Siman 71

If the lender stipulated with the borrower that he shall be believed whenever he says that he was not paid, the lender collects without an oath, even though the borrower claims that he paid him. This applies even if it is a loan by oral agreement, and even if he did not explicitly state that he shall be believed without an oath, but rather stated credibility in general; for an unspecified grant of credibility implies without an oath, unless it is in a place where there is proof that his intention was specifically with an oath [Chavat Yair in the Taz]. Therefore, even in a loan by oral agreement, the borrower cannot claim: "The reason I believed you is because by law I would have had to swear and be exempt, so I believed you so that you would swear and collect," for an unspecified grant of credibility is without an oath, as he relied upon his faithfulness and not upon his oath. And even if he became liable to him for an oath from another source, he cannot roll this oath upon him [Even HaEzer siman 98]. Some say that through a rolled oath (gilgul) he can make him swear [Chelkat Mechokek and Beit Shmuel ibid.]. Even if he explicitly exempted him from an oath, he can make him swear through a rolled oath, for it is no better than something the Torah exempted from an oath, and nevertheless one can make him swear through a rolled oath as explained in siman 94. The first opinion holds that we estimate his intent, that his intention was to exempt from any manner of oath. Therefore, according to the latter opinion, one must write explicitly that he exempts him from an oath and from a rolled oath. Even according to the first opinion there is a benefit in writing explicitly, for if he did not specify but only stated an unspecified grant of credibility, then even though he is compelled to pay him according to his stipulation, nevertheless after he has paid him, the borrower can sue him claiming that he took the amount of his debt from him twice, as this is like a new claim, and the lender will be compelled to swear a shevuat hesset and be exempt. But when he stipulated explicitly, then even afterward he cannot make him swear, for such is its interpretation: that he exempts him from an oath forever. However, some disagree on this and hold that even if he wrote explicitly, if he did not write that he shall be believed without an oath "forever," he can make him swear after the payment. Thus the great Acharonim agreed. Even when he gave him credibility like two witnesses, he can make him swear a shevuat hesset afterward if he did not write or say "forever." He cannot make him swear more than a shevuat hesset even if witnesses came to contradict him and he says "the matter never occurred," since he believed him against them [see Shach and Urim VeTumim], and such is the primary ruling in law. Therefore, in promissory notes, partnership deeds, and other types of deeds, when the holder of the deed wishes to be exempt from an oath forever, he should be precise to write in it that he exempts him forever from a light oath, a severe oath, and from a rolled oath. If he also wishes to be exempt from a cherem setam, he should write explicitly that he exempts him also from a cherem setam. Likewise, if he wrote in the deed that he gives him "every law of the Torah of credibility," he is exempt from every type of oath, rolled oath, and cherem setam forever, even if he did not mention them explicitly, for this is the meaning of the phrase "every law of the Torah of credibility"—meaning every type of credibility that can exist. However, regarding a cherem setam, the Geonim said that one cannot exempt himself even if he explicitly exempted him from this; for since he does not speak to his face but merely curses generally anyone who robs him, he cannot protest against his litigant in any way in the world, for if he did not rob him, the curse does not take effect upon him, and if he did rob him, it takes effect upon him—for granted that he gave him credibility, but he did not give him permission to rob him. Thus wrote the Tur in the name of the Geonim, and in section 9 more will be explained regarding this.

Regarding oral trustworthiness, he is not trusted against his litigant except when there are witnesses to the trustworthiness. However, if there are no witnesses here and the borrower says, "I gave him trustworthiness, but I paid him," he is trusted with a migo that he was able to deny the trustworthiness. And even if he admits that he trusted him as two witnesses, nevertheless, since there are no witnesses to this, he is trusted with a migo of "the mouth that prohibited is the mouth that permitted" [Netivot HaMishpat], since the migo is regarding the trustworthiness itself, as will be explained with the help of Heaven.

