Rambam - 3 Chapters a Day

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.

I.e., Canaanite slaves. See the Siftei Cohen 95:18, who discusses whether the same laws apply with regard to a Hebrew servant.

The intent is property consecrated to the Temple treasury. Oaths are required with regard to property consecrated to a synagogue, for the writing of a Torah scroll, or to be given to the poor [Shulchan Aruch (Choshen Mishpat 95:1)].

E. g., if he is an unpaid watchman and he claims that the article was lost or stolen, or he is a paid watchman and he claims that it was destroyed by forces beyond his control.

But is, instead, freed of liability.
If, however, a person is required to take an oath concerning another matter, based on the principle of gilgul sh’vu’ah (Chapter 1, Halachah 12), he may be required to include a denial of a claim involving these matters in that oath [Shulchan Aruch (loc. cit.)].

For consecrated property belongs to the Temple, not “your colleague.”

For it is not an article that can be given from hand to hand, like money or a utensil (Sh’vu’ot 42a).

Sh’vu’ot, ibid., establishes this equation as follows. Leviticus 25:40 states: “And you shall give them (servants) as an inheritance to your sons afterwards, as an ancestral heritage.” The term “ancestral heritage” refers to landed property. The verse teaches that servants are considered to be equivalent to such a heritage.

The Maggid Mishneh clarifies that if the plaintiff demands the worth of the paper on which a promissory note was written, the defendant may be required to take an oath, because that paper is of financial worth.

The contemporary halachic authorities have raised questions with regard to the currency used today, for it is not of any integral financial worth. Moreover, it is not even valued against a precious metal standard, but is basically a “promissory note” issued by a particular government. Should such a note be considered “money” (literally “silver”) or merely a promissory note?

I.e., this excludes an instance where the plaintiff does not have a definite claim, but instead is unsure whether or not the defendant owes him a debt. Thus, it excludes most claims involving watchmen, for generally the owner will not be able to lodge a definite claim against a watchman.

I.e., while holding a Torah scroll or tefillin.

When a watchman knows that he must take a severe oath if the article is lost, he will be more careful concerning it.

The Ra’avad maintains that the Rambam’s words require explanation. He accepts the Rambam’s ruling in a situation where the owner is demanding that the defendant fill up the cavities that he dug and repair the damage. If, however, the defendant is demanding financial reimbursement, seemingly that should be judged as a claim involving money, not one involving land. What difference does it make whether the claim involves personal injury or damage to landed property? What concerns the plaintiff is financial reimbursement.
The Maggid Mishneh maintains that the Rambam would not accept the Ra’avad’s distinction, explaining that ultimately what concerns the plaintiff is that his land be restored to its initial state. He does not care whether the defendant fills up the cavities themselves or pays someone else to do it. Hence, the claim concerns landed property. Netivot HaMishpat, Biurim 95:6, explains why damage to land is governed by different laws from personal injury. With regard to land, the damage can be restored. With regard to personal injury, by contrast, there is no way a limb can be restored. (Note, however, the Siftei Cohen 95:18, who maintains that the Rambam would accept the Ra’avad’s perspective.)
The Shulchan Aruch (Choshen Mishpat 95:6) quotes the Rambam’s words, while the Tur and the Ramah cite the Ra’avad’s position. See also the notes on Halachot 4 and 5.

In all these instances, the defendant is not considered to have admitted a portion of the claim, because the admission of the obligation for the landed property is of no consequence.

The Rambam La’Am explains that the Rambam’s intent is that the defendant is not required to take the oath regarding the landed property because of the principle of gilgul sh’vu’ah, but because the demand for the landed property is an integral element of the plaintiff’s claim. [In his Commentary to the Mishnah (Kiddushin 1:5), the Rambam explicitly mentions the rationale of gilgul sh’vu’ah. The Tur and the Shulchan Aruch (Choshen Mishpat 95:5) also refer to this concept.]
One might ask: What difference does it make why the defendant must take the oath concerning the landed property? In reply, it can be explained that when the oath is required because of the principle of gilgul sh’vu’ah, it is only administered at the request of the plaintiff. If he does not make such a request, it is not administered. According to the logic of the Rambam LeArn, by contrast, the judges administer the oath on the landed property without the plaintiff making a request.

