Translation:Shulchan Aruch/Choshen Mishpat/96

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Paragraph 1- We do not have someone swear on the basis of the claim of a mute, fool or minor, whether they come via their own claim or via their father’s claim, because the partial amount the defendant confesses to a minor has the status of one who returns a lost object. Similarly, if the defendant denies the entire claim and a solo witness testifies for the minor, the defendant would not swear because it has the status of a solo witness without a plaintiff since the claim of a minor is not a full-fledged claim. There are those that say that he would need to swear on the basis of the solo witness. Thus, if a minor tells an adult that the adult has a maneh of the minor’s in his possession and that his father had a maneh of his in his possession, and the defendant says he only has 50 or he has nothing and a solo witness testifies that he has the maneh in his possession, the defendant would be exempt from a biblical oath. If, however, the defendant was a guardian for the minor and claims the item was misplaced, the defendant would swear a guardian-oath because he is not swearing by virtue of a claim. There are those that say that he would not swear a guardian oath because it is a biblical oath, even in a case where the plaintiff made a claim when he was an adult but the guardianship was created when he was a minor. This seems to be to be the primary ruling. Similarly, if the defendant admits that he was a partner or trustee for the minor, the court would appoint a trustee for the minor and the partner would swear. The same would apply in the case of an uncertain claim.

Paragraph 2- Although we would not have one swear a biblical oath on the basis of a minor’s claim, we would have him swear a heses oath. Even if the minor was not sharp with respect to commerce, we would have the defendant swear on the basis of the minor’s claim. Thus, it comes out that if a minor makes a claim against an adult, whether the adult partially confesses or completely denied and whether there was a witness or not, the defendant would take a heses oath. The defendant cannot reverse the oath on the minor because we do not have a minor swear at all. The minor would not even accept a general cherem because he does not understand the punishment for oaths. There are those that say that we would not have one swear on a minor’s claim until he reaches the age of peutos.

Paragraph 3- There are those that say that although we would have one swear a heses oath to a minor, we would not have him swear at all on a document. If an adult makes a claim against a minor after the age of peutos on a matter that is to the benefit of the minor to have adjudicated, such as a commerce-related issue, and the minor confesses, we would collect from the minor’s property. If the minor does not have property, we wait until he obtains property and he can then pay. If the minor denies the claim, we wait until he becomes an adult and he will then take a heses oath. If the adult makes the claim against the minor on a matter that is not to the minor’s benefit to have adjudicated, such as claims of damage or assault, the minor would be exempt, even after he becomes an adult and even if he confesses and has what to pay with. If the case was one where the plaintiff would generally swear and collect, such as a hired worker or something similar, in a matter that is to the benefit of the minor for the worker to receive payment, the plaintiff can swear and collect from the minor. In the case of a storekeeper swearing on his ledger, however, the adult would not swear and collect from the minor because there is no benefit to the minor since his workers will swear and collect from him and such storekeeper caused himself the loss by giving them money on the say-so of a minor.

Paragraph 4- A kinyan by a minor is of no effect. Therefore, if witnesses saw a minor’s kinyan they should not write a document on it.

Paragraph 5- We would not process any claim of a deaf individual or fool, whether it is claim against others or a claim of others against them, and even if it is for a minor oath, and certainly not for a major oath or a claim of payment. A blind person, however, has the status of a healthy party for all of these matters and can swear all forms of oaths and others would swear on the basis of his claim. There are those that write that the law of a deaf person is the same as a minor. In the case of a fool, however, even if he were to be healed and confess he would not be obligated to pay and even if he was loaned money in front of witnesses, because it is a case of a willingly forfeited item. All the more so would we not have the fool swear once he is healed. The second view seems to me to be the primary one.

Paragraph 6- If a married woman is obligated to swear, we would have her swear. If she refuses to swear, we force her just as we would a man. We call her to court or send for her in the manner that is explained later in Siman 124. If she does not have with what to repay, the court would write a ruling for the plaintiff that she should pay when she becomes widowed or divorced. Her husband is not required to pay for her, however, even if she transacts within the home, and not like those that disagree with this view. See Even Haezer Siman 91. If the husband admits that that the vessels being claimed from her have entered his possession, he is obligated to swear that they are not in his possession, that he did not touch the item and that he was not negligent with the item in connection with the theft. There are those that say that we would not have a woman swear while pregnant because we remove her from shul when placing a cherem on her.