Translation:Shulchan Aruch/Choshen Mishpat/111

Paragraph 1- If one lends another orally he would only be able to collect from that which is found in the borrower’s possession, but he would not be able to collect from buyers who purchased from the borrower or from gifts that the borrower gave. He can, however, collect from anything he finds in the borrower’s possession, whether it is real property or moveable items, even if the borrower purchased it after the loan. One who lends with a document, however, can collect from buyers and gift recipients who purchased or acquired real property after the loan, even if the document does not explicitly say so. If, however, the document explicitly states that he is lending to him on the condition that the lender cannot collect from buyers or gift recipients, the condition would be effective and the lender would not be able to collect from them.

Paragraph 2- Consecrated items have the status of sold properties and the lender would not be able to collect from them if the borrower has unencumbered items. If the sale or gift preceded the loan, it is obvious that the lender cannot collect from those properties unless he has proof that the borrower’s intent in the sale or gift was to evade the properties from the lender, as was explained in Siman 99, in which case the gift would be void, and the creditor can collect from such property, even if it preceded the loan and even if it was an oral loan.

Paragraph 3- If individuals gave the borrower a gift on the condition that no lien, debt or kesubah that preceded the gift or that will follow the gift should take effect on it, the condition would be effective and the creditor would not be able to collect from it, even if the borrower wrote in the loan document that he is placing a lien on anything he acquires in the future. If, however, the borrower purchased real property and the seller made a condition that no lien should take effect on the land, the condition would not be effective and the buyer’s creditor would be able to collect from it.

Paragraph 4- If one gave real property to his son on the condition that no lien should take effect on it and the father had no other son and the father then died, the son’s creditor can collect the property from him.

Paragraph 5- If one had many debts and the court sold the borrower’s real property in order to pay back the first creditor, the other creditors cannot go after the property and take it from the buyer. If, however, the borrower himself sold the land in order to pay back the first creditor, the other creditors may seize the land from the buyer.

Paragraph 6- If the orphans’ guardian sold property to others, we do not say that the guardian is personally guaranteeing the property. Rather, the creditors can go and seize the property as payment for their debt.

Paragraph 7- If an earlier creditor comes to collect and there is a later creditor and the borrower only has properties equal to this debt, we would not allow the lender to go down to the borrower’s properties, even if the document contains a believability clause, until the lender swears the mishnaic oath that he has not collected anything, just like one who seizes property, because the lender is in essence seizing from the second creditor. If one’s loan document was erased and the court wrote another document for him or if one loaned another orally and was found liable in court but did not have with what to pay back and the court wrote their ruling for him, it was discussed above in 70:6 whether they can collect from third-party buyers.

Paragraph 8- When is it true that the lender can seize property from buyers? When he cannot find unencumbered properties to collect his debt from. If, however, the lender found unencumbered priorities to collect from, he cannot collect from third-parties, regardless of whether they are buyers or gift recipients, even if the properties are inferior. Thus, if the borrower gave a gift to others and wrote “200 to so and so, 300 to so and so and 400 to so and so” and he does not have enough property to fulfill all the gifts, we do not say whomever was first in the document acquires the property. Rather, we divide to the properties into nine parts and the 200 recipient will receive two portions, the 300 recipient will receive three portions and the 400 recipient will receive four portions. If a loan document was produced against them, the lender would collect from all of them based on the proportion that each one received. If, however, the donor said “200 zuz to so and so, and subsequently 300 to so and so and subsequently 400 to so and so,” whomever is first in the document acquires the property. Thus, if a loan document was produced against them, the lender would collect from the last recipient. If there is not enough property with the last recipient, he would collect from the one before him. If it still not enough, he would collect from the one before him. There are those that say that the same would apply if he said “200 zuz to so and so and 200 zuz to so and so and 200 zuz to so and so” because since he is giving to all of them equally and he did not list them all together it is as if he said “and subsequently to so and so.” There are those that disagree.

Paragraph 9- If Reuven gave a dying instruction to give a maneh to Shimon and the inheritors sold all the properties and Shimon could not find property to collect his maneh, Shimon may collect from the buyers and the inheritors are not able to say that they gave it to him since Shimon is producing the will document. We are not concerned for any trickery.

Paragraph 10- If inheritors sold their father’s properties the properties have the status of sold properties with a lien on it and the creditor would not be able to collect since there are unencumbered properties of their father still available. If the inheritors did not leave any unencumbered properties and they want to pay off the creditor with their own property, the law was discussed in Siman 107.

Paragraph 11- If the borrower sold real property that he has in his city and he has other real property in another city, the creditor can seize the property from the buyer and the buyer cannot say I left you unencumbered properties because they are not in his city, as is written above in 102:3, and even the borrower himself would not be able to pay back from properties that are in another city. ''Notwithstanding the foregoing, everything is dependent on the how the judges perceive the situation. If there is no damage for the lender to collect the unencumbered properties in another city, he should collect there.''

Paragraph 12- If the buyers left unencumbered properties in the borrower’s possession and those properties were ruined, the creditor may seize property from the buyers. This is specifically where the properties were ruined. If, however, they were not ruined, but the creditor does not want to collect from them because of his own negligence, such as where he removed his lien from those properties and made a kinyan that he will not collect from them, he cannot collect from the buyers because they can tell him we left you a place to collect from.

