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mikeage.net/2007/10/30/mechilah-without-a-kinyan-with-a-shtar/

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Mechilah without a Kinyan with a Shtar

I must confess, this post is rather late. We first saw the קצוה"ח on which it's based last Thursday night, but until tonight (Mon), I didn't really have a clear enough understanding in everything to feel comfortable letting anyone see my (limited) understanding. Thanks to some clarifications in today's שיעור and a discussion with my חברותא, I now feel I understand this fairly well.

The שולחן ערוך writes that מחילה works without any קניין required. That is, if Reuven owes Shimon money, and wants to forgive the debt, he can do so without any formal מעשה קניין. There's a discussion amongst the פוסקים whether this is true if Shimon has a שטר testifying to Reuven's deby.

The קצוה"ח brings the סמ"ע, who holds that מחילה only works if there's no שטר. The מרדכי argues, and brings a proof from a גמרא. The גמרא in כתובות on page 85b discusses a case where the מלוה sells the שטר to a קונה. In such a case, the גמרא says that the מלוה can do מחילה on the debt (and leave the קונה with a worthless שטר).

The קצוה"ח, however, suggests that this proof may not be enough to conclude that the מלוה can be מוחל in all cases. He explains that normally, a חוב creates two שעבודים: a שעבוד הגוף and a שעבוד נכסים. The שעבוד הגוף cannot be sold, since it is intangible, and always remains with the מוכר (aka the מלוה). Therefore, he can forgive the שעבוד הגוף. Once this is done, the שעבוד נכסים, which the קונה bought (via the שטר) falls off, since it only exists מדין ערבות.

Thus, one cannot be מוחל a חוב if the שטר remains with him. The reason is that a חוב with a שטר is "כגבוי דמי", meaning that it's treated as if (on some level) it has already been payed back. Thus, the money resides, on some level, by the מלוה, and he cannot "return" it to the לווה without a קניין.

The קצוה"ח has a brief digressions here; one in which he explains that even though we פסקן like בית הלל that a חוב is not כגבוי דמי, still, it has some characteristics of כגבוי דמי. We learn this from the following case.

Normally, one can use a claim of "מיגו" to defend property, but not to take it away. However, in the case of a חוב with a שטר, the מלוה can use a מיגו. This shows that the debt is considered to be in his domain, at least on some level.

In a case where the שטר has been sold to the קונה, however, then it is clearly not considered כגבוי דמי vis-a-vis the מלוה, since he sold the שעבוד נכסים to the קונה, and thus he will never collect! (We explained today that even though the שעבוד הגוף is the main שעבוד (and שעבוד נכסים is only מדין ערבות), if the מלוה tries to collect, the לווה can refuse to pay until the לווה gets his שטר back. Thus, in practice, the only one who can really collect is the לווה)

Nevertheless, at the end of the day, the קצוה"ח acknowledges that most פוסקים (including the רמ"א) hold that one can be מוחל, even with a שטר.

The ש"ך also offers an alternative explanation of the סמ"ע's position. He suggests that if the מלוה can't (or won't) return the שטר, it can't be called a גמירת דעת. After all, if he's willing to forgive the loan, why not return the שטר? It seems to suggest that he's not really serious about it.

We mentioned two differences today between the two options.

First, what if the מלוה has a valid reason to retain the שטר? Perhaps he lost it, perhaps his kid wrote his first letter on it. In such a case, the קצוה"ח would say that this is still not valid, but the ש"ך would accept it.

On the other hand, what if the לווה has no property? In this case, there is no שעבוד נכסים, and so the קצוה"ח would seemingly allow the מחילה to work. On the other hand, the ש"ך's reasoning would still apply.

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