Translation:Shulchan Aruch/Choshen Mishpat/71
Paragraph 1- If the lender made a condition with the borrower that the lender will be believed any time he claims he has not been paid back, the lender can collect without an oath, even if the borrower claims he paid back and even if it is an oral loan. This is only where there are witnesses that the borrower granted him believability. If, however, there are no witnesses and the borrower says he granted believability but paid back, he would be believed with a migu. See earlier 69:2. If, however, the borrower brings witnesses that he paid back, the lender cannot collect anything. If the lender made a condition with the borrower that the lender should be believed like two witnesses, the lender can collect without an oath, even if the borrower brings two witnesses and even if he brings 100 witnesses that he paid back in front of them because two have the same status as 100. Even if the borrower had a migu and it was possible to exempt himself with a different claim, we would not believe his migu against the believability that he granted. If, however, the borrower told him that he is believed to him like three, because he specified an amount, if the borrower pays back in front of four the document is considered paid back.
Paragraph 2- This that believability works without a kinyan is only at the time of the loan. If, however, it was granted after the loan and they did not make a kinyan from the borrower, the borrower did not obligate himself to anything.
Paragraph 3- This that believability can work against witnesses is only where they testify that the borrower paid back in front of them. If, however, they testified that the lender confessed in front of us that he was paid back, they would be believed, because they have only been disqualified with respect to repayment but a confession is a separate issue and they have not been disqualified for that. Similarly, if they testified that the lender waived the debt, they would be believed. The same applies for anything similar because believability only works for that which it was granted and for nothing more. For example, if one accept money as an iska and granted believability to the investor and his inheritors to say that no loss incurred on that money as well as anything else regarding the principal and subsequently the recipient left and placed money in the possession of a third party and the investor claims it was money belonging to the partnership, the investor would not be believed even if the recipient were alive because it was not included in the believability language. Anything that is written as being granted believability on, however, would take effect. For example, if a party granted believability to his counterparty on all expenses and bribes incurred, it would take effect just as it takes effect for the principal because any condition on a monetary issue is valid.
Paragraph 4- Those that are careful would have a receipt written by the lender in his handwriting on a document with believability so that there will be nothing to be concerned about.
Paragraph 5- If the borrower paid back but the lender claimed he did not so he paid a second time due to the condition, the borrower may then bring a claim against the lender and say you owe me such and such because I paid you back twice. If the lender confesses, he must pay. If the lender denies the claim, he must swear a heses oath on the fact that was only paid back once. Even if the lender was originally paid back in front of witnesses, he only has to swear a heses oath because he was granted believability against witnesses. Therefore, if the borrower writes that the lender should be believed without any light or strict oath or an oath via gilgul, the lender will not swear, whether at the beginning of the repayment or afterwards. If a document contains a believability clause "so long as a receipt has not been written on it," the “it” is not referring to the document, but on the actual debt, and it would take effect even if another document was written on this loan unless it stated explicitly otherwise, in which case he will need to verify the condition. If the borrower brings witnesses that he paid back, they would be believed because it is as if the lender said don’t pay me other than in front of so and so and so and so, and the borrower paid in front of other witnesses, as was explained above in 70:4.
Paragraph 6- A believability clause does not have the power to prevent a party from placing a general cherem, even if the clause states so explicitly. If the clause exempted him from an oath, a vow would be included because there is no distinction between an oath and a vow except where a husbands grants a believability clause to his wife.
Paragraph 7- When one places a cherem he does not say, “whomever stole from me.” Rather, he says, “whomever has the stolen item in his possession and does not return it.”
Paragraph 8- We do not provide a letter granting permission to place a cherem on the public other than to orphans making a claim on behalf of their father or in the case of a guardian, where they say we do not know who has items from the deceased in their possession. If one wants to leave the synagogue when the party places the cherem, the court can say “why are you leaving?” If he does not want to wait around, we cannot stop him. Even if he left at the time of the cherem, the cherem would still take effect on him. See earlier in 16:3 that there are those that say we grant the right to place a cherem on any individual for the purpose of obtaining testimony and this is in fact the custom.
Paragraph 9-If a document contains a believability clause, and the borrower produces the lender’s handwriting stating that he accepted such and such amount on this and this day and such and such amount on this and this day, and the lender claims this writing is for another matter, the borrower is in the right.
Paragraph 10- If a document contains a believability clause and its produced by a third party, there are those that say that the clause would be of no effect.
