Translation:Shulchan Aruch/Choshen Mishpat/66

Paragraph 1- A text cannot be acquired in any way other than via a writing and handing over. A misled buyer can, however, hold on to the paper until his money is returned. Similarly, if the seller does not have the funds to pay back the buyer, we may take the money from the borrower and provide it to the misled buyer as is discussed later in Siman 86, even though the buyer did not acquire the document. Similarly, if the seller agreed to indemnify the buyer if he is unable to use the documents to collect, the seller must fulfill that which he agreed to, even though the buyer did not actually acquire the documents. In a situation where the buyer does not acquire the document and says that the seller must still write and hand it over and the seller wants to back out of the sale, there are those that say that the seller is not required to accept “mi shepara” on himself and he may retract, even though he has accepted the money. Thus, if one sells a document to another, he must write “you acquire it and all liens contained therein.” If the seller does not write this, the buyer would not acquire the loan. He would not even acquire the paper to use as a bottle stopper. Rather, it is a fraudulent sale, the paper must be returned to the seller and the money must be returned to the buyer. There are those that say that if a document states “I obligate myself to you” or “to anyone that produces this document,” the document could be acquired via chalipin or handing it over without a writing. If, however, the document does not contain that language but was written in the buyer’s name, a writing and handing over would be required. This is only where the document belongs to the seller but it is written in the buyer’s name. If, however, the party originally told the witnesses to write a document for the buyer and provide it to him whereby the primary writing was performed for the buyer, writing and handing over would not be required. See below.

Paragraph 2- Even if the writing were handed over and they made a kinyan that the seller is selling the buyer the entire lien and the witnesses documented the kinyan, this document merely serves as a proof and it is of no effect. Rather, he must tell the witnesses that they should write a sale document and with that writing the buyer will acquire the document and all the liens contained therein. This must be written. If it is not written, there is no kinyan. There are those that say that the document must reach the possession of the buyer.

Paragraph 3- If one is transferring his properties to another via a healthy-person gift with a kinyan on moveable items via real property and the giver owns documents, the recipient would not acquire the documents, even though documents are considered “property,” because the donor did not write “you will acquire it and all of the liens contained therein.”

Paragraph 4- There are those that say that the handing over of the document must precede the writing of the lien in the document. If the document being sold is not accessible to the seller, even a kinyan chalippin does not count as a handing over. If Reuven and Shimon had a joint document whereby the king granted them permission to collect the dues of a village, and the current possessor of the document claims that the other waived his portion to him, the claim is not valid because a document of this sort can only be acquired with a writing and handing over given that the document does not obligate anyone at all but merely grants the permission of the king. If, however, one of them already collected and says that the other waived his portion, that which was collected is his. If Reuven has Shimon’s documents deposited with him and Shimon waives the debt, Reuven would not acquire the documents because a writing and handing over is required.

Paragraph 5- If Reuven deposited money with Shimon to transact with and Reuven gave Shimon permission to use Reuven’s name in documents and Shimon then gave Reuven the documents without any writing, Reuven would not acquire the documents, as was already explained earlier.

Paragraph 6- A document that was created in gentile courts and that was made in a way that is valid under our laws, as well as a document written in one’s handwriting, can be acquired via writing and handing over.

Paragraph 7- If a document was created with gentile judges and written with language that suffices as giving over the actual paper and the lien, it has the status of one of our documents.

Paragraph 8- The Ri Migash is of the view that a document that documents a collateral arrangement requires writing and handing over because the provider can remove the recipient by paying him off. The Geonim write that the handing over without a writing would not be a valid kinyan, but a writing without handing over would be a valid kinyan because the recipient took possession of the land and the provider wrote to him, “you should acquire etc.” This is only for a collateral that the recipient took possession of. If the recipient did not take possession, however, the collateral has the same status as any other loan. With respect to a loan document on moveable collateral, however, once one has sold the debt and handed over the moveable item, the buyer would acquire the debt with the transfer of the document, even though the seller did not hand over the document or write anything.

