Translation:Shulchan Aruch/Choshen Mishpat/65
Paragraph 1- If one finds a document in his possession and is unaware whether the lender deposited it, the borrower deposited it or it was deposited with him as a third party and some of it has already been repaid, the document should be left until Eliyahu comes. If he returns the document to the named party, he has violated the words of the Rabbis. If the party that is now in possession of the document contradicts the individual that gave it to him, the current possessor can now collect with it. If the party admits that he gave the document to the original possessor, he must return the document and it should be left until Eliyahu comes. This will be explained further in this Siman. See seif 16. If one finds a collateral document in his possession and is unaware of its nature, any claim the collateral-holder makes will be of no effect, even though he possess the land, the document will remain until Eliyahu comes and the land must be returned to its owner. This is all with respect to someone that has no relationship to the depositor or the custodian. With respect to a son that discovers his father’s documents and is unaware of their nature, however, or a case where the father discovers the documents of his son that he supports or any other case of parties that cannot obtain a chazaka on each other as will be explained later in Siman 149, they have the status of one person and it is as if the document was discovered by the party himself.
Paragraph 2- Similarly, the inheritors of a custodian should not return any document that is discovered in their father’s possession unless they knew of its nature. There are those that say that if the lender himself took the document before it reached the possession of another, we do not say to leave the document, even if he took it from the inheritor’s home before it entered the inheritor’s possession. If, however, an inheritor discovers a woman’s kesubah that was deposited with their father, they may return it to the woman and we are not concerned that it was paid back.
Paragraph 3- There are those that say that even where both parties agree, the current document-possessor cannot produce the document unless it was torn because we are concerned for trickery. There are those that say that we are not concerned and if both parties agree we should do as they say.
Paragraph 4- If inheritors that claim on a document that they produced that their father had lent money to the lender, although they cannot collect from the borrower without a writing, they have possessed the document as collateral and their claim is valid. We would not, however, make the claim on their behalf.
Paragraph 5- If Reuven died and they discovered in his possession documents belonging to his sister that were tied together, some of which were to her benefit, such as a dowry document or land documents, and some which were to her detriment, such as a gift document on land that she gave to her husband, although a dowry document is like any other loan document, since it was tied with other documents which are certainly hers, it is as if we are certain that she deposited them. Accordingly, even the gift document on land she gave her husband is assumed to be deposited by her and we would return it to her or her inheritors.
Paragraph 6- If one finds a loan document, he should not return it, even if the document contains a believability clause, it is still prior to the date of repayment, the document does not contain any security and the borrower confesses, because we are concerned the borrower repaid and there is trickery involved. Even if the borrower or lender were to say there is a hole on such and such letter, the possessor would not return the document to either one. If the document explicitly say that the loan is unsecured, he would return it if the obligated party confesses.
Paragraph 7- Similarly, if the borrower has enough unencumbered property to cover the debt and the obligated party confesses, the possessor may return the document. Similarly, if the document was discovered on the day it was written, it contains a verification receipt and the obligated party confesses, the possessor would return the document. There are those that say that this that we say that if it was found on the day it was written it should be returned is only where the borrower is not in front of us. If, however, the borrower is in front of us and says I paid back the loan and dropped the document, he would not return it.
Paragraph 8- If one found torn documents in the market along with a loan document, he should not return the document. If there is a receipt among the documents, he should return the loan document to the borrower, even if the receipt does not have witnesses.
Paragraph 9- If one discovers a document with a vessel, he should give the document to one who provides a sign on the vessel. Even if one does not provide a sign on the vessel but when the possessor announces that he found a document, this person says you found it with such and such vessel, it is a valid sign if it is not way of the world to put documents in that vessel.
Paragraph 10- If one discovered three or more documents bound one on top of the other or each one was bound to the head of the other, he must announce, “I have found documents and will return them to whomever provides the number of documents.” He does not have to describe how they were bound. The fact that it was bound is not a sign if all the documents belong to one lender or borrower. This is only where both parties are not in front of us. If they were both in front of us and one is aware of the fact that it was bound and other was not, we give to the party that is aware.
Paragraph 11- If one found three documents together with one borrower who borrowed from three lenders and the documents were verified, he must return them to the borrower, even without a sign. He should not give it to the lender, even if the lender were to provide a sign. If one discovered three documents together from three borrowers that borrowed from one lender and the documents contained three different scribe handwritings, he must return them to the lender, even without a sign. If they all have the same scribe handwriting, he would give them to the party that provides a sign. The same applies to two documents with two borrowers or two lenders.
Paragraph 12- If one discovered letters of court evaluations, letters promising support to step-children, chalitzah documents, meiun documents, judge-selection documents or any other document of a court act, such as a land transfer from borrower to lender, he must return them to its owner.
Paragraph 13- If one discovered an emancipation document and the slave-owner does not confess to giving it, he should not return the document to the owner or the slave. If the owner confesses that he gave it to the slave to free him, the possessor should return the document to the slave. If, however, the slave comes to collect his lands that this master sold after the date of the document, he must bring a proof that he received the document on the written date. In a situation where the signatories acquire the document on his behalf, as was explained above in Siman 39, the slave would not be required to bring a proof.
