Siman 75

One who sues his fellow in beit din and says to him, "I have a maneh in your hand," the beit din says to him: Clarify your words, from what is he indebted to you? From a loan, or from a deposit, or did he damage you? For behold, even witnesses are commanded to clarify their words, and all the more so the litigant himself; and perhaps he is mistaken in his claim and believes that he is indebted to him when in truth he is not indebted to him, and the beit din will say to him, "You are mistaken in your claim." And so too the respondent, when he answers, "I am not indebted to you," the beit din tells him to clarify his answer, for perhaps he is mistaken and believes that he is not indebted to him when in truth he is indebted to him. For example, if he gave the claimant a gift corresponding to the debt and believes that with this he is exempt from his debt; or that he delivered the debt not into the hand of the lender himself and it did not reach the hand of the lender, and he believes that he is exempt with this; or that the claimant waived the debt to him in a manner where according to the law the language of waiver is not effective here, and similar cases. And even if the claimant or the respondent was a great sage and expert in the law, nevertheless they tell him to clarify his words, and what will he lose by this? And if he is a sage, he knows that a person does not see his own liability. And if the claimant does not want to clarify his words, if it appears to the beit din that there is deceit in this, they do not attend to him. And if the respondent does not want to clarify his words and it appears to the beit din that there is deceit in this, he shall lose, and they command him to pay. However, if the beit din sees that there is no guile or deceit in this, but rather that the claimant or the respondent is unable to clarify the matters, there is no concern in all of this, for the entire primary reason for the clarification is in order to bring the law to its truth because there are many deceivers; and since they understand that in this there is no deceit, neither of them has lost. And if the beit din is in doubt whether there is deceit in this or not, they shall not rule for the respondent a shevuat hesat to deny the claims of the claimant, because shevuat hesat is an enactment of the sages of blessed memory, and they only enacted it for a clarified claim if the respondent wants the claimant to clarify [Shach].

It is forbidden to plead falsely in order to pervert the judgment or to delay it, even if he is in the right. For example, one who was a creditor of his fellow for a maneh should not plead against him for two hundred so that he will admit to a maneh and become obligated in an oath, and he will then roll upon him another claim that he would not have been able to obligate him in an oath for on this claim without the rolling. And so too regarding a defendant, when he knows that he is liable to the plaintiff for a maneh and he sued him for two hundred, he should not say, "I will deny everything to him in beit din so that I will not be obligated to him in a Torah oath, and between me and him I will admit to him regarding the maneh." And so too, three who sue one person, one should not be the plaintiff and two the witnesses. And in all this and its like, even though he does not wish to rob, it is said regarding this: "From a false matter keep distant" [Shevuot 31].

An incident occurred regarding Shimon who produced a document against Reuven stating that he owed him a maneh, and Reuven claimed that it was paid and brought proof that Shimon swore to the tax collector that he would write for him a memorandum of all the assets he possessed, and he did not write this debt in the memorandum. The Rashba, of blessed memory, ruled that the law is with Shimon, and there is no proof from the fact that he did not write it in the memorandum, for perhaps he forgot about this [Beit Yosef]. From this one may learn that we do not take proof from such matters unless the proof is clear; but as long as it is possible to attribute it to some cause, even to forgetfulness, we attribute it. And so too, if a person spoke words before a beit din from which one could infer something to his disadvantage, we do not infer to his disadvantage unless he said it explicitly, and we attribute it to him having spoken in a foolish manner [Darkhei Moshe 2]. And one must deliberate much in such matters, and the judge must judge this according to his understanding [it appears to me].

One who claims a maneh from his fellow and his fellow denies everything is obligated to swear a shevuat hesset. This oath is of rabbinic origin, for according to the Torah he is not obligated in an oath except in a case of partial admission, where he admits to at least a perutah. This matter, that the Torah exempted in a case of total denial and obligated in a case of partial admission, has no reason and is a decree of the Torah [Tosafot, beginning of Bava Metzia]. Just as the Torah exempted from an oath regarding land, slaves, contracts, and consecrated property, as will be explained in siman 95, and there is no reason for this—for what difference does it make to me if he claims movables or if he claims land—rather it is a statute and a decree, so too regarding partial admission and total denial. There is a practical difference between a shevuat hesset and a Torah oath, as I wrote in siman 87. Therefore, one should not wonder how the sages obligated an oath in a case where the Torah exempted, for it is certainly so that they did not obligate him in a severe oath like that of the Torah. Why did the sages institute this? For the sake of the order of the world, for if not so, when one borrows money from his fellow he would deny it to him, and there would be a locking of the door before borrowers. And even though there is a remedy for this, that he should borrow with a contract, nevertheless, what shall we do for other matters of negotiation in the world? Commerce would not be sustained if we were to exempt one who denies everything from an oath. This is the primary reason for all the oaths that our sages, of blessed memory, instituted. Also, let it not be difficult in your eyes how the Torah obligated an oath for a partial admission, for does he not have a migo, since if he wanted he could have denied everything? For this is not a good migo, as a person is not able to be so brazen before his fellow to deny everything when his fellow knows his lie, and it is better for him to admit to part than to deny everything. Furthermore, there are those who say that we do not say migo to be exempted from an oath, as I wrote in the laws of migo in siman 82. Likewise, one should not ask what benefit there is in the oath, and how we give an oath to one who is suspected of stealing—saying that just as he is suspected regarding money, he is also suspected regarding an oath, for what difference does it make to me the prohibition of "do not steal" or the prohibition of a false oath? And even though there are people who fear a false oath more than the theft of money, nevertheless, how can we rely on this and initially give an oath to one who is suspected regarding money? For the truth is that certainly if this man is a definite thief, we do not give him an oath, as I wrote in siman 92. But in a case of partial admission or total denial, we hang it on the possibility that his intention is not to rob his fellow, but rather that now he has nothing with which to pay and he is evading the claimant so that he will not press him, and when he has money he will pay him. Therefore, they cast an oath upon him so that he would admit. See in section 12.

