מי שקיבל עליו להשלים הדין ליום ידוע ונאנס ובו ס"א:
מי שקנו מידו שאם לא יבא ביום פלו' וישבע יהיה חבירו נאמן בטענותיו ויטול כל מה שטען בלא שבועה או שאם לא יבא ביום פלו' וישבע ויטול אבד זכותו ואין לו כלום ויפטר חבירו ועבר היום ולא בא נתקיימו התנאים ואבד זכותו (מיד) (ואין נותנים לו זמן יותר) (ב"י בסי' י"ט בשם הרשב"א) ואם הביא ראיה שהיה אנוס באותו היום הרי זה פטור מקנין זה וישבע כשיתבענו חבירו כמו שהיה מקודם וכן כל כיוצא בזה (וכל זה כשקנו מידו אבל בלאו הכי לא דהוי אסמכתא) (מרדכי ריש סנהדרין ותשובת הרשב"א סי' תתצ"ט) וע' לקמן סי' ר"ז: One with whom a formal agreement was made by means of a Kinyan that if he fails to appear [in Court] on a certain date and take an oath, [then] his fellow [-litigant] will be regarded as trustworthy in his pleas and will collect everything that he claims without an oath, or [he stipulates] that if he fails to appear on a certain date and take an oath and [thereby] collect [his claim], he forfeits his rights and will have nothing and his fellow [-litigant] will be exempt1The present ruling is in the order of an anticlimax, for after having stated the law that if one does not fulfil his condition, though a formal agreement was made by means of a Kinyan, the other party has a right to collect his claim, then it applies even more to the following case where if the condition is not fulfilled, the fellow-litigant is exempt. Or it is quite likely that both these rulings have to be mentioned because in the former case a Kinyan has to be effected at an authoritative Court of Law, but not in the latter case — M.E. [from making payment], — and [then] the [stipulated Court] day passed and he failed to appear, — [the law is that] the conditions become effective2Yad, Sanhedrin VII, 10 and Tur. Thus also SeMaG on the authority of the Geonim. , also Hag. Maim. to Yad ibid. Derived from Y.Kid. III, 2(63d): (Ref. to Mishna ibid. regarding one who betrothed a woman on a condition): ‘If he met with an unavoidable interference (and could not fulfil his condition of betrothal), — R. Joḥanan stated, (With respect to) an unavoidable interference it is as though he did not act (and consequently in the case of betrothal a plea of unavoidable interference is invalid contra divorce where such a plea would be accepted, the reason being that in the case of divorce the matter depends wholly on the husband’s consent; whereas in betrothal her consent is also required. Thus Korban ‘Edah). R. Simeon b. Lakish stated, (With respect to) an unavoidable interference it is as though he acted (and therefore the plea of ‘unavoidable interference’ is applicable to betrothal as well as divorce. Thus Korban ‘Edah).’ The Halachah rests with R. Joḥanan. But as we have seen from the above text of Y., according to R. Joḥanan a plea of ‘unavoidable interference’ is invalid. Hence, it would follow that in our present ruling he should not be free from the obligation effected by the Kinyan even if he was unavoidably prevented to appear. BaḤ, therefore, suggests that the text of Y. should be emended thus: Instead of ‘R. Joḥanan stated … it is as though he did not act’ (לא עבד), we should read ‘it is as though he did not violate (the condition)’ (לא עבר). , Be’er Eliyahu who does not consider this emendation as plausible and maintains that the source of this ruling is Ned. 27b q.v. anon The following sources should be examined in order to clarify the present ruling: Tosef. B.M. I, 9: ‘If both parties to a lawsuit are stubborn, and one said to the other, If I will not appear (for trial) between now and a certain date, (then) such and such an amount which is in my possession will become yours, — (the law is that) if the time is up (and he did not appear), the condition must be fulfilled. Thus R. Jose. Said R. Judah, How can he take possession of aught that is not his, but he must seize it.’ The same controversy is found in B.B. 168a: Mishna: ‘If a man paid part of his debt and the bond was placed with a third party to whom (the debtor said), If I have not paid you (the balance) by such a date, then give him (the creditor) his bond, (and) the date arrived and he did not pay, R. Jose says, He (the trustee) should give it (to him); R. Judah says, He should not give it (to him).’ Gemara: ‘On what principle does their difference of opinion rest? — R. Jose holds that Asmakta (v. supra § 12, nn. 45-46) gives one a valid title; whereas R. Judah maintains that Asmakta gives no title. R. Naḥman on the authority of Rabbah b. Abbahu on the authority of Rab Said: The law rests with R. Jose. When (cases of Asmakta) came before R. Ammi, he stated: Since R. Joḥanan has taught us time and again that the law follows R. Jose, what can I do? The law, however, does not rest with R. Jose.’ , Tosaf. s.v. אמר רב נחמן. Ned. 27b: ‘The law is that Asmakta gives one a legal title, provided he did not meet with an unavoidable interference, and a formal agreement by Kinyan was effected at an authoritative Court of Law (an ordained Beth Din. Thus Rashi and Maim. RaN: A Beth Din that has the authority to enforce its decisions).’ , also infra § 55, and he forfeits his rights3This refers to both cases — M.E. , supra n. forthwith4Ned. 27b: ‘A man once deposited his rights at the Court of Law, and stated: If I do not appear within thirty days, these rights will be void. Subsequently he was prevented from appearing by an unavoidable interference. R. Huna ruled: His rights are void.’ This means forthwith. Cf. also B.B. ibid. — RaShBaM. Cf. supra n. 1 on the final law regarding an unavoidable interference. and they do not grant him an extension of time.5B.Yos. to § 19 on the authority of RaShBA — G. e., if he requests an extension of time to take his oath, we do not grant him this. However, if he demands an extension of time to make payment, his request is granted (v. infra § 100) — ShaK. However, if he produced proof that he was unavoidably prevented [to appear] on that date,6If he was unavoidably prevented from fulfilling his condition only on the last day, v. Y.D. § 232, 12, Gloss where two opinions are mentioned concerning this type of unavoidable interference. According to Yad ibid. even if he was unavoidably prevented on the last day only, it is considered valid. He must also clarify the unavoidable interference, but if he has no proof, then even if he is the possessor, it is considered possession in error, and he cannot put forward the plea of ‘the claimant must produce evidence’ (המוציא מחברו עליו הראיה) — Tummim. he is free from [the obligation] of this formal agreement by Kinyan7And it is as though no formal agreement by means of Kinyan was ever effected. And even though he is no longer unavoidably prevented and did not appear forthwith, he may take his oath whenever he so desires — Tummim. and he may [subsequently] take an oath when his fellow [-litigant] summons him again8Whether to take an oath and collect or to take an oath and be exempt — ShaK contra M.E. as in the first instance. And thus too, everything that is similar to this [case]. And this entire [ruling is applicable only] where a formal agreement was made with him by means of a Kinyan,9e., at an authoritative Court of Law. However, it is not necessary for him to deposit his rights embodied in a document with the Court. BaḤ holds that the Kinyan need not be effected before an authoritative Court. M.E., ShaK a.o. differ with BaḤ. , Caro (in B.Yos. infra § 207) that both the formal Kinyan and the depositing of his rights must be made at an authoritative Beth Din. but not otherwise, for [then] this would be a mere Asmakta.10Mord. to San. beg. and RaShBA Resp. s. 899; v. infra § 207 — G.