Responsa for Bava Metzia 199:7
<big><strong>גמ׳</strong></big> אמאי יחלוקו וליחזי ברשות דמאן קיימא וליהוי אידך המוציא מחבירו עליו הראיה
We learnt: IF THIS ONE SAYS, 'I DO NOT KNOW, AND THE OTHER SAYS, 'I DO NOT KNOW,' THEY MUST DIVIDE. Now, on Raba's view, it is well; since the last clause refers to when both state 'perhaps', the first may likewise refer to a case where both plead 'perhaps'. But according to Rabbah son of R. Huna, who maintained: Indeed, Symmachus ruled thus even when both plead 'certain' — if they divide even on certain claims,<span class="x" onmousemove="('comment',' Since, on his view, the first part of the Mishnah refers to such. ');"><sup>5</sup></span>
Teshuvot Maharam
Q. A owed money to several persons. When B demanded his money from A, the latter admitted the debt but claimed that since he did not possess enough money or valuables to cover all his obligations, he preferred to divide his possessions equitably among his creditors. Since A admits, in court, his debt to B, may the latter force A to repay that debt in full, before he divides his property?
A. Since A owes money to several persons, and since he owes more than the total value of his possessions, each creditor is entitled to receive an equal share of such possessions irrespective of the amount due him. The debtor, however, may distribute his assets among his creditors in proportion to the amount due to each, before they come to court; such distribution would be irrevocable, and would even constitute a praiseworthy act. Since A is willing so to divide his possessions, no judge can force him to favor one creditor at the expense of the other creditors. However, before receiving his share of A's possessions, movables or immovables, each creditor will have to take a creditor's oath — the same oath that a creditor takes upon collecting his debt from encumbered property.
SOURCES: Cr. 219; Am II, 45; Tesh. Maim. to Mishpatim, 41.
A. Since A owes money to several persons, and since he owes more than the total value of his possessions, each creditor is entitled to receive an equal share of such possessions irrespective of the amount due him. The debtor, however, may distribute his assets among his creditors in proportion to the amount due to each, before they come to court; such distribution would be irrevocable, and would even constitute a praiseworthy act. Since A is willing so to divide his possessions, no judge can force him to favor one creditor at the expense of the other creditors. However, before receiving his share of A's possessions, movables or immovables, each creditor will have to take a creditor's oath — the same oath that a creditor takes upon collecting his debt from encumbered property.
SOURCES: Cr. 219; Am II, 45; Tesh. Maim. to Mishpatim, 41.
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