Credibility is effective only against the litigant when he contradicts him, but if his litigant brought witnesses who contradict him, he is not credible; for when he did not explicitly write that he grants him credibility even against witnesses, the intention is only that he believes him against himself and not against witnesses. And if one witness contradicts him, some say that he is credible and does not require an oath to contradict the witness [Sma], as the witness is no better than the litigant himself. And some say that he is not credible against the witness and requires an oath to contradict him [Shach], and the one in possession may say "kim li" according to this opinion [Netivot HaMishpat]. And so it stands to reason, for behold, even the Torah believed a witness more than the litigant himself, as the witness obligates an oath even for one who denies everything, while the litigant does not obligate an oath except for one who admits to a part. And if he stipulated with him that he shall be credible as two witnesses, then even if witnesses came to contradict him and say that the borrower paid him, they are not credible, and he collects from him without an oath even when he says "the matter never occurred" [Urim VeTumim, not like the Shach]. And even if one hundred witnesses came to contradict him, for two are as one hundred, and automatically when he believed him as two, he believed him even as one hundred. And one should not ask: it is true that he believed him as witnesses, but why do we say he is more credible than them, such that we do not heed their contradiction of him—let it be as two against two and be contradicted testimony? For it can be said that certainly it is so, since he believed him in everything he says as two witnesses, it is as if he said to him: "You are credible to me and not another, and I do not believe anyone who says contrary to your words." For one who says "credibility as witnesses," the meaning is credibility without limit, only because according to the Torah there is no credibility greater than two witnesses, and therefore he said to him "as two witnesses" [it seems to me]. And according to this, if he descended in his credibility to more than two witnesses, such as if he said to him: "Behold, you are credible to me as three witnesses," if four contradict him, he is not credible against them; for if his intention was for unlimited credibility, he would have said "as two witnesses," as this is the measure of witnesses from the Torah. And because he descended to a greater number, we say that he believed him only against three witnesses and not against four witnesses. And when he gave him credibility against witnesses, and there are witnesses to this that he believed him as two witnesses, or it is written so in his handwriting, the holder of the credibility is always credible. Even if the opposing party has a migo, that he could have exempted himself with another claim or in another manner, he is not credible; for since he gave him credibility as witnesses, we do not say migo in the place of witnesses. And even with unspecified credibility, when there are witnesses to the credibility or it is written so, no migo avails the opposing party, unless there are no witnesses and no writing regarding the credibility, and he has a migo to contradict the essence of the credibility—in this he is credible, as I wrote in the previous section. Therefore, one who believed his fellow even with unspecified credibility, that whenever he produces it he shall be credible to him, and there are witnesses to this, and afterwards the lender sues him and the borrower says "I borrowed and I paid," he is not credible, since he gave him credibility for whenever he produces it. And even though he has a migo that he could have said "you did not lend to me," and regarding this he did not give him credibility, nevertheless, since he admitted that he lent to him, we do not say migo in the place of credibility [Shach]. And the reason is that since he gave him credibility and this one cannot deny it, behold in any case he believed him in everything he would say; if so, if it were true that he paid him, he should have received a receipt from him, and it is like a migo in the place of witnesses. This is not the case when he has a migo regarding the essence of the credibility, for he did not concern himself with receiving a receipt, as he relied on the fact that there are no witnesses to the credibility.

Trustworthiness is effective even without a kinyan, specifically at the time of the loan or at the time of making the transaction when they entered into the partnership or another business matter, for then we do not require a kinyan as it was on this condition that he lent to him or they entered into the business. However, afterwards it is not effective without a kinyan, whether it is standard trustworthiness or trustworthiness like witnesses, for through what did he become obligated with mere speech? And although there are those who disagree on this, nevertheless, such is the primary ruling in law [Taz]. And it is not similar to what was explained in siman 70, section 4, that when he says to him, "Do not pay me except in the presence of witnesses," it is effective even after the loan, for there, since "the borrower is a servant to the lender," he can decree upon him regarding his money that he pay him in the presence of witnesses, and he does not trust the borrower more than himself. But to decree upon the borrower that he trust the lender more than himself, "the borrower is a servant" is not relevant in this case, unless he obligates himself to that effect at the time of the act or through a kinyan. And even though with standard trustworthiness it is like saying to him, "Do not pay me except in the presence of witnesses," since he only trusted him against himself, nevertheless there is a distinction; for there he did not say to the borrower that he [the lender] should be more trustworthy than the borrower, but rather that the borrower should not be more trustworthy than him, and automatically if he did not pay him in the presence of witnesses, the debt remains as before. But when he says explicitly, "that I shall be more trustworthy than you," through what would he become obligated with mere speech? [It appears so to me; and see Urim VeTummim and Netivot HaMishpat].

