To’en veNit’an - Chapter 4

A person who admits a portion of a claim is not required to take a Scriptural oath until the plaintiff lodges a claim against him for an entity with a specific measure, weight or number, and the defendant admits owing a portion of that measure, weight or number.

What is implied? A plaintiff claims: "You owe me 10 dinarim," and the defendant responds: "I owe you only five"; "You owe me a kor of wheat," "I owe you only a letech"; "You owe me two litras of silk," "I owe you only a rotel." In all these and in other similar situations, he is liable.

Different rules apply, however, if the plaintiff claims: "I gave you a wallet full of coins," and the defendant answers: "You gave me only 50," or he claims: "I gave you 100 dinarim" and the defendant answers: "You gave me only this pouch, and you did not count the contents before me. I do not know what was in it. You are receiving what you gave me." In these and all similar situations, he is not liable to take an oath.

Similarly, if the plaintiff claims: "I gave you a room full of grain," and the defendant answers: "You gave me only ten korim" or he claims: "I gave you ten korim," and the defendant answers: "I do not know how much you gave me, because you did not measure them before me. You are receiving what you gave me," the defendant is not liable.

If, however, if the plaintiff claims: "I gave you this room that was filled with grain until the projection," and the defendant responded: "It was filled only to the window," he is liable. Similar laws apply in all analogous situations.

A person who admits a portion of a claim is not required to take a Scriptural oath, unless he makes his admission with regard to a matter that he could deny [owing].

What is implied? A plaintiff lodged a complaint against a colleague, saying: "You owe me 100 dinarim. 50 are recorded in this promissory note, and 50 are not recorded in a promissory note." The defendant responds: "I owe you only the 50 mentioned in the promissory note." He is not considered to be a person who admits a portion of a claim. For his denial would be of no consequence with regard to the sum mentioned in the promissory note. All of his property is on lien to it, and even if he denied it, he would be obligated to pay. Therefore, he is required to take only a sh'vuat hesset concerning the 50 that are not mentioned in the promissory note.

The following rules apply when a dispute arises concerning a promissory note that mentions that the defendant owes sela'im, but does not mentioned the number of sela'im he owes. The lender states: "You owe me five sela'im, and that is the intent of the promissory note." The borrower counters: "I owe you only three; that is what is implied by the promissory note."

Because of the promissory note alone, he would be obligated to pay only two sela'imHe is, nevertheless, not liable to take a Scriptural oath despite the fact that he admitted owing a sela that he could have denied, because he is like a person who returns a lost article. And it is one of the ordinances instituted by our Sages that any person who returns a lost article should not be required to take an oath, as explained in the appropriate place.

Similarly, when a person tells his colleague: "My father told me that you owe me a maneh." The defendant responded: "I owe you only 50 dinarim." He is a person returning a lost object, and he is not liable even for a sh'vuat hesset. Needless to say, this applies if a person on his own initiative acknowledged: "I owed your father a maneh. I repaid him 50 dinarim, but I still owe him 50." He is not liable even for a sh'vuat hesset."

If, however, the heir claims: "I know with certainty that you..." or "...your father owe my father a maneh" and the defendant responds: "I owe your father only 50 dinarim" or "My father owes you only 50," he is considered to be a person who admits a portion of a claim and is required to take a Scriptural oath.

When a plaintiff claims: "You owe me a maneh and this article is security for it," and the defendant claims: "I owe you only 50 dinarim" he is considered to be a person who admits a portion of a claim and must take a Scriptural oath.

If the security is worth only 50 dinarim or less, the defendant must take the oath and pay the 50 that he acknowledged owing. If the security was worth 100 dinarim or more, since the lender has the right to claim its value, the lender should take an oath and collect his claim from the value of the security.

If the security was worth 80 dinarim, the lender must take an oath that he is owed at least 80 and then he collects that amount from the security. The borrower must also take a Scriptural oath with regard to the 20 that he denies.

If the borrower denies the entire matter, saying: "This is not security. Instead, it is an entrusted article and I do not owe him anything," the lender must take an oath that he is owed at least 80 and the borrower must take a sh'vuat hesset with regard to the 20 that he denies.

The following ruling applies when a plaintiff claims: "You owe me a maneh" and the defendant responds: "I know that I owe you 50 dinarim, but I am unsure of whether or not I owe you the other 50." The defendant is obligated to take a Scriptural oath, because he acknowledged a portion of a claim. He cannot take an oath regarding the portion he denied owing, because he does not know whether he is liable or not. Therefore, he must pay the entire maneh; the lender is not required to take an oath. Similar laws apply in all analogous situations.

The defendant may have a conditional ban of ostracism issued against anyone who lodges a claim against him when the plaintiff is not certain that the defendant is obligated.

Similar concepts apply in the following situation. The plaintiff claims: "I lent you a maneh and here is one witness who will testify that this is so." The defendant responds: "That is true, but you owe me a maneh to match it." The defendant is obligated to take an oath, but cannot take that oath, and hence, is obligated to pay.

Why can he not take an oath? Because he acknowledges the content of the testimony of the witness. And a person who must take an oath because of the testimony of one witness may take the oath only when he contradicts the witness, denies his testimony and takes the oath to support his denial.

Similarly, when there is a promissory note signed by one witness and the defendant claims to have paid the debt, or a person denied a claim, a witness testified against him, and then the defendant stated that he paid the debt or returned the entrusted article, the defendant is obligated to take an oath, but may not take the oath. Hence, he must pay.

An incident once occurred concerning a person who seized a slab of silver from a colleague in the presence of one witness. Afterwards, he said: "I seized it, but what I seized was mine." Our Sages said: "He is obligated to take an oath, but may not take the oath. Hence, he must pay. Similar principles apply in all analogous situations.

The testimony of one witness is also significant in the following instance. The plaintiff claims: "I lent you a maneh." The defendant denies the matter entirely, and the plaintiff brings one witness who testifies that the defendant took a loan in his presence. Had there been two witnesses, a presumption that the defendant is lying would have been established, and the defendant would be obligated to pay, as will be explained. Hence, the defendant is required to take an oath because of the testimony of one witness. For wherever the testimony of two witnesses requires a defendant to make financial restitution, the testimony of one witness requires him to take an oath.

If after the witness testifies, the defendant changes his claim and states that he paid the debt, he is required to make financial restitution. The plaintiff is not required to take an oath, as we have explained.

When a plaintiff claims: "You owe me a maneh" the defendant denies the claim entirely, and witnesses testify that the defendant still owes the plaintiff 50 dinarim, all of the Geonim have ruled that the law is that the defendant must pay 50 and take an oath concerning the remainder. The rationale is that the principal's own admission should not have greater legal power than the testimony of witnesses.