Q&A: Sale of a Debt
Sale of a Debt
Question
According to the medieval authorities (Rishonim) who hold that the sale of debt documents applies on a Torah level even to the personal lien, or according to those who maintain that the problem is only practical—that there is no formal act of acquisition that can seize the debt, but in principle it would work—what exactly is there to sell at all? After all, the borrower obligated himself for a particular reason specifically to the lender; my obligation exists only toward him. What does the lender have that he can sell? Likewise, in the case of damages: how can the injured party sell a debt arising from damage? The loss that I, the damager, created was created only vis-à-vis you. So how can it make sense for you to sell that to someone else? With respect to that other person, the basis of the obligation would not apply. (And one could seemingly ask the same about Rabbi Nathan’s lien as well, except that there there is a verse.)
Answer
First of all, this can be learned from the verse about Rabbi Nathan’s lien. Beyond that, the lender has a lien against the borrower, and those medieval authorities (Rishonim) hold that a lien is like a property right in this respect, such that it can be sold. I also seem to remember that this is written in Sha’arei Yosher, Gate 5, regarding a lien.
The question is why a sale is relevant only when there is a document, and not with an oral loan. Perhaps only when there is a document is the lien like a property right (just as regarding assets, only a document creates a lien).
Discussion on Answer
It doesn’t seem likely that we should learn the definition of a debt from a verse that seemingly speaks about a side point. Also, Tosafot in several places writes that even without deriving Rabbi Nathan’s rule, his law still exists in a case of money that is not physically present, and we see that even according to the rabbis who do not derive it, this possibility still exists.
The question is: what is this lien that can be sold? We are not talking about a lien on assets—that is only Rabbenu Tam’s view—but about a personal lien. On a simple understanding, a personal lien has no proprietary content that would make it saleable; it contains only the obligation, and that is just a factual reality, which does not seem something one can sell (I obligated myself specifically to the lender).
In my opinion, to say that the sale takes effect only on the collection right is not plausible (that would be like selling something that has not yet come into existence). But even aside from that, what would you say about an heir who inherits a promissory note? What does he have in the debt that enables him to claim it? (Again, the father’s personal lien has lapsed, and the son seemingly has no obligation owed to him.)
It is clear that already now there is something present in the person himself that creates the right of collection, precisely because of your claim that otherwise this would be something not yet in existence. That is what is called a “debt,” and it is indeed a proprietary lien on the person, and it is saleable.
And what is that exactly???
What proprietary thing is there besides the factual aspect that obligates—that is, the legal aspect, which would exist even without Torah law, but it is not proprietary because its basis does not apply vis-à-vis the buyer, etc.?
It is a kind of personal lien, and it can be sold. I referred you to Rashash in Gate 5.
And what is that personal lien? Is it some kind of ownership, just on a lower level? In Rav Shimon Shkop I saw two things: (a) that the essence of a personal lien is a legal debt, and therefore people were obligated by it even before the giving of the Torah; but in my view something like that still does not seem saleable. (b) that a lien on assets is a half-ownership, but I am talking about a personal lien.
A legal right. It is written that it can be sold, and in your opinion it cannot. So your opinion is set aside. There is no point in just insisting and raising strained objections.
A distinction should be made based on whether the debtor is poor or not.
What is certain is that it is forbidden to sell a debt to someone who does not care about violating Torah prohibitions in matters of loans.
And especially, why is it that we rule: if one sold a promissory note to another and then went back and waived it, it is waived? We see from here that he sells him only the right of collection, not the debt itself.
But in any case, the transfer of debt documents by the procedure of “in the presence of all three parties” is only rabbinic.