The Ra’avad questions the Rambam’s ruling, stating that this matter is the subject of a difference of opinion in Sh’vu’ot 43a between Rabbi Meir and the Sages. The Rambam appears to accept Rabbi Meir’s opinion, despite the fact that majority of Sages ruled otherwise.
The Maggid Mishneh offers a different interpretation of that passage, explaining that the difference of opinion applies in an instance when the crops will still benefit from being attached to the ground, although they are already fit to be harvested. If, however, they will not benefit at all from being attached to the ground, even the Sages would agree that they are considered movable property. This, the Maggid Mishneh maintains, is the situation that the Rambam is speaking about. As explained in the following note, in his own Commentary on the Mishnah, the Rambam explains the difference of opinion between the Sages and Rabbi Meir on the basis of other principles.

With these words, the Rambam is implying that the distinction he has made does not apply in all instances. See Hilchot Sechirut 2:4, where the Rambam does not differentiate between produce that is ready to be harvested and that which is not, with regard to the laws regarding watchmen. In all instances, the produce is considered to be landed property, and a Scriptural oath is not required.
The difference between the two instances is that a watchman is not hired to harvest produce. As long as the produce is attached to the land, it must be protected in the same manner whether or not it is ready to be harvested. Our halachah, by contrast, concerns a claim involving a sale. In such an instance, since the person sells the produce by weight as he would sell it if it had been harvested, it is considered movable property. Similarly, in Hilchot Mechirah 1:17, the Rambam states that with regard to the laws of acquisition, produce that is ready to be harvested is considered as though it has already been harvested. [See the Rambam’s Commentary on the Mishnah (Sh’vu’ot 6:7); Kessef Mishneh in his gloss on Hilchot Mechirah.]
The Shulchan Aruch (Choshen Mishpat 95:2) quotes the Rambam’s perspective. The Ramah brings several different conceptions of the passage. First, he cites that of the Nimukei Yosef, who maintains that the Rambam’s ruling applies only when the plaintiff demands financial restitution for his grapes. If, however, he demands the grapes themselves, they are considered to be Heilech, and an oath is not required. The Rashba maintains that whenever the plaintiff demands money, the claim is considered to involve movable property. A person is considered to be admitting a portion of the claim only when he demands that his grapes be returned, and the defendant admits to partaking of the grapes and hence cannot return them. These opinions bring up a larger issue: Can an oath be required in a claim that initially involves landed property, but ultimately results in a demand for financial recompense? See the notes on Halachah 2 and the following halachah.

This is the minimum amount he must deny for an oath to be required (Chapter 3, Halachah 1).

Rental of land is considered as land itself (Hilchot Sechirut 7:2). Therefore, if the defendant claimed that he had a right to dwell on the land for an extra month, that would be considered to be a claim involving land. In this instance, however, the claim solely concerns money. And money is considered to be movable property (Maggid Mishneh).

As is obligated of a person who denies a claim entirely.
When quoting this law, the Shulchan Aruch (Choshen Mishpat 95:4) borrows the Rambam’s wording, but comes to a different conclusion, stating that the defendant is not liable, not even for a sh’vu’at hesset. Sefer Me’irat Einayim 95:18 explains that this difference is dependent on the difference of opinion between the Rambam and other Rishonim (see Hilchot Sechirut 2:3 and notes) whether or not negligence is considered to be damage (see below). Since the Shulchan Aruch (Choshen Mishpat 95:1) accepts the perspective of the other Rishonim, according to his perspective, the defendant is not required to take an oath when he denies even accepting the article, because even if he did accept the plaintiff’s claim and admit negligence, he would not be liable.
The Siftei Cohen 95:17 explains the Rambam’s position at length, stating that it should be accepted instead of that of the Shulchan Aruch.

See Chapter 1, Halachah 6. The Kessef Mishneh explains that the plaintiff must include in his oath that the authenticity of the promissory note was verified, and that its loss prevented the plaintiff from collecting the debt.