If one witness testified according to the words of the plaintiff, the defendant is obligated to take a shevuat de-oraita to contradict the witness, as it is written: "One witness shall not rise up against a man for any iniquity or for any sin," and the tradition has come that for iniquity or sin he does not rise, but he does rise for an oath. And if the witness testified according to the words of the defendant, he exempts him from swearing, whether from a shevuat de-oraita in a case of partial admission or from a heiset in a case of total denial. And it is a kal va-chomer, for the power of the one in possession is greater than the power of the one not in possession; and since if the witness testified according to the words of the plaintiff, who is not in possession, he obligates the defendant in an oath, all the more so when the witness assists the defendant, who is in possession, that he exempts him from an oath incumbent upon him. And even though there are those who disagree on this, nevertheless, this is the primary ruling in law, and more will be explained regarding this in siman 87. And if the plaintiff brought a witness who testifies according to his words and the defendant brought a witness who testifies according to his words, the law returns to as if there are no witnesses at all, and the defendant swears, whether a shevuat de-oraita in a case of partial admission or a heiset in a case of total denial.

That which we have said, that in a case of one who admits to a portion he is obligated to take a shevuat de-oraita, this is specifically when he does not return to him at this time the portion that he admitted to. But if he returns to him immediately the portion that he admitted to and says to him, "Here is that which I admitted to," behold, regarding the remainder he is a denier of everything and does not swear except for a shevuat hesset. And more will be explained regarding this in siman 87; see there.

And that which we said, that one who admits to a part is obligated in a shevuat de'oraita, this is specifically when the claimant claimed from him. But if he did not claim from him, and he himself says, "Your father had a maneh in my possession and I gave him fifty," or "You had a maneh in my possession and I paid you fifty," he is exempt even from a shevuat hesset, for he is like one who returns a lost object, since no person claimed from him. Even if the claimant says, "You have now reminded me of this debt, and you did not pay me or my father anything," he does not swear even a shevuat hesset; since he admits that were it not for him mentioning it, he would not have remembered, he is like one who returns a lost object. But if the claimant answers him, "I knew of this debt and it was in my mind to claim from you," he is obligated to swear a shevuat hesset. And some say further that if it appears that the defendant acted with cunning in that he admitted before he was claimed from, he is obligated even in a shevuat de'oraita, and this matter depends on the understanding of the dayan. And all this is regarding one who admits to a part, but if he says, "Your father or you had a maneh in my possession and I paid the entire maneh," if the claimant answers, "I do not remember anything of this," it is obvious that he is exempt from any oath and also from a kabbalat cherem. But if he answers him, "You have now reminded me, and I remembered that you did not pay me or my father at all, or you did not pay in full," he is obligated to swear a shevuat hesset, for there is no "return of a lost object" here since he did not admit to him anything [it appears to me]. And it is possible that even if he answers him, "I do not remember at all if money reached me or my father from you, however this I know clearly, that you never gave me or my father money," he also must swear, even though he does not claim from him with certainty; for since according to his words he borrowed and paid, and regarding the payment he denies him with certainty, it is like claiming from him with certainty [and so it appears from Gittin 51a]. And see in section 15 and 23 that there are those who disagree on this.

