Translation:Shulchan Aruch/Choshen Mishpat/58

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Paragraph 1- If one produces a verified loan document against his adversary and the adversary says he paid it back and the lender admits that he was paid but says there was another verbal loan that was still outstanding and he accepted the money for that other loan and this document remains in its valid state, the lender is believed if the borrower did not pay back in front of witnesses. The lender may collect without an oath if the document contains a believability clause. If the borrower later brings a claim that the lender took the money illegally, the lender would take a heses oath and be exempt. If the document does not contain a believability clause, the lender may only collect with an oath. If the borrower did not personally pay back but sent the money via a messenger, the messenger is required to pay back the borrower that sent him, whether the borrower had said to take the document and then give the money or give the money and then take the document. There are those that say that since the messenger is required to pay, the lender cannot hold on to the money if he says the borrower owes him for something else, unless the lender claims the messenger gave it to him for that other debt. There are those that disagree and hold that the lender may claim the borrower owes him for something else in all cases. Similarly, if one gave a deposit to another, and the guardian says that the deposited item belongs to a third party who owes the guardian money and the guardian claims that such third party gave the depositor the item as a messenger, the guardian has the right to claim up to the value of the item with a migu that he returned the item, notwithstanding the fact that the depositor will need to reimburse the third party. If, however, he says that the depositor did not mention the third party and simply deposited the item with him but the guardian claims that the item really belongs to the third party, the guardian cannot hold on to the item since we cannot prove that the third party owed the guardian money. There are those that say this is only where item came to the guardian as a deposit. If, however, he grabbed it from the depositor and he has a migu, the guardian can say that the owner of the item owed him money and the depositor would be liable to pay the owner because he was negligent. If, however, the borrower did not mention that the messenger should take the document, the messenger would be exempt since the borrower did not tell the messenger to give the money in front of witnesses.

Paragraph 2- If the borrower claims he paid back in front of so and so and so and so and those individuals come and testify that he paid back but did not mention the document, and the lender responds that it was a different loan that the borrower paid him back for, the document is void. There are those that say that the document is not completely void and if the lender were to grab the money we would not take it away from him. This seems to me to be the primary ruling. When is this true? When the witnesses testify that the borrower gave the money to the lender as repayment. If, however, they saw the borrower give the money but did not know if it was for repayment, a deposit or a gift and the lender says the payment never occurred, the lender has been established as a liar and the document is void. If the lender says the repayment was for a different debt, he would be believed and he would swear and collect what is in the document because he was not paid back in front of witnesses and since he could have said the money was a gift he is believed to say it was repayment for a separate debt. There are those that disagree and say that even in such a case the document has been weakened and this seems to me to be the primary ruling because the burden of proof is on the party taking away the money. This is all where the money was given in front of two witnesses. If, however, it was given in front of a solo witness, we do not say the document was been weakened. See later Siman 70.

Paragraph 3- If the borrower says this debt was for the value of the ox I purchased from you and you collected the value of its meat, and the document-holder says it is true that I collected that money but it was for a different outstanding debt, because he admits that the debt was for the ox and he collected from the ox, the document is void if there were witnesses that the borrower paid him the value of the ox. There are those that write that even if there are no witnesses that the borrower repaid from the ox, the borrower can take a heses oath that he paid back. The primary view is the first opinion. If it is known that the borrower gave some of the money on one debt, the lender cannot claim that other money was for a different debt.

Paragraph 4- If one owes another two debts and the borrower pays back without specifying, the lender has the ability to say I accepted it for such and such loan. Moreover, even if the borrower were to say at the time of repayment, “here is the money for such and such loan,” and the lender accepts it without comment, the lender may later say that he took the money for a verbal loan or another debt. See later Siman 83.

Paragraph 5- If the borrower gave the lender a maneh to give to another creditor, the lender may keep the money for himself.