To’en veNit’an - Chapter 4

Sefer Me’irat Einayim 88:43 explains that this concept is also derived from an analysis of Exodus 22:6-8, the passage that serves as the source for the obligation to take an oath. With regard to the plaintiff’s claim, it states: “When a man will give a colleague money or utensils....” Now money and utensils are specific entities. Similarly, with regard to the defendant’s response, it says: “which he says: ‘This is it.’” This expression implies that the defendant is speaking about an explicit entity to which one can point and say: “This is it.”

Half a kor.

I.e., the plaintiff did not lodge a specific claim.

I.e., the defendant did not acknowledge owing a specific amount.
The Siftei Cohen 88:44 writes that this law applies even if the defendant knows that the pouch contains money, and thus, de facto, is acknowledging that he owes at least a p’rutah. Since his admission does not focus on an amount, but instead, speaks of the money in collective terms, he is not liable to take an oath.

Here, also, the plaintiff did not lodge a specific claim.
The Shulchan Aruch (Choshen Mishpat 88:24) states that even if the plaintiff claims: “I gave you this room full of grain,” the claim is still considered indefinite, and the defendant is not liable. See Sefer Me’irat Einayim 88:45, which explains this ruling, stating that often we will speak of a “room full of...” without intending to mean that the room’s entire capacity has been used. Hence, the claim is still considered to be not specific.

Here, also, the defendant did not acknowledge owing a specific amount.

It is necessary that he specify a particular room.

Here the claim is specific, for there is a limited measure from the floor until the projection.

For his response was also limited.
The Shulchan Aruch (Choshen Mishpat 88:24) clarifies that this law applies only in a situation where the produce has rotted because of the watchman’s negligence. Otherwise, since wherever it is, it is considered to be in the possession of its owner, it is considered to be Heilech (see Chapter 1, Halachah 3), and an oath is not required.
The Siftei Cohen 88:47 explains that similar concepts apply with regard to all entrusted objects. Wherever they are, they are considered to be in the domain of their owner. Thus, the laws mentioned in Halachot 1 and 2 also refer to situations where the entrusted article became ruined.
The general consensus of opinion is that from the fact that the Rambam does not speak of these points, he does not accept this interpretation. This in turn leads to a more encompassing point, the definition of his approach to the concept of Heilech. As mentioned in the notes on the conclusion of Chapter 3, the Maggid Mishneh explains that the Rambam’s wording implies that the principle of Heiclech applies only when the defendant is bringing the utensil that is claimed with him to the court. Such an approach would prevent the conceptual difficulties mentioned by the Shulchan Aruch from arising.

I.e., which the court would consider his denial significant.
Rabbenu Yitzchak Alfasi, from whose teachings the Rambam derived nurture, explains the same law as the Rambam based on a different rationale: that an oath should not be taken concerning a claim involving a lien on landed property (Chapter 6, Halachot 1,3). Since the 50 dinarim mentioned in the promissory note create a lien on landed property, no oath is required.
The Tur and the Shulchan Aruch (Choshen Mishpat 88:28) cite the rationale explained by Rabbenu Yitzchak Alfasi. The commentaries question whether there is any difference between this rationale and that stated by the Rambam. One of the potential differences is an instance where a borrower gave the lender a note that he signed acknowledging the debt and accepting the lender’s word. Such a note does not have the legal power of a promissory note, because it is not signed by witnesses. Nevertheless, the borrower cannot deny the claim in such a situation. (See Chapter 6, Halachah 3.) Note the Maggid Mishneh, the Shulchan Aruch (Choshen Mishpat 88:29), the Siftei Cohen 88:51 and others who discuss this issue.

As explained at the conclusion of Hilchot Malveh V’Loveh, the bearer of a promissory note is always judged at a disadvantage. Hence, we would assume that although the promissory note states sela’im, plural, we assume that it refers to two sela’im, the minimum of sela’im for which that expression would be appropriate.

He is, however, liable to take ash’vu’at hesset. See the following notes.

I.e., since the three dinarim are not considered to have been mentioned in the promissory note, it is as if the plaintiff claimed he gave them as a loan supported by a verbal commitment alone. Hence, the defendant's admission would require an oath, except for the reason mentioned by the Rambam.

I.e., there would have been nothing preventing him from saying that he owed only two sela'im. Hence, admitting that he owed three is tantamount to returning a lost article, giving a person money that he would not expect to be returned to him.

