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property is made (at the instance of the court) by three persons
possessing the necessary expertise (Codes, ibid.; according to
some scholars the appraisement is made before the adrakhta
or tirpa is written, Yad Ramah, BB 169a). The appraisement
is made according to the value for which the property can be
sold at the particular time and place, without any need for
the creditor to sell it somewhere else or wait until the price
might rise (HM 101:9). If the appraisers disagree, the majority
opinion is accepted and if each gives a different estimate,
the average of the three estimates is taken (ḥM 103:1–3). The
appraisement document is headed by the words iggeret shum
(“letter of appraisement”), by which name it is known (MK 3:3,
BM 1:8; for other interpretations of the term iggeret shum see
commentaries on BM 20a and MK 18b).
After the appraisement has been approved by the court,
there is a public announcement or advertisement (hakhrazah)
in which the judges announce: “whoever wishes to buy
may come and do so,” in order to find the highest bidder. In
origin, the law of hakhrazah applied in respect of consecrated
property and the property of *orphans (Ar. 2lb and Codes),
but was extended also to property sold in execution (Ket.
100b; Tos. to Ar. 2lb and Codes). The scholars disputed
the question whether the sale of orphans’ property should
be so advertised for 30 or 60 days and the halakhah was decided
that the period should be 30 days where the announcement
is made daily and 60 days where it is made on Mondays
and Thursdays only (Ar. 2lb and Codes.). According to
some of the posekim, an announcement for 30 days is made
even in matters not concerned with orphans’ property (Rema
ḥM 103:1), but another opinion is that in the case of recovering
payment out of free property, an announcement is made
“as may be deemed necessary, until there are no higher bids”
(ibid.).
The announcement is made in the morning and evening,
when the “workmen set out and return home,” and is only
made for the sale of land, not for the sale of chattels, nor, if
the sale is for urgent purposes, such as maintenance, funeral
expenses, or polltax (Ket. 100b and Codes). The property is
sold to the person paying the highest price beyond the appraised
value or – if there be no one to raise the price – to the
person paying the appraised value. The purchaser is given a
shetar hakhrazah or iggeret bikkoret (“letter of examination,”
Ket. 99b and see Rashi ad loc.; cf. also Tosefot Yom Tov, Ket.
11:5; for the text see Sefer ha-Terumot, 3:2; Beit Yosef ḥM 103:17;
cf. also other interpretations in A rukh ha-Shalem, S.V. iggeret
bikkoret). The creditor is given a preferential right of acquiring
the property for himself if no one offers more than the
appraised value or if he equals any other offers (Sh. Ar., ḥM
103:1). In this event the creditor is given a shetar horadah (i.e.,
he “goes down” to the property, it is “appraised” to him; for
the text see Tur ḥM 103:17 where it is called a shetar shuma;
cf. BM 16b, where it is called a shetar aḥaletata Yad, Malveh,
22:10–11) where it is also called a shetar horadah but a different
version of the text is given; see also the standard commentaries
and Gulak, ibid.).
execution
One opinion is that once the adrakhta has reached the
hands of the creditor, he may also enjoy the fruits of the property,
but another opinion is that he may do so only after the
appraisement and the announcement (BM 35b) – the halakhah
was decided in accordance with the latter view (Malveh, 22:12).
The execution proceedings are completed when the property
is sold and the proceeds paid to the creditor or the property
itself transferred to him.
Restoration of Property Transferred to the Creditor
In strict law the creditor to whom the debtor’s land is transferred
is not thereafter obliged to return the land if the debtor
subsequently acquired the means to repay the debt in cash;
but the scholars enacted, in a takkanah referred to in the Talmud
as shuma hadar (BM 16b and Codes; cf. Gulak, Ha-Hiyyuv
ve-Shi’budav, 125, on the use of the term shuma in this
connection), that this should be done for the sake of “Do what
is right and good in the sight of the Lord” (Deut. 6:18 and see
*Takkanot). Chattels recovered by the creditor, however, are
not returnable to the debtor (Rema ḥM 103:9). According to
one view, land is returnable to the debtor if he repays the debt
within 12 months but the halakhah was decided according to
the view that land is always returnable to the debtor (i.e., upon
repayment of the debt, BM 16b. and 35a, Codes). Land recovered
by the creditor and then sold by him, or given in gift, or
inherited upon his death, is however not returnable to the
debtor (ibid.). According to some scholars, the land must always
be returned to a debtor, even if given by him voluntarily
in satisfaction of the debt and not as a result of execution proceedings;
but other scholars hold that his voluntary surrender
of the land is a bar to its ever being returned to him against
payment of the debt (ibid.). Similarly, a stipulation between
the creditor and debtor and effected by way of a formal kinyan
(see *Acquisition, Modes of), to the effect that the former
shall not be obliged to return the land to the latter, holds good
even when the land is turned over to the creditor as a result
of execution proceedings (Sh. Ar., ḥM 103:9).
Categories of Assets for Recovery of Debt
If the debtor owns cash (coins), chattels, and land, he must
pay in cash and cannot refer the creditor to other property
(Sh. Ar., ḥM 101:1); if the debtor wishes to pay in cash but the
creditor wants land or chattels, some scholars give the creditor
the right to choose, but the halakhah was decided according
to the view that the choice is the debtor’s (Tur and Sh. Ar., ḥM
101:3). If the debtor owns land only, the creditor may refuse
to accept it and choose to wait until the debtor is able to pay
him in cash (ḥM 101:4). If the debtor has chattels and land but
no cash, the creditor recovers payment out of the chattels, but
the debtor has the right to choose the chattels for this purpose
(ḥM 101:2); the creditor cannot demand land if the debtor offers
chattels in payment.
If the debtor has no chattels or such chattels do not satisfy
the debt, payment is extracted from his land (Malveh 22:4 and
ḥM 101:10) and – when such land consists of fields of different
quality – in this order: a debt arising from tort is satisfied
ENCYCLOPAEDIA JUDAICA, Second Edition, Volume 6 593