Responsa על בבא קמא 196:16
Maharach Or Zarua Responsa
Q - A dwelt in town T for many years. Emperor Rudolph levied a tax on T, but the burghers, who were not accustomed to being taxed [by the Emperor] rebelled. The Emperor thereupon beseiged T, and the burghers were forced to yield to the Emperor's demands.
The Emperor owed B [who lived in another town] 400 marks, and coerced the burghers of T, to assume that debt. The burghers did not have money to pay the debt. Thereupon, an agreement was reached between the burghers and B, wherein the former were to repay the latter, 900 marks over a period of four years, at the rate of 225 marks per annum. The burghers signed and secured the loan.
Upon seeing that the loan was secure, A went to B, and proposed to become an equal partner with the latter, in this loan. A offered to immediately pay for his share. B accepted A's offer and admitted the latter into the partnership.
B instructed the burghers to write the promissory note in the name of A and B, and explained to the burghers that this would expedite matters, inasmuch as B did not dwell in T. B informed the burghers that he wanted either A, or the former's son-in-law, to summon the sureties, and collect payment for the loan. B, however, did not reveal to the burghers that A was a partner in the loan.
An agreement of partnership between A and B was drawn up, and stated that: A and B jointly lent 400 marks, each supplying an equal share, to the burghers of T, who were obligated to repay the partners 900 marks in silver. The burghers gave a promissary note [written and attested by Gentiles] for the loan. A and B appointed C as trustee for this promissory note, and the latter was instructed not to give the document to anyone, without the knowledge of both the partners. The burghers were required to repay the loan over a period of four years, at the rate of 225 marks per annum. The first payment was to fall due on Marcheshvan (October) in the year (1339) at which time the burghers would pay 225 marks. Each partner would receive 112 1/2 marks. This procedure was to be followed annually for the next three years. When A would receive the annual payment he was required to send 112 1/2 marks to B, or the latter's agent, heir, heir's agent, or to C. C was instructed to deposit the promissory note with B's agent, heir, or heir's agent, should A fail to comply in forwarding the share in the prescribed manner. The document was then to be held by A's agent, heir, or heir's agent until such time as A would send the share, plus payment for all damages thereby incurred. Thereupon the document was to be returned to C. All the aforesaid which applied to A, [concerning his failure to transmit his partner's share] was applicable to B as well. Whichever partner collected the payment from the burghers, was required to transmit the other's share through the medium of C. A and B agreed to accept C's affirmation that one partner paid the other, his share. A, B and C promised by solemn hand-clasp to abide by the stipulations as set forth in the agreement of partnership.
Subsequent to the first payment made by the burghers, the king died. B was pressed for money. Prior to the second payment, B dispatched his agent to A, and requested the latter to contact the burghers, and negotiate a settlement wherein the burghers would repay the debt in one installment, at a reduced rate. A brought B's agent before the burghers, and the latter offered to settle the loan for a specified amount. B's agent, aware of B's financial plight, showed a willingness to accept the settlement, but A objected and demanded a higher sum from the burghers. B's agent returned to B.
The burghers decided to pressure A into accepting the settlement that was proposed to B's agent, and more than 200 burghers descended upon A's house. The burghers threatened violence, unless A would agree to the terms of their settlement. A fled the city and sought refuge in a fortress from whence he felt he could better negotiate with them. The burghers tried to abduct A's children and family, but the latter hid in the City Hall. The burghers found the keys to A's house and threatened to forcefully take A's family from the City Hall. Thereupon A reluctantly acquiesced to the burgher's terms. In addition, A was forced to cancel all debts which the burghers had owed A, his sons, and his sons-in-law. A would not have been forced to cancel these debts, had B's agent not demonstrated a willingness to accept the burgher's terms for settlement.
After A concluded the negotiations with the burghers, he sent B a report of all that had transpired. A instructed B to come and collect his share of the money. B, however, refused to accept any adjustment whatsoever, and demanded his annual share.