Paragraph 9- The handing over of a document requires the recipient to lift it or, with respect to a sack filled with documents that would not generally be lifted, pulled. This that it is called “handing over” even though it requires lifting or pulling means that it was handed over from one hand to the other with a lifting or a pulling. Alternatively, even if handing over from one hand to the other is not required, the term “handing over” is used because another individual must have the intention to transfer its ownership. Therefore, one who takes possession of a document that another made ownerless, would not acquire the loan that is in it because there is no other individual with the intention to transfer its ownership.

Paragraph 10- If one deeds any amount of real property along with a loan document, the recipient would acquire the document wherever it is, without any writing or handing over, so long as the provider orally said that he should acquire the document and all liens contained therein. There are those that say that a document cannot be acquired via real property. With respect to the halacha, we rule like the first view that a document can be acquired via real property. This only applies to a document that has already been written. One cannot, however, deed a document via real property if the document has not been written.

Paragraph 11- If one produces a document and claims that another had sold it to him with a writing and handing over but he lost the sale document, he would not be required to bring witnesses with respect to the purchase, but he must provide witnesses with respect to his claim because the defendant says to him, “who says that my counterparty wrote and gave to you.” Therefore, if Reuven produced a loan document that Levi had against Shimon and claims that Levi gave the document to him via a writing and handing over but he lost the document that he deeded the document with or Reuven claims that Levi deeded it to him via real property, Reuven may collect from Shimon if Shimon does not say who says that my counterparty wrote and gave it to you. If Shimon claims that he paid Levi back and Reuven demands an oath, Levi must swear to Shimon and Reuven can then collect from Shimon. If there is proof that Levi had sold the document and Levi does not want to swear, Levi must pay Reuven. Similarly, if Levi admits that Shimon had paid back, Levi must pay Reuven. If the seller had died, the inheritors would take an inheritor-oath and the buyer would collect from the borrower. If the inheritors do not want to swear, they must pay the buyer. If Levi claims that he never sold or gifted this document, he would take a hesses oath and be exempt. There are those that say that a buyer is not even believed with respect to the purchase and this seems to be to my the primary view with respect to the halacha. If the document was in the possession of a third party, although the third party is believed against the seller, he is not believed against the defendant and the buyer cannot collect with this document without a writing and handing over.

Paragraph 12- If a woman brings a document into her husband’s possession via marriage, a writing and handing over is not required. If the loan was an oral loan, there is no requirement to have the three parties together, even if it was usufruct property.

Paragraph 13- Because words cannot have possession transferred other than with a writing and handing over, if one gives a gift to another and the recipient returns the document, the gift would not be returned until the original recipient writes to the donor that he should acquire the document and all the liens contained therein.

Paragraph 14- The only documents that can be acquired via a writing or handing over is a loan document or an acquisition document where the owner writes, “my field is sold to you” and the document is the primary kinyan mechanism and is how the buyer acquires the field. Therefore, when the buyer hands over the document to another and writes that he should acquire the document and all liens contained therein, the recipient will acquire the land via the document. If, however, the buyer acquired the land with money, a chazaka or kinyan and the document was written as proof of the kinyan and the buyer gave the document to another and wrote that he should acquire it etc., the recipient would not acquire the land.

Paragraph 15- If one acquired a document from a lender that he had against a borrower and such borrower dies and the death was subsequent to the acquisition, the buyer must take an oath that the seller did not tell him anything and that he has no knowledge that the document has been paid back, and the buyer can then collect. This is only in a case where the seller had also died. If, however, the seller were alive, he would also have to swear before the buyer can collect. Similarly, if the borrower is alive and claims that he paid back and the document does not contain a believability clause and the seller is alive, the seller would swear and the buyer can collect. If the seller does not want to swear, the borrower does not have to pay back and the seller must pay the buyer. If the seller died, his inheritor would swear that his father did not give him any instructions on this loan. If the inheritor does not want to swear, the buyer would turn to the inheritor to collect. If the borrower had died prior to the buyer’s purchase of the document and the lender subsequently died, the buyer cannot collect, even with an oath.

