Translation:Shulchan Aruch/Choshen Mishpat/103
Paragraph 1- When the three appraisers appraise the borrower's real property, the appraisal must be based on the current time and circumstances that the properties would be sold in that place. If all of the real properties do not equal the loan, such as where the loan was only a maneh and the sum of the properties is 500 gold coins, we do not tell the borrower to give 1/5 of the land. Rather, we evaluate how much one would need to sell for this land or home to receive 100 gold coins and we give that amount to the lender. The general rule is that we only appraise something that can be sold immediately and collect the debt with and we are not concerned about any loss to the borrower. We subsequently announce a price as the appraisals see fit until the bidders cease raising the price. If the lender was collecting this property from third-party buyers, they would need to announce for 30 days like they do for orphan-property. See later at the beginning of Siman 109. The purchasers come and set the price as they see fit. If the number is the same or more than the court’s appraisal, we would take their money and give it to the lender. If the lender wants to purchase the property at that price, he takes precedence. If they did not receive an offer equal to the price of the appraisal, the lender would take the land at that value. There are those that disagree and hold that the same process would apply if they come to collect from unencumbered properties. Since it is being sold in court without his knowledge, an appraisal and announcement is required just as we do for orphans.
Paragraph 2- If three individuals came to appraise and one says the property is worth a maneh and the other two say 200, or one says 200 and the others say 100, the minority opinion will be void. If one says a maneh, one says 80 and one says 120, the appraisal will be 100 because we calculate the the difference between the lowest and highest and add half of that to the lowest and subtract half from the highest. Because there is a 40 difference between the one who says 80 and the one who says 120, when you add half on the lowest and subtract half from the highest, it results in 100. Thus, if one says a maneh, one says 90 and one says 130, the appraisal will be 110. This formula is used for all appraisals.
Paragraph 3- If three people appraised the property and the lender demands another three, who are greater experts, also appraise the property, we would not listen to him. The three appraisers can be related to each other.
Paragraph 4- If the court appraised to collect from a third-party buyer’s properties, and erred on any amount, the sale would be void, even if they made an announcement. If, however, the properties were unencumbered and they made an error in the appraisal, the rule would be like a court that sold orphan property and made an error, which will be explained in Siman 109.
Paragraph 5- If the debt was a small amount that would not give the lender the substantive portion of real property, home, field or vineyard that will be explained in Siman 171 and the lender tells the borrower to either sell him the difference between what he should get and what is substantive or pay me money, he is in the right. If the lender does not want to purchase more than the amount of his debt and says pay be money because the amount of land that corresponds to my debt is not a substantive amount, he is in the right and we force the borrower to sell the land or give it as collateral and pay back the lender with money. We are not concerned of any loss to the borrower and we do not show mercy in judgement by saying how could we evict the borrower from his home over a small amount. If the case was reversed where the borrower would not have a substantive amount remaining, we cannot force the lender to purchase the remainder with money. If the lender was collecting real property from a third-party buyer and when he is finished collecting the buyer would not have a substantive amount remaining, we do force the lender to purchase the remainder with money.
Paragraph 6- If a piece of real property was appraised and announced so that the lender could go down to the property and a delay occurred and the lender did not yet go down, so long as the court has not yet transferred possession of the property to the lender, any increase or decrease in value occurs in the borrower’s possession and the court must make another appraisal and announcement following the appraisal. If the lender went down to the borrower’s property and took possession of them or sold them without involving the court, it would be of no effect, even if he had the property in his possession as collateral or had an explicit document stating collection would be from that property because the borrower could have paid him and removed him from the property. There are those that say that if the deadline for repayment that was set up has passed or if the collateral was in the lender’s possession, the lender may sell the property.
Paragraph 7- In a locale with the custom to write that the lender may go down to the borrower’s properties and sell without an appraisal or announcement and the actual custom is not to go down and sell other than with an appraisal and announcement, the lender may not go down and sell without it.
Paragraph 8- If the lender went down to the borrower’s property without permission from court, it is of no effect and any fruits consumed would be deducted from the debt.
Paragraph 9- If the court appraised real property for the creditor- if it was an appraisal on moveable items, they would not retract the appraisal- whether it was property in the borrower’s possession or a third-party buyer’s possession, and at a later date the borrower or buyer or their respective inheritors obtained money and brought it to the creditor, we would remove the creditor from the land, even if it was in his possession for many years. There are those that say that a third-party buyer cannot remove the creditor after he collected the property because an appraisal can only be retracted for the original owner whose unencumbered properties were collected, but not for a third-party buyer. If the lender demolished and rebuilt but did not increase the property’s value, he would not be able to collect expenses. If the value increased because of his expenses, he would swear and collect like the law of one who goes down to another’s field with permission. If the value went up on its own, such as where the property value increased, he would only pay the value of the loan. There are those that say that if he incurred expenses and the value went up, the property would not revert at all. If the value went up on its own, it would revert at the higher value. If the property value went down, the lender would not lose out and if one wants to remove him he must pay the full value of the debt. If they made a kinyan that no one would can remove him from the land, they would not be able to remove him. If the borrower paid the lender on his own volition without the involvement of the court, the lender would not have to return the land.
Paragraph 10- If real property was appraised for a creditor and subsequently appraised by the court for the lender’s creditor, the land can still revert to the original borrower. The second creditor is in no greater position than the first creditor. In one aspect, however, the second creditor is in a better position. If they appraised the land for the first creditor for 100 and 200 for the second creditor or 200 for the first creditor and 100 for the second creditor, the land would only revert for 200. If land was appraised for a creditor and the creditor sold the land, gave it as a gift or had it appraised for the creditor’s creditor with his knowledge or if the creditor died and bequeathed the land, the property would not revert. There are those that say that if the creditor died and bequeathed the land, the property would revert if there was only one inheritor. If, however, there were numerous inheritors and they split the estate and one inheritor received this land, it would not revert. If they appraised land for a woman and she then married or if they appraised land of hers and she married, the husband has the status of a buyer on his wife’s property and she would not have to return land nor would land be returned to the husband. There are those that say this is only where the wife died.
Paragraph 11- If they erred on the appraisal, such as a case where an unpaid guardian was negligent and they obligated him to pay and they appraised his land and later discovered that the deposit was still in his possession or was misplaced and found, the appraisal is invalid and the land would revert, even if the current possessor sold it or bequeathed it. The same would apply if they appraised it for a creditors’ debt and it was later discovered that the borrower had money available and it would be an appraisal-in-error. If the lender wants, he can force the borrower to purchase the land and give him the money. If, however, the borrower later became wealthy, the lender cannot force him to buy back the land.