Translation:Shulchan Aruch/Choshen Mishpat/104
Paragraph 1- If one has many creditors, whomever has the earliest date of kinyan takes precedence with respect to collecting, whether it is real property or moveable items, even if the repayment date of the later documents comes first, and whether collecting from the borrower himself or from third-party buyers. If the later creditor prematurely collects real property, we would remove the property from him, even if he collected it in front of the earlier creditor who was silent. When the later creditor comes to collect, however, we would collect from him and when the date of the earlier creditor arrives, he would then collect from the later one. This is only true when collecting real property. When one comes to collect moveable items, however, the first creditor is able to insist the later creditor not collect it because he may flee with the items or cause a loss. In addition, if the later creditor collects, the earlier creditor would not be able to remove the moveable items from him. If, however, the borrower gives the item to the later creditor himself, there are those that say that the earlier creditor cannot protest. This is all with respect to a documented loan. With respect to an oral loan, however, once the later creditor collects, the matter is done. Notwithstanding the foregoing, if the later creditor collects average properties and leaves inferior properties to the earlier creditor, what has been collected is done. If the later creditor sold the properties before the first creditor was able to remove them from his possession, the earlier creditor cannot go after the later creditor, even if he still has the money from the sale. Rather, he must go after the buyers because they have the items owed to the creditor in their possession. If the later creditor sold the properties to gentiles whom the earlier creditor cannot remove the properties from, the later creditor must pay the earlier creditor, even if he does not have the money from the sale anymore, because of the rules of garmi. Similarly, if the later creditor left moveable items for the earlier creditor, what has been collected is done. There are those that say that with respect to items which are not yet in existence but will come into existence in the future, there is no rule of precedence and if the borrower swore before such items were in existence to give them to the later creditor, he must fulfill his oath. See earlier 99:2.
Paragraph 2- If a creditor collected his debt from one of Shimon’s homes with a letter from the officer of the city that they made an announcement and an earlier creditor comes to remove the home and the later creditor claims that since the earlier creditor did not protest at the time of the announcement he has waived his rights and the announcement stated that anyone who has any rights or liens on the property should come and protest or lose his rights, and it is in fact the custom, it is a valid government law and the creditor will have lost his rights. The same would apply where there were different creditors and they were instructed to take possession of the borrower’s property and we don’t know which creditor was first and the officer testifies in favor of one of the creditors, and the officer would be believed via the government law assuming this was the custom. Similarly, if one creditor collected and the second creditor claims that he collected illegally and that the borrower did not owe him anything, because the creditor collected by government law, what has been collected is done. If, however, they simply announced that anyone who has any rights should come and protest, he would not lose his claims by virtue of the fact that he did not protest. If they announced that anyone who does not come will waive his rights and one person claims that he did not hear the announcement, his claim would be valid and we would not say “a friend has a friend.”
Paragraph 3- There are no rules of precedence with respect to the removal of items collected by the later creditor in the case of moveable items or slaves. Moreover, if the first creditor takes possession, the later creditor whom had prematurely collected may remove the taken items from the later creditor in court. If, however, a creditor took possession of a document, it is of no consequence and they would split it, even if it was the earlier creditor who took possession.
Paragraph 4- A bona-fide collection only occurs once the court has appraised the moveable items and given them to the creditor. If, however, the court shuts down the borrower’s store for the later creditors, that would not qualify as a collection and the earlier creditor may collect those moveable items. For a case where the court foreclosed Reuven’s money that was in Shimon’s possession because Reuven owed Levi and Shimon violated the order and gave it to Reuven, see above 86:5.
Paragraph 5- If the borrower collected moveable items via real property, it has the status of real property and if the later creditor collects it, we would remove it from his possession, so long as it was made clear via witnesses that such moveable items were in the borrower’s hands at the time the loan. If, however, it was not made clear via witnesses, we would presume it to be a case of one who borrows, borrows and acquires where the rule is the creditors divide the items and that if the second creditor prematurely collected he has the right to the items. If the later creditor prematurely collected money, we would not remove it from his possession because currency has no identifying feature that witnesses can testify on as being seen in the borrower’s possession so it is like a case of borrowing, borrowing via agav, acquiring and subsequently acquiring where the possessor obtains the rights to the item, whether he was the first creditor or last. If it is possible to clarify by witnesses, the first creditor would have the rights. Everything is dependent on the perception of the judges.