Paragraph 16- If a lender sold the loan document properly and the seller and buyer both came to make a claim against the borrower, the court would direct the borrower to pay the buyer. If the borrower paid the seller, the buyer would collect again from the borrower. If the borrower paid the seller before the court instructed him [explanation of the Sma], the borrower would be exempt and the buyer would have nothing on the borrower other than a complaint. There are those that say that the buyer would be required to return the document to the borrower. The court would require the lender to give the buyer that which he collected. If the lender had already spent the money and has nothing with which to pay, the borrower is exempt. There are those that say that if the borrower paid the lender, that would not exempt him from paying the buyer.

Paragraph 17- If a borrower paid back a buyer that had been transferred the document but did not have written that he should acquire the document and all liens contained therein, the borrower does not owe the seller anything for although the sale was of no effect, if the buyer grabbed the money we would not take it away from him. This is only where the seller did not write “you should acquire it etc.,” but told it to the buyer verbally. If, however, the seller did not even say it, we would take the money away from the buyer if he grabbed it. There are those that say that this is only where the seller knew that the buyer collected from the borrower and remained silent because since he knew and was silent, he has waived his rights. If, however, the seller was unaware, he may collect again from the borrower because the seller can tell the borrower that he should not have paid back the debt until the buyer showed him that he acquired the document correctly. If the borrower cannot pay back, the seller cannot take money from the buyer because he has already grabbed it.

Paragraph 18- There are those that say that if the sale was turned into a loan in the seller’s name it is considered as if the loan were collected.

Paragraph 19- If Reuven had a loan document against Levi and tells him, in the presence of all three parties, that the maneh that you have of mine should be given to Shimon, Shimon would acquire the maneh even though Reuven did not transfer the document. Shimon would have a lien against the purchasers just as Reuven had, except that Shimon is not able to remove the actual document from the lender. Rather, Shimon will make a claim against the borrower and if the borrower denies the claim or if Shimon needs to collect from encumbered properties, the court would force the lender to transfer the document and would judge accordingly. If the borrower paid Shimon back, we would remove the document from the lender and return it to the borrower.

Paragraph 20- If Reuven deposited loan documents with Shimon and tells him, in the presence of all three parties, that the documents he deposited should given to Levi, Shimon should give them to Levi so long as Reuven has not retracted. If Reuven retracted, Shimon should return the documents to Reuven because so long as the liens in them have not been acquired, the physical documents have not been acquired, whether through chalippin or the three parties standing there. If Reuven wrote a document for Levi and made a kinyan for him on the document and all their liens and deposited the documents with the guardian, the deposit is considered a handing over and the result is that the document have been transferred to Levi with a writing and handing over.

Paragraph 21- If Reuven had a document against Shimon with Levi signed on it and Reuven sold it to Levi the witness, Levi is not considered as having a stake in the matter and we are not concerned that he signed falsely so that he would later acquire the document from Reuven because the other witness would not have agreed with Levi to testify falsely for Levi’s benefit. This is only with respect to a witness that has signed on the document. Levi cannot, however, testify orally. If, however, Reuven sold the document to the two witnesses that signed on the document, we do have this concern and if the borrower does not admit to the loan, they would not be able to collect.

Paragraph 22- If Reuven had a document against Shimon and he gave it to Levi with a writing and handing over and Shimon was one of the witnesses on the gift and now Reuven wants to retract the gift and claim the document is invalid because Shimon has a stake in the testimony in that he wants to testify to exempt himself from his adversary because he prefers dealing with Levi, Reuven is in the right and Shimon is considered as having a stake in the matter.