The Kessef Mishneh asks: Why is the defendant liable? According to the Rambam, unless it can be proved that the promissory note was lost through the watchman’s negligence, the watchman is not liable. The Kessef Mishneh offers two resolutions:
a) we know that it is presently in the watchman’s possession, so that if he does not return it, the plaintiff will definitely lose his money;
b) since the watchman denies even taking the promissory note, it is obvious that he was negligent.

The Kessef Mishneh explains that the Rambam is referring to his ruling in Hilchot Chovel UMazik 7:9, which states:
Similarly, a person who burns promissory notes belonging to a colleague is liable to pay the entire debt that was mentioned in the promissory notes. Although the promissory notes themselves are not of financial worth, [by burning them,] one causes his colleague a direct financial loss. [When does this apply?] Only when the person who [burned] the note admits that it had been validated [in court], that it was for such and such an amount of money, and that because it was burned the owner cannot collect the debt. If [the person who burned the note] does not believe [the owner] with regard to any of these points, he is required to pay only the value of the paper.
Similarly, in this instance, it appears that the defendant does not accept the fact that the owner will not be able to collect the debt, because the promissory note was destroyed. For if he accepted that claim, and admitted that the note was lost because of his negligence, he would be liable. As the Rambam states explicitly in Hilchot Sechirut 2:3, a person who was negligent and caused a promissory note to be lost is considered as though he destroyed it by hand.
The Ra’avad states that the Rambam’s ruling applies only when we know that the promissory note is in the defendant’s domain. Hence, he cannot free himself of liability, for he must take an oath that the entrusted article is not in his possession. The Maggid Mishneh rejects that position, explaining that a watchman for a promissory note is not required to take an oath that the promissory note is not in his possession.
The Maggid Mishneh explains that hence, in our halachah, the defendant is not liable, because the plaintiff cannot issue a definite claim that the article was destroyed due to the defendant’s negligence. The Kessef Mishneh rejects the Maggid Mishneh’s interpretation, stating that even if the plaintiff were to issue a definite claim, the defendant would not be liable.
According to the Kessef Mishneh, the defendant is not liable, because he tells the lender: “All I allowed to be lost was a piece of paper; you can still collect your debt.”
The Rambam La’Am maintains that the reference to Hilchot Chovel refers to the prior clause - serving as a proof that if the defendant must pay the entire amount mentioned in the promissory note. That text also refers to its explanation (see the notes on Hilchot Sechirut, loc. cit.), that there are types of negligence for which the Rambam would free a watchman of responsibility. With these two explanations, the Rambam’s text reads easily. If the watchman denies the claim, he must take a sh’vu’at hesset. If he reverses the obligation for the sh’vu’at hesset, placing it on the plaintiff and the plaintiff takes the oath, he must pay the full value of the note, as stated in Hilchot Chovel. If he admits taking it, but claims it was lost, he is not liable at all, for this is one of the situations where even if he was negligent, he would not be liable.

I.e., a person who is not involved in litigation against him (Sefer Me’irat Einayim 16:14).

The court will then copy any information that they feel is relevant and advantageous to him [Shulchan Aruch (Choshen Mishpat 16:4)]. The Shulchan Aruch continues, however, stating that if the possessor of the promissory note states that he does not possess such a promissory note, we do not require him to produce the promissory note in his possession.

We issue a ban of ostracism - without mentioning the name of the possessor of the promissory note - saying that any person who refrains from producing a promissory note demanded of him is under ostracism. This measure of protection was instituted by the Geonim.

This applies in several instances - e.g., the colleague claims that he possessed such a promissory note, but it was lost, or he denies ever having possessed such a note. When the other person claims that he definitely possesses such a note, an oath is required.

Since he has a definite claim, an oath may be required.

These three categories of individuals are considered to be incapable of controlling their conduct or understanding business matters. Hence, their claims are not regarded seriously by the court.

The continuation of this halachah focuses on the question of claims made by a minor. There are two difficulties with regard to such claims:
a) with regard to property that a minor inherits, a minor normally does not have firsthand knowledge of his father’s business affairs. Hence, the claims that he will issue on this basis are ordinarily considered indefinite. This applies even after the minor attains majority, as reflected in Chapter 4, Halachah 5.
b) claims that involve a minor’s property itself or matters with regard to which he had firsthand knowledge of his father’s affairs. With regard to these matters, although the minor has a definite claim, because he is a minor and thus considered to be not entirely capable of understanding, his claim - like a claim involving a mentally incapable individual - is not considered by the court.

