Translation:Shulchan Aruch/Choshen Mishpat/79

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Paragraph 1- If the plaintiff claims that he lent the defendant a maneh and the defendant denies the loan in court and says this incident never occurred and two witnesses testify that the defendant borrowed a maneh and paid it back and the lender claims he was not paid back, the borrower is obligated to pay because anyone who says I did not borrow is as if he said I did not pay back and a person has more believability against himself than 100 witnesses and the claim he makes that he did not borrow is contradicted by witnesses. The lender would not be required to swear because the defendant has been established as a fraudster. If following repayment the borrower brings a claim that he has paid back twice, we would not require the lender take a heses oath on this. Similarly, if a party produces a document with the defendant’s handwriting stating that he owes the plaintiff money and the defendant says the incident never occurred and this is not my handwriting and his handwriting has been affirmed in court or witnesses testify that this is in fact his handwriting, the defendant is established as a fraudster and would be required to pay.

Paragraph 2- If one is making a claim on another for a maneh and the defendant says it’s possible that you owe me that same amount of money that you are claiming from me, there are those that say that it is as if the defendant says it is possible you owe me that money and I do not owe you and he has denied the loan and it is as if he said I did not pay back. See later 81:23 with respect to whether one can say he erred on an admission in a situation where he has a migu.

Paragraph 3- If one confessed in court that he owes a plaintiff a maneh and subsequently says that he remembered that he already paid back the loan he confessed on and he has witnesses, the testimony would be effective and we would follow the witnesses’ words because he has not contradicted the witnesses and it is not as if he said I never borrowed. This is only where he makes the claim of repayment prior to the witnesses coming. If, however, the witnesses came first, he would not be believed.

Paragraph 4- If the plaintiff says I lent you a maneh in front of so and so and so and so and the defendant responds that this never occurred and witnesses testify that the plaintiff counted a maneh from him, the defendant is established as a fraudster even if the witnesses don’t know if it was given as loan or as a gift. If the defendant then claims that it was given to him as a gift or as repayment, he would not be believed. If, however, the defendant originally claimed that it is true that he accepted a maneh from the plaintiff but it was given as a gift or as repayment for a debt, the defendant would be believed since he is not contradicting the witnesses and he would take a heses oath and be exempt. If the plaintiff hid witnesses on the outside and they heard the plaintiff give the maneh as a loan and the defendant claims the incident never occurred, he would certainly be established as a fraudster on the basis of the testimony. If, however, the defendant claims I only accepted the money as repayment because I had no other way of extracting the money so I confessed to whatever he was saying just to have my debt repaid and I was not concerned about confessing to him on a loan because I did not see the witnesses, his claim would be valid and he would take a heses oath and be exempt.

Paragraph 5- If a plaintiff claimed that the defendant had a maneh of his and the defendant responds that the incident never occurred and witnesses testify that the plaintiff lent the defendant money and the defendant then says that he paid back, the defendant has been established as a fraudster for that money and is obligated to pay. The lender is not required to swear. The defendant is established as a fraudster only with respect the money in question, but not for other money and he would be believed with an oath just like anyone else.

Paragraph 6- Similarly, if the defendant claimed the incident never occurred and the lender produces a document with witnesses stating that he lent the defendant, the defendant has been established as a fraudster and the lender would not be required to swear, even if the document did not contain a believability clause.

Paragraph 7- Similarly, if the plaintiff produces the defendant’s handwriting stating that he owes the plaintiff money and the defendant says the incident never occurred and this is not my handwriting, and the handwriting has been confirmed in court or witnesses saw that it was his handwriting, the defendant has been established as a fraudster and would be required to pay. The defendant is not believed to say he paid back until his counterparty confesses or he brings witnesses that he paid back in front of them. If one confesses in court that he owes his counterparty and then says he now recalls that he paid back and there are witnesses, he is believed.

Paragraph 8- Anyone who is established as a fraudster would have his counterparty collect without taking an oath. If the defendant wants, he can place a general cherem on anyone who collects money illegally.

