Siman 59

A creditor who produced a promissory note with witnesses and it is validated by a beit din, or he is able to validate it now, and the borrower claims that it is paid and the creditor says "I do not know," he may not collect with it even when there is a trust clause in the document, for "certain" and "perhaps," "certain" is preferable. And even though regarding one who claims "you have a maneh of mine" and the other says "I do not know" we do not say "certain" is preferable, as was written in siman 75, there, to extract money we do not say "certain" is preferable, but to retain what is in one's hand we do say "certain" is preferable. And even if he holds a mashkon, he is obligated to return it [Netivot HaMishpat], and this is not considered "extracting," for the mashkon is certainly not his and it is dependent on the debt; since he does not need to pay him the debt, it follows that he is forced to return the mashkon to him. And likewise he must return his document to him [Tur] if the borrower demands that he return it, for we fear perhaps he will die and his property will fall before his heirs and they will collect with this document, and the creditor has nothing against the borrower except a cherem setam [Shach].

If both of them claim "perhaps," he must pay [Shach], and the lender does not need to swear [Netivot HaMishpat], for we have a general rule that if one claims, "I know that I became obligated to you but I do not know if I paid you," he is obligated to pay, as is written in siman 75. Furthermore, it will be explained in siman 72 that whenever the debt is certain and the payment is in doubt, the lender takes without an oath. And here, the borrower surely admits that he was obligated to him and says, "perhaps I paid you." But if it is a doubt for him even regarding the essence of the debt, he is not obligated to pay, and he swears a shevuat hesset that he does not know and is exempt.

If the borrower admits that he did not repay it, but only claims, "I have in your possession an amount corresponding to the debt in the shtar," and the lender says that he has nothing of his in his possession, or if he says, "I do not know," the lender swears that the borrower has nothing in his possession or that he does not know, and the borrower pays [Netivot HaMishpat]. For since he admits to the shtar, the shtar is considered as if collected, and he cannot exempt himself from the shtar except with a clear matter through witnesses or through a shtar. And his claim against the lender is like other oral claims, and the lender swears and is exempt. And likewise when the lender dies, his heirs swear the oath of heirs and take from the borrower [ibid.]. And all this is specifically regarding a shtar with witnesses signed on it regarding the loan, but regarding a shtar with the borrower's signature, and certainly regarding an oral claim, when the borrower claims, "I have in your possession an amount corresponding to the shtar or corresponding to the claim," even though the lender denies him, the borrower swears a shevuat hesset and is exempt. For he is believed to claim "I paid," as I wrote in siman 69, and therefore he is also believed to say "I have in your possession an amount corresponding to it" by way of a migo of "I paid" [it appears to me].

When the borrower claims "I paid" and the lender says "I do not know," which has been explained as a case where he cannot collect with it—if the lender retracted and said, "I examined my accounts and I remembered that it is not paid," he may return and collect with it even from encumbered properties. The borrower can require him to swear that it is indeed so, that it became clear to him. This applies specifically to buyers who purchased before he said "perhaps," but from buyers who purchased from the borrower afterward, he cannot collect from them, for they can say, "We relied upon you when you said 'perhaps'" [Shach]. From buyers who purchased after he said "I remembered," he collects from them if they knew of this, that he said "I remembered" [it appears to me]. And specifically when the shetar is in his possession can he say "I remembered," but if the beit din removed the shetar from his possession, he is no longer believed to say "I remembered," and his claim is like an oral claim, and the borrower takes an oath of hesset and is exempt. However, if he brings witnesses that his shetar was burned or lost through an accident, it is as if the shetar is in his possession [Netivot HaMishpat].