As the Rambam continues to explain, a claim lodged by a minor is not considered to be definite and does not obligate the defendant. Hence, if the defendant agrees to pay him anything, it is as if he is returning a lost object to the minor. Such an admission should not cause him to incur an obligation.
The Kessef Mishneh questions the Rambam’s ruling, for he maintains that when the minor comes with a definite claim, the person cannot be considered to be one who returns a lost object. Hence, he questions why, when the minor issues a definite claim and the defendant admits partial liability, is the defendant not obligated to take an oath?
Sefer Me’irat Einayim 96:2 explains that with regard to an obligation owed an adult, there is a logical basis to free him from the obligation to take an oath if he admits partial liability. We might assume that, had he desired to lie, he would have denied the obligation entirely. Bava Metzia 3a, b states that, nevertheless, an oath is required, because we assume that the defendant could not look the plaintiff in the eye and deny the debt entirely. Hence, it is possible that he admitted only a portion, because that is all he could pay immediately. With regard to an obligation owed a minor, this logic does not apply, because the defendant could deny the claim entirely. Therefore, if he makes an admission, he is considered comparable to a person who returns a lost article.

The Tur and the Ramah (Choshen Mishpat 96:1) maintain that in this instance an oath is required, since the oath is required because of the witnesses’ testimony and not because of the plaintiff’s (the minor’s) claim.

For even an adult does not have a definite claim against a watchman and, nevertheless, the Torah ordained that an oath should be taken.
The Ra’avad differs with the Rambam and maintains that an oath - even a sh’vu’at hesset - should never be administered because of the claim of a minor, even an oath of this nature. Moreover, according to the Ra’avad, even after the minor attains majority, an oath is not required for articles entrusted while he is a minor. The Maggid Mishneh brings a third opinion that states that a Scriptural oath should not be administered because of the claim of a minor, but a Rabbinic oath of this nature should be administered.
The Ra’avad’s rationale is that the fact that a minor entrusted the article to a colleague is not considered significant at all. He draws support for his ruling from the fact that the proof-text for these laws, Exodus 22:6, explicitly states: “When a man gives....” This wording provoked our Sages’ comment: “‘A man,’ this excludes a minor.” The Shulchan Aruch (Choshen Mishpat 96:1, 302:2) quotes the Rambam’s view, while the Tur and the Ramah follow the opinion mentioned by the Maggid Mishneh. See also Hilchot Sechirut 2:7.

As stated in Chapter 1, Halachah 2, in these instances our Sages required that an oath be taken despite the fact that the plaintiff does not have a definite claim.
The Ra’avad maintains that an oath is required only with regard to claims that stem from the business affairs that the minor inherits from his father, but not from his own. The Rambam’s view is, however, accepted by the Shulchan Aruch (loc. cit.).

The Ramban and Rabbenu Asher differ and maintain that if the minor is immature and does not realize the seriousness of financial transactions, we do not pay attention to the claims he lodges. The Shulchan Aruch (Choshen Mishpat 96:2) quotes the Rambam’s view, while the Tur and the Ramah cite the other perspective.

As Hilchot Mechirah 29:6 states, if a child understands the nature of business dealings, the transactions into which a minor enters are binding. It is to the minor’s advantage to pay if required to by law, for if he does not pay his debts, no one will want to engage in business with him in the future (Kessef Mishneh).

As the Rambam writes in Hilchot Chovel UMazik 4:20:
An encounter with a deaf mute, a mentally incompetent individual or a minor is undesirable. For if a person injures them, he is liable, but if they injure another person, they are not. For at the time they caused the injuries, they were not [fully] mentally competent.

As stated in Hilchot Malveh V’Loveh 16:5, when a person tells his workers to collect money from a storekeeper, the storekeeper claims to have paid him, and the workers claim never to have been paid, both the storekeeper and the workers must take oath, and then they collect their claims from the employer. As stated in our halachah, if the employer is a minor, only the workers are given this option.