Paragraph 6- This that real property has rules of precedence is only where they were in the borrower’s possession prior to the loan. If, however, the borrowed acquire the property after he borrowed from numerous creditors, there are no rules of precedence, notwithstanding the fact that he placed a lien on anything he would acquire in the future. Rather, all the creditors are on equal footing and whomever collects first would acquire the property, even if he were the last creditor.
Paragraph 7- If one borrowed and wrote to the lender that a lien is placed on anything I am going to acquire and he then purchased a field and borrows from a second creditor, the field is owed to first creditor and he has precedence to collect. The same would even apply if there were 100 creditors.
Paragraph 8- If a borrower had many creditors in one day or, in a place where they write hours, in the same hour, there are no rules of precedence and whomever collects first will obtain the rights, whether collecting real property or moveable items.
Paragraph 9- If the court sold a borrower’s real property to collect for an earlier creditor, the later creditor cannot collect. See later 111:5. If, however, the borrower sold the land to pay the earlier creditor, the later creditor may collect from the buyer.
Paragraph 10- If documents all had the same date or, in a place where they have the custom to write hours, had the same hour, and all the creditors come to collect together, or creditors where each one was earlier than the next and they were collecting moveable times, in which case there would be no rules of precedence, or where they are coming to collect real property that the borrower acquired after he borrowed from the last of the creditors, and the value of the properties does not suffice to repay each loan, we would divide the properties among all of them. How would they divide the properties? If when dividing the properties equally each creditor would receive the amount of the lowest debt or less, they would divide the total equally. If the lowest creditor would receive more than his debt, they would divide all the money in order to give the lowest debt to each and then divide the remaining money for the remaining creditors in this fashion. How so? If there were three debts, one of 100, one of 200 and one of 300, and they discovered 300 worth of property they each take 100. Similarly, if they found less than 300, they would divide equally. If they found more than 300, they would divide 300 equally and remove the 100 creditor and the remaining two creditors would divide the remaining money in this fashion. How so? If they found 500 or less, they would divide 300 equally and the remove one creditor. They would then divide the 200 or less remaining equally and remove the second creditor. If they found 600, they would divide the 300 equally and remove the 100 creditor and then divide the 200 between the two remaining creditors and remove the 200 creditor and give the remaining 100 to the 300 creditor, resulting in the 300 creditor receiving 300. This formula is even used when 100 creditors come to collect together.
Paragraph 11- In any case where we say the rule is to divide among the creditors or that the first one to take possession of the properties gains the right to the properties, the creditor must first swear that he has not yet collected his debt, even if his document contains a believability clause.
Paragraph 12- If one produces two documents against one borrower that were made on the same day for the same amount, he can collect both documents and we do not say they were both made for the same loan.
Paragraph 13- If there is a documented loan and an earlier oral loan, the oral loan would take precedence with respect to collecting from unsold properties since witnesses are testifying that such oral loan was first.
Paragraph 14- If the lender could not find any properties of the borrower to collect his debt from except for property given to the borrower conditionally where the donor said it goes to the borrower and then to so and so, and the lender comes to court to collect such properties, the court will not collect from the actual properties but only from the fruits, notwithstanding the fact that the first recipient is alive. If the original recipient died and the creditor comes to collect from such property, he would not collect anything, even if the lender made this property a designated property to collect from. Rather, the property belongs exclusively to the second recipient.
Paragraph 15- If two people lent to a gentile, one after the other, and the gentile does not have enough property to pay each one, and when Reuven, the earlier creditor, comes to collect the principal and interest, Shimon claims that the interest that accrued form the time of the document should not be collected until Shimon is able to collect the principal on his loan because the gentile did not incur the interest obligation on the date of the document, but the interest increased each day, Shimon’s claim has no merit.
Paragraph 16- If a borrower did not have anything with which to pay back and a house fell on him and his bequeather, and the borrower’s children say our father died first and inherited from his bequeather in the grave and then bequeathed to us and his creditor has no right to take the money because a creditor does not take what is going to come to the borrower in the future, and the lender says the bequeather died first, resulting in the borrower acquiring his properties while alive, which a creditor can collect from the borrower’s inheritors, the inheritors are in the right.