Siman 255

A shekhiv mera who said "I have a maneh in the possession of so-and-so," the witnesses write "Thus and thus said so-and-so the shekhiv mera," even though they do not know if the truth is so. Therefore, when the heirs come to collect, they must bring proof. And even though he did not command to give the money to others—which would make their writing beneficial for collecting through this if he were saying to collect from his own properties—and here, on the contrary, he commanded to collect from others and give to his heirs, and since they require proof, what benefit is there in the writing? Nevertheless, it is a decree of the sages upon the witnesses that they should write his words, and there will be some benefit, for that so-and-so will not have the audacity to deny it to the heirs when he sees in their hand a will written by witnesses stating that their testator said so. And even though one could rely on the witnesses to testify this orally, nevertheless, there is a concern lest they go to a province across the sea [Sma].

It has already been explained in siman 81 that the claim "I was mocking you" does not exist regarding a shekhiv mera, for a person does not mock at the time of death. However, the claim "in order not to appear wealthy" applies even to a shekhiv mera, and this claim only applies when they did not sue him. Therefore, a shekhiv mera who said, "So-and-so has a maneh in my possession," if he did not say "give it," they do not give it, for perhaps he only said this so as not to appear wealthy to his heirs, so they would not say that they have much money. But if he said "give it," they give it, for since he commanded to give, this reasoning does not apply, and they give it after his death as he commanded. This is specifically when there is no concern that perhaps he paid him before his death after he commanded to give [Shach]. And likewise, even if he did not say "give it," if he spoke by way of a complete admission and not by way of casual conversation, they give it according to the opinion of the Rambam, even though he did not say "give it," and even though the admission was not in the presence of the recipient [ibid.], and even though he did not say "you are witnesses" [ibid.]. And according to the opinion of the Tur, he must say "you are witnesses," as is written there. And even though it was explained there that we do not claim "in order not to appear wealthy" for him when he does not claim it himself, nevertheless, for orphans we claim on their behalf, for the rule is that the beit din claims for heirs everything that their decedent could have claimed for himself. And just as by way of a complete admission the claim "in order not to appear wealthy" does not apply, so too if he admitted in his own handwriting, it is a complete admission, for he would not have done all this if it were not true, and even if the handwriting did not reach the hand of the recipient [Sma]. And in any case where the law is that they give to the recipient, even if it is known to us clearly that it never belonged to the recipient, nevertheless they give according to his will, for the property is his and he gave it to whomever he wished [ibid.]. It is only when there is a doubt whether perhaps he did not want to give at all but only said so for some reason; but when it is clear that he wanted to give, they give. And even though he said "So-and-so has a maneh in my possession," which implies that he owes it to him, perhaps he wanted to say it this way to his heirs so they would not complain against him for giving gifts; therefore, he spoke in the language of debt and not the language of a gift.