When the borrower gave the lender credibility like two witnesses, he has no remedy except either to pay him in beit din or to receive a receipt from the lender in his handwriting that he received from him the debt that he borrowed from him on such-and-such a day and such-and-such an amount. And even if it is not specified in the receipt that it is for such-and-such a debt, and even if he does not have one receipt for the entire amount but rather has notes from the lender that he received from him such-and-such on such-and-such a day and such-and-such on such-and-such a day, the lender is not believed to say that it is for another debt, even if he believed him like two witnesses and with a shtar and the shtar is still in his hand. And the reason is because the handwriting of the lender nullifies the credibility, for while it is true that he believed the lender, behold the lender himself testifies that he received from him, and the claim of another debt is not a claim when he does not clarify the other debt, as was written in siman 58 [Shach and Taz]. And if the lender cannot sign his name, the borrower has no remedy except to pay in beit din and receive a receipt from the beit din, for against a beit din no credibility is effective, and even if he gave him credibility against a beit din it is nothing and he is worthy of a rebuke [it appears to me].

A document that contains a clause of ne'emanut and has a fixed time for payment written in it, the ne'emanut remains in its full force even though the time has passed. And even with an unspecified ne'emanut the law is so, for an unspecified ne'emanut implies at any time, unless it is explicit in the document that he only trusted him until a certain time. And there is no difference in this between ne'emanut in a document and ne'emanut by word of mouth [it appears to me]:

There is a great principle regarding reliability: that reliability is granted only regarding the specific detail for which he was believed and not regarding another detail, whether in a standard reliability or in a reliability as witnesses. For example, if he believed him for as long as the lender says that he did not pay him, he only believed him regarding payment and not regarding a waiver. And if the borrower says that he waived it for him, the lender must swear. And similarly, in a reliability as witnesses, if witnesses came and said that he waived it for him, he loses his debt and they extract the document from him. And some say further that in a reliability as witnesses, even an admission is not included in payment; for example, if he believed him when he says "you did not pay me" as two witnesses, if witnesses came [and said] that he paid him, they are not believed, but when they said "in our presence the lender admitted to the borrower that he paid him," they are believed because admission is a different matter. However, many disagree on this, for ultimately payment and admission are one matter, and so one should rule [Shach]. And similarly, if he wrote in the document that he shall be reliable in all matters of the document, he is reliable only in a matter of the document itself; for example, if this one says "the maneh written in the document I gave to you" and this one says "I did not receive it," or if he claims it is a trust-document and this one says "it is not so," the lender is reliable. But when the borrower claims "I paid" and the lender says "I was not paid," the lender is not reliable, for in this he did not give him reliability, as this is not of the matter of the document [ibid.], for payment is in every document and must necessarily be in every document. And similarly, one who received money in an iska and believed the giver regarding himself and his heirs to say that no loss occurred, and in all that he shall say regarding the principal of the money, and afterwards the receiver passed away and left money also in the hand of another, and the giver says that it is from the partnership business and that the money is his and claims that he is reliable in this because the receiver believed him regarding himself and his heirs—he is not reliable in this. Even if the receiver were alive, he is not reliable in this, for this was not included in the language of the reliability, as he believed him that no loss occurred. But for everything that is written, reliability is effective; for example, if he wrote to him that he shall be reliable as to how much expenses he put out, it is effective just as it is effective for the main principal, for any condition in monetary matters is valid. And from these details one should judge and understand in all matters. And similarly, if he gave him reliability regarding payment, he is reliable whether he says "I was not paid at all" or whether he says "I was paid half." And if he wrote a general reliability, for example if it is written in the document that the lender shall be reliable regarding everything he shall say, or if it is written therein "and every law of the Torah of reliability is given from me to the holder of the document," he is reliable regarding everything [it appears to me].

