Translation:Shulchan Aruch/Choshen Mishpat/126

Paragraph 1- If a maneh of Reuven’s was in Shimon’s possession, whether it was a loan or deposit, and Reuven told Shimon in the presence of all three parties, “the maneh of mine in your possession should be given to Levi,” Levi would acquire the maneh, whether it was given as a gift or as repayment of a debt. Neither Reuven nor Shimon would be able to retract, even if they were still discussing the matter. Similarly, the donor is unable to go back and waive the debt of the individual in possession of the maneh. Levi would acquire the maneh even if he was born after Reuven had lent Shimon.

Paragraph 2- When is this true? When Shimon had a maneh of Reuven’s in his possession. If Shimon did not have such maneh, however, but Reuven simply said to give a maneh to Levi on his behalf and he will pay back, Levi will not acquire the maneh and any of the three parties can back out- even if the lender waived the debt to the borrower he can retract so long as they did not make a kinyan- even if Shimon paid some of the debt to the Levi. Nevertheless, if he did give the money, he can go and collect from Reuven because he gave based on his say-so. Similarly, if the recipient completely exempted the giver, the individual with the money in his possession must give the money to the recipient because he is no worse than a standard co-signer.

Paragraph 3- If Reuven simply told Shimon while all three parties were present, “give a maneh to Levi,” but did not say “the maneh of mine in your possession,” and Shimon admits that he has a maneh of Reuven’s but says that since Reuven did not say “the maneh of mine in your possession” his intention was not on the maneh I have but to lend him a maneh which he would pay back, Shimon’s claim is of no effect because the presumption is that Reuven was referring to the maneh of his that Shimon has, and thus Levi would acquire the maneh. There are those that say that Levi would not acquire the maneh.

Paragraph 4- If Shimon had a kur of wheat belonging to Reuven in his possession and Reuven told him in the presence of all three parties, “give 50 dinar to Levi because you have a kur of wheat of mine in your possession,” and Shimon agreed and now wants to retract and the wheat was given as a deposit and Reuven had said to give 50 dinar of money from the wheat, Levi would not acquire the 50 dinar because Shimon can say he is not required to sell Reuven’s wheat in order to pay off his debts. Even if Levi were to say to give 50 dinar value of wheat, Shimon can say Reuven did not instruct me to give wheat; he instructed me to give money. If, however, Reuven simply said “give him 50 dinar from the wheat of mine that you have,” it is as if Reuven said to give him wheat worth 50 dinar and Levi would acquire the wheat. If the wheat was a loan to Shimon, even if Reuven said 50 dinar, Levi would acquire the wheat and Shimon would either give him money or 50 dinar of wheat at the current market rate.

Paragraph 5- If one tells another, “the maneh that you have of mine should be given to so and so” in the presence of all three of them, and the possessor says he will give it when he wants, and when the recipient makes a claim on it, the possessor says he does not want to give it now, his claim is meaningless and he is required to give it by the time he was originally required to give it back to the depositor. There are those that disagree.

Paragraph 6- In a situation where the depositor instructed the possessor in a way that the recipient did not acquire the item, the possessor is not subsequently believed to say he paid it.

Paragraph 7- Even if the borrower or guardian did not agree to give the money to the person the lender or depositor instructed him to, he must give the money because he was instructed in the presence of all three parties.

Paragraph 8- If any of the three parties were not present when the depositor said to give the maneh of his to Levi, Levi would not acquire the maneh and the depositor can retract, regardless of whether it was a large or small gift. If Levi made a kinyan on the money from the possessor as a form of admission that the possessor now has a maneh of Levi’s, the depositor would not be able to retract.

Paragraph 9- If Reuven told Shimon in the presence of all three parties, “the maneh of mine that you have should be given to Levi” and Shimon is pushing Levi off so Levi wants to go back and make a claim against Reuven, he cannot do so. There are those that say Levi can go back to him so long as he did not explicitly exempt Reuven. Even in a case where Levi did exempt Reuven, if Reuven misled him in the way that is described in seifs 10 and 11, there are those that say that Levi can go back to Reuven. Nevertheless, even according to this opinion, Levi cannot initially make a claim against Reuven so long as he is able to collect from Shimon. It seems to me to rule like the second opinion. Accordingly, the distinctions discussed below in seifs 10 and 11 are moot because they are only relevant to the first view. If the recipient procrastinated and did not claim the money until the guardian become poor and thus is no longer able to collect from him, everyone agrees that he cannot go back to the depositor because it is as if the depositor showed him the money to collect for his debt and he did not take it, in which case the depositor would be exempt. If the guardian said that he gave the money, whether the depositor would be exempt is discussed above in Siman 91.

