Translation:Shulchan Aruch/Choshen Mishpat/150

Paragraph 1- If someone went down to a field as a form of collateral he cannot obtain a presumption of ownership if it is known that he went down for collateral. If there was only a mere rumor the law was explained in Siman 149. Nevertheless, it is still a good idea for the party whose field was taken as collateral to object every three years in case the possessor were to hide the collateral document once the context was forgotten and claim he purchased the field, as we find in the case where a party gave his vineyard as collateral to his counterparty for 10 years and after three years the possessor said, “if you sell me the vineyard, great, but if not I will hide the collateral document and claim I purchased the vineyard.”

Paragraph 2- If the party whose field was taken as collateral gave the property to his son as a gift and then made a sale document to the party who took the collateral, the sale document is of no effect and the money the buyer gave over the price of the collateral is merely an oral loan.

Paragraph 3- In a case where it is known that the possessor went down to the field as collateral, there are those who say that the possessor can never obtain a presumption, even if it was known that the timeframe of the collateral had completed and the possessor remained in the property for three years following its completion. There are others that say that if the possessor consumed three years following the completion of the timeframe of the collateral, he would obtain a presumption. There are others that say that if witnesses testified that this field was a collateral for the possessor but they do not know for how many years, even if the possessor were to have possession for many years, he would not obtain a presumption. If they simply testified that it was collateral and the possessor consumed three years following the first year, he would obtain a presumption because the default timeframe for collateral is one year.

Paragraph 4- If Reuven went down to Shimon’s field as collateral and Reuven had another oral claim against Shimon that he is unable to collect on and the timeframe for the collateral has completed and Reuven wants to retain the field and consume its fruits up to the value of the outstanding debt against Shimon and only then return the field and it is known that Reuven went down to the field as collateral, Reuven would not be believed, even if he had possession for three years. Rather, he must return the property immediately because the timeframe for the collateral had completed. If it is not know that Reuven went down as collateral, Reuven would be believed with an oath on his other claims with a migu that he could have hid the collateral-document and claimed that he purchased the property. This is only where Reuven already consumed the fruits up to the value of the debt he is claiming against Shimon. If he comes to make a claim before he consumed the fruits, however, he would not be believed to keep the property in his possession.

Paragraph 5- If it is not known that Reuven went down for to the field for collateral, but there was such a rumor, and the rumor emerged before Reuven took possession, he would not be believed to say he purchased the property. If the rumor emerged after he took possession for three years and he claims he purchased the property, he would be believed. If, however, he claims he has another debt and wants to retain the property until he consumed the amount owed with a migu that he could have claimed he purchased it, he would not be believed because the power of his migu has been weakened once the rumor emerged that he went down to the field as collateral and that is the real reason he did not want to claim he purchased the property.

Paragraph 6- The same laws that apply between Reuven and Shimon apply between Reuven and Shimon’s inheritors in a case where Shimon died and Reuven comes to make a claim against Shimon’s inheritors. If it is a case where he is able to claim he purchased the field, he is also believed with respect to the fruits he consumed up until the amount of the outstanding debt. If he is unable to claim he purchased the field, he is also not believed on the other claim. The only difference here is that there are those that say that the father could make the possessor swear on a certain claim, whether on the primary claim of the other debt or on the migu claim that he purchased the field, whereas in the case of orphans who cannot make a certain claim, he would collect without an oath. There are those that say that anything the father can claim and make the other side swear on, we would claim on behalf of the orphans, even if it was an uncertain claim.

Paragraph 7- If a party went down to the property as collateral and consumed three years and there are no witnesses that he obtained the field as collateral and he claims he has the right to retain the field as collateral for another two years, he would be believed with a migu that he purchased the field, even if the lender claims he had a collateral-document and misplaced it.