A document in which it is written that the lender shall have trust as long as a receipt has not been written upon it, and [the borrower] brought witnesses that he paid it, the borrower is trusted in a case of standard trust, for they only required a receipt against [the lender] himself and not against witnesses. However, in a case of trust like witnesses, only a receipt is effective. And the receipt may even be on a separate paper, for that which is written "as long as a receipt has not been written upon it" does not refer specifically to the document, but rather to the debt, unless he explicitly specified that it must be written on the document and not on a separate paper; then, any condition in monetary matters is valid. And also witnesses are not effective in such a case, since he disqualified even a receipt, and a receipt is perforce either by witnesses or by the signature of the lender, and since he stipulated thus, how could witnesses be effective? However, all this is when it is not explained in the receipt that he received them for this debt, for then [the lender] is trusted to say that he received them for another debt since the receipt is not on the document as he stipulated. But if it is explained in the receipt that he received them for this debt, it is certainly effective, since in any event he admits that he paid him. And if this receipt was not in the signature of the lender but only by witnesses, then if it was standard trust the receipt is effective, and in trust like witnesses it is not effective [as appears to me in the explanation of the words of our teacher, the Rema, in section 5; and see in the Shach and in the Netivot HaMishpat, and examine it closely].

If he gave him credibility and exempted him from an oath, a kabbalat cherem is not included, and he may administer a kabbalat cherem to him unless he explicitly exempted him from this as well. However, a vow is included in an oath, and when he exempted him from an oath, a vow is also included; likewise, if he exempted him from a vow, an oath is also included. Similarly, a handshake is included in an oath, for a handshake is exactly like an oath. And even though regarding the credibility a husband gives to his wife there is a distinction between a vow and an oath, as I wrote in Even HaEzer siman 96, nevertheless, regarding other people there is no distinction. It has already been explained in section 1 that one cannot exempt oneself from a cherem hastat even if he explicitly exempted him, since the curse is not directed toward him and is not in his presence. And even though our custom is that they say this in the presence of the litigant, as I wrote in siman 82, nevertheless, here where he explicitly exempted him, he cannot compel him to be in his presence; rather, he curses generally anyone who has his money in his hand and does not return it to him. And the intention is not to curse regarding the past, but rather regarding the future so that he will return his property to him. And he should not say "anyone who stole it," for the curse does not stand upon the thief alone, but also upon anyone to whom the thief delivered the money. But to say to him directly, "May you be cursed if my money is in your hand and you do not return it to me," he does not have the power to do so since he exempted him. And even regarding the "shaking of the head," where he would say to him, "May your head be as healthy as the truth you are speaking," he does not have the power to say it directly. And the custom now is that the beit din says the cherem hastat and not the litigant.

We do not grant a writ of excommunication to curse in public for anyone who comes to beit din and says, "Write for me a writ of excommunication and give me permission to curse in public anyone who has my money in his possession and does not return it to me." For out of doubt, he does not have the power to shame the public and cast a curse upon them. Rather, we say to him: "If you are claiming against a known individual, bring him to beit din; and if not, entrust the judgment to Heaven in your home against anyone who robbed you, and curse him as you wish, but not in public." Except for the imposition of a ban to compel testimony, which they were accustomed to grant, as I wrote in siman 16, section 5. However, for orphans who came with their father's claim, or a guardian, and said, "We do not know with whom our testator's money is located," they may curse in public. And if someone wishes to leave the synagogue at the time of the act, the beit din should say to him, "Why are you leaving?" And if despite this he did not wish to stay and leaves, we do not prevent him, for even when he leaves, the curse takes effect upon him, and even if he were in the depths of the sea, and even if he did not answer amen.

