In Ketubot (110a), the Mishnah states: If one produces a promissory note against another, and the latter produces a document showing that he sold him a field, Admon says: He may say to him, “Had I owed you money, you should have collected your due when you sold me the field.” The Sages say: This man acted wisely in selling him the land, because he can seize it as security. The Gemara explains that where money is paid and only afterward the deed is written, all agree that he may say, “You should have collected your due when you sold me the field”; it is therefore proof that the debt had been repaid. The dispute between Admon and the Sages concerns only a place where the deed is written first and the money is given only afterward. Admon maintains that even so, the seller should have made a prior public declaration that he was voiding the sale and applying the sale money toward the debt. The Sages maintain that the lender was not required to make such a declaration, for if he did so, the witnesses would tell their friends, and their friends would tell others, until the borrower learned of it and would not purchase the field. So too is the ruling in the Tur and Shulchan Aruch (Choshen Mishpat 85:1): the borrower is believed, on the basis of this claim, that he already repaid the debt to the lender, provided that the sale of the land took place after the due date of the loan.
It must be considered how the law applies where a lender sells movable property to the borrower. At first glance, the reasoning that he sold the movable property in order to collect from it does not apply. Even according to the enactment of the Geonim that nowadays collection may be made even from movable property, this reasoning is not very applicable to movable property, since it can be hidden or sold, and is also subject to being consumed or lost, unlike land. Thus, the reasoning that he sold movable property in order to collect from it certainly does not apply. On the other hand, one may argue that a person sells land only when he needs money, unlike movable property—and all the more so merchandise that is offered for sale. Although the Shulchan Aruch there in סעיף ב rules, in a case where the borrower sold movable property to the lender, that this does not constitute proof of repayment, unlike land, because had the lender not paid him, he would not have sold him the movable property, it does not mention the reasoning that movable property is different because he wishes to sell it and it is offered for sale. The reason is that it discusses a case in which the borrower sold to the lender. Therefore, despite the reason for the sale mentioned above, there remains the claim: why did he not take the movable property toward the debt? To this it answers that had the lender not paid him, the borrower would not have sold him the movable property. But where the lender is the seller, even if he first receives money from the borrower for the movable property, it may be said that there is an additional reason: he wished to sell it and therefore did not retain the money as repayment of the loan.
There is some indication against this, for if the law likewise applied when movable property was sold, the Gemara should have stated the law regarding movable property and thereby taught a greater novelty. Nevertheless, this argument can seemingly be rejected. The Gemara wished to teach the distinction between a place where the deed is written first and one where it is not. Where the deed is written first and only afterward is the money paid, the Sages maintain that there is no proof of repayment; on the contrary, he acted wisely by selling him the land so that he could later collect his debt from the land. As stated, this reasoning does not apply to movable property. What is explained there in סעיף ב—that if he sold him movable property, he cannot claim that it proves repayment, because he may say, “I feared that you would not sell it to me at all”—concerns a case where the lender bought from the borrower. In every case where the borrower sold, there would otherwise be proof of repayment; it states that with movable property there is no such proof, because if the lender had not paid first, the other would not have given him the movable property. However, where the lender sells to the borrower, the matter remains doubtful. Yet this ruling, whose source is the Hagahot Mordechai, proves that the Gemara’s law was not stated exclusively concerning land; at times, even movable property can provide proof that the promissory note has been voided, as the Netivot states below. It is therefore incorrect to say that movable property is always sold because the seller wishes to sell it.
I saw in the Netivot, in his sefer Beit Yaakov (Ketubot ad loc.), that he explains that the essential claim against the lender is that he should have retained the money and voided the sale immediately upon receiving it. As explained in סימן פב, where one has a debt documented by a promissory note and another oral debt, or a debt guaranteed by a guarantor, and the other party remains silent when he receives payment, the lender may say that he accepted it for the other debt and remained silent so that the debtor would give him the money. Here too, in the sale of land, land is not acquired through a deed without money unless one sells his field because of its poor quality. He writes that therefore, where movable property was pulled into the buyer’s possession and only afterward payment was given, one cannot say that the seller could have retained the money and voided the sale, for the buyer had already performed meshichah on the movable property and the item was already in his domain. Thus, the promissory note is not voided thereby.