These laws apply, despite the fact that, as the Rambam writes in Hilchot Mechirah 29:2, a deaf-mute may engage in business transactions.
There are authorities who differ with this opinion, and maintain that the same laws that apply to a child apply to a deaf-mute. The Shulchan Aruch (Choshen Mishpat 96:5) quotes both of these opinions without stating which one is favored, and the Ramah states that the latter view should be followed.

The Maggid Mishneh states that although these concepts are obvious, there are passages in the Talmud that can serve as proof of the plaintiff’s obligation to clarify his claim. The Hagahot Maimoniot states that according to Talmudic law, a general claim is sufficient to require an oath. Nevertheless, in the later generations, the moral standings of the Jewish people waned, and many people began to lodge false claims. To avoid unnecessary oaths being taken, and to prevent people from paying such claims rather than take oaths, our Rabbis instituted this safeguard.
On this basis, the Ramah (Choshen Mishpat 75:1) rules that if a plaintiff does not clarify his claim, the decision is left to the judge. If he feels that he is trying to perpetrate deception, he may throw out the claim. If, however, he feels that the defendant cannot clarify the claim, but is honest in lodging it, he may require an oath because of it.

Who would know the outcome of his claim. We apply the following standard universally, because it would be very difficult to establish criteria regarding whose word would be accepted without having to clarify his claim, and whose would not.

I.e., if the defendant hesitates to reveal his real claim, for he believes that it will not be the most effective argument.

I.e., if it would be more advantageous for the defendant to have offered another argument, we give him all the consideration he would be granted on the basis of that argument. For example, if we would accept his word if he claimed never to have received a loan, we accept his word if he claims that he repaid it (Lechem Mishneh).

I.e., the plaintiff suspects that the defendant stole from him, but does not have witnesses to support his claim.

In such an instance, the person who made the promise is not obligated to keep it. See Hilchot Mechirah 7:9.

As explained in Halachah 3, when a person denies taking a loan, it is tantamount to admitting that he never repaid it. Hence, he cannot retract that statement.

The plaintiff is not even required to support his claim with an oath.

I.e., although he denies the plaintiff’s allegation, he does not specify the basis for his denial.

Because the testimony of the witnesses is not in direct conflict with his statements.

When stating this law, the Shulchan Aruch (Choshen Mishpat 79:9) states that the plaintiff must mention the fact that the money was given in the presence of witnesses, stating their names. Otherwise, the defendant may not take the claim seriously. In such an instance, if he denied the matter, he could change his claim if the witnesses appeared in court (Sefer Me ‘irat Einayim 79:10). The Bayit Chadash differs, however, and does not require that the presence of witnesses be mentioned by the plaintiff.

Just as his word would have been accepted if he had claimed to have paid the debt, his word is accepted if he makes either of these claims.

The Shulchan Aruch (Choshen Mishpat 79:5) states that the plaintiff is presumed to be a liar only with regard to that claim, but not with regard to other claims. Although it appears that he attempted to maintain possession of money that is not rightfully his, he is not equated with a thief.

In contrast, a person may retract a denial he makes outside the court, even in the presence of witnesses, and change his defense. The rationale is there are people who will not reveal their true claims anywhere outside of a court of law (Bava Batra 31a).
If, however, the plaintiff told the witnesses: “You are my witnesses,” and the defendant did not protest, even if the defendant made his statements outside a court, they are binding [Tur and Shulchan Aruch (Choshen Mishpat 79:4)].

If, however, witnesses do not come, a defendant may alter his claim even if it appears to contradict a claim that he made previously (ibid.; see Chapter 7, Halachah 7).

See note 14.

If the plaintiff does not persevere and continue to press his claim, it would be dismissed on the basis of the witnesses’ testimony, for they state that the borrower repaid the debt.

Thus, the witnesses have established that a loan was given, the lender claims not to have been repaid, and from the borrower’s words, it can be understood that the lender is correct. Although the witnesses also state that the loan was repaid, we heed the statements of the principal (the borrower) rather than those of the witnesses, and consider the debt unpaid.