A document that emerges from the hand of another, and that other person does not know the nature of this document, even if it contains a clause of trustworthiness, it is nothing. The borrower may administer an oath to the lender that it is not repaid and take his money; if he does not wish to swear, they remove the document and hand it over to the borrower. Likewise, the lender may administer an oath to the borrower that it is repaid; if he does not wish to swear, they return the document to the lender without an oath. If this one casts the oath upon that one and that one upon this one, they shall make a compromise between them. If they do not agree to a compromise, the document shall be set aside until Elijah comes or its matter is clarified through witnesses. In siman 65, more of this has been explained.

A document that contains a clause of ne'emanut, and the lender was found to be a denier in one matter—even if not regarding this document, provided his falsehood was clarified by witnesses—he has lost all ne'emanut and must swear, and his legal status is like one who has no ne'emanut. For the matter of ne'emanut is not that he believed him even if he says a falsehood, but rather he believed him because he is a man of truth and will not lie; and now, since it was clarified in some matter that he was established as a denier, his ne'emanut is impaired. Likewise, if he became suspect regarding any transgression, he has lost his ne'emanut [Netivot HaMishpat]. And this is specifically when his falsehood was newly discovered afterward; but if this lender was already established as a denier or suspect regarding a transgression, and nevertheless he gave him ne'emanut, he understood and accepted, and he is believed in all that he says if witnesses do not contradict him in a case of ordinary ne'emanut, and in a case of ne'emanut like witnesses even when they contradict him. For perforce, the ne'emanut that he gave him, his intention was not that he believes him that he will say the truth, since he was established as a denier, but rather perforce the borrower accepted upon himself whatever the lender says even when he says a falsehood [Shach], and it is like the acceptance of a relative or one disqualified from testimony. And if the borrower says that he did not know that the lender was established as a denier, he shall swear that he did not know, and then the lender loses his ne'emanut. And this is specifically when the lender claims with certainty that the borrower knew of his denial; but if he claims "perhaps you knew," the borrower receives by a light oath that he did not know, and the lender loses his ne'emanut [it appears to me].

A document that contains a ne'emanut clause, and the borrower claims that they wrote the ne'emanut without his knowledge: if it is the custom of the place that everyone writes ne'emanut, we do not pay heed to his words, and they may write it even without his knowledge, for anyone who undergoes a kinyan to write a document does so based on the custom of the place, as I wrote in siman 61. And if there is no fixed custom there, but rather many write so without consulting the owners for the sake of shufra desh'tara, if the witnesses are not here, he is not believed; since it is written "and we performed a kinyan from him regarding all that is written and explicitly stated above," he does not have the power to nullify it. And if the witnesses are here and they say that such is the case, that they did not write this by the command of the borrower but only because they saw that in other documents many write thus, we do not rely on the ne'emanut even though it is written therein "and we performed a kinyan etc." and this is not a case of "returning and testifying," since the truth is indeed so, that many write thus without consulting the borrower; and furthermore, they can say that they signed regarding the other matters in the document [Sma]. And even if there is a fixed custom to write thus in all documents, if it is clarified that the borrower did not know of the custom, he is not obligated to fulfill it when they wrote it without his knowledge [Shach]. And all this is when the document is not signed with the handwriting of the borrower, but when he himself is signed upon it, even if he did not know, he has obligated himself, as I wrote in siman 45, 61, and 68 [it appears to me]. And so too, if it is written explicitly "and we performed a kinyan from him regarding all that is written and explicitly stated above," and regarding the matter of the ne'emanut it is explicit—meaning to say that the condition regarding the matter of the ne'emanut was explicit—then the witnesses are no longer believed to say that they wrote it without his knowledge or that they wrote it in error, for once he has testified, he does not return and testify. Therefore, it is a good custom to write in documents a kinyan on the ne'emanut explicitly, and then there is no longer any basis to challenge this. Also, the borrower is not believed to say that it was after the loan and without a kinyan, for presumably it was at the time of the loan or via a kinyan, unless it is known that it was not so, for then the ne'emanut is void, as I wrote in section 4 [Sma subsection 29 and Shach].

