To’en veNit’an - Chapter 7

As evident from Chapter 6, Halachah 7, the defendant must know of the presence of the witnesses.

I.e., he speaks in a serious tone, which indicates the earnestness of his intent (Maggid Mishneh). The Kessef Mishneh quotes the Tur (Choshen Mishpat 81), which states that the person must say: “I acknowledge owing....”

I.e., he cannot claim that he made the statements facetiously.

The Siftei Cohen 81:20 states that with this expression, the Rambam implies that if the defendant charges the witnesses with serving in that capacity, the defendant cannot offer any argument to dispute the fact that he was indebted to the creditor.

For whenever the testimony of two witnesses would create a financial obligation, the testimony of one witness creates an obligation to take an oath. Although the Maggid Mishneh mentions that there are certain authorities (among them, Rav Zerachiyah HaLevi) who do not accept the Rambam’s ruling, the Shulchan Aruch (Choshen Mishpat 81:10) cites it as law. The Siftei Cohen, however, 81:22 elaborates in support of Rav Zerachiyah HaLevi’s position.

For it would make no sense for him to make such allegedly false statements in the presence of that person and witnesses. If his entire purpose was to create the impression that he was not wealthy, he could have just as easily claimed to have owed another person.

For as stated in Hilchot Malveh V’Loveh 11:1, a person who loans money to a colleague in the presence of witnesses is not obligated to repay him in the presence of witnesses.

For three people are considered to be a court.

Which would have the same legal power as a promissory note.

Hilchot Malveh V’Loveh 11:1.
As mentioned in the notes on that halachah, the Ra’avad differs with the Rambam and maintains that once the borrower gives instructions to the witnesses, there is no need to consult with him again. The Shulchan Aruch (Choshen Mishpat 39:2) mentions both opinions without stating which one should be followed.

See the parallel in Hilchot Malveh V’Loveh 24:3.

In such an instance, the defendant will assume that the court will have a legal record composed for the plaintiff. Hence, he will not pay him without demanding that the legal record be returned to him. In the subsequent instances, however, he may not be aware that a legal record was composed and thus its composition will work to his disadvantage as the Rambam continues to explain (Sefer Me’irat Einayim 39:19).

The Siftei Cohen 39:18 quotes the statements of the Nimukei Yosef, which maintains that since the admission was made on the defendant’s initiative, and the court was not holding session in its fixed place, the admission is not considered to have been made in the presence of judges. If, however, the admission is made in response to the claim of the plaintiff, it is given that status.

From these statements, one could surmise that if the plaintiff is present at the time the defendant makes the admission and asks that a legal record be composed, his request should be heeded. In such a situation, the difficulty cited by the Rambam does not apply (Meiri).

Without this being observed by witnesses.

In which instance, the defendant’s word would not be accepted if he claimed that he paid the debt. Thus, composing the legal record could cause the defendant a loss.
The Shulchan Aruch (Choshen Mishpat 39:10) concludes from the Rambam’s statements in this and the following halachot that if judges give the plaintiff a written judgment that the defendant is liable to him, as long as that document is in the plaintiff’s hands, the defendant’s word is not accepted if he claims to have paid the debt. The Tur and the Ramah, however, cite other opinions, which do not accept this principle.

This applies to all movable property, even an entrusted object that is in the watchman’s possession [Shulchan Aruch (Choshen Mishpat 39:8)].

The defendant was in possession of landed property, and the plaintiff claimed that it belonged to him.

I.e., we are speaking about a claim involving a specific portion of land. Hence, it is impossible for it to be taken from the defendant twice.

I.e., we do not assume that the witnesses would have erred and prepared the document when they should not have (Maggid Mishneh).
After quoting this law, the Shulchan Aruch (Choshen Mishpat 39:11) states: “There are those who maintain that we suspect [the possibility of error] on the part of the scribes of the present era with regard to the responsibility of the purchasers.” Thus, though the document obligates the defendant, the purchaser’s property is not considered to be on lien to the debt.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 39:12) states that the question arises when the document is signed by only two people.

Although the record is acceptable as an admission of the debt, it is:
a) not binding on the purchasers of the defendant’s property; if the defendant does not have the resources to pay the debt, the plaintiff cannot expropriate the property of the purchasers;
b) not regarded as proof that the defendant did not pay the debt; even though it is in the plaintiff’s possession, the defendant may claim that he made restitution.

Hilchot Malveh V’Loveh 11:1.

Halachah 3.

I.e., he claimed to have paid the debt after he was obligated to do so by the court. Since he complied with the legal process until this point, we presume that he continued to do so. Hence, we do not doubt his word when he claims to have paid his debt.

In certain instances (see the following halachah), there is a difference between the laws that apply depending on which of these expressions the judges used. “You are obligated to pay him” implies that this is the law, but the judges have not issued a direct command for the defendant to do so. “Go out and pay him” implies that the judges have issued such a direct command. In this instance, however, there is no difference between the two situations.

I.e., he made this statement after leaving the court and returning without the defendant.

