Translation:Shulchan Aruch/Choshen Mishpat/73

Paragraph 1- If one simply lends money to another and not does not set a time for repayment and it is a locale where there is no custom, the time is 30 days for which the lender cannot claim the money earlier, whether it’s a documented loan or an oral loan and whether there is a collateral or not. If the lender made a condition that he can claim the money at any time, he may even claim the money on the day of the loan. The default time on the loan of an item, however, is immediate and the lender may claim the item immediately. If, however, the borrower protests that he does not want the document to be given to the lender and the lender wants the document, the borrower must return the money immediately because the presumption is that he only lent him on the basis of a document being written and now that the borrower does not want the document, he must return the money to the lender.

Paragraph 2- If one lends another and sets a time for repayment, the lender cannot claim the money at an earlier time, even if they did not make a kinyan, whether it’s a documented loan or an oral loan, whether it’s with a collateral or not and whether the lender died or the borrower died, assuming the inheritors have property wealth like the deceased. If the lender claims that the time that was set up had concluded and the borrower says he has 10 days, the borrower would take a heses oath. If there is a solo witness that today is the end of time period, the borrower would swear a biblical oath.

Paragraph 3- If the lender says there are five days remaining until the deadline and the borrower says there are 10 days, we tell the lender to wait until the end of five days and then the borrower can take a heses oath that he has five day remaining.

Paragraph 4- When is this true? With respect to an oral loan that is not given on collateral. If, however, the loan was documented or given on collateral and the lender claims that no time was set or that today is the deadline, the lender would swear a heses oath and collect the debt immediately.

Paragraph 5- If Reuven swore that he will not sell his items to pay back any debt, then swore to pay back Shimon at a certain time and when the time comes Reuven claims he has no money and he has already sworn not to sell any of his items to repay debt and Shimon’s debt preceded the oath not to sell anything, the oath would not take effect and we would strike Reuven until death if he does not want to pay back. If the oath preceded Shimon’s debt, the result is that the second oath was taken in vain and we would strike Reuven with mardos lashes. If due to the lashes he has regret and finds an opening to the first oath, the court would void the oath and Reuven can fulfill the second oath.

Paragraph 6- If one swore to another to pay him back before a certain time, the oath would remain in effect, even if the lender did not claim the money during that time. See Yoreh Deah 228:42 with respect to these laws, as well as 232:12.

Paragraph 7- If one swore to another to pay back on a certain date and that date fell out on Shabbos, the borrower must pay him back before that date. If he did not pay him back before that date, the borrower must give the lender a collateral on that day, they will appraise the collateral and he will give it as a form of repayment. If one swore to another to pay back at a certain time and shmittah occurred in the interim or the lender waived the debt, the borrower is exempt from his oath because anyone who is exempt from repayment is not required to pay by virtue of an oath.

Paragraph 8- If one swore to another to pay back at a certain time and the time came but the lender is not in the city, the borrower is exempt until the lender or his messenger arrives. However, the borrower must have the money accessible on that day and he is not permitted to spend it. This that the borrower is exempt is only in a case where the lender does not live in the place where he lived originally when the borrower took the oath or if the lender left the city. If, however, the lender was in the same city that he was originally when the borrower took the oath, the borrower must follow him because the oath was originally done with that in mind. There are those that say that even if the lender changed his domicile from one place to another and he is not farther from the borrower then he was originally, the borrower must follow him. If one swore to provide a dowry to his son-in-law and because of that the son-in-law quarreled with the donor’s daughter and there is a concern that the quarreling will increase if he gives the dowry, the father-in-law does not have to give the dowry. If one swore to pay another, even if he did not owe him money, the oath would require him to pay. See later 97:15 and 30 and later in 209:4.

Paragraph 9- If one swore to pay by the beginning of Adar, he must pay by the first day of Rosh Chodesh Adar.

Paragraph 10- If one has a document against another with a set time for repayment and he comes to court within the timeframe and says that he discovered so and so’s property and he is concerned that if the properties go to the borrower’s possession he will evade them from him and he will not find any place to collect his debt and the judges see that there is a rationale to his claim in that he will not be able to collect his debt when the time comes, there is a mitzvah on the judges to withhold the money until the time in the document arrives. The same rule applies where one borrows with a deadline and before the deadline the lender sees that borrower is distributing his properties and has no land or that the borrower wants to go overseas, and the lender is claiming payment for what is his or demands that the borrower provide a cosigner, and we would listen to the lender. The same applies in any situation where the court finds it appropriate to withhold the defendant’s money. On this basis, the custom has spread to withhold money even if there isn’t a pressing need. If the defendant is from another city and the court finds it appropriate to withhold the defendant’s money and the money is in the plaintiff’s city, the defendant must go and be judged in the plaintiff’s city in order to gain possession of his money. See above in Siman 14. If, however, it appears to the court that the defendant will listen to the court in his city and he is not a tough person, the court should not hold on to his money, even if it is in the plaintiff’s city. Rather, the plaintiff should follow the defendant. When the court finds it appropriate to hold on to the money, they must inform the defendant as we see later in Siman 106. If the borrower lived in the same city as the lender and then left the city and left his money in the city that he left, the plaintiffs may force him to be judged in their city so that everyone will not go and borrow money and then move overseas. The court will first inform him as we see later in Siman 106.

