Translation:Shulchan Aruch/Choshen Mishpat/60

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Paragraph 1- If one comes to collect a debt from the borrower and the borrower does not have the funds corresponding to the entire debt, the borrower may collect from real property that the borrower had at the time he borrowed from this lender, which he later sold or gave away. With respect to real property that the borrower purchased after he borrowed from this lender that he later sold or gave away, however, the lender may not collect such land. If the document states that the borrower is mortgaging properties that he has already purchased and those that he will purchase in the future, the lender may also collect from them. There is no security, however, on movable items, even those that the borrower had at the time he borrowed, which for the time being he has sold or given away, and the lender may not collect from them. If the document states, “the borrower is mortgaging the movable items that the borrower has via his real property and it is not an asmachta nor is it the outline of the document”- see later Simans 113 and 202 – then the lender may collect from movable items that he had at the time he borrowed just as the lender may collect from the real property. If the document states, “the borrower is mortgaging the movable items via the real property that he currently owns and that he will own in the future and it is not an asmachta nor is it the outline of the document,” the lender may even collect movable items that the borrower purchased subsequent to the loan which he later sold or gave away just as he may collect from real property. This is all the law under the Talmud. Today, although we have the custom to write in all documents that the borrower is mortgaging movable items via real property, the custom is not to collect from movable times which the borrower sold, gave away or gave as collateral because of a “market regulation.” Even under this custom, if the borrower had a loan document on a third party which he sold, the lender may collect from that loan because the “market regulation” is not applicable considering this is an uncommon case. Similarly, if the borrower gave away all his properties to a third party and did not retain anything for himself, it is clear circumstantial evidence that he did it just to avoid the debt and the “market regulation” is inapplicable. See later 99:6.

Paragraph 2- If one obligated himself to an unspecified amount, such as where he obligated himself to support or clothe his friend for five years or where there is no set amount of years, the Rambam is of the opinion that he is not obligated, even if a kinyan was made. All those that came after the Rambam disagreed with him and said that he would be obligated and this is how we rule. See later at the end of Siman 207.

Paragraph 3- If one obligated himself to support his friend and the giver wants to provide fruit whereas the recipient demands money, the recipient is in the right. If the giver explicitly conditioned to support the recipient on the giver’s table and the recipient does not want to eat with him, the giver only is required to give him based on the cost of having the recipient eat in the giver’s home. If, however, the hold-up is not coming from the one being supported but from the obligated party, the obligated party must give the complete cost of the food. If the recipient gets sick, the giver does not have to pay his medical expenses and must only pay the value of the food that the recipient received while healthy. There are those that say that where one simply agrees to support his friend, the language implies he will support him his entire lifetime or so long as he needs it. There are those that say that if one simply agrees to support the other or provide him with 100 gold coins for the year, he will be exempt from just one year of his agreement. If one accepts to support his friend based on his prestige, the court will evaluate what the recipient was accustomed to prior to the obligation. Dress is not included in the category of food unless the giver says he will feed and support because clothing is included in support. If one writes to his friend that he will support him for a set amount of time or give him 100 dinar and he supported him a little bit but then stopped, the giver does not need to provide 100 dinar. Rather, he must reimburse for the difference between the value for the food given and 100 dinar, but no more than 100 dinar, because he certainly did not intend to give 100 dinar unless he did not provide any support. If Reuven accepts on himself to support Shimon and his wife and began supporting them and Shimon’s wife died, Reuven is exempt from providing her support. Even if Reuven had set up a set amount for the support of Shimon’s wife, he is still exempt from that portion.

Paragraph 4- If one obligates himself simply to support his friend or to support him on his table and the giver dies, the inheritors are required to support him in the same manner the deceased was required to because “his table” is not literal.

Paragraph 5- If two individuals obligated themselves to support one person, the law is the same as where two individuals borrowed from one person. See Even Haezer 114:7.

