Translation:Shulchan Aruch/Choshen Mishpat/39
Chapter 39
[edit]
Writing a deed for the borrower without the lender, and on which admissions we write a deed[edit] |
כותבין שטר ללוה בלא מלוה ועל איזה הודאה כותבין |
Paragraph 1[edit]When someone lends money to another before witnesses, or someone admits before witnesses that he owes another money, this is called a verbal loan, and the lender cannot [unilaterally] collect from the borrower's real estate. When someone lends another money with a written deed, he may collect from the borrower's real estate, even if the deed does not specifically mention a lien, since we rule that [omission of mention of] a lien is considered to have been a mistake on the part of the writer of the deed. If there are witnesses that the loan was effected with a "kinyan sudar", then even without a deed the lender may collect from the borrower's real estate. Rem"a: See later, chapter 61 Paragraphs 2 and 10 for the definition of a deed. And see later at the beginning of chapter 225 for the laws of [omission of mention of] a lien being considered an error of the scribe. |
סעיף א |
Paragraph 2[edit]When someone lends to another before witnesses, they do not write down their testimony to give to the lender, so that the lender should not revert the written loan to a verbal loan [and claim on both], unless the borrower instructs them: "Write him a deed, sign it and give it to him." Even if he says this to them, they should still double-check with him after they have signed the deed, and only then do they give it to the lender. There are also those who rule that the witnesses do not have to double-check with him. |
סעיף ב |
Paragraph 3[edit]The above refers to a case where [the loan was effected] without a kinyan sudar. But the borrower used a kinyan sudar to obligate himself a maneh to the lender, [the witnesses] write a deed and give it to the lender even without an explicit instruction from the borrower, because it is assumed that a kinyan will be written down. Even if much time has passed before the lender approaches the witnesses and asks them to write him a deed, they may write it and give it to him, and they do not need to worry that the borrower has already repaid the debt, as long as they specifically note the time of the kinyan, or write, "We delayed in writing this document." Even if the borrower dies before writing the deed, and even if the due date of the debt has passed, they may write the deed after his death. Similarly if the lender died and his heirs come to the witnesses to write a deed for them, they may write it. There are those who differ and say that if this happens after 30 days [for a debt with no specified due date], they should not write a deed, and if there is a due date specified, they should not write a deed after that date, lest the borrower has already repaid. Rem"a: If the borrower did not give explicit instructions to write and hand over a deed to the lender, but the witnesses did so anyway, it is worth no more than a ledger entry (Teshuvas Rashb"a 1:211). Nonetheless, some say that if the deed was written, it is admissible evidence. See above, chapter 46, paragraph 10. This that we require explicit instructions from the borrower only applies when he is obligating himself in a debt, but if he is forgiving a debt owed to him, or releasing someone of the obligation to pay him, there is no need for this. See later, chapter 81, paragraph 29. |
סעיף ג |