Translation:Shulchan Aruch/Choshen Mishpat/75

Paragraph 1- If one makes a claim in court on another that he has a maneh of his in his possession, the court will tell him to clarify his claim. What is he obligated to you? Did you lend him, give him a deposit or did he damage your possession? The reason for this is that it is possible that the plaintiff thinks the defendant owes him but he actually does not. Similarly, if the defendant responds that he does not have anything of his or he does not owe him anything, he has to clarify his words because perhaps he is mistaken and think he does not owe the plaintiff money and he actually does owe him money. Even if the party is very wise we tell him there is no harm to respond to his claim and he should tell us how he does not owe him money. If the party does not want to clarify his claim and the judges see that there is fraud in the matter, the party will lose out. If the judges do not see fraud but see that he just cannot clarify his claim or something similar, we would not obligate the party merely because he does not clarify his claims. We only say to clarify claims in order to produce a true ruling because of the fact that there are many fraudsters. See what I wrote above in 72:17.

Paragraph 2- If a party says you have a maneh of mine and the defendant responds that he only has 50, the defendant is obligated to swear a biblical oath that he only owes 50 and he will give the 50 that he admits to. If there is a solo witness that supports him, there are those that say that the witness would exempt the defendant from an oath and there are those that say the witness would not exempt him. See later 87:6.

Paragraph 3- If a person does not make a claim against him but he says on his own that he had a maneh of another’s father in his possession and that he paid back 50 and still had 50 in his possession, he would even be exempt from a heses oath.

Paragraph 4- If the defendant denied the entire amount and witnesses testify that he owes 50, he would pay 50 and swear a biblical oath on the rest so that a confession is not greater than testimony of witnesses. There are those that say that this is only where the witnesses testify orally and without a kinyan. If, however, they wrote in a document or there is a kinyan, the witnesses would not obligate an oath because a document has the status of heilach. There are those that disagree. See later in the beginning of Siman 87. When is this true? Where the plaintiff made a claim on a loan. If, however, he claims that he gave items worth a maneh as a deposit and the defendant responds that he does not have anything of his and witnesses testify that they saw items worth 50 in the defendant’s possession at the time of the claim on those items, the defendant is established as a fraudster and the plaintiff would swear and collect.

Paragraph 5- If the plaintiff says you have a maneh of mine from such and such loan and another maneh that I lent you such and such time after that loan and the defendant responds that he owes him nothing because he already paid back such and such amount on the first loan and such and such amount on the second loan and from their claims the court realizes that the defendant still owes the plaintiff 20 dinar from the two loans, the case has the status of two testifying that the defendant has 50 in his possession because the court is witness on the confession on the remaining amount and the defendant would swear a biblical oath on the remainder. This is only where the court determines the defendant is partially confessing based on his calculation. If, however, the defendant is partially obligated because his claim is not believed, that would not be a partial confession. See later 87:5.

Paragraph 6-If one partially confesses and pays immediately and says this is all he has of the plaintiff and here it is, he would be exempt from a biblical oath but is required to take a heses oath. See later in Siman 87 with respect to all of this.

Paragraph 7- If the plaintiff says you have a maneh of mine and the defendant says he has nothing of his or that the plaintiff has clothing or vessels of the defendant’s corresponding to the claim or if he says it is true that he had it in his possession but the plaintiff waived the debt or gave it to him as a gift, since he is denying the entire debt he is exempt from a biblical oath and would take a heses oath. Even if two witnesses were to testify that he lent him and they don’t know of any repayment, the defendant would be believed with a heses oath that the plaintiff has a corresponding amount in his possession or that the plaintiff waived the debt. See later in Siman 87 for all the distinctions of a heses oath.

Paragraph 8- See later 364:8. If the plaintiff says you have a maneh of mine because you stole from me and the defendant responds that this never occurred, we would have the defendant take a heses oath. If the defendant partially confesses or there is a solo witnesses testifying that the defendant stole from the plaintiff, we would have the defendant swear a biblical oath.

Paragraph 9-If the plaintiff says you have a maneh of mine that I lent you or gave you as a deposit and the defendant responds that he is not sure if the plaintiff lent him or gave him a deposit, the defendant would take a heses oath that he is unsure and he would be exempt. If he wants to fulfill his heavenly duties he should pay. Even if the defendant were originally to claim he is certain he does not have the plaintiff’s money and when they obligated him a heses oath he then claims he’s not sure if the plaintiff lent him money or deposited money by him, he would take a heses oath that he is unsure and he would be exempt. If the plaintiff says you have a maneh that I lent you or deposited with you and the defendant responds that he knows that he was lent or received a deposit but is unsure whether he returned the item or not, the defendant would be obligated to pay. The plaintiff would not even need to take a heses oath. If the defendant wants, however, he can place a general cherem on anyone who illegally takes money. If the defendant later says he remembers that he paid back, he would be believed with an oath.