Paragraph 11- If a repayment against a document was written with witnesses, the lender died and there was significant circumstantial evidence that indicates that the repayment document is a forgery, the matter should be clarified with investigations and interrogations. If it subsequently appears to the court that the testimony is accurate, the inheritors are obligated to return the document to the borrower.
Paragraph 12- Even if a document contains a believability clause, one cannot collect from minor orphans with it because it is possible that when the orphans grow up they will discover a receipt or witnesses of repayment.
Paragraph 13- If a document contains a believability clause, and the lender has been discovered by witnesses to be a liar on another matter, the believability is void.
Paragraph 14- If a document contains a believability clause and the standard practice in that locale is to write the clause to bolster the document without consulting with the parties, and the borrower claims that it was written without his permission and the witnesses themselves are here and say they only wrote it because they saw it in other documents, we would not rely on the believability since it is not the standard practice to write this in all documents, even though the document says that they made a kinyan on everything written in the document. The same applies to other items that were instituted in documents. See earlier 61:5. If the document says explicitly that they made a kinyan on everything that was written and believability explicitly [see Sma], and the witnesses then say that the party never said anything to us about believability or it was written in error, they would not be believed because once they testify they cannot re-testify. Thus, it is a good custom to write in documents an explicit kinyan on believability and then there will be no issue.
Paragraph 15- In a locale where they have the custom to omit a believability clause other than with the instruction of the borrower, if the borrower instructs to write one, it would take effect without a kinyan. It seems to me that this is only where he said so at the time of the loan as was explained in this Siman in seif 2.
Paragraph 16- If a document contains a believability clause and has a set time for repayments, the believability is still valid even if the repayment date has passed.
Paragraph 17- When is it true that a general believability clause works to exempt the lender from an oath? So long as the borrower is still alive and the lender is coming to collect from him. If, however, the borrower has died and the lender is coming to collect from the inheritors, the believability would not work unless it explicitly states that the lender will be exempt from swearing to the borrower and his inheritors, in which case he can collect without an oath. If the document states, “he shall be believed against me and anyone that comes via my power,” his inheritors would be included. Gift recipients are also considered “coming from his power.”
Paragraph 18-If the borrower in a document with general believability died in the lifetime of the lender and the lender subsequently died, the lender’s inheritors would collect with an inheritor-oath that their father did not inform them that this document has been repaid. If the document contained an explicit believability clause exempting the lender and anyone that comes via his power, both the lender and those that come via his power can collect without any oath.
Paragraph 19- Believability would not take effect against third-party buyers, even if they made an explicit condition that the lender can collect from buyers without any oath by the lender. The same applies for an earlier lender that is coming to collect, and he must swear even if the document contains a believability clause.
Paragraph 20- There are those that say that believability only works when the lender is collecting from the borrower while in front of him. If, however, the lender was not in front of the borrower, it would not work and the court would require he swear. If he explicitly said “and not to anyone that comes from his power,” the court would not make him swear.
Paragraph 21- If a lender granted believability to the borrower to say that a document has been paid back, the believability would also take effect with respect to the inheritors and if the lender died and his inheritors come to collect from the borrower, the borrower is believed to say he paid back. He must, however, swear that he paid back, even if the lender was alive, unless the lender wrote to the borrower that he would be believed without an oath. The lender cannot collect from inheritors or buyers with this document. Even if the borrower says he did not pay back, the lender cannot collect with this document because we are concerned for trickery. If the borrower on this document says he paid back a partial amount and the lender says he did not pay back anything, the borrower must pay the portion he admits to and swear a heses oath on the rest. If the lender made a condition that the borrower would be believed without a heses oath, the borrower would not have to swear at all.
Paragraph 22- If a lender grants believability to the borrower that he is believed to say he paid back this document, the borrower is believed to say he paid back, even within the time for repayment. If the borrower died within the time of repayment, there are those that say the lender cannot collect from the inheritors but we claim that their father paid back, with a general cherem that they are not aware that their father did not pay back. There are those that say that they are obligated to pay back, unless they bring witnesses that their father told them that the document has been paid back.
Paragraph 23- If a document states that so and so owes money to so and so or to so and so with believability to the one that produces the document and one of them produces the document and the borrower claims he paid back the other and the other admits to it, since he granted believability to the party that produces the document, he does not have the authority to say he paid back so long as this party is producing the document. If they were partners in the loan, since one of them admits that he was paid back, if the one that admitted owns property, the court will go down to his properties and pay back his partner’s portion. If the admitting party does not own property, he would not be believed to cause his partner a loss since his partner has the document in his possession. He is believed, however, with respect to his portion and the court will collect his partner’s portion for him.