Translation:Shulchan Aruch/Choshen Mishpat/99

Paragraph 1- If the borrower had no claim against the document but says that he has nothing with which to pay back and they could not find anything belonging to the borrower more than the items we leave for him, the Geonim instituted that would we have the borrower swear a Biblical-like oath while grasping a holy item that he does not have anything more than that which we left for him, that he did not hide anything by someone else and that he did not give anyone a gift on the condition they give it back to him. He includes in the oath that any profits he will make and anything that comes into his possession or that he gains control over will not be used to feed his wife or his kids or to clothe them or deal with them and that he will not give any gift to any person. Rather, we take from everything that he has food for 30 days and clothing for a year. The food is the amount appropriate for him and not the food of gluttons or princes. The clothing is not that of an inferior person or a deputy, but as he is accustomed to wear. Anything above what is required is given to the first creditor until he has collected the entire debt. If he does not swear to give everything he obtains in the future, they can have him swear every 30 days that he does not have anything. We first place a cherem on anyone who knows that so and so has hidden or revealed properties that he did not inform the court of. If the borrower has many creditors, he doesn’t have to take an oath on each one. Rather, he takes one oath for all of them. If they see him with money before he swore or after he swore or if there were loan documents in his name and he says they belong to others or he says I designated it for others I owe money to or it’s a business that was given to me, we would not listen to him unless he brings proof. Notwithstanding the fact that he has a migu that could have returned it to him or said it never occurred, he is not believed because it is a migu opposing a presumption that anything in a person’s possession is his. There are those that disagree with this. If, however, it is known that he has a business arrangement from others, he is believed to say that the money in his possession is from that business arrangement with a migu that he could have given it to him.

Paragraph 2- If Reuven had Shimon swear the Geonic-oath and they did not have him swear for the future and subsequently Levi, whose document is later than Reuven's, had Shimon swear that anything he earns more than the required expenses should be given to Levi, because had he not sworn Reuven and Levi would split the money, now that he swore Shimon must fulfill the oath. This is the view written by the Tur in the name of the Rosh. It seems to me that the court can force Levi to give half to Reuven. See later 104:1 where I wrote like the opinion of the Rosh.

Paragraph 3- If Reuven gave an item to Shimon to sell and Shimon’s creditor, Levi, took item as payment for his debt and we know with witnesses that the item belongs to Reuven, Levi must return the item. If, however, we do not know with witnesses that the item belongs to Reuven, we would not take it away from Levi, even if Shimon admits that it is Reuven’s. If Reuven makes a claim against Levi that Levi knows the item is Reuven’s, Levi would need to take a heses oath. If Shimon is a broker, the items in his house that he is accustomed to sell are not presumed to be his with respect to the creditor taking it as collateral for the debt. The broker or owner of the item would be believed with an oath. Similarly, if the creditor discovered items that are generally loaned or rented out in the borrower’s house and an individual comes and says that he lent or rented them to the borrower and he has two witnesses that it belongs to him, he would be believed and the creditor cannot take them as collateral for his debt.

Paragraph 4- If someone is established as a poor, good person who walks simply and it is well-known to the judge and most of the population, and his creditor comes to have him swear via this regulation and the plaintiff is presumed not to have any doubt as to his poverty but simply wants to cause him distress with this oath and to publicly embarrass him as a form of revenge or in order to compel the borrower to go and borrow from a gentile or take his wife’s property and give it to the creditor until he is absolved from this loan, the judge is prohibited from implementing the oath. If the judge does make him swear, he has violated the negative biblical commandment of “lo siyeh lo kinoshe.” Moreover, it is appropriate for the judge to rebuke the creditor and chase him away. See Yoreh Deah at the end of Siman 253 with respect to a poor person who collected money with a collection document as to whether he is required to pay his creditor.

Paragraph 5- If someone is established as a fraudster with crooked business dealings and as having money, yet claims that he has nothing and is eager to swear, we would not have him swear. The judge should ostracize him or force him to pay back. See 97:15.

Paragraph 6- If one owed his counterparty money and gave everything he had to another person in order to evade the debt, his trickery will not work and his creditor can collect his debt from the gift recipient, even if it was an oral loan. The gift recipient will swear on the court’s intent without any trickery or fraud how much of a gift he accepted from Reuven and the court will collect for the creditor from everything the recipient accepted from Reuven. If, however, he turned a profit via business or interest though that gift, the court will not be collect from the profit because even real property that the lender has a lien on and the buyer or gift recipient consumed the fruits for some years the creditor would collect the property as is but would not take the fruits they consumed. If, however, it appears to the court that there was no trickery intended but was given as a bona-fide gift, the recipient would acquire the gift even if the intent was to evade the debt.

Paragraph 7- If one writes away all his property to another and subsequently borrows from others and when the lender comes to collect his debt he produces the gift document that preceded the debt and everyone observes that, notwithstanding the fact that he wrote away all his property to another he still possess them and transacts in them and they never actually left his possession and his sole intent was to evade his creditor who will have nothing to collect from and he will consume other’s money, the gift is void and the creditor can collect from it, even though the gift preceded the loan.

Paragraph 8- If one purchased real property and made a condition at the time of purchase that his wife should not have a lien from her kesubah on the property or if he purchased the land and instructed to have a document in his brother’s name in order to evade the lien of her kesubah, it would be of no effect and his wife could collect her kesubah from those lands because if anyone attempts to evade a rabbinical regulation with trickery and deceit, and all the more so if he attempts to steal from his counterparty, the rabbis of the generation are required to nullify his intent, even if there is no proof but just solid circumstantial evidence.