The credibility is only effective as long as the borrower is alive and [the lender] comes to collect from him, for then the lender does not need to swear. However, if the borrower died and he must collect from his heirs, the credibility is not effective, for the beit din claims on behalf of the heirs that perhaps their predecessor paid him; and that which he believed him was because he knew that he would not be so brazen against him as to claim twice, but against his heirs it is possible that he would be brazen. Therefore, his credibility is not effective against his heirs unless he explicitly stated that he believes him even against his heirs. Similarly, if he wrote "you shall be believed against me and against those who come in my stead," his heirs are also included. But if he wrote "against me and against those who come by my authority," the heirs are not included [Shach], for in the language of "those who come in his stead" the heirs are included, as they come by his power; but in the language of "by my authority" they are not included, for they are in their own authority when he dies, rather it is from his power that they come.

When he gave him credibility over his representatives, he is believed against them even when the heirs say, "We paid him after the death of our testator," they are not believed [ibid.]. Regarding a ketubah, whether the credibility is effective against the heirs has been explained in Even HaEzer siman 98; and regarding a lender and borrower, the credibility is effective even according to that opinion there that in a ketubah it is not effective against heirs [Urim VeTummim].

Even when he believed the lender against himself and against his heirs, nevertheless, against the heirs of the lender it is not effective. Therefore, when the lender dies during the lifetime of the borrower or after the death of the borrower, the heirs of the lender do not collect from him or from his heirs without the oath of the heirs, that they shall swear an oath: "Our father did not command us that this document is paid." And the reason is that it is true that he believed the lender, but when he died, he can say that in truth, if their father were alive, he would have admitted to him that he paid him. And if it is written in the document an explicit trust that exempts him and those who come from his power, from him and from those who come from his power, the heirs of the lender collect without an oath; or if he wrote that he gives trust to the holder of the document and to those who come from his power or to his heirs, for any condition in matters of money is valid.

If the trust was only against him and not against his heirs, and the debtor died during the lifetime of the creditor, and afterwards the creditor died, his heirs do not collect at all. For since the creditor was unable to collect from the heirs of the debtor without an oath, a person does not bequeath to his sons money that requires an oath. The reason for this law and its details will be explained in siman 108 with the help of Heaven.

Reliability is not effective regarding purchasers who bought from the debtor, and likewise regarding his gift recipients [Netivot HaMishpat], even if he explicitly stipulated that he may collect from purchasers without an oath, because we concern ourselves with collusion [Sma]. There are those who disagree regarding this, since the reliability preceded the purchasers and he explicitly believed him against them that he need not swear; therefore, if the creditor seized from purchasers and does not wish to swear, the purchasers cannot extract it from his hand, as the creditor can say "I stand by" this opinion [Shach]. And if there are two creditors, an earlier one and a later one, and there is nothing for both of them to collect from except for one, the earlier one shall not collect until he swears to the later one that he was not paid by the debtor. The details of the laws in this matter will be explained in siman 111 with the help of Heaven.

When a beit din pays the creditor not in the presence of the debtor according to the manner that will be explained in siman 106, the ne'emanut that he believed him regarding himself is not effective, for the beit din can say to him that perhaps he only believed you when you collect in his presence, for he was certain that you would not be so brazen toward him as to collect twice, but not in his absence. Furthermore, perhaps he has a receipt from you. And if he wrote to him, "You shall be believed against me and against my representatives," he does not need to swear, for the beit din, after all, comes from his power. But when he wrote, "and against those who come with my permission," he must swear, for the beit din does not come with his permission, but rather they come against his will to collect his debt [so it appears to me].