Paragraph 10-If no one made a claim against the defendant but he told another on his own volition that the lender lent him money, gave him a deposit or that the defendant stole from him and he doesn’t know if he returned the money, the defendant is exempt. If he wants to fulfill his heavenly duty, he is obligated to pay. If, however, he says I don’t know if you lent me or gave me a deposit or if I stole from you, he is even exempt from a heavenly duty because he didn’t say this in response to a claim.

Paragraph 11- If the defendant told the plaintiff I owe you a maneh and the other responds that he is certain that the defendant does not owe him money, the defendant is exempt even if he knows with certainty that he owes him money because it is as if the plaintiff waived the debt.

Paragraph 12- If the plaintiff says you have a maneh of mine, the defendant responds that he’s not sure if he lent him and a solo witness testifies that the plaintiff lent him or the defendant says he’s not sure if he paid back, the defendant is obligated to swear and because he can’t swear he must pay.

Paragraph 13-If the plaintiff says I lent you a maneh and here is a solo witnesses and the defendant responds that it is true but he paid him back or he says you separately owed me an amount equal to that maneh and such witness testifies that the defendant never paid back this maneh, such as where the witness never left the presence of the defendant, or if the testimony is within the time of repayment or in a case where the defendant originally says the loan never occurred and the plaintiff later produces a solo witness and the defendant then says he did borrow but he paid back, in all these cases the defendant is obligated to swear and because he can’t swear he must pay. In a case, however, where the defendant is able to say he paid back or returned the item, we do not say it is a case of where he is obligated to swear and because he can’t swear he must pay back because he is believed with a migu. This is the consensus of the achronim. If the plaintiff says the defendant grabbed an item and he has a solo witness on the grabbing and the defendant says it is true that he grabbed but the item belonged to him, he is obligated to swear and because he can’t swear he must pay. There are those that say that this is only in this type of case where the witness testified that the item did not enter the defendant’s possession as collateral. If, however, the witness testifies that it entered the defendant’s possession and he doesn’t remember how much the lender lent on the collateral, the defendant is believed with an oath to say how much he lent on it and we don’t say that it is a case of one who is obligated to swear etc. since it came into his possession legally. There are those that disagree as I wrote above in 72:18. If the plaintiff says you have a maneh of mine and the defendant says he only has 50 and he is unsure about the rest, because he can’t swear he must pay. The plaintiff does not have to swear, but if the borrower wants he can place a general cherem on anyone who takes money illegally. If, however, the defendant responds that he borrowed 50 and paid back and is unsure whether he borrowed the other 50 or not, the defendant would swear a heses oath that he paid back the 50 and that he doesn’t know about the other 50 that is being claimed.

Paragraph 14- We only say the concept of “because he can’t swear he must pay” with respect to a biblical oath. If, however, the defendant is biblically exempt from swearing, he would be exempt from the oath, even if he is rabbinically required to swear. He is not considered one who is “obligated to swear.”

Paragraph 15- There are those that say that we don’t say the concept of “because he can’t swear he must pay” with respect to an oath via gilgul, whether it was a case where he is unable to take the primary oath that is bringing about the gilgul and he is required to pay and he would swear on the gilgul or reverse the oath to this counterparty or whether he was able to swear the primary oath and he cannot swear the oath that came via gilgul. There are those that say that because he is biblically obligated an oath on his denial and he says he is unaware about the gilgul matters, he is considered one who is obligated to swear and because he cannot swear he must pay.

Paragraph 16- If one makes a claim of an oral loan on an inheritor, regardless of whether the inheritor says he doesn’t know if the deceased borrowed from him or not and there are witnesses testifying he did borrow, the inheritor says he doesn’t know if the deceased paid back or not or whether the inheritor says he knows about 50 but does not know about the other 50, the inheritor is exempt, even without taking the inheritor oath. Rather, the plaintiff can place a general cherem on anyone who knows that the deceased owes him anything. If, however, the inheritor confessed on 50 and denied 50 where he said I only owe him 50, the case is like a standard partial confession and he would take a biblical oath.