Paragraph 14- If one discovers documents of a healthy gift-giving or a sale document, he should not provide the document to the recipient, even if the giver or seller says to give it to the recipient or buyer, unless he specified in the gift that he retains the right to retract the gift forever, such as where he writes, “from today, if I do not retract at any time during my lifetime.” If the document was a transfer document where he specified that he is making a kinyan immediately, he would return the document to the recipient even if the document never reached the recipient’s possession and even if the giver did not retain the ability to retract. If one discovers documents of a dying gift-giving and the giver is alive and says to give the document to the recipient, they would give it to him. If the giver dies, they would not give it to the recipient, even if the son says to give it, unless there was a transfer document.
Paragraph 15- If two people are holding a document and the lender says it is mine and I produced it to collect from you and the lender says I paid back and dropped it, and the document can be verified, each party will swear that they do not own less than half of the money and the borrower will pay half of the value of the debt in the document. If the document cannot be verified, the borrower will take a heses oath and walk away. There are those that say that if the document is verified, they are both holding it equally in the outline or the substance or they are both holding the margins, even where the substance is closer to one party than the other, each one would swear he does not own less than half and the borrower would pay half, even if the document contains a believability clause. If one were holding the substance and the other was holding the outline, the party holding the substance would take the additional amount the substance is worth over the outline and the rest would be split with oaths.
Paragraph 16- If one returns a document that he was not supposed do by law, there are those that say that the party may collect with it and there are those that say that he cannot. There are those that say even if a party collected with it in court and it later became known via witnesses that it was a document that fell, the court would revert and transfer the money from the lender to the borrower. If, however, the borrower paid back the lender or his inheritors on his own volition, we would not take away the money. See the beginning of this Siman.
Paragraph 17- If one produces a loan document against his adversary and makes a claim in court, but later loses the document and there is highly credible circumstantial evidence that the document was lost, the court is required to write a court-document, verify the document as was done originally and force the borrower to pay back.
Paragraph 18- If one discovers a receipt in the market and the lender admits that he gave it to the borrower, he should return it to the borrower. If the lender does not admit, he should not return the receipt to either party. If a lender discovers a receipt of repayment in his possession on one his documents, it does not minimize the effectiveness of the document in any way, even if it was written the borrower’s or lender’s handwriting, unless the document that had a receipt written on it was found among his torn documents. Although this particular document was itself not torn, its effectiveness has been diminished and we rely on the receipt, even if there are no witnesses on the receipt. If, however, there was no receipt, the effectiveness of the document would not be diminished and the lender could collect, even though the document was discovered among the torn documents. If witnesses had signed on the receipt that was in the lender’s possession, they should ask the witnesses if they know whether this document was paid back and they should act based on the witnesses’ words. If the witnesses don’t know or are not present and the receipt is verified, it is a valid receipt.
Paragraph 19- If the receipt was in the possession of a third party who says the document has been repaid, the third party would be believed. Even if the court had already seen the receipt in the third party’s possession, there are no witnesses on it and the third party had died, the receipt is valid. This is only where the document is with the receipt in the third party’s possession. If, however, the document is not in the third party’s possession and there are no witnesses on the receipt, the receipt is of no effect. If there are witnesses on the receipt and they have been verified, the receipt is valid. If the witnesses have not been verified, they should verify their signatures. If the third party had died, they should not return the receipt to the borrower or the lender, even if the obligated party admits that he deposited the receipt with the third party and had not yet paid back because we are concerned of trickery. Therefore, we would not collect with this loan document that has a receipt on it, nor would we tear up the document.
Paragraph 20- If a document contained a receipt on the physical document, whether before or after the document, even if it was just some of the receipt, that says that this document has been paid back or such and such amount has been paid back, we would follow what it says in the receipt, even if the lender produces the document and there are no witnesses on the writing. The same would apply if the lender found a writing in his notes that so and so’s document has been repaid.
Paragraph 21- If Reuven died and one of his documents was discovered to have written on it in his handwriting that this document has been paid back or such and such amount was paid back, we would follow what is written in the receipt.
Paragraph 22- If one dies and one of his documents was discovered to have written on it in his handwriting that so and so owns half of this document, such so and so would not have any portion in the document.
Paragraph 23- If one says that one of the documents among my document has been paid back and I don’t know which one it is, all of his documents are considered to have been paid back. If one party had two documents, the larger one is considered to have been paid back but not the smaller one. If, however, a receipt on the smaller loan, but not the larger loan, has been discovered in the borrower’s home and similarly, if the lender doesn’t say one of the loans has been repaid but I waive one of the loans, the smaller one would be waived and not the larger one.
Paragraph 24- If one tells another your document that is in my possession has been paid back, the larger loan is considered paid back and the smaller one is not paid back. If he says the debt of yours in my possession has been paid back, all documents that the lender has on the borrower are considered paid back.