Paragraph 6- If one obligates himself for a matter that is not yet in existence or is not available to him, he is still obligated notwithstanding the fact that one cannot make a kinyan on a matter not yet in existence because that is only with respect to a kinyan made in the language of a sale or gift. Even where one writes a lien on a field, mortgages all of his properties or even gives it as a collateral, it is of no effect. When one uses a language of being obligated however, such as where he says “you are my witnesses that I am obligated to so and so, such and such,” he would be obligated, so long as they made a kinyan from him. If Reuven produces a document with a kinyan against Shimon which says, “because I gave him 100 gold coins and mortgaged all my properties for him to collect from,” but did not obligate himself personally and Shimon claims that at the time the document was written against him he did not have the money and a person cannot make a kinyan on something not yet in existence and the gold coins in the document are coins that people generally transact with, the coins cannot be acquired via chalipin. If that country does not generally transact with those gold coins, they could be acquired via chalipin- see later 211:6- but they must have been in Shimon’s possession at the time of the kinyan. If it is unknown whether it was in his possession, the plaintiff has the burden of proof. If the plaintiff claims with certainty that it was in the defendant’s possession and the defendant denies it, the defendant must swear. The defendant is believed to say he gave it already it with a migu that he could have said it was not in his possession at the time of the loan. However, this is all according to the reasoning of the Rif and some others. Many others, however, disagree with this and hold that anyone who says I gave so and so, such and such, is an admission by a party and has the status of 100 witnesses. We do not investigate how it was given because once he was confessed we assume he gave it in an effective manner and the recipient would acquire it.

Paragraph 7- If Reuven lent a maneh to Shimon and some time after that, Shimon wrote a document for Reuven with a kinyan that states, “because I borrowed from so and so, such and such, I am obligated to him and I am giving my land as collateral,” so and so would acquire the collateral.

Paragraph 8- If Reuven produced a document that Shimon borrowed from Levi, Reuven claims that Levi was Reuven’s messenger and Levi just used his own name and Reuven did not object, Shimon claims that he has no privity with Reuven because Reuven does not have a power-of-attorney from Levi, Levi admits to Reuven that he was a messenger and Levi’s admission does not cause harm to any others, we would force Shimon to pay Reuven. If Levi were to waive the loan to Shimon, the loan would not be waived.

Paragraph 9- If Reuven lent money to Levi and at the time of the loan Reuven tells Levi that the witnesses should write the document in Shimon’s name but give the document to Reuven, and when Reuven makes a claim from Levi at the prescribed time Levi claims that he has no privity, Reuven is in the right. If Reuven makes a claim against Shimon that he should write a sale document on this document that is written in Shimon’s name, we would not force Shimon to do so. Even if Shimon were to agree to write the sale document, he may retract. If, however, Reuven told the borrower at the time of the loan, that he is giving the loan on the condition that you write a document for me in Shimon’s name and when I decide you will replace it with one in my name, we would force the borrower on this point. Even if Reuven did not explain his words and just told the witnesses in front of the borrower that they will write another document for him, we would obligate the borrower to write another document in Reuven’s name. If a document was written in Reuven’s name and at the end before the witnesses’ signature the document states, “this money is from the congregation’s property,” and Reuven claims that since it was written in his name the congregation must have given him this document on money that he had entrusted with them and the congregation contradicts him, the congregation is in the right.

Paragraph 10- If Shimon owed a maneh to Reuven and they compromised to have Shimon create a loan document for Levi of 20 dinar and subsequently Reuven created a waiver document for Shimon on all monetary claims, and Shimon now claims that because it was not Levi who lent him money, but Reuven, and Reuven has waived all monetary claims, this debt is included, Shimon is in the right.

Paragraph 11- If one lends another with a collateral on real property and the lender instructs to write the property in the name of the lender’s minor son, and now the borrower is claiming that the lender has no privity with him, there is no substance in the borrower’s words.

Paragraph 12- If a woman claims on real property that her husband left behind that half of it is from money that she inherited from her father’s home and the documents are written in both of their names, the woman is in the right. If the documents are written exclusively in her name and she claims they’re all hers, they all belong to her.