Translation:Shulchan Aruch/Choshen Mishpat/81

Paragraph 1- If a plaintiff tells a defendant that the defendant has a maneh of the plaintiff’s in his possession, the defendant responds in front of witnesses, "it is true", and the next day the plaintiff says to give it to him and the defendant says he was kidding, the defendant is believed. The defendant would be required to swear that his claim that he had the intention to simply make a joke is accurate. Even if the defendant does not say he was kidding but that his confession never occurred, he would be exempt because people don’t remember meaningless words. We only use the concept of a party kidding where the party is solo, but not with respect to a claim made by the public who does not have the practice of making jokes. If one tells his wealthy son-in-law to learn with the son-in-law’s son and that he will pay, the father-in-law is exempt because the son-in-law is not poor and is anyway required to learn with him so the father-in-law can say he was kidding. Even if the father-in-law does not make the claim that he was kidding, we would make the claim for him, notwithstanding the fact that we don’t make the claim for other cases where the party may have been kidding.

Paragraph 2- When is this true? With respect to a healthy defendant. In the case of a dying defendant confessing to the plaintiff, however, the defendant cannot say he was kidding because a person does not make jokes at the time of death. The same would apply in the case of others confessing to the dying party or in a case where people were silent when the deceased gave his will and the their silence would be an admission and they cannot say that were only silent so as not to anger the dying individual.

Paragraph 3- Even in the case of a healthy party, the party himself may claim he was kidding, but if he does not make the claim we would not make the claim for him. We would, however, make the claim for his inheritors that perhaps their father was kidding.

Paragraph 4- There are those that say that if the plaintiff took possession at the time of the claim of the amount of the defendant’s money corresponding to the maneh that he claimed, the defendant can no longer claim that he was kidding, even if there are witnesses that the money belongs to the defendant.

Paragraph 5- The claim that one was kidding would only help where a party made a claim and the defendant confessed. If, however, the plaintiff did not make a claim and the defendant confessed on his own volition, the defendant cannot claim he was kidding. See later in this Siman in seif 14.

Paragraph 6- If when the claim was made the defendant confessed in court or he confessed in front of witnesses that were designated as witnesses, whether the defendant said you are my witnesses on this confession or the plaintiff said you are my witnesses and the defendant responded that they should in fact be witnesses or the defendant was silent, the defendant can no longer say he was kidding. He can, however, claim that he paid back.

Paragraph 7- This that “you are my witnesses” would take effect is only where the plaintiff makes a claim on a maneh and the defendant says it true and the plaintiff said you are my witnesses and the borrower was silent. If, however, the plaintiff said you have a maneh of mine in your possession and the defendant was silent and the plaintiff then says to the witnesses you are my witnesses and the defendant was silent, the silence is of no effect because the concept of silence-is-like-a-confession is only where the defendant first confessed and said the claim is true and when the plaintiff said you are my witnesses, the defendant was silent. If, however, the defendant was silent from start to finish, the defendant can say he did not care to respond. If one made a condition with an adolescent to learn with his friend’s son in front of the son’s father and the son’s father was silent, his silence would function as an admission even if the father did not say anything because the father should have cared enough to protest as I will explain shortly in seif 13.

Paragraph 8- If party says in front of two, I hereby confess in front of you that so and so has a maneh of his in my possession and he said it as a bona-fide confession and not just in conversation, this would be real testimony and the party would pay on that basis, even if the party did not say you are my witnesses and even if the plaintiff was not with him.

Paragraph 9- If a party confessed a full confession in front of witnesses and there were other witnesses that saw the confession, although such other witnesses are not confession-witnesses, when they come as seeing-witnesses and testify that the party confessed in front of the confession-witnesses, the party would be liable.

Paragraph 10- A confession in front of a solo witness qualifies as an admission, whether it is to swear on that basis if the party denies the confession or to pay back in a case where he admits to the confession.

Paragraph 11- If a party hid witnesses behind the fence and he tells the defendant you have a maneh of mine in your possession, the defendant responds that it is true, the plaintiff says are you willing to confess in front of witnesses and the defendant says I would confess in front of witnesses but I am concerned that you will force me to pay immediately and the witnesses heard all of this, the defendant would still be exempt.

Paragraph 12- Anyone that saw the loan can testify on the loan, even if the witnesses were hidden.

Paragraph 13- If one hid witnesses behind the bed curtains and told the defendant that you have a maneh of mine in your possession and the defendant responds that it is true and the plaintiff says that the waking and sleeping should be witnesses on the confession and the defendant responds no, the response would not be a confession. If, however, the defendant was silent, it would be a confession. This is only in this type of case where the defendant should have realized that there were witnesses because why else would the plaintiff say that the waking and sleeping should be witnesses unless there were actually witnesses there. In a case where the defendant should not have realized, however, such as where the plaintiff said you are my witnesses and the defendant is unaware that there are witnesses there and the defendant is silent, his confession would not be a confession.