Paragraph 23- If one sells his loan document properly and waives the debt to the borrower, the loan has been waived. However, the buyer is not required to return the document to the borrower. There are those that disagree. What can the buyer do to avoid this? He should appease the borrower so that he makes a document in the buyer’s name or the borrower accepts the loan with the buyer via a kinyan or the borrower admits in front of witnesses that they have turned the debt into a loan with the buyer, in which case the seller will not be able to waive the loan. Even if the seller made a condition with the buyer that he will not waive the loan, if the seller waived the loan the loan is waived. Even if the seller removed himself completely from any rights to the loan and fully transferred his rights to the buyer, if the seller waives the loan, the loan has been waived. Even the seller’s inheritor have the ability to waive the loan. The inheritor cannot, however, waive the loan for himself in order to cause the buyer a loss. How so? If Reuven lent money via a document to his son and then sold it to Shimon and Reuven died, the son cannot say since I am the inheritor I can waive the loan for myself and by law not have to pay any amount as a result of garmi, because I do not have the intention to damage the buyer but just to exempt myself. Rather, the inheritor must pay the entire loan to the buyer. There are those that disagree and say that the inheritor can even waive for himself. It was explained above in 60:8 that if Reuven instructed to write his document in Shimon’s name, Shimon cannot waive the loan since the money is not his, but Reuven may do so because he is considered the owner of the document. Even if Reuven did not explicitly waive the loan but simply waived anything that the borrower has of Reuven’s in the borrower’s possession or something similar, the document would also be waived, notwithstanding the fact that it was written in Shimon’s name.

Paragraph 24- There are those that say that anyone who has the right to waive can make a receipt, confess that he was repaid or lengthen the time of repayment, and he will pay the buyer based on the damage he caused.

Paragraph 25- If a gentile sold a loan document to a Jew, there are those that say that since under their laws he has sold all rights to the document, we would judge based on their laws and if the gentile were to later waive, the waiver would not be valid. Similarly, any transfer that was done properly under their laws, even without a writing and handing over, would require the borrower to pay the buyer. A Jew that sold to a gentile has the same status as if he sold to a Jew.

Paragraph 26- There are those that say that if the borrower wrote to the lender, “I am obligated to you and anyone that comes from you” and the lender sold the document to someone who was alive at the time of the loan, then the lender can no longer waive. There are those that say that the lender can still waive. There are those that say that this that one who sells a loan document can waive the loan is only where the seller did not owe anything to the buyer or the seller had what to pay the buyer. If, however, the seller owed the buyer money and did not have what to pay him with, and thus the borrower is now obligated to the buyer as will be explained in Siman 86, the seller cannot waive. There are those that disagree. See later Siman 86. If the seller transfers the debt itself along with real property, there are those that say that the seller cannot waive. There are those that say that he can waive. There are those that says that no kinyan took place because the loan cannot be acquired via land or through chalippin. See later 213:9.

Paragraph 27- If the loan was given as a dying-man gift, and the lender died, the inheritor cannot waive.

Paragraph 28- If a woman brings a loan document or an oral loan into her marriage or if others borrowed from her after marriage, she cannot waive the loan because a woman cannot make a kinyan without her husband, even on usufruct property.

Paragraph 29- If one gives or sells a loan document to another with all three parties present, he cannot waive the loan.

Paragraph 30- If one sells a loan document to another and the seller has collateral in his possession that he gave to the buyer, the lender can no longer waive the amount of the loan corresponding to the collateral. The same applies to a collateral of real property where the buyer went down and made a chazakah on it and the seller cannot waive the loan. There are those that disagree with respect to this case.

Paragraph 31- A purchaser of a loan document that resold the document to the lender cannot waive the loan. Moreover, if the first buyer sold it to a third party, the first buyer cannot waive the loan.

