Translation:Shulchan Aruch/Choshen Mishpat/112

Paragraph 1- A creditor cannot seize property from third parties unless the borrower had those properties at the time of the loan and he subsequently sold them or gifted them. If, however, the borrower purchased the properties after he borrowed and then sold them, the creditor would not have any rights to it and would not be able to collect them from the buyers. While the properties are in the borrower’s possession, however, the lender may collect them, notwithstanding the fact that the borrower only purchased them after he borrowed. If the borrower placed a lien on properties he purchased and that he will purchase in the future, the lien would take effect on that which he purchased after the loan and if he purchased property and sold it, the creditor would be able to collect the property. This is only where the borrower explicitly stated this condition. If, however, the borrower did not write “and that I will purchase,” the lien would not take effect. There are those that say that since we rule that the absence of a guarantee is a scribe’s error, the absence of anything that can have a lien placed on it is a scribe’s error, even a lien on future acquisitions. If, however, the borrower wrote some guarantees but did not write on future purchases, there are those that say we would no longer say it is a scribe’s error because since he listed some guarantees, what is written is included and what is not is not. There are those that say even if he wrote that he places a lien on future acquisitions, he can retract so long as no kinyan was made. There are those that disagree.

Paragraph 2- If the borrower did not write that he is placing a lien on future acquisitions and he sold his properties after the loan and the lender comes to seize from the buyers with the claim that they were in the borrower’s possession at the time of the loan and the buyer claims the borrower acquired it after the loan and then sold it, there are those that say that the lender has to prove that these properties were in the borrower’s possession at the time of the loan, while others say that in the case where there are witnesses that the borrower acquired this property and sold it, the lender must bring witnesses that the borrower acquired it before his lien took effect, but if there are witnesses that the borrower possessed this property and that it belongs to him, the buyer must prove that the borrower acquired it and when he acquired it. Otherwise, the court will follow the presumption and say the land always belonged to the borrower and his ancestors. It seems to me that the first opinion is the primary view.

Paragraph 3- If one gave his properties away “from today and for after death” and we are not sure which properties he had at that time, there are those that say that the gift recipient must prove that those properties were in the donor’s possession at the time of gift, while others say that if it was not known that the donor subsequently purchased properties, everything is presumed to belong to the gift recipient. The first view is the primary one. See later at the end of Siman 250 and above in Siman 104. This is what seems to me.

Paragraph 4- If two lenders each produced his document and neither document contained a lien on future acquisitions and the borrower does not have enough properties for both debts and the earlier creditor claims that the borrower already acquired the properties at the time of his loan and the later creditor claims that the borrower acquired them after both loans and the properties are mortgaged to both of them and there are no witnesses, there are those that say that they would split the half the property they are arguing over, while others say that there if there are no witnesses that the borrower acquired them, we would place the properties in the possession of the earlier creditor, and if there are witnesses that he acquired them but we just don’t know when he acquired them, they would split the half they are arguing over.

Paragraph 5- If Reuven borrowed with a document and did not write to the lender that he is mortgaging properties he has acquired and will acquire and he subsequently died and had a daughter inheritor who then got married, the lender would not be able to collect those properties she brought into the marriage from the husband because a husband has the status of a purchaser on his wife’s properties. If, however, she did not get married, the lender may collect from the inheritor, as is discussed above in 111:20.