See Hilchot Gezelah Va’Avedah 13:20, where the Rambam explains that our Sages did not require an oath in such situations even when the owner of the lost article claimed that other articles were lost and suspected that the finder misappropriated them. The rationale is that if an oath were required, then the person finding the lost article would hesitate to return it because of the obligation to take the oath. Similarly in the instance at hand, were we to require the defendant to take an oath that he owed only three dinarim, he might say that he owed only two, so as not to be required to take the oath.

I.e., before he died, the person’s father told him that the defendant owed him a maneh. Thus, the plaintiff inherited the debt. This is speaking about a situation where the plaintiff does not have firsthand knowledge of the debt and knows about it only because of his father’s statements.

The plaintiff knows only that the loan was made; he does not know whether the debt was paid or not. Hence, there is no way that he could lodge a definite claim against the defendant. Since the defendant could not be held liable for the debt, the comparison to a person who returns a lost object is appropriate.
The commentaries note that in this clause, the Rambam states that the defendant is “a person returning a lost object,” while in the previous clause, the defendant was described as “like a person returning a lost object.” In the previous clause, the plaintiff has a definite claim. Nevertheless, since the promissory note would absolve him, he is “like a person returning....” In this clause, however, the plaintiff cannot lodge a definite claim at all. Hence, he “is a person returning a lost object.” For these reasons, in the former clause a sh’vu’at hesset is required, while in this instance it is not. (See the statements of Chapter 1, Halachah 7; Maggid Mishneh; Kessef Mishneh.)

The Rambam’s position is based on his understanding of the difference of opinion between the Sages and Rabbi Eliezer ben Ya’akov (Sh’vu’ot 38b, 42a). There are other authorities who maintain that the heir’s claim is considered to be definite despite the fact that it is not based on his own firsthand knowledge, but on his father’s statement alone. Hence, a Scriptural oath is required. The Shulchan Aruch (Choshen Mishpat 75:21) quotes both opinions without stating which to follow. The Siftei Cohen 75:77 advocates following the Rambam’s view.

For in this instance, the person owed the money did not even know of the debt.

I.e., the debt was made by the defendant’s father, and the defendant inherited the obligation.

For he is admitting a portion of a definite claim. It makes no difference whether the claim is being lodged by the heir or by the person who gave the loan.

There is a difference of opinion between the Rambam and many other Rishonim (e.g., the Ra’avad, the Ritva, Rabbenu Asher, Rabbenu Nissim) concerning the fundamental point of this halachah. Those Rishonim maintain that security is considered to be Heilech, for the lender can take possession of it immediately. Hence, as stated above in Chapter 1, Halachah 3, a Scriptural oath is not required with regard to the remainder of the claim.
As explained in the notes on Halachah 3, for an article to be considered Heilech, the Rambam requires that the defendant be ready to give it to the plaintiff immediately. Hence, security is not considered to be Heilech, and the defendant is required to take the oath.
The Shulchan Aruch (Choshen Mishpat 72:27) rules according to the other Rishonim. The Siftei Cohen 72:118, however, argues in support of the Rambam’s position.

That is the advantage of security: that if the borrower denies the loan or defaults, the lender may take possession.

I.e., more than the borrower admits, but less than the lender claims.

This wording is used, because the lender is in fact claiming more. Nevertheless, since he will not be granted more than 80, the oath focuses on that sum. Note the parallel in Chapter 9, Halachah 8.

The borrower cannot free himself from the obligation for the 30 dinarim that are being disputed by virtue of his oath. Since the security is in the possession of the lender, he has the right to claim any sum up to its value.

He may then collect that amount from the security.

As is the law whenever a defendant denies a claim entirely.

The Shulchan Aruch (Choshen Mishpat 75:13) clarifies that the intent is that the defendant acknowledges undertaking the entire debt, but is unsure of whether he repaid it. If the defendant is not sure whether he, in fact, undertook the entire debt, stating: “I know I am liable for 50 dinarim, but I do not know whether I am liable for the other 50,” he is liable to pay 50 and take a sh’vu’at hesset regarding the remaining 50.

More precisely, “did not admit.”

A person may take a sh’vu’at hesset that he does not know (Chapter 1, Halachah 8), because according to Scriptural Law, he is under no obligation whatsoever. Our Sages sought to impose a safeguard to protect the plaintiff’s rights, but no more than that. Hence, they accepted even an oath of this nature.
When a Scriptural oath is required, by contrast, the defendant has a responsibility to the plaintiff. He must either clear himself from that responsibility by taking an oath or else make financial restitution. Taking an oath that he does not know is not considered to be sufficient to clarify that he has no obligation.

