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THE JEWISH ENCYCLOPEDIA

are "acquire it and lowing form: "I,

all rights ,

sell

under

it."

to you,

-

The

—

,

fol-

this

shetar of indebtedness against and all rights under it," is suggested in Me'irat 'Enayim to Hoshen

Mishpat,

I.e.

1).

Where

the original shetar of indebtedness contained the -words, " I am indebted to you and to any one producing this," it was equivalent to a modern instrument of indebtedness made payable to bearer, and could be assigned by delivery without writing (gloss on Hoshen Mishpat, I.e.). In case the Assignment is defective as, for instance, where the instrument is delivered to the assignee without any accompanying Defective writing and the assignee has paid its Asvalue to the assignor, he is entitled to signment. have the Assignment set aside, and

—

—

have his money refunded to him ; and retain possession of the shetar until the money is refunded. In case the assignor is unable to refund to the assignee, the money is taken from the

he

may

debtor and paid over to the assignee, even though the latter has not lawfully acquired the instrument (gloss, ib.). If the assignor has undertaken to guarantee the payment of the shetar in case the assignee is not able to collect it from the debtor, he is bound by his guarantee, even though the Assignment has not been legally perfected (gloss, ib.). If the assignee has lost the deed of Assignment, but still has possession of the original document of indebtedness, he must prove the AsLost Deed signment if the debtor claims that he of Ashas paid the debt, he may call upon the signment. creditor to take an oath. If the creditor swears that the debt has not been paid, the debtor is obliged to pay the assignee. If the creditor refuses to take the oath, the debtor is released and the creditor must pay the assignee. If the creditor be dead at the time when the assignee claims payment from the debtor, the heirs take the " oath of heirs " (that their father has not told them that the debt was settled), and the debtor must pay the assignee (Hoshen Mishpat, I.e. 11). In case the assignee claims that the deed of Assignment was lost, but that a valid Assignment had been made to him by the creditor, and the creditor meets this by taking an oath that there was no Assignment, both the debtor and the creditor are released (ib.). If the shetar has been properly assigned, the assignor can not raise the claim of " overreaching " (see Acceptance) on the ground that the price paid for Some authorities, however, are it was inadequate. of the opinion that if the inadequacy of consideration amounts to a sum greater than half the value of the shetar, the Assignment may be' set aside on that ground (ib. 38). shetar executed in a non-Jewish court of law, but drawn so as to be valid according to Jewish law, may be acquired by writing and deAssign- livery in the same manner as a shetar ments in executed under rabbinical supervision Gentile and likewise, a deed of Assignment Courts. drawn in anon- Jewish court, if it contains language equivalent to that required by the Jewish law, is valid (ib. 6). The privity of contract existing between the orig:

A

Assignment

and creditor is not transferable, and although the creditor is allowed, under certain regulations, to transfer the right in the claim which he inal debtor

has against the debtor, the original

re-

Release of lation of debtor and creditor is not enDebtor by tirely dissolved and according to the Assignor, opinion of Samuel, the creditor or his heirs may, in spite of the fact that he has sold and assigned his claim, release the original

If he does exercise this right,

debtor.

he is responnot merely for the amount which the assignee paid to him in consideration of the Assignment, but for the entire amount of the debt set forth in the shetar which has been assigned (Ket. 85J et seq. Hoshen Mishpat, I.e. 23, 32). Maimonides is of the opinion that this right of the creditor to release the debtor continues, because the right to assign the shetar is merely the result of rabbinical legislation, which modified but did not repeal the older Biblical law, according to which a shetar is not assignable (Mekirah, vi. 12). Rabbi Abraham ben David (RABaD II.) is of the opinion that the reason for this right of the creditor to release the debtor consists in the fact that the sible to his assignee



privity of contract which exists between them is non-assignable. The debtor may say that he contracted the debt only with the creditor, and not with any third person to whom the creditor may choose to assign the claim and therefore, if the Assignment is made without the consent of the debtor, it has not perfect legal effect. For instance, the assignee can not levy upon the property of the debtor which is no longer in the debtor's possession, but which has been transferred to a third person, whereas the original creditor would have had this right (Rabad on

Mekirah,

I.e.).

Rabbi Jacob Tarn assumes the following legal fiction for the purpose of explaining the right of the creditor to release the debtor after he has assigned his claim: The creditor has a double right against the debtor a right to seize his person and a right to levy on The right to levy on his property is his property. subsidiary, the property being simply surety for the person; but the right of property is assignable, and the right against the person is not assignable hence the creditor may release the debtor because he still retains the right to the debtor's person. Since by such release he practically releases the debt, it cuts the ground from under the feet of the assignee, who by the Assignment became owner merely of the subsidiary right against the creditor's property (Asheri to Ket. 85, 86). According to some later authorities, the creditor can not release the debtor if the creditor is without means and unable to reimburse his assignee and they hold that the debtor is responsible to the assignee in the first place, because the assignee is the creditor of his creditor. They invoke the rule of Rabbi has a claim against B, and B has a Nathan " If claim against C, take the money from C and give it to A" (Ket. 19a) but other authorities deny this application of the rule of Rabbi Nathan (Frankel, " Der

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A



Gerichtliche Beweis," p. 375). In order to provide against the danger of a release of the original debtor by the creditor in disregard of