Paragraph 10- If the depositor said in the presence of all three parties, “the money of mine in your possession should be given to so and so,” and it turns out that the borrower is poor and the recipient has nothing to collect from, the recipient may go back and collect from Reuven because he misled him. If Levi knew that the possessor was poor or if he was rich at that time but later became poor, Levi cannot go back to the depositor.

Paragraph 11- If Levi claims that Shimon was poor and he was misled and Reuven says he was rich and later became poor and the debt that Reuven owed to Levi was documented, Reuven has the burden of proof. If Reuven does not bring proof and the document contained a believability clause, Levi can collect his debt without an oath. If the loan was an oral loan, Reuven is believed with a heses oath to say Shimon was rich at that time.

Paragraph 12- If Reuven tells Shimon, “the loan document of mine in your possession should be given to Levi” in the presence of all three parties, so long as Reuven did not retract, Shimon is required to give it to Levi. If Reuven retracted, however, Shimon would not be required to give it. If Reuven wrote to Levi that he was granting a kinyan to him on the document and all the liens contained therein and he directed him to the possessor, Reuven would not be able to retract.

Paragraph 13- If after the borrower or guardian agreed to give the money to the recipient he said, I looked at my records and actually do not owe you anything and I erred when I confessed, and he is able to prove with witnesses that he is saying the truth, he would be exempt, even if there were witnesses when he agreed to give the money. The donor would be required to give the money to the recipient if he was originally giving it as payment for debt. If the possessor cannot prove his error and he was instructed to give the money in front of witnesses and he also gave the recipient a set time for delivery and it was within that time, he is not believed to say he erred. Similarly, he would not be believed to say he was kidding. If he was not instructed in front of witnesses, there are those that say he is believed to say he erred with a migu that he could have said it never occurred or, if it is after the set time, with a migu that he paid back, and the litigation would be solely between the donor and the recipient. There are those that say that he would not be believed to say he erred with a migu that he paid back because there is no migu since it is the equivalent of a migu opposing witnesses, considering that it is uncommon for a person to err. Rather, a person is generally very careful before confessing. This seems to be the primary opinion. This only applies if the possessor confessed in front of witnesses. If he confessed without witnesses, however, he is able to say he erred. Even if the possessor gave his own handwriting, he is believed with a migu that he paid back. This seems correct to me, not like those opinions that disagree.

Paragraph 14- If the donor admits that he erred in his calculation and the recipient does not know if he erred or not and the money was given to the recipient because of an outstanding debt against the donor and he directed the recipient to the possessor to collect the debt and the donor has properties with which the recipient can collect from, the donor would be believed to say he erred and the recipient would re-collect his debt from the donor. If, however, the donor does not have properties or he is a tough person and the recipient prefers to deal with the possessor, the donor would not be believed, even if he has a solo witness backing him up. If the money was given as a gift, the donor would never be believed. Even if the donor has properties and is not a tough person, the possessor must give the money to the recipient and then collect it from the donor.

Paragraph 15- If the recipient admits that the possessor erred in his calculation but the donor does not admit, the possessor would be exempt without an oath and the donor would need to swear to the recipient if he made the arrangement to pay for an outstanding debt of his. If the arrangement was made for a gift, however, he would be exempt without an oath.

Paragraph 16- If the donor said in the presence of all three parties to give his creditor a maneh and the possessor began giving it and it turned out that the donor erred in his calculation and does not owe the recipient anything, although the donor is exempt from giving him any more money, what is given is done and the donor cannot take it away.

