Translation:Shulchan Aruch/Choshen Mishpat/98
Paragraph 1- The order of collecting a debt is as follows: When the lender produces a verified loan document telling the borrower to pay, even if the lender delayed many years and did not make a claim, we do not say the lender has waived the debt by virtue of the fact that he waited so long. Even if we heard the lender completely give up from the loan and say “woe is to the loss of money,” it would not qualify as giving up. Even if the lender observed the borrower writing his properties to his children and only leaving a small amount for the lender and the lender was silent, we would still not say he waived the debt. This is true even if the lender does not produce the document but the borrower admits to the debt.
Paragraph 2- In order produce a truthful judgement, the judge must perform a thorough investigation with an old document to determine why it has not been claimed until now and see if there is any trickery involved.
Paragraph 3- The lender may not go down to the borrower’s properties to collect until they first inform the borrower, whether he is here or far away. If the judge erred and had the lender go down before informing the borrower, we would remove him.
Paragraph 4- If the borrower claims that the document that was verified in front of the court is a forgery and I will bring proof and void it and the witnesses are in such and such place and they are so and so and so and so, and the judges see that there is substance to his argument, the court would set up a time for him to bring witnesses. If the court perceives that that the party is coming with meaningless words and defective claims, we tell him to pay and that he can later come back if he has proof. If the counterparty was a strong individual whom the party may not be able to extract money from, we would leave the money with a third party. The default timeframe is 30 days.
Paragraph 5- If the court set up a date to bring proof to void the document and the time arrived and the party did not come, we would wait a Monday, Thursday and Monday. If he still does not come, we write a letter of ostracism against him and we place a shmuti on him and he will be in nidui for 90 days. If the 90 days passed and he still did not come, the court would write a letter announcing that he may collect his debt against the borrower’s properties, and we would then void the nidui. We do not write the authorization of the debt collection until they send for the borrower and inform him, assuming he is within one day of the court. There are those that say even if he is within two days. If he is farther than this, the court would not need to inform him.
Paragraph 6- When does this apply? When the borrower procrastinated for 90 days and said I will bring the proof now and void the document. If, however, he says I will not come to court, we would write the debt collection authorization immediately whether on the borrower’s real property or moveable items. Similarly, if the document was on a deposit, we would not wait 90 days. Rather, we would write the authorization on the guardian’s property immediately.
Paragraph 7- This that we said that if the borrower does not come within 90 days we would write an authorization to collect the debt is only with respect to real property. With respect to moveable items, however, so long as the borrower says I will now come and bring proof and void the document, even if it is after 90 days, we would not let the lender go down to collect the borrower’s moveable items because he may consume then and the borrower will bring proof and void the document and if the borrower cannot find the movable items, he will have nothing to collect. Even if the lender has land, the land may depreciate or be ruined. Although we do not write an authorization on movable items, we would give the items to a third party and provide an appropriate timeframe in the court’s eyes. If he can weaken the document during that time, the document will be weakened. If not, we give the items to the lender.
Paragraph 8- If the lender is a strong person and the borrower would not be able to remove the real property from the lender after the document is invalidated, we would delay the authorization until we inform the borrower, even if he is in a place far away that requires 12 months for a caravan to go and come back.
Paragraph 9- How do we write the authorization? If they are letting the lender go down to properties that are unencumbered, they would write, “so and so is obligated by law such and such amount to so and so and he has not given it on his own, and we are writing for him this authorization on such and such field of the borrowers.” We would then have three individuals appraise the field corresponding to the debt and announce a price accordingly until the bidders increasing the price cease to bid. We would then have the lender go to down to portion of the field that was appraised for him and tear the loan document if there was one. If there no unencumbered properties, we would write the authorization as follows: “so and so is obligated to so and so by virtue of the loan document in his possession and he has not paid the debt and we have not discovered unencumbered properties and we already tore the document he had on it and we are granting so and so permission to research and investigate and to have right on any property they will find for him. The lender has permission to collect his debt from all real property that was sold from such and such time and onwards.” After they write this authorization, the lender goes and searches. If he finds unencumbered properties we appraise them for him. If he finds properties in the hands of third-party buyers that were sold after the date provided in the document, he may collect them and we would tear the authorization document. We then write a collections document. How so? We write, “so and so obtained the right in judgement to collect this debt by law that so and so owed him which was such and such amount, via such and such field that so and so purchased on such and such date and we already tore the authorization that he had and allowed him to collect from this land such and such amount.” They then write the collection document allowing him to collect. We send down three experts to the field and they appraise the amount corresponding to the debt from the principle as well as half of the appreciation. We then make a 30-day announcement on the field just as we do for orphan-property and have the borrower swear that he does not have any property if the borrower is with us in the country. We have the collector swear while grasping a holy item that he did not collect this debt nor waive it or sell it to anyone else. We then allow him to go down the buyer’s property with his appraisal and write the going-down authorization. How do we write it? “After we appraised the appraisal for so and so that he has in his possession and we properly announced for 30 days and we had the collector and debtor swear, we allowed him to go down to such and such field to use it like any person can use a field he acquired.” When can the collector being to consume the fruits of this field? Once the announcement days have passed. If there was an error in the authorization he cannot consume the fruits, even following the days of announcement.
Paragraph 10- Any authorization that does not state that they tore the loan document is not a valid authorization latter. Any collection letter that does not state that the they tore the authorization is not a valid collection letter. Any appraisal that does not state that they tore the collection letter is not a valid appraisal.
Paragraph 11- The process for writing an authorization on orphan-property will be explained in Siman 109.