Translation:Shulchan Aruch/Choshen Mishpat/93

Paragraph 1- The following swear on uncertain claims: partners, sharecroppers, court appointed guardians on orphan property, a woman who transacts within the home or whose husband appointed her as a storekeeper and an individual based in the home of a homeowner who transacts on behalf of the homeowner. All of these individuals are rabbinically required to swear on an uncertain claim while holding a holy item because perhaps he stole from the plaintiff in business or was not careful in his accounting. None of these individuals would swear unless it was a case where the party making them swear suspected them on a claim of a two meah of silver whether the money was principal or profit. In all of these cases, the plaintiff can have them swear at any time he wants and he does not have to wait until the parties divide their business and have him swear at the end.

Paragraph 2- Even if there are no witnesses that the defendant was the plaintiff’s partner or sharecropper, but the defendant admits on his own and says he is his partner or sharecropper or was based in his home but he did not steal, he would still swear because we do not use a migu to exempt a party from an oath.

Paragraph 3- If the plaintiff died, the inheritor can make his father’s partner or sharecropper swear with an uncertain claim.

Paragraph 4- If one sends an item to sell or money to purchase fruit or merchandise with another, even if the sender did not give him any payment and the messenger has no portion or benefit in the messengership, because he is transacting with another’s money he has the status of one who is based in another’s home and the sender can have him swear that he did not take anything for himself. There are those that disagree and say that the defendant is only required to swear where he is coming to collect. If, however, a party comes to take his portion in the profit or for the expenses he incurred, there is no distinction as to whether he was paid or not. Similarly, one who accepts an iska arrangement for half the profits, even though the giver gave him wages for his work, he still must swear like any other partner. There are those that disagree with this. See earlier 91:3 with respect to when a messenger swears and collects.

Paragraph 5- If partners transact together or one partner transacts and deposits all or a portion of the merchandise or money with the other partner without weighing, counting or measuring, both partners have entered into an uncertain situation and each one can have the other swear. If, however, one partner transacts and the second does not, only the partner that transacts would be required to swear.

Paragraph 6- If partners or sharecroppers split, the wife divorced or the individual based in the home separates from the homeowner and a messenger brings merchandise that he purchased for one of them or money from a sale he sold for one of them and the other was silent, walked away and did not immediately make a claim, such other party cannot later come back and have them swear via an uncertain claim. Rather, he can place a general cherem on anyone who stole anything from him when he was his partner, sharecropper or based out of his home. If, however, the party has a certain claim, he can have the defendant swear and roll in any other oath he wants him to make. Similarly, if at later time the other was obligated to swear either a biblical, rabbinical or partnership oath, he can roll the original partnership in the oath.

Paragraph 7- There are those that say that if one exempted another from swearing, he cannot roll the oath in to another oath.

Paragraph 8- If partners split and had outstanding loans with third parties, the partners cannot have each other swear on an uncertain claim because they split and, with respect to the outstanding loans by the third parties, it is known that whenever they collect a loan, each party will take his portion and it is as if the collection was split. Similarly, if one of the partner had a set amount of money in a third party’s possession, even though he did not collect it yet, it is as if they split it already. However, any time that an amount was in a third party’s possession that was not split and they don’t know its weight or a part of the partnership remained to be calculated and neither partner knows how much is his portion, the partnership is still in existence and they can have each other swear.

Paragraph 9- If one party made a claim on another and says to swear to him because the partnership is still in existence and the defendant says they already split or the plaintiff admits that they split but says that there was a condition that he could have the other party swear at any time that he wants and he did not yet swear, the plaintiff cannot have the defendant swear on an uncertain claim. Even if the defendant says we split such amount and such amount remains in my possession and the portion still in my possession was converted into a loan or was given to me as a deposit, he could not have him swear via an uncertain claim. He would not even be able to have him swear a heses oath that they already split or never had a partnership, even via a rollover oath because we only have someone take a heses oath or rollover oath in a case where he would be liable to pay money if he confessed. With respect to matters that even if he were to confess he would only be required to swear, however, he would not even swear via rollover.

Paragraph 10- If a party claims that the defendant is still his partner and such and such amount of mine is in your possession and the defendant says we already split and I have nothing of yours or I was never your partner, the defendant would take a heses oath that he has nothing of the plaintiff’s and the plaintiff can roll in an oath that he never stole anything from him. He cannot roll in an oath that he was never his partner or that they already split for the reason discussed above.

Paragraph 11- If a party claims we are still partners and I can have you swear via an uncertain claim and the defendant says we were never partners and the plaintiff brings witnesses that he was his partner and the defendant then says we already split, we would not listen to the defendant’s claim because he has already been established as a fraudster with respect to this oath and he would swear a partnership oath. The same applies to anything similar.

