Translation:Shulchan Aruch/Choshen Mishpat/85

Paragraph 1- If Reuven produced a loan document against Shimon and Shimon produced a document that Reuven sold Shimon his field after the date of the loan document and Shimon says that if I owed you money you should have collected from me and not sold me your field and it is a locale where the custom is that the one who purchases the field gives the money and then they write the document, Shimon’s claim is valid because Reuven should not have written a sale document after he had accepted the money. The borrower is believed to say he paid back and had a receipt that he had misplaced, even if the document contains a believability clause. If the borrower says the document is forged there are those that say that he is not believed because the document is verified, and there are those that say he is believed. If the deadline had not arrived, the borrower’s claim is not valid. If it is a locale where they write the document and then give the money, the borrower’s claim would not be valid even if the deadline had arrived because the lender can says I only sold the field to you so that I would have where to collect my debt from.

Paragraph 2- If the borrower sold land to the lender after the deadline for paying the document, the borrower can say to the lender that if he owed money you should have collected from the field when I sold it to you, even in a place where they give money and then write the document. If, however, the borrower sold the lender moveable items, the borrower cannot say if I owed you money why didn’t you claim the items for your debt because the lender could say I was afraid that if I made the claim that you wouldn’t sell the items to me at all.

Paragraph 3- If Reuven produced a loan document against Shimon and Shimon produced one against Reuven that was dated later than Reuven’s document and the repayment deadline of Reuven’s document arrived before he borrowed from Shimon, Shimon can tell Reuven that had you still owed me money you should not have borrowed from me but should have collected the money owed under the debt. This is only where the document is clear. If, however, there is a claim against the document, such as where there is a possibility of asmachta or something similar, Reuven can say I was concerned that I would not be able to collect with my document because of the asmachta so I was forced to borrow as I did not have the time to fight with you. There are those that say there is no distinction between a place where they give the money and then write the document and a place where they write the document and then give the money. There are others that say that this rule is only true where they give the money and then write the document, and even if Reuven had inferior properties and Shimon had superior properties, Reuven cannot say I only borrowed from you so that I could collect the superior properties and you would have to collect from the inferior properties. If it is a place where they write the document and then give the money, Shimon cannot say to Reuven that you should have collected your debt. Rather, each one will collect his debt. If, however, they both have superior, average or inferior properties or one has superior or average and the other has inferior, each one will remain with his properties. Similarly, if one has superior and average properties and the other has inferior properties, each one will remain with his properties. If, however, one has superior and average and the other has inferior, each party will collect. If the date on the document Shimon produced against Reuven was prior to the deadline in Reuven’s document, in all cases each party would remain with his property because he cannot say you should have collected your debt since the deadline had not yet arrived. This is true even if it was the final day, such as where Reuven lent Shimon in a document for five years and on the date the five years concluded, Reuven borrows from Shimon for 10 years, and Shimon cannot tell Reuven that had you I owed you money why would you have obligated yourself for one day, and Reuven can collect his debt after five years and Shimon can collect his debt after 10 years. If Reuven makes a claim against Shimon to pay him back and Shimon responds you paid me back this week and why didn’t you retain the money for your debt and Reuven says he trusted Shimon, Reuven is believed with a migu that he could have said I did not pay you pack or the deadline for collection had not yet been reached. If a woman consecrates her properties and instructs that her daughters should live in her house and pay rent and one daughter subsequently brings a gift document that precedes the consecration document and the other inheritors says that if your document was accurate why did you pay rent and the daughter can provide a justification for the rental payment, the daughter is in the right. If she cannot provide justification, the inheritors are in the right.

Paragraph 4- If one of the parties died and left minor orphans, each party will remain in his property, even if the inheritors’ father did not leave them anything, because if the inheritors were to collect from the other party, the other party would re-collect from them, even if the inheritors collected money, now that the geonim have instituted that they can collect from the moveable property of orphans.

Paragraph 5- Even in the case of minor orphans, we would not tell them to collect immediately nor can the other party collect from them until they becomes adults since the other party took possession in their father’s lifetime.

Paragraph 6- If two individuals both had a loan document of a maneh against each other in a situation where the law would be that each one remains in his property and one party sold his debt to a third-party buyer, the buyer would collect from the borrower and the borrower would then collect unencumbered properties from the seller. If the seller does not have properties and the buyer had collected land from the lender, the lender can re-collect the land from the buyer because it was mortgaged to his debt. If the buyer had collected moveable items and in the loan document the seller had mortgaged moveable items via land that was purchased or will be purchased, the lender cannot recollect the moveable items from the buyer. If the document did not have that language, the lender would not be able to collect anything from the buyer.

Paragraph 7- If Reuven owed Shimon 200 and Shimon owed Reuven a maneh, and Shimon had already litigated with Reuven over the maneh and was obligated in court, and Shimon says you owe me 200 so deduct the maneh that I owe you from your debt and Reuven responds that he has not yet litigated the 200 and that he thinks he has proofs that would exempt him, and Shimon’s document was verified, Shimon is in the right.