To’en veNit’an - Chapter 6

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 4lb. 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 Maaimoniot 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.