Paragraph 17- We do not make a party take any oath for an uncertain claim. How so? If the plaintiff says that he thinks the defendant has a maneh of his or that he lent him a maneh and thinks he didn’t pay back, the defendant would even be exempt from a heses oath. He would not even be required to pay to fulfill his heavenly duty since the plaintiff is making an uncertain claim and the defendant is not confessing and is certain. Similarly, if one tells another that you owe me a maneh because you confessed to me that you took something of mine but the confession was not in front of witnesses, that is not considered a certain claim because the plaintiff only knows that the defendant owes him money by virtue of a confession and a confession made not in the presence of witnesses, or even if there were witnesses but the plaintiff did not say you are my witnesses, is meaningless because the defendant can say I was kidding. If, however, the plaintiff claims that the defendant confessed on his own that he owes him such and such money and the plaintiff told witnesses that you are my witnesses or the defendant said you are my witnesses and the witnesses are not here, this is considered a certain claim and the plaintiff can make the defendant take a heses oath that the plaintiff did not say you are my witnesses. If the defendant flips the oath to the plaintiff, the plaintiff will swear that he confessed with “you are my witnesses” and he would collect. There are those that say that we do require a heses oath on an uncertain claim where there is a basis to the claim. For example, if Shimon left Reuven’s house and Reuven discovered a box that was open and items that were inside were taken from it and he suspects it was Shimon, Reuven can make Shimon take a heses oath. This seems to me as the appropriate way to rule.

Paragraph 18- If both parties made uncertain claims, such as where the plaintiff says I know I lent you but I don’t know how much, and the defendant responds that it is true that he lent him but he doesn’t know how much, the defendant would not even have to swear a heses oath and would pay only that which he is certain that he owes and would even fulfill his heavenly requirement. There are those that say that since the borrower remembers that he borrowed, he would not fulfill his heavenly duty until he compromise with the lender to the extent he can. Either way, the lender can place a general cherem on anyone that knows they owe him money and does not pay back.

Paragraph 19-If the plaintiff claims that I don’t know how much I lent you but it was at a minimum two silver coins and a perutah or if the plaintiff claims a maneh and the defendant responds it is true that I borrowed from you but I don’t know how much, the court would investigate and ask him that although you don’t know the amount do you admit that you at least owe him a perutah? If the defendant confesses, he has made a partial confession and because he can’t swear he must pay. This is only true where the plaintiff claimed an item that is within the plaintiff’s wealth. The borrower can place a general cherem on anyone who takes an item that the borrower does not owe. If the defendant says he is not even certain on less than a perutah, he would take a heses oath and be exempt by human law. There are those that say that even if the court did not ask him, he would be obligated to pay because a confession is not on less than a perutah.

Paragraph 20- If the plaintiff claims that he thinks the defendant has a maneh of the plaintiff’s father in the defendant’s possession, there would be no oath at all on the defendant, but just a general cherem, whether he made the claim against the borrower himself or against his inheritors. If, however, the plaintiff claims that he is certain that the defendant’s father has a maneh of the plaintiff’s in his possession and the defendant makes a partial confession, the defendant would swear a biblical oath. If the defendant denies the entire thing, he would take a heses oath whether the plaintiff made a claim against the borrower himself or against his inheritors.

Paragraph 21- If the plaintiff tells the defendant that the plaintiff’s father told him that the defendant has a maneh of his and the defendant responds that he only has 50, there are those that say that he is even exempt from a heses oath and there are those that say that he is required to swear a biblical oath. See later in this Siman in seif 23.

Paragraph 22- If a plaintiff says that he discovered in his father’s writings that the defendant owes him a maneh and he is certain that it’s his father’s handwriting, there are those that say the defendant would be required to take a heses oath.

Paragraph 23- If one makes an uncertain claim on the basis of a witness, such as where he says so and so told me that you took a maneh of mine, the defendant denies it and the plaintiff brings the witnesses, we would make the defendant take a biblical oath as if it were a certain claim. If, however, the witness is not in front of the court to testify, that which the plaintiff says he heard from someone else does not qualify as a certain claim and we would not make the defendant swear on this because it is an uncertain claim. There are those that say that anyone who says the claim was told to him from a reliable person would require an oath, even if it was from a relative. This seems to me to be the appropriate way to rule. This is only where the individual who is claimed to have said it does not have a stake in the testimony.

Paragraph 24-If one tells another you have a maneh of mine and the defendant responds I don’t have anything of yours or I paid you back and the plaintiff says to swear to him a heses oath and the defendant responds you have a document against me and you want me to swear first and then produce the repaid document and collect with it, we tell the plaintiff to bring the document. If the plaintiff says he never had a document or that he had the document but misplaced it, we tell the lender that any document you had against the defendant until today is void and we would then have the defendant takes the heses oath or he can place a general cherem and then lender can then go and look for the document.

Paragraph 25- If the defendant says I will not swear until the plaintiff voids all witnesses that he has against me on this claim, we would not listen to the defendant’s argument.