Translation:Shulchan Aruch/Choshen Mishpat/56
Paragraph 1- A third party, so long as he has the item that was given to him in his possession, is believed as if there were two witnesses, even if he is related. He is not required to take an oath. Even if the handing over to the third party was written in a document, we do not say that they are not relying on the concept of a third party. Rather, here too the third party would be believed. Even if the timeframe given to hand over the document has passed and the third party has not given the document, he still is a third party and he is believed. The third party is believed even if one of the parties contradicts him and says he never made him a third party. The third party is even believed where both parties contradict him so long as there is no dispute between the parties and the third party regarding the amount of money in his possession, because otherwise the third party would have a stake in the matter and would not be believed in a case where the third party does not have a migu. If, however, the third party has a migu, he is believed. The parties may force him to swear, even with an uncertain claim. If the third party had the document, produced it in court and says it was paid back, he would be believed even if the document was verified because had he wanted he could have burnt or torn the document. Similarly, if the third party died and a writing was discovered in the third party’s possession saying the document that he had was paid back, the document is considered paid back even if there are no witnesses on the writing. See later Siman 65 with respect to these laws. If, however, a writing was produced from the lender’s possession saying that so and so’s document was paid back, it is treated as a joke, even if it was written in the lender’s handwriting. The plaintiff must pay the expenses of the third party.
Paragraph 2- If witnesses contradicted the third party and said this was not the condition you were made a third party over, the witnesses would be believed. When is this true? Where the third party says, “on this and this day the third-party-item was handed over to me with such and such condition,” and the witnesses contradict him. If, however, he simply says this is the condition on the item which was given to me, he would be believed, even if the witnesses say that there was no such condition when it was handed over because the parties may have come to the third party later and made the condition after it was handed over. Even if the third party does not make this claim, we make the claim for him so that he will not be contradicted by witnesses. With respect to a third party, there is no distinction between a case where both parties gave it to him or just the lender gave it to him to be a third party.
Paragraph 3- The third party should only give over the item in court and explain the terms of the handing over to the third party because a disagreement may arise among them and when the item is produced by the third party he will only be believed like a solo witness [version of the Sma]. Therefore, the court must write and sign the details. This that the third party is believed like a solo witness even though the item is not his possession is only where the parties have removed themselves from him and do not have any complaints against him. If, however, they have complaints with respect to the handing over of the item, the third party now has a stake in the matter and has no believability at all. The same applies if the third party was related or otherwise disqualified.
Paragraph 4- If a document is produced by a third party and the borrower claims that the document is forged or was paid back and they cannot verify the witnesses’ signatures, the third party is not believed, even if he testified that the lender and borrower gave it to him and told him such and such amount was remaining in the document that was required to be paid back.
Paragraph 5- If a document was given over to a third party so that the borrower would pay back by such and such date and the time has passed and the borrower claims he paid back in time or the borrower died, we assume the document has not been paid back and the third party will return the document to the lender. If the borrower had died, the lender can only collect with an oath as is the rule for anyone who comes to collect from orphans. If one obligated himself to another in a document with a kinyan and the obligated party deposited the document with another and died, the third party should not give the document to the lender nor return it to the borrower’s inheritors.
Paragraph 6-If a third party was created via a messenger, such as where the borrower came with another who had a collateral or document in his possession and that other person tells the third party that the lender made him a messenger to bring this to you and hand it over on such and such condition, and the third party accepted the item and the lender later comes and contradicts the messengership and says he never made this individual a messenger for this matter, the third party can do what the messenger told him to. If the lender does not contradict the messengership, but the third party does not want to accept it and the item remains in the possession of the messenger, the messenger does not have the status of a third party but that of a messenger and he must return the item to the party that gave it. The third party must always comply with the terms of the handing-over, even if one of the parties later has a claim on it. How so? If Reuven agreed with Shimon, who owed him money, on a date and deposited the document with Levi on the condition that if Shimon does not pay back by a certain date then Levi will return the document and be able to collect everything in one shot and Shimon did not pay by the prescribed time, Levi must return the document even if he knows that Shimon has claims on this because he is not a judge- just a third party. Therefore, he must return the document to Reuven and before he produces it he should describe in front of witnesses how the document came to him and what the conditions were. The witnesses will write and sign the details and provide it to the third party who will give it to Shimon, and Shimon can now claim what he wants. Therefore, any third party who returns a document should not be concerned that he acted improperly or that he was not an expert in the laws of a third party unless there was some other negative factor.
Paragraph 7- If a woman was transacting within the home or a guardian was appointed on the homeowner’s properties and the homeowner died and the woman or guardian knows that the homeowner was in possession of other’s properties that was now in their possession and they know who it belongs to, the woman and guardian must return each one of their properties. If they did not return the properties and they were brought to court, they would be believed with a migu.