Debtor And Creditor:

By: Louis Ginzberg , Lewis N. Dembitz

The law-books treat under this head the incidents of payment: the kind of money that the creditor must accept; the place at which the debtor must pay; the means of sending or bringing the money; good and bad tenders; the creditor's duty to give a receipt; etc.

The Jewish codes treat some of these questions on Talmudic authority. They speak of debtor and creditor as "malweh we-loweh" (literally, "lender and borrower"), looking upon a liquidated debt, even when it arises from the sale of land or goods, as a loan.

The question, What is a good tender—so as to stop interest and costs—is of no consequence in Jewish law, as the latter awards neither interest nor costs. Though debts were not paid with checks or notes in Talmudic times, yet cases quite analogous are discussed.

A debt is payable wherever the creditor demands it, even if he meets the debtor in the wilderness(provided the payment leaves to the debtor the means for getting home); but should the debtor offer to the creditor in the wilderness money which he has borrowed in a settled country, the creditor may refuse to take it (B. Ḳ. x. 6, also applicable to liabilities arising from torts or bailment; Maimonides, "Yad," Malweh, xiii. 8; Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 74, 1).

Time of Payment.

The custom arose in the days of the Geonim for the creditor, at or after the time of a contract made before witnesses, to request the debtor to pay only before witnesses; and, according to rules drawn by the Geonim from Shebu'ot vi., such a request must be complied with. That is to say, the debtor will in such a case be unable to set up payment except by the testimony of witnesses (Maimonides, ib. xv. 1, and see gloss for disputed points). So if the creditor stipulates that the witnesses must be scholars or physicians, or that he, the creditor, shall be trusted without oath against the plea of payment, the stipulation was enforced ( ib. xv. 2, 3). Similar stipulations may be made by the debtor; with what effect see ib. xv. 5; compare generally Ḥoshen Mishpaṭ, 69.

The debtor is responsible for the sum due till he pays it over to the creditor or to his agent. Should the creditor say to him, "Throw me my money and be quit," and he does so, but the money is lost or stolen before it reaches the creditor, he is quit (Giṭ. 78b; see Maimonides, ib. xv. 1). What is said about throwing the money applies, of course, to any mode of transmission chosen by the creditor (Ḥoshen Mishpaṭ, 120, 1, 2).

In the absence of special terms, a loan or a sale on credit (unless there be a local custom to the contrary) is presumed to fall due in thirty days (Tosef., B. M. x. 1; Shulḥan 'Aruk, Ḥoshen. Mishpaṭ, 73, 1). Where a time of payment has been set, either in an oral "loan" or by bond, whether the debtor be dead or alive, the creditor may make no demand before the day set (see Ḥoshen Mishpaṭ, 73, 2, 3, 4, for the settlement of disputes as to the time of maturity).

Acceptance.

At maturity the debtor may wish to pay at once, so as no longer to hold the money at his own risk—for example, if it be feared that the government will levy an arbitrary tax or change the money standard—and the creditor is bound to accept. If he refuses, the debtor may deposit the money with the court or with some trustworthy party; but not when the debt is not yet due and some untoward act, as above, seems imminent. If no such risk is apparent, however, the creditor must accept; for the setting of a time is intended only for the debtor's benefit.

After maturity the debtor may wish to pay in driblets. Here the better opinion is that the creditor may not refuse such payments. Still, if there is a pledge or mortgage for the debt, the debtor can not compel the creditor to release part of the property, even though it may be easily divisible (Ḥoshen Mishpaṭ, 74, 4, based on B. M. 77b).

When the coin in which a contract was made has been demonetized by the government, it must still be accepted so long as it remains current in some other country to which the creditor has access; if not current in such a country, the debtor must pay in the coin current at the time; and such is also the rule for the wife's jointure ( ib. 74, 7).

Cancelation.

It has been shown under Alienation how a demand is transferred in a "meeting of three." Thus, the promise of a third person may be transferred in payment of a debt. As Maimonides says, if A owes a mina to B, and B says to A in a meeting of three, "Give to C the mina which you owe me," and C assumes it, but it turns out that A is insolvent, C may back out; for B has misled him. But if C knew of A's insolvency, or if A was well off at the time and became insolvent afterward, C may not repudiate his assumption. Again, suppose A has no demand on B, but owes a mina to C, and he refers the latter for payment to B, although he refers him thus in a "meeting of three," there is no transfer. B need not give the money to C; but if he does, he can recover it from A. Also, if C says, "I do not wish to collect from B," he may hold A liable, even after collecting part of the demand from B ("Yad," Malweh, xvi. 3, 4). The inference from the cases in which the old debt is not barred by reason of fraud or mistake is that where the debtor in a meeting of three furnishes to the creditor a new obligor with a full understanding of the facts all round, the old debt is extinguished.

The formal acquittance by which a bond is canceled is known as "shober" (literally, "breaker"), and is in form a "sheṭar"; that is, attested by two witnesses. Where the debt is by bond, the bond is delivered upon payment in full. Upon partial payment, the creditor may insist on receiving a new bond for the remnant, or he may give an acquittance for the part paid. For a debt otherwise than by bond, the debtor may have his shober, provided he pays the scrivener's fees. But if the creditor claims to have lost or mislaid the bond, the debtor is entitled to a shober at the creditor's cost, and may, moreover, compel him to take an oath that the bond is not in his possession (Ḥoshen Mishpaṭ, 54, and authorities there quoted).

L. G. L. N. D.