Translation:Shulchan Aruch/Choshen Mishpat/123

Paragraph 1- Under Talmudic law, we only write powers of attorney to allow one to make a claim on his deposit that is in another’s possession where the guardian does not deny the deposit. If the deposit was money, the depositor must make a kinyan via real property to the messenger. Similarly, one can grant a power of attorney to claim real property, even if the defendant denies it. The same would apply for a documented loan, even if the borrower denied it, because just as one can transfer possession on a document and its liens with a writing and handing over, so too can he grant a power of attorney on it and give the document to the messenger in order to allow him to collect. The grantor must write that he acquires the document and all the liens contained therein. One cannot, however, write a power of attorney on a deposit in another’s possession where the guardian denies the deposit. Similarly, one cannot write a power of attorney on an oral loan. The geonim instituted, however, that one can even write a power of attorney on a loan, whether with a document or with witnesses on the kinyan, even if the defendant denied it in court, to avoid having people take others’ money and going to another country. With respect to an oral loan where the borrower denies the loan, however, they did not institute the ability to write a power of attorney. It is no worse, however, than a messenger appointed with witnesses, as was explained in Siman 122. There are those that say one can write a power of attorney on anything, whether it is a deposit, theft or documented or oral loan, even if the defendant denies it. This is in fact the custom.

Paragraph 2- If one was owed an oath by another, he cannot grant power of attorney to a third party and have his counterparty swear to him because an oath is not something that can be acquired via kinyan, but mere words. If one had a claim against his counterparty and wrote a power of attorney on the claim to a third party, the power of attorney is of no effect because a claim is not something that one can make a kinyan on. Rather, he must write the power of attorney on the money that he has a claim on.

Paragraph 3- If one granted power of attorney to another and subsequently granted it to a third person, and both come in front of us with the power of attorney, the defendant only has to respond to the second grantee.

Paragraph 4- The grantee does not have the power to write a power of attorney to another because the grantor can say he does not want his deposit in the hands of another person. Thus, if the grantor made a condition that the grantee can grant it to another, who can grant it to another, we would follow whatever the condition was.

Paragraph 5- If the grantee waives the debt to the defendant or sold it to the defendant, waived the oath he owed or made a compromise with him, it would be of no effect because the grantor can say I sent you to help me, not hurt me. Thus, if the grantor made a condition with him that he could help or hurt, the grantee can even waive the entire debt and it would be waived. All the more so would it be valid in a case where the grantor explicitly said his waiver is valid.

Paragraph 6- If one was owed a debt by gentiles and he told another who also was owed by them to do with his money whatever he was doing with his own, and the other party went and waived his debt and the other’s debt, he much pay the other party in accessible money whatever the debt was worth.

Paragraph 7- If Reuven comes with Shimon’s power of attorney and makes a claim against Levi, and Levi says the incident never occurred but Shimon can swear and collect, we would take the money from Levi and leave it in court until Shimon comes and swears and collects. Similarly, any matter that Levi makes dependent on Shimon would be litigated with Reuven and the money will remain in court until Shimon comes. Reuven can place a cherem on anyone who makes a false claims in order to hold on to money and delay its payment.

Paragraph 8- It seems to me that the court would set a time for the plaintiff to come and swear and if he does not come within that time the court would return the money to the defendant.

Paragraph 9- If Levi owed an oath, he cannot withhold his oath and say I will not swear until I can place a cherem in front of Shimon on anyone who makes a false claim against him, because such a cherem is a minor regulation that the geonim instituted in order to ensure the litigants make accurate claims. We would not withhold Levi’s oath because of such minor regulation.

Paragraph 10- If the grantee was granted power of attorney for a known amount, regardless of whether he is successful at removing the money from the defendant, the grantee’s relatives would be valid witnesses or judges because the grantee has no portion in the loss or gain.

Paragraph 11- For this reason it seems to me that the grantee is also able to be a witness. With respect to a power of attorney where the grantee has a portion in what it taken from the defendant, however, the grantee’s relatives would be disqualified from being witnesses or judges. Therefore, if one has witnesses on his claim, he should not grant power of attorney to one of the witnesses or their relatives unless he affixes a set rate, regardless of whether he is successful at removing the money from the defendant. A person can grant power of attorney to a borrower to litigate with his kablan co-signer.

Paragraph 12- Similarly, if one has witnesses that he paid back he should not litigate with a grantee that has a portion of the payment if he is a relative of a witnesses because the testimony would be void.

Paragraph 13- A person can grant power of attorney to woman and slaves. There are those that say one cannot grant power of attorney to his own slave because a slave cannot make a kinyan through his master since the master has acquired the slave’s body and the slave’s hand is considered the master’s hand. Thus, the slave would be a mere messenger and the defendant can say I have no privity with you. One can, however, grant power of attorney to his wife because if he gave her a gift she would acquire it and the husband would not be able to consume its fruits. Thus, when the husband writes to the wife “acquire for yourself” the defendant cannot say I don’t have privity with you.

Paragraph 14- One can grant power of attorney to a gentile so long as he is careful to avoid writing “and they acquire for him” because there is no messengership and acquiring on behalf of a gentile. Rather, he should write “and the gentile should acquire.”

Paragraph 15- “Viasher lo tov biamav” refers to someone who comes with a power of attorney. When is this true? Where the plaintiff and defendant are in the same city. If, however, the plaintiff was in one city and the defendant was in another, the grantee is performing a mitzvah. There are those that say that there is no distinction between whether they are in the same city or not. Rather, it is always dependent on whether the grantee is a tough person who makes lots of claims and participates in disputes that do not involve him. If, however, the grantee is acting solely to save stolen items from a thief, he is performing a mitzvah. There are those that say that one cannot grant a power of attorney outside the presence of the grantee because we cannot cause harm to an individual without his consent and the pasuk says “viasher lo tov asah biamav.” Thus, even if he subsequently agreed, the granting of the power of attorney would be of no effect.