Paragraph 12- If a partner claims that a specific condition was made between them and the other partner says they never made such a condition, my portion of the principal was such amount and the other party says it was less than that, I already gave you my portion of the partnership and the other party says he never accepted it or this merchandise is mine and the other says it belongs to the partnership or any other similar claim, and the plaintiff wants the partner to swear a partner oath as well as heses oath on the claim the the partner denies and says never occurred, he may do so. If he wants, he can roll in all these matters via the partner oath.

Paragraph 13- If Reuven put 400 dinar into the pot and Shimon put 200 and they formed a partnership and transacted together and the money is all in Reuven’s possession and Reuven claims the pot lost 500 dinar, we do not say that Reuven should swear a partnership oath and Shimon should pay 50 out of pocket. Rather, Reuven would swear a partnership oath that the pot lost and he walks away with the maneh in his possession and Shimon does not have to pay anything. If Reuven claims that Shimon knows with certainty that the pot lost, he can have Shimon swear a partnership oath and roll in that he does not know with certainty that amount of money lost from the pot. If Shimon did not participate at all in the partnership, he would swear a heses oath that he does not know the loss with certainty and he will be exempt. Moreover, if the remaining maneh was in Shimon’s possession, the partners would split it equally because when partners swear and collect it is not to collect from the other’s property. Rather, it is to swear and be exempt or to take something that is in his own possession. If Shimon claims that Levi has a loan of a maneh outstanding against the partnership and he has enough money to pay the loan and give it to Levi, he is believed and would pay the debt and they would then make an accounting. If Shimon does not have that amount in his possession, he is not believed to take money from Reuven or from merchandise that is known to belong to the partnership because Shimon and Levi may be involved in a scheme to defraud Reuven from his property. If, however, Shimon claims that Reuven knows with certainty that the debt I have is due to the partnership and is our debt, Reuven would take a heses oath or swear via rollover that he is not aware of this debt and Shimon would pay the debt out of pocket.

Paragraph 14- Similarly, if a loan document in Shimon’s name was produced against Levi for 100 dinar from the partnership and Shimon says I collected the debt and returned the money to the pot or he says I set a time for repayment in a year or two, Shimon is not believed because he may be scheming against Reuven’s property. How would one judge such a case? Levi is already exempt because of Shimon’s confession and if Shimon cannot bring a proof to his claim he must pay out of pocket and can make a claim against Levi once the time-period he mentioned had arrived. If the document explicitly states that the money belongs to the partnership and Reuven produces the document, Shimon is only believed in his confession for his half of the debt. Reuven can claim his half from Shimon or from Levi if he cannot obtain the money from Shimon.

Paragraph 15- If Reuven and Shimon were partners and Reuven purchased clothing from a gentile and sold it to Levi who was to pay the gentile and Reuven wrote a document for the gentile that if Levi does not pay him at a certain date Reuven would pay him, and Reuven and Shimon then split the partnership, Shimon is required to make a document for Reuven that if Reuven can prove with witnesses that Levi did not pay the gentile and Reuven had to pay the gentile, then Shimon will pay his portion and all expenses, bribes etc. that Reuven can prove with witnesses he incurred as a result of this transaction.

Paragraph 16- If Shimon’s partner, Reuven, transacted with gentiles and tricked them in accounting and gave the money to the partnership and is concerned that the gentiles will discover his trick, and he asks Shimon to make a document for him that he will pay back his portion if he is forced to pay them, and Reuven further claims that they had third parties’ collaterals and sold them and he is concerned that a loss will result from this and he wants Shimon to make a document to pay half the loss that results from this, Shimon is not required to make a document for him. Rather, Shimon will confess in front of witnesses that such amount of money that Reuven mislead such and such gentile was brought into the partnership and the witnesses will write Shimon’s confession and sign it and give it to Reuven. Similarly, with respect to the collaterals that Reuven sold, Shimon will confess in front of witnesses exactly what occurred and they will write the confession and give it to Reuven.

Paragraph 17- If Reuven and Shimon were partners and Reuven tells his brother to invest in the partnership and leave the money with us and collect the profits based on what you invested and Shimon knew of the arrangement and now Shimon says since you did not tell me you cannot give your brother the profits from my portion, Reuven is in the right and his brother can take his portion of the profits based on his total investment.

Paragraph 18- If the partners come to divide and Reuven produces a few documents that he sold to Jews on credit and the city custom is to sell on credit, Shimon must accept it. If Shimon wants, he can make Reuven swear that these sales on credit where from the partnership and that he did it for the sake of, and for the benefit of, the partnership. If the city custom is not to sell on credit, Shimon will not take the credit as his portion, and will instead take actual money and merchandise.