Paragraph 32- When the seller or inheritors waive the loan they are required to pay the buyer the amount written in the document from the best of their properties because they caused a destruction of the document and it is as if they burnt it. We do, however, evaluate the document based on the circumstances, such as if the buyer was a tough person who will not listen to the courts or he does not have property. If the lender dies, his relatives must pay. If the lender sold the buyer a loan document of a gentile and waived the loan, the lender must even pay the interest on the document. If, however, it was known that the document was repaid but the buyer would have been able to collect again from the gentile, the waiver would be exempt from paying the buyer. This is all according to the view of some authorities. Many, however, disagree and hold that in all cases of one who sells a loan document and waives the loan, the lender would only be required to pay the money that was given to him in the sale and any expenses incurred as a result.

Paragraph 33- When is it true that one who waives must pay the buyer? Where the document is valid and the lender would have been able to collect with it. If, however, the borrower claims that the document is a forgery and the lender is unable to verify it or if the borrower is a strong person or is poor, the seller that waived would be exempt from paying for the waiver.

Paragraph 34- We say the concept that the absence of security is a scribe’s error even with respect to the sale of a loan document. Therefore, if the seller’s creditor comes and collects this debt or a third party comes and proves that this document actually belongs to him or that he purchased the document from the lender first or anything similar, the buyer can collect from the seller as fulfillment of security. If the borrower produces a receipt showing the debt was repaid or that the lender waived the loan prior to the sale, the sale was fraudulent and the money would revert. If the borrower was poor at the time of the sale, the sale is just considered exploitation if it was sold for more than its worth and there is no concept of exploitation with respect to documents. If the borrower become poor after the sale and the buyer cannot collect anything from him, security is immaterial because it was the fortune of the buyer that caused the poverty.

Paragraph 35- One who waives has committed a tort from the instance that he waives and the buyer would not be able to collect from buyers that purchased from the seller after the sale unless the seller explicitly wrote at the time of the sale that if I waive the debt I obligate myself and my property to pay this debt, in which case the buyer can even collect from a buyer that preceded the waiver.

Paragraph 36- There are those that say that the same applies where one gifts a loan document to another and then waives the debt, and he is obligated to pay the recipient just like one who sold a loan document and waived the debt.

Paragraph 37- If a convert had a loan against a Jew and he sold the document to a Jew and the convert died, the debt is removed and the borrower is exempt.

Paragraph 38- If one sells a document to his friend for collection, there is no concept of exploitation, even if he sold a document worth 1,000 for 1 dinar or vice versa. There are those that disagree and hold that exploitation for more than half of its value would void the sale.

Paragraph 39- There are no oaths on documents. Even if a party partially admitted to a claim or there was a solo witness, the party would be exempt from a biblical oath but we would require a heses oath if the plaintiff had a claim of certainty. Similarly, we would require an oath on a document in the case of a secondary oath.

Paragraph 40- If one was a paid guardian on documents and the documents were lost or stolen, the guardian would be exempt from paying, even in the case of negligence. He would, however, lose his wages unless he swears that he watched the document appropriately. All the more so would an unpaid watchman be exempt. There are those that obligate him to pay in the case of negligence. The first view that one is exempt from paying for documents even in the case of negligence is the primary one. If, however, the guardian personally damaged the document, such as by casting them in the river or something similar, he would be liable. If the parties made a kinyan that the guardian should be obligated under standard custodian law, he would be liable. See later Siman 301 and the beginning of Siman 95.

Paragraph 41- If brothers or partners come to divvy up property and they have documents, the court will evaluate the worth of each document based on how soon or how far the payment is due and the properties and toughness of the borrowers, and they will split accordingly. If there is only one loan document, one of the parties is able to demand the other buy him out or sell the document. If a document loses its value after the court evaluates the documents and the parties split using a lottery, it’s the current owner’s fortune that caused the loss.

Paragraph 42- If one says that he gives his property to so and so, his documents are included in his property. If the donor was dying and thus his words are considered written and handed over, the recipient would also acquire the documents. Therefore, if a husband removes himself from any right in his wife’s properties, documents would be included. He will also have removed himself from the inheritance document that her father made for her. Documents are not, however, included in the category of moveable times. Therefore, if one said his moveable items should be given to so and so, documents would not be included.