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26.4.26

Rambam laws of loans chapter 23, laws 1 and 10

The way I think the Rambam explains the law about the land set aside to pay for a loan (apotiki) is that the apotiki is in the domain of the lender, and therefore the law is like the law in Bava Metzia page 110 of a flood that uprooted and planted a tree in the field of a neighbour. There the profits are divided since part of the profits are caused by the land, and part are caused by the tree. Therefore, in the case of an apotiki, the profits are divided between the lender and the buyer. This is different from a regular loan where all the property of the borrower is under obligation to the lender, but it is not considered in the domain if the lender. Therefore, the power of the lender is not because his land caused the profit, but rather because of the stated or unstated condition in the sale, "What I own, or what I will buy, will be under obligation to pay for this loan". In that case, the only obligation of the property is to the lender. [The buyer would have to retrieve his losses from the seller, the borrower.] Thus, all the profit in this case goes to the lender]. In this way it is possible to understand what seems contradictory in the Rambam. For in the law of a regular loan, the Rambam writes the lender gets all the profit from the sold property. But in the case of an apotiki (where you would think he has more of a claim on the profits), he gets only half the profits.--------------------------The way I think the רמב’’ם explains the law about the land set aside to pay for a loan (אפותיקי) is that the אפותיקי is in the domain of the lender, and therefore the law is like the law in בבא מציעא page 110 of a flood that uprooted and planted a tree in the field of a neighbour. There the profits are divided since part of the profits are caused by the land, and part are caused by the tree. Therefore, in the case of an אפותיקי, the profits are divided between the lender and the buyer. This is different from a regular loan where all the property of the borrower is under שיעבוד to the lender, but it is not considered in the domain if the lender. Therefore, the power of the lender is not because his land caused the profit, but rather because of the stated or unstated condition in the sale, "What I own, or what I will buy, will be under שיעבוד to pay for this loan". In that case, the only שיעבוד of the property is to the lender. [The buyer would have to retrieve his losses from the seller, the borrower.] Thus, all the profit in this case goes to the lender]. In this way it is possible to understand what seems contradictory in the רמב’’ם. For in the law of a regular loan, the רמב’’ם writes the lender gets all the profit from the sold property. But in the case of an אפותיקי (where you would think he has more of a claim on the profits), he gets only half the profits.[This is not how rav shach explains this but it is close.]