The Rambam wrote in chapter 7 of Arachin: One who consecrates all his property and afterwards divorced his wife, and she collected her ketubah from the one who redeems it from the Hekdesh, she does not collect until he vows to forbid her from any benefit, lest they made a conspiracy against the Hekdesh. And we do not say, had he wanted, he could have said "I consecrated in error" and would ask a sage regarding his Hekdesh and it would return to him. And similarly, he is not believed to say after he consecrated, "I owe a maneh to so-and-so" or "this vessel belongs to so-and-so," lest they make a conspiracy against the Hekdesh. And even if there was a deed in the hand of the creditor, he does not collect based on this, but rather in the manner that all creditors collect. In what case does this apply? Regarding a healthy person. But a sick person who consecrated all his property and said at the time he consecrated, "a maneh belonging to so-and-so is in my hand," he is believed, for a person does not practice deception against the Hekdesh at the time of his death and sin for others, since he is going to die. Therefore, if he said "give it to him," he takes without an oath. And if he did not say "give," they do not give unless he had a verified deed in his hand; such a one takes from the Hekdesh because of the instruction. And if after he consecrated he said "give," they do not listen to him, but rather he is like any other creditor; if his deed is verified, he swears and collects from the redeemer, not from the Hekdesh. And one about whom a rumor went out that he declared his property ownerless, or consecrated them, or banned them, we do not concern ourselves with him until there is clear evidence there. Thus far his words. And the Rambam, of blessed memory, holds that even though it was explained in siman 250, section 30, that a person facing death who consecrated all his property may retract if he recovers, nevertheless, while in his illness he cannot retract, according to the opinion of "some say" that we wrote there; for if not so, why after he consecrated do they not listen to him? And also at the time he consecrated, why does he need to state the reason "because he does not practice deception," since he can retract? [Netivot HaMishpat]. Furthermore, most poskim agreed that although in all matters "within the time of a greeting" is like the speech itself and one can retract, nevertheless regarding Hekdesh one cannot retract even within the time of a greeting. And so wrote the Rambam in chapter 15 of Ma'aseh HaKorbanot. Therefore, that which he wrote that a healthy person after he consecrated is not believed to say "a maneh belonging to so-and-so is in my hand," this is even within the time of a greeting. [And the difficulty of the Shach from Bava Kamma 73b: they answered that from one sanctity to another sanctity is different, but from the Rambam at the end of chapter 2 of Temurah it does not seem so; and one must say that this sugya is rejected, as the Mishneh LaMelekh wrote in chapter 15 of Ma'aseh HaKorbanot]. And that which he wrote that a healthy person is not believed to say "after he consecrated" and a person facing death is believed to say "at the time he consecrated," it is of one type, namely, immediately after he consecrated. And that which he wrote regarding a healthy person the language "after he consecrated" is because regarding a get by force the intention is after a time, for it is impossible to perform a get in a single moment, and regarding a get he was required to write "afterwards." Therefore, when he wrote "And similarly he is not believed to say etc." he necessarily had to write the language "after he consecrated," for if not so, there is no distinction between a healthy person and a person facing death. [And all is well]. And one should not ask: why indeed is he not believed with a migo that he could have asked a sage regarding his Hekdesh? For it can be said that a sage is not available at all times. Furthermore, after it has come into the hand of the treasurer, it is possible that asking does not avail, just as with terumah after it has come into the hand of a kohen. And even if asking avails for terumah when it has come into the hand of a kohen, nevertheless this is certainly so: if the kohen ate the terumah, asking does not avail, for if he asks, has the kohen not eaten tevel? And so too regarding Hekdesh, when it has come into the hand of a treasurer and someone committed me'ilah with it and brought a sacrifice for me'ilah, if we say that asking avails, he has brought non-sacred items into the Temple courtyard. And that which he wrote that the collection is from the redeemer from the Hekdesh, it was explained there previously that from the Hekdesh itself the sages forbade collecting in any case, so that it should not appear as if one is removing from Hekdesh to mundane use. [And according to what I wrote, it is well why the Rambam omitted in chapter 4 of Terumot the law of terumah in the hand of a kohen, because he holds that it does not depend on this. And furthermore, it is well that he ruled not like Rabbi Yehoshua in Arachin 23a. And his reason seems to me to be because of the sugya in Shevuot 42b. And according to what I wrote, the sugyot do not contradict, for certainly the halacha is like Rabbi Yehoshua, but because it is not possible to ask every time, the sages were stringent. And the words of the Rambam and the Shulchan Aruch are well here and in Even HaEzer siman 102, and examine it].

And some say that at the time he consecrated, if there was a complete admission there, he is believed, whether as a healthy person or as a shekhiv mera. And after he consecrated, he is not believed in both cases; rather, regarding a healthy person, the reason is because of collusion, and regarding a shekhiv mera, the reason is because he does not have the power to extract from encumbered properties without a verified document. And at the time he consecrated, it is effective within the time of a continuous utterance, for it is considered like the utterance itself. And the distinction between a healthy person and a shekhiv mera is when there was no complete admission, for regarding a healthy person he is not believed at all, and regarding a shekhiv mera he is believed when he says afterward "give," and he collects from the hekdesh itself, not like other creditors who must collect only from the one who redeems from the hekdesh. And so too when the creditor has a verified document in hand, even if he did not say "give," he collects from the hekdesh itself because of his testament. But if at the time of consecration he said nothing, what he says afterward is of no effect even if he says "give," and even with a verified document he does not collect from the hekdesh itself, but rather from the one who redeems from the hekdesh [Taz according to the Rambam].