Paragraph 17- If Reuven contracted with the public and owed them the amount of the contract by a certain time and the public owned Shimon 50 gold coins, the public put Shimon next to Reuven and said with all three parties present that Reuven should give 50 gold coins from the contract to Shimon and the contract was later voided with Reuven’s consent, because at the time they told Reuven to give to Shimon he owed the public, he would be required to pay Shimon, notwithstanding the fact that the contract was later voided.

Paragraph 18- If Reuven rented an item to Shimon for a set amount for as long he needs, and Reuven owed Levi 100 gold coins and directed Levi to Shimon in the presence of all three parties, and Shimon only owed 50 gold coins for the rental because he did not need the item any longer and Shimon simply mentioned money and said I will give you the 100 gold coins of Reuven that I have, but did not mention the cost of the rental, he would be required to give it. Even if Shimon said I will give you the 100 gold coins I owe Reuven due to the rental, he would be required to give it since he admitted that he owed that money to Reuven for the rental. If, however, Levi admits that Shimon promised to give him the cost of the rental and that Shimon did not owe Reuven anything other than the rental, Shimon would not even be required to give him the cost of what he used for the rental because rental is only due at the conclusion of the rental, which is when the item is returned.

Paragraph 19- If Reuven transferred possession of a maneh in Levi’s possession to Shimon in the presence of all three parties and Levi provided Shimon with a cosigner, the cosign would be effective as if it was created at the time the money was given, even though the cosigner was not a cosigner on the kinyan. There are those that disagree.

Paragraph 20- Transfer via the presence of all three parties via messenger, such as where the donor sends his messenger to tell the possessor to give the item to the recipient, would not be effective. Similarly, the guardian of orphans has the status of the orphans’ messenger and cannot transfer ownership of the orphans’ money via a transfer in the presence of all three parties. If the donor told the possessor in the presence of the recipient’s messenger, there are those that say it would be effective so long as the recipient made him a messenger. If, however, the recipient did not make him a messenger, but Reuven told Shimon in Levi’s presence, “the maneh of mine that you have shall be given to Levi to acquire it on behalf of Yehuda,” the donor can retract.

Paragraph 21- The transfer via the presence of all three parties does not work if done in writing. It must be literally in the presence of all three parties.

Paragraph 22- There are those that say that there is no distinction between a Jew and gentile with respect to the transfer via the presence of all three parties. Thus, if a Jew tells a gentile “the maneh of mine in your possession should be given to so and so the Jew” in the presence of all three parties, because the recipient agreed, he would acquire the money. Similarly, if a gentile tells a Jew, “the maneh of mine in your possession shall be given to so and so the Jew” in the presence of all three parties, and the guardian or borrower says he will do so, the recipient would acquire the money and the possessor must give it to him and he cannot say an unavoidable accident occurred. There are those that disagree and say that if the guardian or borrower was a gentile and the Jewish depositor or lender told him to give the maneh to so and so the Jew in the presence of all three parties, the recipient would not acquire it. Notwithstanding the foregoing, if the depositor said give it to so and so and swear to him that you will give it and then you will be exempt from my debt, there are those that say that the recipient would acquire it. In all cases, if the gentile already gave what was in his possession to the recipient, we would not take it away from him. Similarly, in any situation where the kinyan did not take effect, if the recipient went ahead and accepted the money we would not take it away from him. If the guardian or borrower was Jewish and the recipient was a gentile, so long as the Jewish depositor did not retract, the possessor can give it to the gentile. If the depositor retracted, however, the gentile would not acquire the item and the guardian would be required to return it to the depositor. Nevertheless, if the guardian is unable to avoid the gentile because under secular law he is required to give him, since the depositor said to give it, he should give it to the gentile and he would be exempt from a claim by the depositor. If the depositor was a gentile and the recipient and guardian were Jews, the Jew would acquire the item and he can remove the item from the guardian in court. If the gentile-depositor was a thief and he removed the item by force from the guardian before he can give it to the recipient and the money was a loan, the borrower would be required to pay the Jewish recipient. If the item were a deposit and the gentile entered the guardian’s home and took the item by force, the guardian would not be required to pay the Jewish recipient. Even if the gentile took the guardian’s own item and the deposit was saved, the guardian can take whatever expense he incurred from the deposit.

Paragraph 23- If a woman brings an oral loan into her marriage, having all three parties present is not required for the transfer to be effective.