Paragraph 9- A defendant is not established as a fraudster unless he made his denial in court and two witnesses came and contradicted him. If, however, the defendant says the incident never occurred and the court obligated him to swear and when it comes time to swear the defendant then claims he paid back or he is unsure or in a case where the borrower claims that he is unsure and then says he borrowed and paid back, because he was never contradicted by witnesses, but merely was careful to take the oath correctly and both claims were ones that would exempt him, the borrower can swear he doesn’t know and would be exempt. Even in a case where it is plausible that the reason he confessed is because he saw witnesses coming, because he ultimately confessed prior to the witnesses coming, he has not been established as a fraudster. The same would apply if there was a rumor in the city that he borrowed unless it was a publicized rumor in which case it is like the witnesses had already come as was explained above in 72:18. Similarly, if the denial was not in court, the defendant would not be established as a fraudster even if the witnesses contradicted him. If, however, the plaintiff said to the witnesses that the defendant denied in front of, that “you are my witnesses that he claimed he did not borrow” and the defendant is silent and then says I paid back earlier, the defendant would not be believed. If, however, he said, I paid you back later, he would be believed.

Paragraph 10- If one says to his counterparty you have a maneh of mine in your possession and the defendant responds in front of witnesses that it is true and the next day the defendant says he gave him the maneh, the defendant would swear a heses oath and be exempt. If, however, the defendant says that he never had the maneh in his possession and the witnesses testified that he confessed, the defendant is established as a fraudster because he already confessed that he had the maneh in his possession and his admission is like 100 witnesses. If the defendant simply says he does not have the item in his possession, he would not be established as a fraudster because he can clarify his original words by saying that this that he said he did not have the item meant that he paid back. The same applies if he said I do not owe you or your claim is a lie or he says I don’t know what you are talking about because he can clarify his words.

Paragraph 11- If one says to another that he lent him a maneh next to such and such pillar and the defendant responds that he never passed by such pillar and witnesses testify that the defendant passed such pillar but they did not see any loan, the defendant would not be established as a fraudster because it is a matter that people do not pay attention to and he did not recall passing the pillar. If the defendant said I paid back in front of so and so and so and such individuals comes and say this never occurred, the law is explained in Siman 70.

Paragraph 12- If the defendant says I paid back a maneh with such and such commodity whose market value was such and such and the plaintiff brings witnesses that it was not worth that much and the plaintiff demands the difference and the defendant then claims he paid him back with that commodity or something else, the defendant has been established as a fraudster because people make an effort to remember the market rate and thus the lender can collect the remaining amount without an oath. An admission in court or testimony in court has the status of a documented loan and we would therefore write a document to the plaintiff and give it to him. When is this true? Where the defendant did not accept to sit in judgement until a court of three sent to him that they were sitting on their own in their affixed location and they brought the defendant as was explained in Siman 39. If, however, two people come to court and one makes a claim on the other and says you have a maneh of mine in your possession and the defendant responds it is true, and the defendant leaves and says he paid back, he would be believed and would take a heses oath that he paid back, whether the court told him you are obligated to give him money or they said go and give to him. Therefore, if the plaintiff subsequently tells the judge to write the admission for him, we would not write it because the defendant may have paid back and the plaintiff will collect a second time. See above 39:9.

Paragraph 13- If two come to court and one party is obligated to the other and the court says to go give it to him and the defendant leaves and then says he paid back and witnesses testify that he did not pay back, such as a case where they never left his presence, the defendant is established as a fraudster for that money. If, however, the witnesses did not say this but said that the plaintiff made the claim in front of them and the defendant did not pay back, the defendant would not be established as a fraudster because he may have paid back later. If, however, the court told the defendant you are obligated to pay him and the defendant left and then said he paid back and the witnesses testify that he did not pay back, such as a case where they never left his presence, the defendant would not be established as a fraudster because the defendant pushes them off until his ruling is investigated. Therefore, if the plaintiff makes another claim and the defendant says he paid back and there were no witnesses contradicting him on this second time, the defendant would take a heses oath that he paid back and would be exempt. Thus, the wise ones in France would tell the court that they are witnesses that the defendant did not pay back or that he can only swear to me in front of witnesses in a case where the borrower confessed or was obligated to swear.

Paragraph 14- When is this true? For a defendant who listens to the court. If, however, the defendant left court refusing to comply and the court placed a shmuti on him, the defendant would not be believed to say he paid back and the plaintiff can even collect from properties in the hands of third-party buyers. Therefore, we would write the ruling for the lender even without the knowledge of the borrower. If one accepts in court to pay another and then he says the plaintiff already owed him money, he would not be believed because if this was true he certainly would not have accepted in court to pay him back, even though he has a migu that he could have said he paid back because we don’t say migu where there is a strong presumption.