The Netivot also writes (siman 85, Biurim 3) regarding the words of the Sema (there, 4), who explains why the sale of land constitutes proof of repayment and the lender cannot claim that he acted deceptively in selling the field: we say to him, “You should have sold it to someone else.” The Netivot infers that his words imply that were it not for the reason that he could seize the land for his debt, the note would be void. If so, where he sold movable property, even if the buyer performed meshichah before paying, the note would be void, since the reason of seizing it for the debt does not apply. He further correctly asks: what proof is there here to void the note? Does owing him money mean that he may conduct no business with him at all? Where money is given and then the deed is written, it is indeed proven that he should have retained the money. But where the deed is written and then money is given, there is no proof, since at times he needs more money than the amount of the debt.
He therefore explains that the essential proof is that the lender should have retained the money. Even where the deed is written and money is then paid, since this takes place simultaneously with respect to land, which is not acquired by deed without money, as explained in siman 191:2, he should have said within the time span of toch kedei dibbur upon receiving the money that he was accepting it toward his debt and voided the sale, as explained in siman 195:7, since within toch kedei dibbur one may void a sale. Accordingly, where movable property was taken by meshichah before payment was received, one cannot say that he should have retained the money toward his debt, since the item was already in the buyer’s possession. There is therefore no proof to void the promissory note. But where money was given before meshichah, he certainly can void the debt, since the reason that he could seize it does not apply; it is preferable for him to retain money toward his debt rather than uphold the sale.
So too is explained in the chiddushim of Mitzpeh Eitan (Ketubot ad loc.), that this entire law was stated specifically regarding land, whose sale entails a loss, as Rambam writes (Hilchot Shemitah VeYovel 11): “A person should not sell his house or his ancestral field unless he has become poor, as it is stated: ‘If your brother becomes poor and sells part of his ancestral property.’ But he is not permitted to sell in order to leave money in his pocket, to engage in business with it, or to buy utensils, slaves, or animals with it; he may do so only for sustenance.” The Kesef Mishneh writes that this is from the Torat Kohanim, Parashat Behar. He uses this to resolve the question of Tosafot; see there. His words somewhat imply that movable property never constitutes proof that the promissory note has been voided.
In Avnei HaChoshen (Choshen Mishpat ad loc.), it is written that the matter depends on a dispute among the Rishonim. From the Rashba, who writes that he should have made a declaration in order to remove himself from the status of an impoverished person selling his land, it appears that the Sages and Admon did not dispute the case of movable property at all, but only land, for it is not customary to sell a field unless one is pressed for money. With movable property, however, the claim that he should not have sold it does not apply at all. This is as the Ra’ah writes regarding a field: even if he needed money in addition to the debt and also needed to sell the field, it is not customary to sell first before collecting one’s debt. However, according to the Ramban and Ra’ah cited there, it may be that the law applies even to movable property. No one disputes that where he cannot retain the money, one may say: must he refrain from all business dealings with him? But where he can retain it, even with movable property, he should first collect his debt. Thus, he too follows the view of the Netivot: where he could have retained the money—where the lender, as seller, first received the money and only afterward gave the purchased item—even movable property constitutes proof that the promissory note has been voided.
It should further be added that the Shach explains there that where a lender sold land, received the money, and only afterward wrote a deed, if he has a migo that he could claim that no sale ever took place—for example, where the buyer cannot establish the matter by a deed or witnesses—the seller is believed that the borrower did not repay the debt. This is explained similarly in the Rema there in סעיף ג, from the Mordechai and Hagahot Ashri; see there. Likewise, in the present case, where there are no witnesses or document that the lender sold the borrower the shofar, he is believed in any event through a migo, as stated. In addition, it must be examined whether the promissory note contains any other possible ground for invalidating it, such as asmachta or the like. In that event, the borrower’s claim is not a claim at all in any case, as explained in the Rema there in סעיף ג. The lender may then say: “I feared that I could not collect through my note because of asmachta; therefore I needed to borrow [and the same applies to sell], for I had no time to litigate with you and press you for payment.” The Shach leaves this ruling unresolved, although all the poskim appear to follow the Rema’s ruling.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