Paragraph 11- If one purchased a field from another and protestors emerged on the field and the purchaser comes to court and says he is concerned that they will take away the field from him and he will lose his money and not have any land from which he would be able to collect, we would listen to him.

Paragraph 12- Once the set time has passed or 30 days has passed in the case of a standard loan and the loan was on a standard collateral, the lender may sell the collateral with permission of the court. If the borrower was in the city, the court would inform him that if he does not pay back they will give permission to the lender to sell the collateral. If the borrower is not in the city, the court would not assist the borrower by saying wait until the borrower comes and then make a claim.

Paragraph 13- If the collateral is depreciating, the lender may even sell it within 30 days, whether the owner was present or not.

Paragraph 14-There are those that say that even if the loan deadline has passed, the lender must wait 30 days from the date of making the claim before selling the collateral. The lender does not have to make the claim in court. He must just make it in front of witnesses, wait 30 days and then sell it. The claim would work even if it was done only in front of the borrower if the borrower admits to it. There are those that say that in a place where the custom is that one who lends to gentiles cannot sell collateral within one year, we would follow the same rule for a Jew who lends to another Jew on collateral because we follow the custom in such a situation. If one gave collateral to charity for an obligation that he owes, the collector can sell the collateral the same way a layman who lenders on collateral can.

Paragraph 15- If one has another’s collateral in his possession he can only sell it in front of court, which means a court of three laymen. They will appraise how much the collateral is worth if it was being sold in the market. They will then sell in on the value provided by experts in appraisal. We advise the lender to sell it in front of witnesses so that the borrower does not say that he sold it for more than its appraised value. If he sold it without an appraisal by three appraisers, he has not done anything and the sale would be void even if there was no error. If it is a situation where it is impossible to retract the sale, since it was sold without the appraisal of three expert appraisers, the lender must pay the value that it was worth at the time of the sale if there are witnesses that know how much it was worth at that time. If the witnesses say that they know how much it was worth at that time and it was worth more than the debt, the lender must pay the difference. If there are no witnesses and the lender says that it was worth a certain amount more than the lender, the lender would swear and pay him back the difference. If the lender does not know how much it was worth or he does not want to swear, the borrower would swear how much it was worth and the lender will pay the amount that it was worth more than the debt. The same would apply if the lender says he was instructed to sell it and the lender denies such instruction, and the lender would swear.

Paragraph 16- If one is selling collateral on the basis of the appraisal of three non-judge experts, he cannot purchase the item himself. If he is selling it via expert judges there are some that say that he is permitted to purchase it for himself.

Paragraph 17- If one lends another on collateral with a condition that if the borrower does not pay back by a certain date the lender may collect his debt from the collateral and the difference will be a gift effective now, it is an asmachta. If the borrower made a condition with the lender that if he does not redeem the collateral at a certain date, the item will transfer ownership, it is also an asmachta. If the borrower says acquire the item now in the event I don’t redeem by a certain date, there are those that say that it is not an asmachta and that if the borrower claims he did not utter “acquire it from now,” the lender would be believed with an oath. See later in Siman 207 for the laws of asmachta. If one has another’s collateral in his possession and when the deadline arrives the borrower says go and sell the item and the lender sold the item and the borrower comes to void the sale and say that his intention was merely to push him off, there is no merit to the borrower’s claim and the sale is valid. So long as the item has not been sold, however, the borrower may retract and say not to sell it. Similarly, if the lender was pressuring the borrower to pay back and the borrower said the collateral should be yours, the borrower may retract.

Paragraph 18- If the lender told the borrower that people will only give 20 gold coins and the borrower says to give it at that price and the lender was headed to Madai and brought the item with him and sold it for 30, the borrower would get the entire amount, but must pay for the expense of bringing the item. The borrower does not, however, need to pay wages for the burden because the lender was headed there regardless.

Paragraph 19-If one comes to redeem his collateral from Shimon’s possession and Shimon says you already waived the collateral, Shimon’s claim is of no effect because a waiver is only applicable for one who owes another a debt, but where one has another’s item the term waiver is not applicable. Only gift language would be effective.

Paragraph 20-If one comes to redeem his collateral from Shimon and Shimon says I warned you to redeem it at the deadline and you told me to take possession of it which I understood to mean that I should take the item as interest which is what I did, the lender must repay the principle and the interest. There is nothing in this language that implies interest and therefore the borrower only has to pay the principle.