Paragraph 14- If no individual made a claim against a defendant but he himself confessed in a confession fashion in front of witnesses that so and so has a maneh of his in the defendant’s possession and when the plaintiff makes a claim the defendant responds that he does not have anything and that he only confessed so that he would not make himself look wealthy, he would be believed. There is no distinction in this case whether he is poor or wealthy or whether he was healthy or dying when he confessed. If the plaintiff was in his presence when he confessed, the defendant is not believed to claim that he only confessed so as not to make himself look wealthy. There are those that say that he is believed to say he only confessed so as not to make himself look wealthy even in the presence of the plaintiff. With respect to an oath, if the plaintiff makes a claim against the defendant to give him the maneh that the defendant owes him and if you choose to deny the claim here is so and so and so and so whom you confessed in front of that you owed me, the defendant would need to take a heses oath even if he makes the claim that he confessed only so as not to make himself look wealthy because you can remove the witnesses from the case and he would still be required to swear on the claim. If, however, the plaintiff says give me the 100 that you said you owe me in front of so and so and so and so and the defendant says he only said it so as not to make himself look wealthy, the defendant would not even be required to take an oath. We would make the claim that the confession was only given so as not to make himself look wealthy even if the defendant himself does not make the claim. See later in this Siman, at the end of seif 21, that in a case where they made an announcement that anyone who has the orphans’ items in their possession should inform the court directly or via a messenger and one confessed via a messenger, the defendant cannot later say he only confessed so as not to make himself look wealthy because he did not confess on his own volition since there was a quasi-claim. He can also not say he was kidding because there was no claim from the party himself.

Paragraph 15- According to the view that one can make the claim that his confession was only made so as not make himself look wealthy even in the presence of the plaintiff, one would be able to make the claim that the confession was only give so as not make himself look wealthy even where the plaintiff said “you are my witnesses” and the defendant was silent since he confessed on his own volition. There are those that disagree and once the plaintiff says “you are my witnesses” the defendant can no longer say he only confessed so as not to make himself look wealthy.

Paragraph 16- There are those that say the claim of not wanting to make himself looks wealthy only works where the defendant confessed on his own. If, however, the plaintiff made a claim and the defendant confessed, the defendant cannot exempt himself with the claim that he did not want to make himself look wealthy.

Paragraph 17- If one confessed in his own handwriting that he owes so and so a maneh, he confessed with a kinyan or he confessed via mamad shlashtan, he cannot exempt himself with the argument that he was kidding or that he did not want to make himself look wealthy. This is only where his handwriting is in his counterparty’s possession. If, however, a writing was discovered in the defendant’s possession saying that this document belongs to so and so or so and so’s name was written on a certain item, it is possible to say he only did this so as not to make himself look wealthy as was explained above in 65:22.

Paragraph 18- If one died and one of his documents was discovered to state that half of this document belong to so and so, such person would not have rights to half this document. If one confessed in front of witnesses but did not say “you are my witnesses,” it would not be a confession, even if the defendant told them to write a document.

Paragraph 19- If one gives his counterparty a document stating that he owes him a maneh, it would qualify as a confession even if he did not say “you are my witnesses.”

Paragraph 20- If one confessed to his counterparty in a case where there was a presumption that he owed him money or if he gave over a document with witnesses signed on it and it was later discovered that the defendant made an error, the confession is not valid.

Paragraph 21- Notwithstanding the fact that hidden witnesses are not valid witnesses and the same is true where one confessed on his own with witnesses listening or where the plaintiff tells the defendant in front of witnesses that you have a maneh of mine in your possession and he says yes and all these similar cases, the court would still tell the defendant why don’t you give the plaintiff that which you have of his in your possession. If the defendant says I don’t have anything of his the court would tell him, but didn’t you say such and such in front of these people or didn’t you confess on your own. If the defendant goes ahead and pays that is good. If he does not make a claim, we would not make one for him. If, however, the defendant says I was kidding, this never occurred or my intention was so as not to make myself look wealthy, the defendant would be exempt and would take a heses oath as was explained. There are those that say that even if the defendant simply said I don’t owe you anything, the judge would exempt him and assume his confession was so as not to make himself look wealthy even though he didn’t make that claim. The claim of not making one’s self look wealthy is only applicable where he confessed on his own. The claim of I was kidding is only applicable where the plaintiff makes a claim against him.