Rav Hai Gaon, the Ramban, and others maintain that a defendant who was required to take a Scriptural oath can be required to take a sh’vu’at hesset that he in fact took the oath required of him. In his Kessef Mishneh, Rav Yosef Karo clarifies that the Rambam would not accept this ruling, as he states in Hilchot Sh’luchin V’Shutafin 10:2: A person is not required to take a sh’vu’at hesset unless the plaintiff lodges a claim against him that, if found liable, would require him to make financial restitution. If, however, the claim would require only that the defendant take an oath, a sh’vu’at hesset is not required. And in his Shulchan Aruch (Choshen Mishpat 87:27), Rav Yosef Karo quotes the Rambam’s view.
In the following halachah, the Rambam does, however, give advice to the plaintiff to prevent such a difficulty from arising: He should state that he will accept the defendant’s oath only when made in the present of witnesses.
With regard to plaintiff’s who are required to take Rabbinic oaths to collect their claim, all authorities agree that they must bring proof that they took the oath before they can collect their due.

I.e., they accompanied him from the time that the court instructed him to take the oath until the present.

I.e., give him a clear directive to pay.

I.e., they accompanied him from the time he was held liable until the present. The Ramah (Choshen Mishpat 79:13) states that the fact that the witnesses saw that once the plaintiff demanded payment from the defendant and the defendant refused is not sufficient proof that he did not pay him at a later date.

I.e., if he claims to have paid a second time, his statements are not accepted.

Bava Metzia 17a explains that this wording implies that although the law appears to indicate that the person is liable, the judges are somewhat unsure of the matter and did not give him an explicit order to pay.

I.e., even though in fact he lied, we assume that his intent was not to perpetrate deceit, but to buy time and that if he was instructed to pay, he would. Hence, we do not assume that he is lying if he claims to have paid the debt afterwards.

The Shulchan Aruch (Choshen Mishpat 79:14) qualifies this ruling, stating that it applies only to a person who accepts the rulings of the judges. Different rules apply, however, when a person was placed under a ban of ostracism by a court because he steamed out in protest after hearing a judgment against him. If he later claims to have paid his debt, his statements are not accepted.

The Rambam’s ruling follows the principle he states in Hilchot Malveh V’Loveh 15:1, that even after the loan was given, the lender has the right to add new stipulations with regard to payment. As mentioned in the notes on that halachah, many other authorities do not accept this principle.

We do not say that his previous acknowledgment is binding, and despite the testimony of the witnesses, he is liable for the debt.

I.e., he is freed of liability.

For he changed his claim before the witnesses testified.

As stated in Chapter 6, Halachah 3, with regard to a person who denied taking a loan, and after witnesses testified that he took the loan, claimed to have repaid it.
The Maggid Mishneh maintains that this law is the product of the Rambam’s reasoning and does not have a direct source in the Talmud. The Baal HaTerumot maintains that it is a logical derivative of the statements in Gittin 14a.
The Maggid Mishneh also mentions that there are those who point to an apparent contradiction between the Rambam’s statements here and his ruling in Hilchot Malveh V’Loveh 14:4, which describes the following situation. The lender produces a promissory note, demanding payment from the debtor, claiming that he was not paid at all. The borrower claims that he repaid half the debt, and witnesses testify that the entire debt was repaid. The Rambam rules that the borrower must take an oath concerning the half he claims to have paid, and then pay the other half. Why, in Hilchot Malveh V’Loveh, does the borrower not follow the principle stated here and change his plea, claiming to have paid the entire debt as the witnesses testify?
The Maggid Mishneh states that there are some authorities who maintain that the borrower in fact has that option, and if he claims that he remembers to have paid the entire debt, his word is accepted. In Hilchot Malveh V’Loveh, the Rambam is speaking of a situation in which the borrower maintains that the witnesses erred and that he did not pay the entire debt. Alternatively, the Maggid Mishneh states, a distinction between the two cases can be made, for Hilchot Malveh V’Loveh speaks about a debt supported by a promissory note, while in this instance, we know that the borrower is liable because of his own admission.
The Nimukei Yosef [Bava Metzia, quoted by the Ramah (Choshen Mishpat 79:3)] does not accept the first resolution offered by the Maggid Mishneh. According to his understanding, the defendant is given the option of saying “I remembered” only until witnesses come and testify. Once they testify, even if their testimony is in the defendant’s favor, he cannot change his plea. See also the statements of the Sefer Me’irat Einayim 79:9.

I.e., even in court. Needless to say, this applies to statements made outside of court.

Rabbenu Yitzchak Alfasi requires that the litigant explain the reason for his change of claim even when witnesses did not contradict his testimony. The Rambam, however, follows the approach of his teacher Rav Yosef MiGash and grants greater leniency.
The Kessef Mishneh quotes a responsum of the Rashba, which states that the defendant may not change his claim from being liable to not being liable, or vice versa. He may change only the rationale why he claims he is not liable. These concepts are quoted by the Shulchan Aruch (Choshen Mishpat 80:1).

And as the Rambam mentions in the conclusion of the halachah, it is possible that he was advised to change his claim by other people.

The Ramah (Choshen Mishpat 79:9) states that even if it appears that he changed his claim because he knew that witnesses would come and contradict his first claim, as long as they did not testify in court, he has the right to change his claim.

There are texts of the Mishneh Torah that state “the first claim,” but “the final claim” is a more correct version [Bedek HaBayit (Choshen Mishpat 80)].

Bava Batra 31a gives an example of such an explanation. A person in possession of a field claimed that it had belonged to his ancestors, while another person sought to expropriate from him, claiming that it had belonged to his ancestors, bringing witnesses who testified to that effect. The person in possession of the property then changed his claim, saying: “It did originally belonged to your ancestors. It has, however, belonged to me for so long, it is as if it belonged to my ancestors.” The Rambam quotes this law in Chapter 15, Halachah 6; see also Chapter 9, Halachah 6.