The burghers were under the impression that the promissory note was in B's possession, and did not demand its return from A, since they had not as yet, paid the entire settlement.
B again related to A about the former's dire need for money. A thereupon, sent B his annual share, plus a substantial amount. A stipulated that should the court decide in his favor, then the money he sent B should go toward the full payment. However, should the verdict be in B's favor, then A requested that he be given an extention of time to make further payments to the former.
B then informed C about the proposal of A. C, [who was entrusted with the promissory note, and collected B's share of the loan, from A,] replied that B had received sufficient money [from A] to cover the third annual payment, [which was not due,] and furthermore, it was not time to summon the sureties. C requested the opportunity to seek advice regarding the abrogation of his trust, and assured B that he would faithfully carry out his responsibility. C agreed to go to court and abide by its decision, should B refuse to accept the former's proposition.
B nevertheless, summoned the sureties. The burghers suddenly remembered that they were not in possession of the promissory note, when they learned that the sureties were commencing to eat [and were charging the food they consumed to the account of the burghers]. Thereupon, they rang the [church] bells and a large crowd responded to the call. Armed with swords and lances, the burghers again descended on A's house. The burghers forced A to promise either to free them from any damage [caused when the sureties charged food to the burgher's account] or to deliver the promissory note to the former. The sureties had already consumed food worth more than 100 pounds.
A thereupon deposited with C, a pledge valued in excess of B's share, of the fourth payment, and C then gave the promissory note to the former. A was obliged to pay for whatever the sureties had already consumed (while some of the sureties were still continuing to eat).
A suffered all this damage when B summoned the sureties, despite the former's assurance that he would heed the decision of the court [in regard to the adjustment A had made with the burghers].
A demands the right to withhold the pledge until B agrees to go to court for adjudication. C requests assistance in having his trust abrogated, and inquires whether he should deposit the pledge (which is now a substitutue for the promissory note) with A, until B pays for the damage he caused A, inasmuch as B had violated the conditions, as set forth in the agreement of partnership. C maintains that A's action [in negotiating the settlement with the burghers] was the result of unavoidable circumstances, while B [upon summoning the sureties] had acted with malice and intent to cause damage to A.
signed: Ephraim b. Abraham
The Emperor owed B [who lived in another town] 400 marks, and coerced the burghers of T, to assume that debt. The burghers did not have money to pay the debt. Thereupon, an agreement was reached between the burghers and B, wherein the former were to repay the latter, 900 marks over a period of four years, at the rate of 225 marks per annum. The burghers signed and secured the loan.
Upon seeing that the loan was secure, A went to B, and proposed to become an equal partner with the latter, in this loan. A offered to immediately pay for his share. B accepted A's offer and admitted the latter into the partnership.
B instructed the burghers to write the promissory note in the name of A and B, and explained to the burghers that this would expedite matters, inasmuch as B did not dwell in T. B informed the burghers that he wanted either A, or the former's son-in-law, to summon the sureties, and collect payment for the loan. B, however, did not reveal to the burghers that A was a partner in the loan.
An agreement of partnership between A and B was drawn up, and stated that: A and B jointly lent 400 marks, each supplying an equal share, to the burghers of T, who were obligated to repay the partners 900 marks in silver. The burghers gave a promissary note [written and attested by Gentiles] for the loan. A and B appointed C as trustee for this promissory note, and the latter was instructed not to give the document to anyone, without the knowledge of both the partners. The burghers were required to repay the loan over a period of four years, at the rate of 225 marks per annum. The first payment was to fall due on Marcheshvan (October) in the year (1339) at which time the burghers would pay 225 marks. Each partner would receive 112 1/2 marks. This procedure was to be followed annually for the next three years. When A would receive the annual payment he was required to send 112 1/2 marks to B, or the latter's agent, heir, heir's agent, or to C. C was instructed to deposit the promissory note with B's agent, heir, or heir's agent, should A fail to comply in forwarding the share in the prescribed manner. The document was then to be held by A's agent, heir, or heir's agent until such time as A would send the share, plus payment for all damages thereby incurred. Thereupon the document was to be returned to C. All the aforesaid which applied to A, [concerning his failure to transmit his partner's share] was applicable to B as well. Whichever partner collected the payment from the burghers, was required to transmit the other's share through the medium of C. A and B agreed to accept C's affirmation that one partner paid the other, his share. A, B and C promised by solemn hand-clasp to abide by the stipulations as set forth in the agreement of partnership.