Paragraph 22- If one confessed in front of a court of three, whether he confessed on his own or a plaintiff made a claim against him, he cannot retract unless it is within kidei dibur.

Paragraph 23- If the plaintiff made a claim on a specific item and the defendant responded it does not belong to you but to so and so, the response would not qualify as an admission to enable so and so to take the item from the defendant, even if the defendant responded in court. There are those that disagree and hold that it does qualify as a confession but the defendant is able to subsequently say that his confession was in error and that it really belongs to someone else with a migu that he could have said he returned the item to such so and so. He cannot, however, claim he erred in his confession and it really belongs to the defendant himself even though he has a migu because a confession has the status of witnesses and one cannot say he erred, notwithstanding the fact that he has a migu. With respect to a calculation written in his records, however, the defendant can say he erred even if he does not have a migu. See later 126:13.

Paragraph 24- If Reuven said to Shimon that Shimon owes a maneh to Levi, Shimon responds that it is true and Reuven said “you are my witnesses,” it would qualify as a confession. When Levi comes to make a claim against Shimon, Shimon cannot claim he was kidding or only said it so as not to make himself look wealthy, even if Reuven did not have a power of attorney from Levi. Moreover, even if Reuven did not say “you are my witnesses,” Shimon cannot tell Levi he was kidding.

Paragraph 25- If Reuven said to Shimon and Levi that they both have a maneh of his in their possession and Shimon said it is true while Levi was silent and Reuven said to the witnesses “you are my witnesses” and Shimon was silent, the confession would be effective with respect to Shimon but there would be no confession with respect to Levi. Even if Shimon and Levi were partners, one would not be liable on the basis of the other’s confession.

Paragraph 26- If the defendant tells the plaintiff I have a maneh of yours in my possession and here is 50 and the plaintiff did not say “you are my witnesses,” the defendant can say he was kidding with respect to the 50 that he did not give, but that which has been given is final.

Paragraph 27- If a party confessed on his own volition to a dying plaintiff that he owes him a maneh, the defendant cannot claim he only said so as not to make himself look wealthy.

Paragraph 28- If a party says that so and so has a maneh in such party’s possession and did not say “you are my witnesses” and went ahead and swore on the admission and now so and so makes a claim on that maneh and the party says his intention was so as not to make himself look wealthy and the oath was a false oath, we would not listen to his claim. Similarly, if the party said he forgot and swore under the impression that he owed him but now he remembers that he does not owe him anything, we would not listen to him. A handshake has the status of an oath but only where he confesses to the handshake or there are witnesses. If, however, he denies the handshake or says it was given on such and such condition, he would be believed.

Paragraph 29- If one party admits to the other in front of witnesses that he accepted such and such amount from him as repayment for a debt that the plaintiff had against the defendant, the defendant does not need to say “you are my witnesses,” regardless of whether the loan was documented or oral because the claims of I was kidding or I only said it so as not to make myself look wealthy are not applicable here. The same applies where a lender waives a debt in front of witnesses and the borrower does not need to say “you are my witnesses.” Similarly, the borrower does not have to direct the witnesses to document the waiver.

Paragraph 30- If one party has a business arrangement with the other and he gives him the profits each year and at the conclusion of the arrangement the party says there were no profits and he wants to count that which he already gave as repayment of principal and the profits were given in front of witnesses or the party admits that he gave it originally as profit, the receiving party can say you do not have the power to now consider the repaid money as principal and he can collect the entire amount even if he did not say “you are my witnesses.” If, however, the providing party can prove he erred, his claim would be valid. If, however, the party gave the money without specifying, he would swear that there was no profit and consider that which he already gave to be principal. There are those that say that even if he gave the profits in front of witnesses, if he did not say “you are my witnesses,” he can swear now that there was no profit and everything he gave would be calculated as principal, even if he gave it as profit.

Paragraph 31- If Reuven gave a maneh to Shimon and Levi to invest, they documented the arrangement and swore to give half the profit to Reuven and Reuven asks for his money and they give him a maneh and when he asks for the profit they say we only made such and such profit and no more and Reuven tells Shimon that you told me you made 50 profit and Shimon says I never said anything and because of the document that Reuven has against them that does not state anything about repayment they are required to give him that which he claims and now Levi wants to make a claim against Reuven for the profit that was taken illegally because they did not turn a profit, Reuven is in the right.

Paragraph 32- If Reuven make a claim against Shimon for a debt on profit that has been outstanding for many years and Reuven claims that Shimon made a condition with him to give him the profit and Shimon says he did not make the condition, Shimon would even be exempt from taking an oath because even according to Reuven’s claim this condition was not made at the time Shimon became obligated and even if Shimon later said he will give the profit, they are mere words without a kinyan and Shimon is able to retract.