At the outset, he could also have claimed to have repaid the debt; it would not have detracted from the strength of his position. Since he did not choose to do so, but instead claimed that he did not undertake the debt, that indicates that he in fact did not repay the debt.

The Ramah (Choshen Mishpat 79:1) uses the expression “more than 100 witnesses.” It is obvious that he is intending to explain why we follow the borrower’s statements instead of those of the witnesses. Generally, when there is conflicting testimony from two sets of witnesses, even when one set includes 100 people, we disregard the testimony of both. Nevertheless, in this instance, seemingly we follow the testimony of the borrower, and not that of the witnesses.
Sejer Me’irat Einayim 79:2 explains the Rambam’s statement as indicating that the borrower is obligated to pay primarily because his denial that he took the loan was contradicted by the testimony of witnesses. Nevertheless, the testimony of the witnesses would also absolve him of responsibility. That factor is, however, nullified by our interpretation of the borrower’s statements. Thus, that dimension of both statements is disregarded, and we pay attention only to the fact that the presumption that the borrower is lying has been established.

Nor is the lender required to take a sh’vu’at hesset, if after making restitution, the borrower lodges a claim, protesting that he made payment twice [Shulchan Aruch (Choshen Mishpat, loc. cit.)].
Sejer Me’irat Einayim notes that when a person is suspect to take a false oath, a plaintiff cannot collect money from him unless he affirms his claim with an oath. In such an instance, however, the person is not suspect to have lied concerning the money involved in this claim. Hence, an oath is not required.

Through any of the means mentioned in Hilchot Edut 6:2.

Even if, after the authenticity of the note is verified, he claims to have paid the debt, his word is not accepted [Shulchan Aruch (Choshen Mishpat 79:6)].
The Ra’avad states that the Rambam’s wording adds unnecessary concepts. Even without the establishment of the presumption that the borrower is lying, the borrower would be obligated to pay. From the commentary of the Maggid Mishneh, it would appear that it is important to state that the presumption that the borrower is lying has been established. Otherwise, if the borrower claimed afterwards to have paid the debt and demanded that the lender take an oath before collecting, the lender would be required to take such an oath. Nevertheless, the oath would not be administered, because by taking it, he would be contradicting the testimony of two witnesses. Therefore, the borrower would not be required to pay.

Had the defendant stated that he designated the witnesses to serve in that capacity and they deny observing the matter, the defendant's word would not be accepted [Shulchan Aruch (Choshen Mishpat 70:2)]. Nevertheless, the Rambam is speaking about a situation where the defendant made restitution in the presence of witnesses without asking them to serve in that capacity. Although he assumed that they took notice of the matter, it is possible that they did not. See also Halachah 6.
The Rambam’s ruling is based on Sh’vu’ot 41b. It must be emphasized that Rashi and many other Rishonim interpret that passage differently, explaining that since the lender is not required to repay the borrower in the presence of witnesses, he will not pay serious attention to the matter and may think that he repaid the debt in the presence of witnesses when, in fact, he did not.

The Remo [as quoted by the Tur and the Ramah (Choshen Mishpat, loc. cit.)] differs and maintains that whenever the defendant’s statements are contradicted by witnesses, he is liable to make restitution. The Siftei Cohen 70:6, however, explains at length that this is a minority opinion that should not be accepted as law. See also related concepts in Halachah 5.

And denied taking the loan.

I.e., the witnesses do not state that they observed the defendant taking the loan. Instead, they state that they saw him standing by the pillar. Although this contradicts the defendant’s testimony, we do not assume that he is lying. For it is possible that he stood next to that pillar, but because nothing significant happened, the fact did not stand out in his memory.

Hilchot Malveh V’Loveh 11:1.

I.e., the defendant.