And some say that one who consecrates his property can retract within the time of a speech, but after the time of a speech, if he said, "A maneh of a deposit is in my hand," he is not believed even in a case where he could request an annulment of his vow and has a migo, because it is a migo in the place of a chazakah, for there is a chazakah that whatever is under a person's hand is his. And if he admits to a maneh of a loan, if it is an oral loan, even if he has a migo, he cannot extract it from the hekdesh, for it is like encumbered property and an oral loan cannot be collected from them. But if he admits that another has a shtar against him, he is believed with a migo of annulment. And if he consecrated with the consent of the public, or if he handed it over to the hand of the treasurer, or if he transferred it to hekdesh with a kinyan, such that annulment is impossible, he is not believed at all. And if he said plainly, "A maneh belonging to so-and-so is in my hand," we attribute it to a deposit and not to a loan. In what case does this apply? To a healthy person; but regarding a shekhiv mera, even in hekdesh where annulment is impossible, he is believed even if this person has no shtar at all, for presumably his intention was regarding a deposit. But when he says explicitly "a loan," it cannot be collected unless he also admits that there is a shtar. And specifically when he said "give," or by way of a complete admission, or if there is a verified shtar, for in all these there is no concern of "not wanting to appear wealthy," and he is believed even to exempt his fellow from an oath. And all this is when it is known that it was not paid after the will, for if not so, we claim perhaps he paid afterwards. And if the shekhiv mera says, "I owe so-and-so an oral loan and my desire is to be asked about my vow," we release it for him even if he vowed with the consent of the public, because paying a creditor is a mitzvah, and when his vow is released, we do not fear that perhaps he acted "not to appear wealthy," for this is like a complete admission. And a shekhiv mera, when he is believed, it is even when he consecrated while he was healthy, and even if he handed his property over to the hand of the treasurer, for there is a chazakah that a shekhiv mera does not commit collusion against the hekdesh. Therefore, specifically against hekdesh is he believed, but not regarding other creditors or regarding purchasers [Shach]. And many of the later authorities agreed that regarding hekdesh, even within the time of a speech he cannot retract, for since "speech to the Most High is like delivery to a commoner," it is like a kinyan. However, the consecrations of this time have the status of a commoner, as written in siman 95, and they do not have these laws, for it is not like delivery but only by the law of a vow, and so too for tzedakot [Ketzot HaChoshen]. And there is one who is stringent regarding tzedakot, that their speech is like delivery [and so it appears].

A shekhiv mera who said, "A maneh belonging to so-and-so is in my possession," in a manner where there is no concern of "in order not to appear wealthy"—such as when he said, "You are witnesses," or according to the Rambam, when he spoke by way of a complete admission—and he died, and the orphans said, "We have paid," they are not believed. For he did not say "give," which would have clarified for them that he had no doubt regarding this, and how would they know clearly that they are obligated to give? And it is not the way to pay as long as he did not say "give." But if he said "give," and they said "we have paid," they are believed with a shevuat hesset that they paid. And some say that they are believed in any case to say "we have paid," for since by law they are obligated to pay, why should we not believe them that they paid? And they swear a shevuat hesset and are exempt. And thus the Acharonim agreed.