Even after the borrower is compelled to pay, if he lodges a claim against the lender, stating that he paid twice, the lender is not required to support his claim with a sh’vu’at hesset (Siftei Cohen 75:46).

As mentioned several times, this is a measure enacted by the Geonim to protect the defendant’s rights.

Because of the testimony of the witness.

The Maggid Mishneh and other commentaries explain that this Jaw applies in an instance when it is impossible for the defendant to claim that he repaid the debt: e.g., the time when the debt is due has not arrived, or the witness claims that he accompanied the lender or the borrower throughout the entire time and did not witness the repayment of the debt. Otherwise, the defendant’s word is accepted, based on the principle of miggo - i.e., had he desired to lie, he could have denied accepting the Joan entirely. If he made such a claim, his word would be accepted, for as stated in Hilchot Malveh V’Loveh 11:1, a person who borrows money in the presence of witnesses does not have to repay it in the presence of witnesses. Note, however, the opinion of the Siftei Cohen mentioned in the conclusion of the halachah.
The principle of miggo, however, is not applicable with regard to the core issue here; i.e., we do not say: had he desired to lie, he could have taken an oath to deny the testimony of the witness, and hence, we will accept his word when he corroborates the testimony of the witness, but seeks to be released from liability for another reason.

He admits taking the loan, as the witness testified.

And the authenticity of his signature is validated.

Had the promissory note been signed by two witnesses, the defendant would have been required to pay the debt. Hence, now that it is signed by one witness, the defendant is required to take an oath.
In his Kessef Mishneh, Rav Yosef Karo rejects this ruling, explaining that it does not make sense that the testimony of one witness on a promissory note should be stronger than the testimony of two witness with regard to a loan supported by a verbal commitment. Indeed, such a document should not be given the status of a promissory note at all, and the defendant has the option of denying it or claiming that he paid the debt. In his Shulchan Aruch (Choshen Mishpat 51:2), Rav Karo quotes the Rambam’s view, but also quotes the opinion of other authorities who maintain that the defendant is required to take only a sh’vu’at hesset in support of his claim, and then he is released from all obligations.

I.e., at first, the defendant denied taking a loan or receiving an entrusted article. Afterwards, one witness confirmed the plaintiff’s claim. At that point, the defendant changed his own claim and admitted taking the loan or receiving the entrusted article, but claimed that he returned it (Ra’avad; Maggid Mishneh; Kessef Mishneh; see Hilchot Malveh V’Loveh 14:11 and the following halachah).

To contradict the testimony of the witness.

For in both instances, his final statements corroborate the testimony of the witness. To be freed of obligation, he would have to take an oath that the loan was never given, and he does not claim that.

This classic case is referred to as niska D’Rabbi Abba and is found in Bava Batra 34a.

I.e., to be freed of responsibility, the defendant would have to take an oath that he never seized the silver. This is not the claim that he made.
The Maggid Mishneh explains that the defendant’s word would not be accepted if he claimed that he returned the article, for when a person steals an article in the presence of witnesses, he must return it in the presence of witnesses. Hence, the principle of miggo mentioned in the first clause cannot be applied in this instance. Alternatively, we are speaking about an instance where the silver is known still to be in the possession of the person who seized it. Hence, the principle of miggo does not apply. See Hilchot Gezelah 4:13-14.
The Siftei Cohen 75:40, 43 quotes several Rishonim who maintain that just as the principle of miggo cannot be applied against the testimony of two witnesses, it also cannot be applied against the testimony of one.

As explained in Chapter 6, Halachah 1, the defendant is no longer able to claim that he repaid the debt, for testifying that he did not take the loan is tantamount to saying that he never repaid it.

See Hilchot Malveh V’Loveh 14:11; see also the preceding halachah.

The Ramah (Choshen Mishpat 75:4) states that all the authorities agree that this law applies with regard to testimony given orally. If, however, witnesses compose a legal record of their testimony that has the strength of a promissory note, some authorities consider it as Heilech (and hence, free the defendant of the requirement of taking an oath regarding the remainder). Others, however, do not accept this categorization.

I.e., just as the person’s own admission that he owes a portion of the debt requires him to take a Scriptural oath; so, too, it is appropriate that the establishment of the obligation to pay a portion of the debt through the testimony of witnesses should also require the defendant to take an oath.