All the reliability that we have explained applies when the borrower trusted the lender. However, regarding reliability where the lender trusted the borrower—that whenever he says he paid him, he shall be believed—there are other laws involved. Specifically, if it is a debt documented by a shetar, the borrower is not exempt without an oath unless he explicitly stated that he shall be believed without an oath. This is because the lender can say, "I only trusted you against the shetar, for without the reliability I would have sworn and collected; I trusted you so that you would swear and be exempt, like the law of an oral claim where the defendant swears a hesset oath and is exempt." And even though it was explained in section 1 regarding the reliability of the borrower to the lender that the lender is believed without an oath even in an oral claim, and we do not say that the borrower may say to him, "I only trusted you so that you would swear and collect," because an unspecified reliability implies without an oath, as is written there—why then do we not say this also regarding the reliability of the lender to the borrower in a shetar? However, in truth, they are not comparable. For we have already explained in section 2 that wherever there is a migo regarding the essence of the reliability, we say migo. And here, does the lender not have a migo regarding the essence of the reliability? For the shetar is in his hand, and he could have hidden the shetar and claimed from him orally, and the borrower would have been obligated to swear a hesset oath; therefore, he is also believed to say that he trusted him in this manner, specifically that he must swear. Therefore, if there is a writing in the hand of the borrower from the lender giving him reliability, the borrower does not need to swear [Netivot HaMishpat, subsection 1]. And in an oral loan, in any case the borrower does not need to swear, for if not so, what benefit is the reliability? For even without his reliability, the borrower would only have needed to swear and be exempt. And even if there are no witnesses to the reliability, since the lender admitted that he trusted him, it is obvious that his intention was without an oath. And even though he has a migo to deny the reliability, it is like a migo in the place of witnesses, for we are witnesses that this is how he trusted him, for if not so, what did he benefit him with his reliability? [It appears to me].

And there is a further distinction, for regarding the credibility of the borrower to the lender, we explained that a general credibility is only effective for the borrower and not for his heirs. But regarding the credibility of the lender to the borrower, a general credibility is effective even regarding the heirs of the lender, such that the borrower is credible to say "I paid your decedent," and if it is a debt with a shtar, he shall swear as I wrote in the previous section. And the reason appears to me: granted, there we say to the lender "swear and take," and what damage is there to you? For we concern ourselves that perhaps he only believed you against himself. But here, how can we say to the borrower "pay the heirs," or in a debt by oral agreement "swear and be exempt, and if you do not wish to swear, you shall pay"? For behold, he cries out like a crane, "I paid him and I did not concern myself with receiving the shtar or taking a receipt because I relied on the credibility," and how can we obligate him to pay twice according to his words? For behold, he is not coming to extract [the Taz and the Netivot HaMishpat were pressed on this, see there].

When the lender believed the borrower, that he shall be believed regarding the shtar to say "I have paid," he is believed even within the time. And if the borrower says that on this shtar he paid a portion of it, and the lender says that nothing was paid, he pays the portion that he admitted and swears a shevuat hesset on the remainder, for the trust exempted him from a Torah oath of one who admits to a portion. There is no difference in this between one who admits to a portion and one who denies everything, for on everything he swears a shevuat hesset. And if he specified that he shall be believed without an oath, he does not swear at all, even in a case of admitting to a portion, for exemption from an oath implies even from a shevuat hesset [it appears to me]:

The lender cannot collect with this document from purchasers or recipients of a gift; even if the borrower said "I have not paid," they are not believed, for we fear a conspiracy. Since he gave the borrower credibility, the document is weakened, and we plead on behalf of the purchasers and recipients of a gift that perhaps he paid.

If the debtor died and the creditor came to collect from the heirs of the debtor, some say that even within the time [of the loan] he cannot collect from them, for the beit din claims on their behalf: perhaps your benefactor paid you. For we have a general rule that whatever he could have claimed for himself, we claim on behalf of his heirs. And there is only a cherem stam upon the heirs that they do not know that their father did not pay. But as for the oath of the heirs, they do not need to swear, for an heir does not swear to be exempt but rather to take; and see what I wrote in siman 69, section 9. And some say that even after the time [of the loan], the heirs are obligated to pay a debt documented in a shtar. For while it is true that we claim on behalf of heirs, this is specifically regarding that which their benefactor would have been believed due to the essence of the matter; but here, he would not have been believed except because the creditor trusted him, and the creditor can say: "I trusted your father and not you, and I say that your father never said that he paid me." However, if they brought witnesses that their father said before them that the shtar is paid, they are exempt even from a cherem stam since there are witnesses. And even though he could say, "I only trusted him when he would say it before me because he would not dare to lie to my face," nevertheless, one cannot extract money because of this, as I wrote in section 21; and furthermore, a father will not lie to his children [Sma].

