Sheluchin veShuttafin - Chapter 10

The commentaries have noted somewhat of a difficulty with the Rambam’s statements, because the defendant appears to be admitting a portion of the plaintiff’s claim. In such an instance, he would seemingly not be considered a kofer bakol, one who denies a claim entirely, and who is required to take merely a sh’vuat hesset. Instead, he would be considered a modeh b’miktzat, one who admits a portion of the claim, and would seemingly be required to take an oath according to Scriptural Law.
Sefer Me’irat Einayim 93:21 explains that this refers to a situation in which the plaintiff maintains that 100 zuz. were due to him by virtue of the stipulation, and that he received only 50. The defendant, by contrast, claims that the stipulation entitled the plaintiff to only 50 zuz, and that – as the plaintiff admits – those 50 were already paid. Thus, the defendant denies entirely the claim that the plaintiff is making at present.

See Hilchot To’en V’Nit’an 1:14, which states that when a person makes two claims against a colleague and two oaths are required of the defendant – one severe and one lenient – the defendant is not required to take both oaths. Instead, the defendant is required to take the more severe oath, and to include the other claim through the convention of gilgul sh’vuah.

I.e., claims that the defendant denies entirely.

As required of any person who denies a claim entirely.
There are two advantages to requiring the partner to take a lesser oath:
a) As stated in Chapter 9, Halachah 2, the oath concerning partnership is required only when the partner suspects his colleague of taking two silver me’ah. A sh’vuat hesset can be required even for a lesser amount.
b) If the lesser oath is required, the focus will be on the specific claim the plaintiff is making. His hope is that rather than deny a specific claim under oath, the defendant will admit his guilt (Or Sameach).

Using the convention of gilgul sh’vuah.

Which is the more severe oath.

In which instance, he could not compel him to take the oath required of partners, as stated in Chapter 9, Halachah 7.

The law requiring a partner to take an oath is a Rabbinic ordinance enacted to protect the interests of the partners. Nevertheless, the Rabbis gave a partner these rights only when we are certain that the partnership is still viable. If, as in the situation described above, that is in question, the defendant is not required to take this oath.

And the defendant denies agreeing to such a stipulation.

In which instances, the assets of the partnership are considered to be divided, and an oath can no longer be required.

For the testimony of the witnesses does not contribute any information that is unknown to us.

As in this instance, where if the defendant admitted the plaintiff’s claim, he would be obligated to take only the oath required of partners.

Sefer Me’irat Einayim 93:17 differs with this ruling, explaining that the principle stated by the Rambam applies only in a situation when the plaintiff claims that the defendant did not take an oath that he had been obligated by the court to take, and the defendant claims that he already took it. In this situation, however, the defendant had not yet been required to take an oath and could be required if he admits the plaintiff’s claim.
The Siftei Cohen 93:11 rejects the argument advanced by Sefer Me’irat Einayim. He explains that the basic principle is that the oath required of a partner by the Sages is a form of assistance granted to the plaintiff, and a sh’vuat hesset or including an oath through the convention of gilgul sh’vuah is a second measure of assistance, and two measures of assistance are not granted concerning the same claim.

This is a definite claim, and requires a sh’vuat hesset if denied by the defendant.

Similarly, the plaintiff can compel the defendant to include in the oath that he does not owe him anything from the profits of the partnership (Siftei Cohen 93:13).

In the previous halachah.

Since witnesses refuted his statements, we assume that he is trying to lie and avoid taking the oath. Therefore, we do not accept any further claims from him in this regard. Moreover, there is a contradiction implied in his own statement, for by stating that he was not the plaintiff partner, he admits that he never divided the assets of the partnership. See Sefer Me’irat Einayim 93:20.

We do not, however, assume that he will lie under oath. Since a false oath is a very severe matter, we believe that even a person who might lie about other matters will not take a false oath.

As the Rambam writes in Chapter 4, Halachah 3, although they did not invest equal amounts, they share evenly in the profits and the losses. As mentioned in the notes on that halachah, the Ra’avad differs with the Rambam and maintains that the loss should be shared by the partners according to the ratio of their investment.

In that way, the loss of 500 dinarim would be shared equally.

He should not, however, take an oath that the partnership lost 500 dinarim. Since Shimon will not be required to pay the amount required as a consequence of such an oath, it is not proper that Reuven mention this figure (Kessef Mishneh).

100 dinarim.

And Shimon does not admit the loss. Reuven is not given the opportunity to support his claim with an oath for the reason stated by the Rambam at the conclusion of the halachah.

If, however, Reuven is uncertain whether or not Shimon knows of the loss, he cannot require him to take an oath, as stated in Hilchot To’en V’Nit’an 1:12.

And therefore should share in it equally.

Alternatively, Reuven may have him take a sh’vuat hesset that he does not know of the loss and compel him to take the oath required of partners through the convention of gilgul sh’vuah (Kessef Mishneh).

Since the convention of gilgul sh’vuah is involved, Reuven need not have a definite claim that Shimon knows of the loss (Kessef Mishneh).

In which instance, Shimon cannot be required to take the oath required of partners, as stated in Chapter 9, Halachah 6.

And Shimon does not admit to knowing of the loss.

And Reuven would thus suffer an even greater loss, losing 350 of the 500 dinarim.

The rationale is that since he had the money in his possession, if he had wanted to deceive Reuven, he could have given the money to Shimon without acknowledging the debt.

Hence Levi is not obligated to pay Reuven anything. The Ra’avad states that this applies only when the promissory note is in Shimon’s hands. If, however, the promissory note states that the money is owed to the partnership and it is in Reuven’s possession, Levi is excused from liability only for the share owed to Shimon. The Kessef Mishneh states that the Rambam would accept this law. It is cited by the Ramah (Choshen Mishpat 93:14)

That the debt was paid or that Reuven agreed to extend credit for the longer period.

I.e., if he claimed that credit was extended for a longer time. If, however, he claimed that the debt was paid, he may not demand payment from Levi (Sefer Me’irat Einayim 93:31).