Translation:Shulchan Aruch/Choshen Mishpat/82

Paragraph 1- If a lender produces an unverified document and does not produce witnesses to verify the document and the borrower admits that it was written but claims it was paid back, the borrower would be believed. Even a believability clause would be of no effect. The same would apply to any claim the borrower claims that would void the document, such as the document was given on trust, I wrote in order to borrow but I did not end up borrowing or the document was made conditionally and the condition was not fulfilled or if the borrower said I was a minor when the document was written and he would be believed. If the lender subsequently produces witnesses to verify the document in court, the document is like any other document and the lender can collect with it. If the borrower originally said the document was forged and after the lender brought witnesses verifying the document the borrower says it was paid back, there are those that say that the borrower has been established as a fraudster and would not be believed because once he said it was forged it is as if he said he did not pay back and he is not believed to later say he paid back. There are those that disagree and say that he is believed because he did not deny the loan but merely said the document is forged which meant that the document should be verified and then he will litigate it.

Paragraph 2- If the document was verified and the borrower claims he paid all or a portion of it back and the lender says he did not collect anything and the document contains a believability clause, the borrower would not be believed. Even if the borrower were to ask the lender to swear to him, we would not heed his request and the lender can collect without an oath as is written in 71:19. If, however, the borrower has a later creditor, the lender can only collect with an oath whereby the lender swears to the later creditor that he did not collect anything from this loan. The earlier creditor cannot tell the later creditor that he will not swear until the later creditor swears that he did not collect anything from his loan, but he can place a general cherem on anyone who knows that he has been paid back and is forcing him to swear for naught. Even if the document were to contain a clause explicitly stating that the first creditor is believed against any later creditor, the first creditor would still be required to swear. If the document did not contain a believability clause, so long as the borrower does not claim that the lender should swear that he did not pay back we would not have the lender swear. Rather, we would tell the borrower to pay back. If the borrower claims that the lender should swear that the borrower did not pay back, we would have the lender swear while holding a holy item and he can then collect. This only applies where the borrower claims he is certain that the debt has been paid back. If, however, the borrower makes an uncertain claim, we would not have the lender swear at all, even if the lender responds that he too is uncertain. If the document contained different time periods and after some of the time periods had passed the borrower says he paid back the amounts that were due on the time periods that had passed and that he left the document with the lender because of the amounts due on the future time periods, and the lender claims he did not collect anything, the lender would swear and collect because the borrower should have had receipts written.

Paragraph 3- When the borrower claims the document has been repaid and demands an oath from the lender before he can collect, we tell the borrower to bring the money and then the lender will swear and collect. If the borrower claims he does not have the money to pay back, the borrower will swear that he does not have the money and when he gets the money he can have the lender swear and then he will pay.

Paragraph 4- If the borrower has been established as a fraudster with respect to the document, such as where he said the loan never occurred, witnesses came and verified the document and the court obligated him to pay, he is no longer able to say to swear to him that he did not pay back, even if the document does not contain a believability clause, because he already confessed he did not since anyone who says he did not borrow is as if he said he did not pay back. If, however, he places a general cherem on anyone who takes money from him illegally, we would not object.

Paragraph 5- If when the court told the borrower to pay he did not make a claim that the lender should swear to him, but says “what does he owe me,” the court would respond, “what do you want him to owe you?” If he says he wants the lender to swear to him, we would have the lender swear. Otherwise, we would not make the request on his behalf.

Paragraph 6- If the lender was a scholar we would not make him swear and we would not collect for him. If, however, he seized the money from the borrower, we would not take it away from him. If he did not seize the money and he wants to swear on his own volition in order to be able to collect, we would let him.

Paragraph 7-If both the lender and borrower are scholars, there are those that say that we revert back to the default rule and if the borrower makes a claim that the lender should swear, we tell the lender to go swear.

Paragraph 8- If the lender had died and his inheritors produce the document and the borrower claims it has been repaid, the inheritors would take an inheritors’ oath and collect. If the lender was suspect, there are those that say that the defendant would take a heses oath and be exempt. Other says the lender would collect without an oath, and this view seems logical.

Paragraph 9- If the lender was not suspect and wanted to redirect the loan to the borrower, we would not listen to him. If the lender says I do not want to swear under this legislation and just want my claim to be treated as an oral loan and the borrower should take a heses oath, and the borrower says now that you have redirected the heses oath to me I am redirecting it back to you, the borrower is in the right. If the plaintiff says I will not swear and will not collect but will place a general cherem, he has permission to do so. See glosses later in 92:11. The borrower is not able to say either swear and collect or remove me completely from your claim. If the borrower leaves and does not want to hear the cherem, we would not put him in nidui and would place the cherem without him being there.

Paragraph 10- If the lender produced a verified document and the borrower says the document is a forgery or he claims the debt was interest, the document was given on trust or I wrote with the intention to borrow but did not end up borrowing, and the lender is standing by his document and says the borrower is making a false claim and the borrower says to swear and collect, we would not listen to the borrower to have the lender swear. Rather, the borrower first must pay and then can make whatever claim he wants against the lender. If the lender confesses, he will return the money. If the lender denies, he will take a heses oath.

Paragraph 11- If the borrower claims that the lender waived the debt in this document, there are those that say that the law is the same as where he claims he paid back. The borrower can claim the lender waived the debt even if the document contains a believability clause because believability only applies to repayment. Those that are cautious would write in the document, “and I believe him to say that he did not collect payment or any other claim related to this debt.” There are others that say that a claim of waiver is like a claim the document was given on trust or was a debt of interest.

Paragraph 12- If the borrower claims that the document was created on a condition that if I fulfilled a condition I would be exempt, and the lender says there was no condition on it and the document stated that it was created without any condition or without any omission, the borrower would not be believed. If the document did not state this, the lender would swear and collect, even if the document contained a believability clause. If the lender admits the document was created conditionally but says that the borrower did not fulfill the condition, the lender has the burden of proof. If he cannot bring proof, the borrower would take a heses oath and be exempt. The lender is not believed with a migu because we do not use migu to take away money. There are those that disagree and says we do say a migu to take away money. If the borrower has witnesses that the document was made conditionally, we would accept their testimony. Even the witnesses on the document itself are believed to say the document was made conditionally and even if their handwriting had been produced from another source, and the borrower would be exempt, even without taking an oath. If one witness says the document was conditional and one witness says it was not, the borrower would take a heses oath and be exempt.

Paragraph 13- If the borrower claims that a verified document has had half paid back and the lender says he did not collect anything and witnesses testify that the entire document was paid back, the borrower would swear and the lender can collect half from unencumbered properties. If the document states that the borrower believes the lender himself like two witnesses, the lender can collect the entire document from unencumbered properties without an oath.