A document in which it is written that "Ploni is indebted to Ploni and Ploni," or in which it is written "to Ploni or to Ploni," and it is written therein a clause of ne'emanut to whoever produces the document, and it is not known that the debt belongs to a partnership, and one of them produced the document and claims the entire debt, saying that the debt is entirely his and that the fact that the name of the other Ploni is written in the document was for some reason, and the borrower says, "I paid the other Ploni," and the other admits to him—nevertheless, he is obligated to pay the one who produced the document, since he gave him ne'emanut, and it is not within his power to say that he paid the other. For even if the truth is so, he shall claim it from him; and why should he have paid when the document was not in his hand? He must pay the producer of the document the entire debt. But if it is known by witnesses that they are partners in the debt, or they admit that they are partners, and that other person admits that he paid him the entire debt, then if that other person has assets, the beit din descends to his assets and pays his fellow his portion. And if the one who admits has no assets, the borrower must pay the producer of the document his portion, since the document is in his hand; but the portion of the other he does not need to pay him, even though he gave him the ne'emanut, since in any case they are partners, for by law he must pay each one his portion, as will be explained in siman 77. And even if the producer says that he purchased the other's portion from him, he is not believed in this, for the ne'emanut is only regarding a matter that is not known, but regarding a matter that is known, the ne'emanut is not effective and he is not believed. And the fact that the document is in his hand is no proof that now the entire debt is his, for it is known that partners are not meticulous with one another [Netivot HaMishpat]. And if there is no ne'emanut in the document, he does not need to pay one without his fellow, as is written there. And if post facto he paid one of them the whole amount: if he paid the producer of the document, the other cannot claim from him even if it is known that they are partners in the debt, since he paid the producer of the document and the other had entrusted the document to him; therefore, post facto his payment is a valid payment. But if he paid the other, and this one with the document came afterward and claims everything, the half that is his he is certainly obligated to pay if the other has no assets or does not admit that he received everything. But the half belonging to the other he is not obligated to pay him, even if it is not known clearly that they are partners, for since both are written in the document and there is no ne'emanut to the producer of the document, the borrower can say that they are partners and he paid him his portion [it appears to me].

Reuven held a shtar against Shimon, and Reuven died before the time of payment arrived. The heirs sued Shimon, and Shimon claimed that he had already paid Reuven during his lifetime, and he shows the beit din a written receipt with witnesses signed on it, and he demands from the heirs that they return the shtar to him. The heirs of Reuven cry out that the document is a lie and the witnesses are liars, and they show proven justifications that it is as they say. The beit din shall perform a thorough inquiry and investigation according to the law of a fraudulent case. And if it appears to them that the borrower and the witnesses committed craftiness and fraud with the written receipt, even though according to the law they have no basis with which to disqualify the witnesses, nevertheless, since there are proven evidences that it is craftiness, they shall act as is written in siman 15; see there. But if after the investigation and inquiry it appears to them that the testimony is true and it is possible for it to be according to their words, the heirs are obligated to return the shtar to the borrower, even though it is within its time and it is not the way to pay within the time; nevertheless, it is not among the impossibilities. And the great principle in this is that the beit din shall be God-fearing and discerning in the matters of the world, and they shall bring the matter to its truth as is written there. And even if the written receipt is after the time of payment, if the heirs cry out that it is a lie, they shall also perform an inquiry and investigation as is written there. And the sages, of blessed memory, stated a great rule: a judge has only what his eyes see, provided that his intention is for the sake of Heaven, and then "God stands etc." and He will save to bring the matter to its truth.