Subsequent to the first payment made by the burghers, the king died. B was pressed for money. Prior to the second payment, B dispatched his agent to A, and requested the latter to contact the burghers, and negotiate a settlement wherein the burghers would repay the debt in one installment, at a reduced rate. A brought B's agent before the burghers, and the latter offered to settle the loan for a specified amount. B's agent, aware of B's financial plight, showed a willingness to accept the settlement, but A objected and demanded a higher sum from the burghers. B's agent returned to B.
The burghers decided to pressure A into accepting the settlement that was proposed to B's agent, and more than 200 burghers descended upon A's house. The burghers threatened violence, unless A would agree to the terms of their settlement. A fled the city and sought refuge in a fortress from whence he felt he could better negotiate with them. The burghers tried to abduct A's children and family, but the latter hid in the City Hall. The burghers found the keys to A's house and threatened to forcefully take A's family from the City Hall. Thereupon A reluctantly acquiesced to the burgher's terms. In addition, A was forced to cancel all debts which the burghers had owed A, his sons, and his sons-in-law. A would not have been forced to cancel these debts, had B's agent not demonstrated a willingness to accept the burgher's terms for settlement.
After A concluded the negotiations with the burghers, he sent B a report of all that had transpired. A instructed B to come and collect his share of the money. B, however, refused to accept any adjustment whatsoever, and demanded his annual share.
The burghers were under the impression that the promissory note was in B's possession, and did not demand its return from A, since they had not as yet, paid the entire settlement.
B again related to A about the former's dire need for money. A thereupon, sent B his annual share, plus a substantial amount. A stipulated that should the court decide in his favor, then the money he sent B should go toward the full payment. However, should the verdict be in B's favor, then A requested that he be given an extention of time to make further payments to the former.
B then informed C about the proposal of A. C, [who was entrusted with the promissory note, and collected B's share of the loan, from A,] replied that B had received sufficient money [from A] to cover the third annual payment, [which was not due,] and furthermore, it was not time to summon the sureties. C requested the opportunity to seek advice regarding the abrogation of his trust, and assured B that he would faithfully carry out his responsibility. C agreed to go to court and abide by its decision, should B refuse to accept the former's proposition.
B nevertheless, summoned the sureties. The burghers suddenly remembered that they were not in possession of the promissory note, when they learned that the sureties were commencing to eat [and were charging the food they consumed to the account of the burghers]. Thereupon, they rang the [church] bells and a large crowd responded to the call. Armed with swords and lances, the burghers again descended on A's house. The burghers forced A to promise either to free them from any damage [caused when the sureties charged food to the burgher's account] or to deliver the promissory note to the former. The sureties had already consumed food worth more than 100 pounds.
A thereupon deposited with C, a pledge valued in excess of B's share, of the fourth payment, and C then gave the promissory note to the former. A was obliged to pay for whatever the sureties had already consumed (while some of the sureties were still continuing to eat).
A suffered all this damage when B summoned the sureties, despite the former's assurance that he would heed the decision of the court [in regard to the adjustment A had made with the burghers].
A demands the right to withhold the pledge until B agrees to go to court for adjudication. C requests assistance in having his trust abrogated, and inquires whether he should deposit the pledge (which is now a substitutue for the promissory note) with A, until B pays for the damage he caused A, inasmuch as B had violated the conditions, as set forth in the agreement of partnership. C maintains that A's action [in negotiating the settlement with the burghers] was the result of unavoidable circumstances, while B [upon summoning the sureties] had acted with malice and intent to cause damage to A.
signed: Ephraim b. Abraham
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