Translation:Shulchan Aruch/Choshen Mishpat/133

Paragraph 1- Any movable item in someone’s possession is presumed to belong to the possessor. Even if a protester were to bring witnesses that the item was his and that he gave it to the possessor as a deposit or loan, the possessor would be believed to say the owner sold it to him or gave it to him as a gift, and he would swear a heses oath. If the possessor claims it still belongs to the owner but he has it as collateral, he is able claim a loan up to the value of the collateral, and he would swear while grasping a holy item and collect. If the possessor claims that the owner owes him up to the value of the item for a business arrangement between them, it is appropriate for the court to determine why the owner owes him money, because the possessor may think the owner owes him money but once the matter is clarified the owner may not actually owe him any money.

Paragraph 2- Even if the protester gave the item to the possessor with witnesses, if there are no witnesses saying the item is currently in the possessor’s possession, the possessor would be believed with a heses oath to say he returned it. He would similarly be believed to say he purchased it with a migu that he could have said he returned it. If the owner told him not to return it without witnesses, the possessor would still be believed with a migu that an unavoidable accident occurred and he would take a biblical oath. If the possessor claims he returned it in front of so and so and so and so, who died or went overseas, he would take a heses oath and be exempt. If the item was not handed over with witnesses, even if the witnesses now see the item in his possession, the possessor would be believed to say he purchased it. If it was handed over with witnesses and witnesses currently see it in his possession, however, he would not be believed. This is only where the witnesses testify that it was given as a deposit. If they simply testify it was given to the possessor, however, the possessor can say it was given via a sale or gift.

Paragraph 3- If the witnesses saw the item in the possessor’s possession before the protester took him to court, it is considered a valid seeing by the witnesses, even if the possessor told them before showing it that the item is a collateral for a loan of that value. The owner can warn the possessor in front of those witnesses that he can only return the item in front of so and so and so and so in order to prevent the possessor from being able to say he returned it. See above 72:18.

Paragraph 4- If the protester asks the possessor what he is doing with the item and the possessor says the protester sold it to him or gave it to him as a gift and the protester responds that he deposited it with so and so and told him that he can only return it with witnesses, which he did not do, and he gave it to the possessor without my instructions, the possessor would swear that the protester sold it or gave it to him and he would be exempt.

Paragraph 5- When is it true that the possessor is believed? With respect to items that are not generally lent or rented out. With respect to items that are generally lent or rented out where the protester has witnesses that the item was his and they currently see the item with the possessor, however, and the possessor says that the protester lent him or rented to him, he would not be believed to say he purchased it or took it as collateral, even if there are no witnesses as to how the item came into his possession. He would have to return the item, even if he had possession for three years. Even if the possessor died we would remove the item from his inheritors without an oath. There are those that say that the protester must swear to collect. If the inheritor makes a certain claim and says the item was given or sold to the deceased in my presence, the protester would take a heses oath.

Paragraph 6- When is it true that the protester is believed with respect to items that are generally lent or rented out? Where the protester claims he lent or rented to the possessor. If he claims that it was stolen, however, he would not be believed unless word got out in the city that it was in fact stolen, as is explained in Siman 357 and 364 and above in Siman 90.

Paragraph 7- If someone had items that are generally lent or rented out in his possession, even if he confesses and says he knows they belonged to the protester but so and so sold it to him or gave it to him as a gift, and the protester claims it was stolen from him, we would not remove the item from the possessor, even if the protester brings witnesses that this item was known to belong to him, because a person is accustomed to sell his items. There are those that disagree and hold that the possessor cannot be in a better position than that “so and so,” who is not believed, so the possessor is not either believed. This seems to me to be the primary view. If the protester makes a claim against the possessor and says he personally lent or rented to him, we would remove the item from him. If they were items that one does not generally lend or rent out, the possessor would take a heses oath that he did not borrow or rent from the protester, but that he purchased it from so and so, and the items will remain in his possession.