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232 THE JEWISH ENCYCLOPEDIA

Assignment

would be the occasion of multiplying contentions and suits. According to the Jewish law, the relation of debtor and creditor gives the latter rights against the person of the former (jus in personam) secured by rights against his property (jus in rem). The right of the creditor to seize the person of the debtor can not be assigned and the debtor is justified in resisting the claim of the creditor's assignee, upon the ground that he, the debtor, was willing to give his creditor certain rights against his person which he would have refused to give to the creditor's assignee (Me'irat 'Enayirn to Hoshen Mishpat, l.c.23). Originally a "shetar "(an instrument in writing) of indebtedness was not assignable, according to Biblical law, because it is not a thing, but merely evidence of a right (Maimonides, " Yad," Mekirah, vi. With the beginning, however, of commercial 12). life, the strictness of this ancient rule of law had to be modified. Therefore, if the Assignment of the claim was made by the creditor in the presence of the debtor and assented to by him, it was valid (Git. 18b). This rule, however, was felt to be a concession, and could not be used as a basis for the further •extension of this principle (Mekirah, vi. 8). If the debt which had thus been assigned in the presence of all three parties interested was secured by a shetar, it was held, even by the later authorities, that, although the Assignment was valid, the assignee could not compel the creditor to deliver the shetar to him (Hoshen Mishpat, I.e. 19); although if the debtor paid the assignee, he (the debtor) could compel the creditor to surrender the shetar (ib. ). The shetar of indebtedness can be assigned only by " writing and delivery " that is to say, it must be delivered by the creditor to his asMethod signee together with another instruof Assign- ment in writing, setting forth the fact ment. of the Assignment (ib. 1 and see the





cases mentioned in §§ 2, 3, 4, 5, 13). This question was debated in the Talmud and

the opinions of the authorities differed to such an extent that the question as to what constituted a valid Assignment was long left in doubt. Rabbi Judah ha-Nasi was of the opinion that the mere delivery

constituted a valid Assignment of the shetar (Sanh. 31a) and the amora Amemar was of the same opinion (B. B. 71a). The majority of the sages, however, were of the opinion that a shetar could not be legally assigned without writing (ib. 76a), the reason for which is given by Rab Ashi, who called attention to the fact that there was a great difference between the shetar of indebtedness and other things, because a shetar is, after all, only a promise to pay mere words and " words can not be acquired by words " they must be written down (ib. 77a). According to Rab Papa, the instrument of Assignment must contain these words, " acquire it [the shetar of indebtedness] and all rights under it " (Kid. 47b). shetar of Maimonides sums up the matter thus: indebtedness can not be assigned merely by delivery

—

—

A

to the assignee, because the shetar is simply evidence "

of a debt it is not the thing itself and " evidence can not be lawfully acquired by the process of



manual

seizure (Mekirah,

vi. 10).

The mere

inten-

claim or contract, and the actual delivery of the instrument, tion, therefore, to transfer or assign a

233

which was the best evidence of the claim or contract, do not suffice to give the assignee title and the law required a formal Assignment in writing. Thus, early in the Talmudic era are encountered the un;

derlying principles of the law relating to negotiable instruments which occupies so large a part of modern legal systems, and has such an important bearing

on modern commercial activity. In the case of a shetar of pledge, where the debtor has given the creditor possession of a piece of land as a pledge or security for a debt (the creditor to repay himself out of the fruits of the land), and has accompanied the delivery of the land by an instrument setting forth the debt and the Classifica- fact that the land is pledged for it, tion of As- this instrument or shetar may be assignments, signed in the same manner as a simple This rule, shetar of indebtedness. however, was modified by the Geonim to this extent, that if the creditor gives the assignee a written instrument setting forth the Assignment, and also gives

him possession of the pledged, or, as we should say in modern legal phraseology, mortgaged land, the Assignment is valid even though he retain possession of the original shetar of pledge pat,

I.e.

(Hoshen Mish-

8).

In the case where movable property is pledged for the debt, the rule is still further modified, so that the debt may be assigned simply by transferring to the assignee possession of the movables pledged and this constitutes a valid Assignment of the debt, even though the shetar of pledge be not delivered or any instrument in writing given to the

assignee

(ib.).

A woman who owns

a shetar and who afterward marries and delivers the shetar to her husband as part of her marriage portion, need not execute an instrument of Assignment to him (ib. 12). Where a shetar of indebtedness is assigned by the creditor on his death-bed, the usual formalities are dispensed with (ib. 42). This modification of the rule was made in order that the sick man might not be distressed by doubts as to the legality of the Assignment thus made by him, and that he might be comforted by the assurance that his purpose, although not expressed with the usual legal formalities, would be carried out (B. B. 1476).

A further modification of the rule exists in the case where the creditor,

in addition to assigning the shetar of indebtedness, also transfers real estate to his assignee, the transfer of the real estate and the Assignment of the instrument being simultaneous. Rab Huna was of the opinion that the title to the instrument passed to the assignee without a deed of Assignment, provided that the title to the land passed lawfully to him at the same time (B. B. 77a et seg. Mekirah, vi. 14); and although there were some opinions to the contrary among the later authorities, the Shulhan 'Aruk states this rule of Rab Huna to be the law provided, according to Rabbenu Asher, the assignor uses the words, "acquire this shetar



rights under it," at the time when he hands and when, at the same time, the assignee is acquiring possession of the land (Hoshen

and it

all

to the assignee,

66, 10; see Sifte Kohen, ad loe. 26). stated above, the essential words of Assignment

Mishpat,

As