be exempt. Even if the recipient did not tell the sender directly but sent a writing saying send the item via so and so, and the sender sent it with him and the item was lost, he would be exempt, so long as he recognized that it was the recipient’s handwriting, even if the messenger was a gentile, deaf-mute, fool or minor. Even if the recipient did not specify a specific individual saying send it with so and so, but wrote send it with whomever you want, and the sender sent it and it was misplaced or the messenger denied it, the sender would be exempt, so long as he sent it with a reliable person and in a way that people generally send their money. If the person he sent it with was an established fraudster, however, or he sent it on dangerous roads where most people do not bring their money , he was negligent and would be liable because the recipient did not permit him to send it in those circumstances unless he explicitly said so.

Paragraph 2- Even if the recipient did not tell the messenger to say to so and so to send money the money he has with you, but said in front of witnesses that so and so has his money and go and tell him that you want him to come here and if he gives you the money bring it to me and the sender gave it to the messenger and the money was misplaced on the road, the sender would be exempt. If the recipient did not make him a messenger, however, but just said so and so has my money and won’t send it to me, perhaps because he cannot find a messenger, go and appear before him because perhaps he may send it with you to me, he would not be considered a messenger, and if the sender gave it to him and it was misplaced he would be responsible.

Paragraph 3- If the recipient did not appoint him as a messenger with witnesses, but gave him his seal as a sign that he is his messenger and he gave it to him and said go bring me my money, and when the messenger came to the borrower he said so and so sent me to you to bring his money and here is his seal as a sign, and witnesses testify that it is in fact his seal but do not testify that he appointed him as a messenger, and the borrower sent the money with him and it was misplaced, the borrower would not be exempt. He can first place a cherem on one who appointed this person as a messenger but did not confess. There are those that say that the recipient would first have to swear just like others who swear and collect.

Paragraph 4- If the lender or depositor sent a letter to the borrower or guardian stating that he should send the maneh he has with Levi and he sent it with Levi, and the lender claims he did not write it and did not send it, the borrower would take a heses oath that the letter came to him and that is why he sent it, and he would be exempt. If the letter was not in the recipient’s handwriting, however, or the borrower did not know that it was his handwriting, and the lender claims that he did not send the letter and others tricked the borrower or guardian, the senders would be responsible and would have to pay once they placed a cherem on anyone who knowingly sends a letter and does not confess, even if there were personal signs and codes in the letter. There are those that rule that the recipient would swear and then collect just like others who swear and collect.

Paragraph 5- If the lender or depositor claims that the letter is not his handwriting and there are no witnesses available to verify it, and the guardian says he recognizes that it is the depositor’s handwriting and the money was deposited without witnesses, or even if there were witnesses but it was done orally, because the guardian can say the deposit never occurred or that he returned everything to the depositor, he is believed with a heses oath to say he recognizes that it is the depositor’s handwriting and that on that basis he gave the money to his messenger. If the deposit was done with a document, because the guardian can say an unavoidable accident occurred, he is also believed to say he gave it to the depositor’s messenger, but he would have to swear a strict biblical-type oath. If the loan was documented, the borrower would not be believed and he would be required to swear once the lender swears a strict oath that this is not his handwriting. This is only true with respect to a loan. With respect to a deposit, however, the guardian would be exempt with a migu that he could have said an unavoidable accident occurred. If the borrower demands the messenger take an oath that an unavoidable accident occurred, the messenger would be required to take a guardian-oath.

Paragraph 6- If the plaintiff admits that it is his handwriting but tells the messenger that he does not believe that an unavoidable accident occurred and that he does not trust that the guardian or borrower gave the item to the messenger, the plaintiff would place a cherem on the borrower or guardian that they gave the item to the messenger and the messenger would swear a guardian-oath.

Paragraph 7- When is it true? Where the messenger admits he had the item and claims an unavoidable accident occurred. If he denies the loan or deposit, however, by saying he gave it to the recipient and the recipient says he never received it, the recipient would not be believed, even if there were two recipients because they have a stake in the matter. Rather, the messenger would take a heses oath and be exempt and the borrower or guardian would accept a cherem that they gave it to the messenger.

Paragraph 8- If the messenger denies the guardian or borrower’s claim by saying they never gave it to me, and they claim they did give it to him, the messenger would swear a heses oath to the borrower or guardian in their presence and would be exempt, and the borrower or guardian would swear a heses oath to the lender or depositor in the presence of the messenger and would be exempt.

Paragraph 9- When is this true? Where the recipient made him a messenger to bring what belongs to him. If the recipient did not appoint him as a messenger, however, but the borrower or guardian told him to bring so and so his money that I have, or where one comes to the borrower or guardian and says so and so made me a messenger to bring his money and the sender trusted him and gave the money, and the messenger says an unavoidable accident occurred or that he gave it to the lender and the lender says I never made him a messenger and I never received it, the messenger would swear that he gave to the lender and the lender or depositor would swear while grasping a holy item that he did not accept it, and he would collect his debt from the borrower or guardian because the messenger is not believed since he has a stake in the matter considering that he needs to swear to be exempt. Even if the borrower or guardian were to exempt the messenger from an oath to remove his stake in the matter, it would be of no effect. Nevertheless, if the sender exempted the messenger from an oath when they originally gave the item, there are those that say that it would be effective. If the messenger does not have to swear, such as where the sender went with the messenger and from afar was able to see him complete his mission, the messenger no longer has a stake in the matter and he is considered a solo witness. If there were two messengers and the senders went with them and stood from afar and saw them complete their mission, they would be considered witnesses and the borrower would be exempt. It seems to me that they are not believed to become two witnesses on the basis of the sender to allow them to take away the lender’s money.

Paragraph 10- When is this true? Where both the messenger and lender are in front of us and they contradict each other. If the messenger comes by himself, however, and says I gave as I was instructed to, we would not be able to have him swear that he performed his mission because there is no one making a certain claim against him that he did not perform his mission. Similarly, if the messenger died or went overseas and the creditor comes to make a claim against the borrower, the borrower cannot force the lender to swear that he was not paid back because there is no one here making a certain claim that the lender took his money. Rather, the borrower would place a general cherem and would pay the money he owes.

Paragraph 11- If Reuven told Levi that the maneh he owes him should be given to Shimon who lives in Levi’s city because I owe Levi a maneh, and Levi says he gave it but Shimon says he did not receive it, the rule would be the same as was explained where he said bring the money that I have of so and so to him. If one appointed a messenger to give collateral for him and he took the collateral but it is unknown where it is, it is considered a case of negligence and the messenger would be obligated to pay. If the messenger says it is by so and so and that individual denies it, the messenger would be obligated to pay because he should have given the collateral with witnesses. If, however, the sender told him to give the collateral to so and so and that individual denies it, he would be exempt.

Paragraph 12- If Levi comes as Reuven’s messenger to collect 50 dinar that Shimon owes him and he collects it and Reuven says I only sent him to collect 20 and he only brought 20, Shimon must pay once the lender swears while grasping a holy item that he only sent him to bring 20 and that he only accepted 20, and the messenger would swear a heses oath to Shimon that he gave the entire 50 to the lender.