Translation:Shulchan Aruch/Choshen Mishpat/122

Paragraph 1- Notwithstanding the fact that a borrower who sends the lender his debt with a messenger based on the lender’s instruction and the money was misplaced is exempt, as was explained in the prior Siman, if the borrower prefers, he does not have to send it with the messenger, even if there are witnesses that the lender appointed him as a messenger, unless the messenger were to come with a power of attorney. Nevertheless, today we have the custom that if a co-signer is put up for the power of attorney, the defendant must litigate with the co-signer, even though he is not the lender’s messenger if it appears to the court that it is for the lender’s benefit, because we can do something beneficial for a party outside his presence. The rationale is because there is a concern that the lender will die before the messenger gives the money and if an unavoidable accident occurred on the road the borrower will be require to pay the inheritors since the money was not given before the lender died. Thus, it is a good idea for a borrower or guardian not to give the item to the messenger unless he comes with a power of attorney through the lender making a kinyan to the messenger via real property that the sender has. If the sender knows the recipient died, however, he should not give the item to the messenger.

Paragraph 2- If a person appoints a messenger with witnesses to bring him that which so and so has of his, and subsequently voids the messengership before the sender gave the item to the messenger and the defendant was unaware that it was voided and gave the item to the messenger and it was misplaced, the defendant would be exempt. There are some that say that he would be liable unless the recipient wrote to the messenger go and litigate and take the item for yourself.

Paragraph 3- If someone granted power of attorney to another and wanted to void the messengership and grant power of attorney to another, he may do so. If he wants, he can also say that the first messengership should still be valid and whichever one wants can have the power of attorney. The defendant cannot push away the messenger by saying perhaps the party voided the power of attorney and gave it to someone else because the messenger can say give me what you have and keep this power of attorney and if the party voided the messengership he caused himself the loss and the defendant would be exempt because he gave the money to the individual with the power of attorney. Similarly, if the messenger litigated with the defendant and the messenger was found liable, the original party cannot void the ruling with a claim that he had already nullified the power of attorney at the time of the litigation. Nevertheless, if the messenger knew of the voided messengership, the ruling would be void and they would need to re-litigate, even if the defendant was unaware it was voided.

Paragraph 4- If one grants power of attorney to another to remove what is his from a third party who has possession, the messenger must acquire the power of attorney with a kinyan that he is granting it. He must write to him, “litigate and acquire and take for yourself” or some similar language. If he did not write this language, the possessor can choose not to respond to him because he can say you are not my counterparty. Notwithstanding the foregoing, if he did not write the language but the possessor gave it to the messenger and it was misplaced, the possessor would be exempt because it is no worse than a messenger appointed with witnesses.

Paragraph 5- If the party wrote litigate and acquire and take for yourself half, a third or a quarter and the rest will be for me, because the messenger can litigate his portion the defendant must litigate with him on everything. There are those that say that this is only true in such a case. If, however, he wrote litigate and acquire and take for yourself 100 dinar and the remainder will be mine, the defendant only has to litigate with him on the 100 dinar.

Paragraph 6- If one grants power of attorney on all the expenses the messenger would incur on this case, the grantor would be required to pay them- see later 375:4- because we write in a power of attorney, “any expenses incurred as a result of this case is on me to pay.” The grantee would be considered a mere messenger. If the messenger wanted to hold on to the money he would not be able to and he would have to return it because he is just a messenger. Thus, if the depositor makes a claim on a deposit and the guardian says he gave it to the messenger and then borrowed it again from the messenger, the guardian would have to return the item to the owner because the power of attorney was just a messengership. If Reuven had money in another city and Shimon went there and Reuven gave him the power of attorney to accept the money and exchange it back in Reuven’s city and Shimon went and accepted the money and Reuven subsequently went there and wants Shimon to give him his money, Shimon would be in the right.

Paragraph 7- If a power of attorney did not state “litigate and ‘zachi’,” but instead said, “‘sav’ and take for yourself,” it would not be disqualified for lacking “zachi,” because “sav” and “zachi” are the same thing. Similarly, a power of attorney would not be disqualified if it did not say “and litigate” because since it says “anything that arises out of such litigation should come back to me” it is as if it said “and litigate” and thus is valid. If the power of attorney did not say “anything that arises out of such litigation should come back to me” it would be valid because we only write this language for the benefit of the grantor so that the grantee cannot say since he wrote “litigate and acquire for yourself” he has given possession of it to me. A power of attorney document does not require a date. Nevertheless, we do have the custom to write the date as well as “with free choice, without any duress etc.”

Paragraph 8- If a husband wants to litigate with an individual who possess his wife’s usufruct property he must have a power of attorney. If there are fruits on the property, because the husband can litigate the fruit, he can litigate the principle and would not require a power of attorney. See Even Haezer Siman 85.

Paragraph 9- If one of the brothers or partners that did not divide comes to make a claim on the entire amount, because he has a portion of the money he does not require a power of attorney from the other partners. If he is found liable, another partner cannot tell him had I been there I would have made other claims and the counterparty would have been liable, because he can say why didn’t you also come and make a claim. Therefore, if the partner was in another city he can go after his counterparty and litigate with him and say I do not agree with everything my partner claimed. Therefore, the defendant can refrain from litigating and say either litigate just on your portion or bring a power of attorney because I have both of your money and both of you are my counterparties and tomorrow your brother or partner will come and also make a claim. This will be explained further in 176:25 and 26.