Paragraph 13- If the unencumbered properties were not ruined, but a thief took possession of them, the lender may not seize from the buyers because it is common for tough guys to fall and he will ultimately be able to collect his debt. ''If, however, the borrower becomes an apostate and the creditor will not be able to collect via secular courts, it is considered as if the properties were ruined and the creditor may seize from the buyers. There are those that say that the same applies if the borrower left minor orphans. There are those that disagree. If a borrower attempts to sell his real property to a gentile in which case the lender cannot subsequently seize the properties and the creditor comes to object to the sale, the creditor has no power to object just like he cannot object when the borrower sells his moveable items, notwithstanding the fact that the creditor will not be able to seize them, because the borrower may still pay back his debt before the deadline comes. Nevertheless, the seller did not act appropriately because he is damaging his friend’s rights. It seems to me that if it appears to the court that the creditor will not have with what to collect later, the creditor may object. See above 73:10.''

Paragraph 14- Even if the time for repayment had arrived and the lender procrastinated from making a claim for his debt and collecting from unencumbered properties, and a long time later the unencumbered properties were ruined, he may still collect from the buyers.

Paragraph 15- If there are two or three purchasers that purchased together and none of them preceded each other and the creditor comes to seize the property, he can collect from whichever purchaser he prefers. He does not have to take half a field from this purchaser and half a field from this purchaser. If there were numerous fields, however, and he can collect one field from each one, he should collect from each of them and not just from one of them.

Paragraph 16- If the buyer who purchased from the borrower sold the property to a third party and that third party sold to someone else, and so on 100 more times, and the creditor comes to seize from the last buyer, such buyer cannot say why don’t you make your claim against the first buyer.

Paragraph 17- If a borrower sold his properties and the lender was a signatory on the sale document, he has not waived his rights and may seize the property from the buyers because he can say it is easier for me to work with the second owner and the first owner is more difficult than him.

Paragraph 18- If Reuven purchased a house from Shimon and Levi had a document on that house and was present when Reuven purchased the house but did not produce the document, and Reuven also destroyed the house and rebuilt it and appointed Levi to oversee the construction and only later did Levi produce his document, Levi will not have waived his rights by virtue of his silence.

Paragraph 19- If a borrower borrowed and subsequently gave his properties as a gift with a condition it be returned and the properties were real properties purchased before the loan, or he purchased them after the loan and wrote in the document that he is placing a lien on future purchases, his gift will be of no effect. If the gift preceded the loan and was given for a set time, the recipient acquires the gift until that time. If the borrower gave the gift as a general gift with a condition to return and did not specify when it has to be returned by, and he subsequently borrowed, just like the recipient can push off the borrower for a long time by saying each time I will return it at a later date, so too can he push off the lender who is coming via the borrower. The lender can, however, force the recipient via “Rebbi Nassan” to return the item directly to the lender when he decides to return it.

Paragraph 20- Even if the borrower did not write that he is placing a lien on future properties he acquires, if he purchased and bequeathed the properties, the lender may collect. There are those that disagree.

Paragraph 21- If Reuven lent to Shimon orally and Shimon lent to Yehuda with a document and Yehuda sold all his properties and Reuven comes to seize from the purchaser who purchased from Yehuda via the document that Shimon has against Yehuda, Reuven is in the right because Shimon admits that he owes Reuven money. If the borrower did not have any properties other than loan documents against others, not only would the lender collect via “Rebbi Nassan” while the documents are in the borrower’s possession, but even if the borrower had died and the documents fell to the inheritors, the lender would be able to collect them, even if the document that the borrower has against his debtors were created after he borrowed from the lender and even if the borrower’s debtors only acquired the properties after the borrower had borrowed from the lender. The lender may collect from the borrower’s debtors and from their inheritors via “Rebbi Nassan.”

Paragraph 22- If the borrower sold loan documents or gifted them to another or if the borrower’s debtors sold their properties after the borrower borrowed from the lender and both the lender’s and borrower’s loan documents contain a lien of moveable items via real property, then the rules of precedence apply and the properties of the borrower’s debtors are obligated to the lender via the borrower since he preceded the borrower’s sale.

Paragraph 23- If the borrower has two lenders that lent to him and they come together to collect from the borrower’s debtors and the borrower had lent to his debtors with a document after he had borrowed from both of the lenders, the two lenders will split the money. If one of the lenders took possession, he will acquire the money. If the borrower’s loans to others preceded the loans he borrowed from both lenders or if it preceded the later of the two loans and the borrower wrote to the first lender that he obligates his moveable items via real property, the first lender will have the rights to the debt.

Paragraph 24- If Reuven had a document against Shimon and he gave it to Levi via a writing and handing over and when Levi comes to collect from Reuven, Yehuda produces a document that he has against Reuven that precedes the document that Reuven had against Shimon, and Yehuda says that the document Reuven gave to Levi belongs to Reuven’s creditor and Yehuda should have the right to it through the laws of precedence, Yehuda is in the right because his document was first and Reuven had obligated his moveable items via real property and the “market regulation” is inapplicable. See later at the end of Siman 113.