A shekhiv mera who confessed with a complete confession that he has a maneh belonging to so-and-so, and the orphans said that their father later said to them after the will, "I paid it," or even if they said that he told them that he later remembered that his confession was in error, they are believed. This is even if he confessed before witnesses and there are no witnesses to the payment [Sma], and they swear a shevuat hesset on this, that their father said so to them later. Specifically, when the claimant claims with certainty that their father did not say this to them, they must swear a shevuat hesset [Shach], and it is sufficient that one of the heirs swears. But if he said "give," and the orphans said, "Our father later said to us, 'I paid it,'" if they said that he said he paid afterward, they are believed with an oath. But if they said that he said he remembered that he had paid him before he confessed, and certainly if they said that he said, "I erred in the confession and nothing is due to him at all," they are not believed; for since he said "give," the matter was certainly clear to him, and even the shekhiv mera himself would not be believed to say so. However, to say "I paid afterward," he would be believed, for even one who lends to his fellow before witnesses does not need to repay him before witnesses, and certainly so regarding a confession [Tur]. And this is specifically when there are witnesses to the confession, but when there are no witnesses to the confession, he and the orphans are believed to say that he erred, by way of a migo that they could have not confessed to the confession at all [ibid.]. And some say that with "give," they are not believed even to say "I paid afterward," and without "give," they are believed only to say "I paid afterward" and not before [ibid. in the name of the Ramah, and see Shach and Taz]. And all this is when there are witnesses to the confession, but when there are no witnesses, they are believed in every case. And according to the first opinion, even if he did not say at all "I paid," and even with "give," we must concern ourselves that perhaps he paid afterward [Shach].

All this is when there is no promissory note in the hand of the lender, but when there is a promissory note in his hand, neither the shechiv mera nor his heirs are believed to claim "I have paid," as has been written in siman 82. And more than this, the Tur wrote in the name of the Rosh that a shechiv mera who commanded due to death to give a maneh to Shimon and died, and the heirs sold all the properties such that Shimon did not find anything from which to collect his due, he collects from the purchasers, for a gift of a shechiv mera is a complete debt and the sale of the heirs is of no effect at all, as has been written in siman 252. And if the heirs are believed to say "we paid him" after the death of our testator, if the deed of the command is produced from the hand of the recipient, they are not believed when they knew that the deed of the command was in his hand [Taz], for if they had paid him, they would have taken the deed from him. But if the deed of the command is not produced from his hand, or if they did not know of it, they are believed to say "we paid." And not only this, but even if they say they did not pay him, if the matter affects others, we fear a conspiracy. And it has already been explained at the end of siman 253 that some say specifically regarding an admission of debt it is like a complete deed and not regarding a deed of a command of a gift, and some say there is no distinction, but rather the distinction is between whether the witnesses wrote of their own accord or whether they wrote by his command; see there.

If one saw that his father hid money and said, "They belong to so-and-so," or "They belong to hekdesh," if he said his words in the language of a testament, like one conveying the matter, his words stand even if he said them when he was healthy [Sma]. But if he said his words not by way of a testament but as mere words, this is only like one acting with artifice regarding his property so that they should not consider him wealthy and so that his children should not squander more than necessary, and there is no need to fulfill his words even if he was a shekhiv mera. And if a man came and said, "I saw your father hide money in such-and-such a place and he said that the money belongs to so-and-so or to hekdesh," if they are hidden in a place where this person could have taken them, he is believed with a migo, for had he wanted, he himself could have delivered them to that so-and-so. But if they were hidden in a place where he cannot take them, he is not believed, for he is only a single witness and has no migo. Therefore, even if he said that their father spoke like one conveying his words, he is not believed. And it appears to me that if the heirs know that this man would not lie, they must fulfill their duty toward Heaven and fulfill everything that he said. However, if this man said that their father did not speak like one conveying his words, there is no need to fulfill them, and even he himself is not permitted to fulfill them even if it is in his power to fulfill them [it appears to me]. And if an object belonging to his father was hidden in some place and he did not know where it was hidden, and the master of a dream came and said to him in a dream, "They are such-and-and such in amount, and they are in such-and-such a place, and they belong to so-and-so," or to hekdesh, or to tithes, or tzedakah, and he awoke from his sleep and found them in that place and according to the number that the master of the dream said—nevertheless, such a case came before the sages and they said that the words of dreams neither raise nor lower [Sanhedrin 30a], and behold they are his, for one does not extract money by means of dreams. And even according to the one who is stringent regarding one who vows in a dream, as is written in Yoreh Deah siman 210, nevertheless, this is not relevant to money; and even though the master of the dream was accurate regarding the number and the place, nevertheless, there is no dream without idle matters, and in this, perhaps he did not intend the truth.