The commentaries question what the Rambam’s opinion would be if the witnesses came, but contradicted rather than supported the defendant’s claim with their testimony. The Maggid Mishneh states that it would appear that the defendant would be required to pay if in fact, the witnesses contradicted his claim. See the notes to the previous halachah with regard to the Remo’s perspective.
In his Kessef Mishneh, Rav Yosef Karo differs and maintains that this halachah should not be considered to be reversing the understanding stemming from the previous one. As long as we are speaking about a loan supported by a verbal commitment alone, the borrower’s word is accepted over that of witnesses. In this halachah, the Rambam is merely giving advice: If a person thinks that his claim will be supported by witnesses, he should bring them to court. Rav Yosef Karo does, however, mention the possibility of a distinction being made between an instance where witnesses designated to serve in that capacity contradict a defendant or the contradiction comes from individuals who were not so charged. See also the following halachah.
Rav Yosef Karo follows this approach in his rulings in his Shulchan Aruch (Choshen Mishpat 70:2). The Ramah, however, mentions the perspective of the Maggid Mishneh.

The defendant claims that he understood the claim to be spurious and facetious, and hence continued the diversion without meaning to be held to his word [Tur (Choshen Mishpat 81)].
The Shulchan Aruch (Choshen Mishpat 81:5) and the Ramah (ibid.:21) state that a person can claim to have spoken facetiously only when he made his admission in response to a plaintiff’s claim. If he spoke on his own initiative, he cannot offer this defense. The Siftei Cohen 81:12 takes issue with this point, maintaining that according to the Rambam, this defense can be offered even when a person speaks on his own initiative.

When quoting this law, the Shulchan Aruch (Choshen Mishpat 81:1) states that the defendant must also include in his oath that his statements were made facetiously.

In which case, his statements are in direct contradiction to those of the witnesses.

It is not significant whether the defendant told the witnesses to serve in that capacity, or whether the plaintiff gave them those instructions and the defendant did not object (Halachah 7).

If, however, they were designated to serve in that capacity, their statements are binding.

I.e., we assume that he made the statements facetiously, and hence did not recall ever having made such an admission (Siftei Cohen 81:3). Other authorities, however, rule that if the witnesses testify, the defendant must explicitly state that he spoke facetiously.

So that the defendant would not know that they were hiding there.

In this situation, it is far less likely to assume that he was speaking facetiously, because the lender was not joking. Nevertheless, as long as the witnesses were not charged with acting in that capacity, the defendant may still offer this argument in support of his position.

For remaining silent is equivalent to accepting the lender’s statement.

I.e., despite all the claims against him, he would say that he does not owe money to anyone except this one person.

I.e., we interpret his statement to mean: “I must have been speaking frivolously, because I do not remember making such statements” (Siftei Cohen 81:3).

Even though he repeatedly acknowledged owing money to that person, we assume that he was speaking facetiously at all times.

Sanhedrin 29b relates this concept with regard to a person reputed to be wealthy. The law applies universally, however, regardless of people’s conception of the person’s financial standing [Ramah (Choshen Mishpat 81:14)].

Even if the heirs do not advance this argument themselves, the court advances it on their behalf (ibid.).

Although a person does not speak facetiously at the time of his death (Hilchot Zechiyah UMatanah 8:3), he may, nevertheless, make statements to create an impression in other people’s eyes. In this instance, he does not want others to consider his sons wealthy. As stated in Chapter 8, Halachah 1, this claim is not effective if the admission is made in the presence of the plaintiff. The Ramah (Choshen Mishpat 81:21) adds that it applies only when the admission was made on the defendant’s initiative, and not in response to the plaintiff’s claim.

From the Shulchan Aruch (Choshen Mishpat 81:12), it is clear that this statement applies only with regard to acknowledgments made by the defendant. Unless he sees the witnesses and designates them to serve in that capacity, he can nullify their testimony. If, however, witnesses observe the giving of the loan itself, their testimony is binding.

Outside the presence of the creditor, as reflected by Chapter 7, Halachot 1 and 2.

Without charging the witnesses to serve in this capacity.

And instead require him to pay.
There are other authorities [see Hagahot Maimoniot and the Tur (Choshen Mishpat 81)] who differ and maintain that if the defendant claims: “I do not owe anything,” the judges assume that he made his original admission with the intent of not appearing wealthy, and they free him of all obligations, despite the fact that he does not offer this defense himself. The Shulchan Aruch (Choshen Mishpat 81:21) offers both opinions without stating which one to follow. All authorities agree that all of these defenses should be suggested by the court on behalf of heirs.