Just as one who admits to a portion of the claim is obligated to swear a shevuat de'oraita, so too if he denied everything and witnesses testify to a portion of the claim and regarding the rest they do not know, he is likewise obligated to swear a shevuat de'oraita regarding the rest. For it is impossible that the admission of his own mouth should be greater than the testimony of witnesses; behold, in several matters witnesses obligate a person in that which he himself, when he admits, is not obligated in them, such as regarding knasot, for one who admits to a knas is exempt and witnesses obligate him, and similarly regarding deaths by beit din [Rashi Makkot 5b and Tosafot Zevachim 71a]. And similarly, to make oneself a rasha, he is not believed. And specifically when they testified regarding a loan by word of mouth and without a kinyan; but if they testified regarding a shetar or regarding a kinyan which is like a shetar, they do not obligate him in a shevuat de'oraita. And the reason is that according to what was explained in section 6, that regarding "heilech" the Torah did not obligate an oath, it follows that there is no shevuat de'oraita here, for every shetar is like "heilech" since he cannot deny it. And even if he does not have land such that we would say it is as if collected, nevertheless, regarding the sum that is in the shetar, it is not in the category of denial at all; it turns out that the essence of the claim and the denial is regarding what is not explained in the shetar, and in this he denies everything. And there are those who disagree and say that when he does not have land, since he denied it and the witnesses revealed the matter, behold this is denial and admission to a portion by way of the shetar, as with every obligation of a portion by way of witnesses. But when he has land, certainly it is like "heilech," for behold, beit din descend to the land and pay the lender, and the essence of the denial is regarding the rest. And so one should instruct [Shach].

That which we said, that when witnesses testified regarding a portion he is obligated in a shevuat de'oraita, this is specifically regarding a loan. However, if he claimed a pikadon, that he deposited in his hand objects worth a maneh or bundled and sealed coins in a manner that it is forbidden for him to use them, as will be explained in siman 292, and he denies it, and witnesses testify that they saw in his hand a portion of these objects or a portion of these coins at the time that he denied, he is established as a liar and we do not grant him an oath, as I wrote in section 4. For the primary reason the Torah relied on an oath is because we hang the matter on the assumption that he does not want to rob him and is merely putting him off until he has money and will pay him; and even if they saw money in his hand at the time he denied, we hang the matter on the possibility that perhaps they belonged to others or were necessary for him for some business. But a pikadon that is forbidden for him to use, and the witnesses saw a portion of it and he denies it, certainly his intention is to rob. And since he is suspected of robbery, he is also suspected of an oath, and his law is as will be explained in siman 92, that one who is suspected regarding an oath, the opposing party swears and takes. And we do not say that since he was established as a liar he should pay without the oath of the opposing party, for in truth, regarding that which he was established as a liar—which is the portion that the witnesses testified about—he pays without the oath of the opposing party, and the oath is regarding that which they did not testify, and regarding this he was not established as a liar, and his law is like one who is suspected. And this is specifically when the witnesses saw a portion of the pikadon at the time of the denial, but if they did not see it, even though they testify that he gave him a pikadon and he did not return it to him, he is not established as a liar, for we hang the matter on the assumption that it was lost by him and he has nothing now with which to pay, or that he thinks he will find it and is putting him off now, and his intention is not to rob, just as we said regarding a loan.

And just as witnesses obligate the defendant to a shevuat de-oraita based on their testimony regarding a portion of the claim, so too if he denied everything and they came to beit din, and from within the arguments the beit din recognized that he is liable for a portion of the claim, it is like one who admits to a portion and he is obligated to swear regarding the remainder a shevuat de-oraita. Witnesses are not superior to a beit din. And there is no difference between when the beit din sees that according to the calculation of the defendant himself he owes him a portion of the claim, and when the law obligates him, such as if the defendant says that he paid him the entire debt, that on such-and-such a day he paid him this much and on such-and-such a day this much, and he also calculates for him what the plaintiff was a guarantor for him to someone else, and the beit din sees that regarding the guarantee he cannot deduct it for him, such as if he was a guarantor after the giving of the money; and likewise if he calculates for him what he paid in interest on behalf of the plaintiff and the beit din sees that according to the law he does not need to pay him the interest; or such as if he says "I do not know if I paid you" where he is obligated to pay as will be explained; and likewise in all such cases, he is obligated to swear a shevuat de-oraita. However, if he became liable for a portion because he is not believed in his words according to the law, it is not called an admission to a portion, since according to his words he owes him nothing, but rather the beit din does not believe him, as in the law of "since he cannot swear, he pays" and the like. And likewise, specifically when regarding the remainder it is not clear to the beit din whether he owes him or not; but when it becomes clear to the beit din from within their arguments that he is liable for a portion and for the remainder he is not liable to him, a shevuah is not relevant at all, for just as they are like witnesses regarding the portion for which he is liable, so too they are like witnesses regarding the remainder that he is not liable to him [see Ketzot HaChoshen and Netivot HaMishpat].

There is no difference regarding one who denies everything, whether he denies him by saying he was never obligated to him, or if he says he was obligated to him and repaid him, or if he says that the claimant has against his claim objects that he gave him as a deposit and the claimant says "these things never happened," or if the defendant says "you forgave me the debt" or "you gave it to me as a gift" and the like; since in any case, according to the words of the defendant, nothing is due from him to the claimant, he is one who denies everything and is exempt from a shevuat de'oraita and swears a shevuat hesset. And even when two witnesses testify that he lent to him and they do not know if he repaid him or not, he is believed with a shevuat hesset to say "I have in your possession an amount corresponding to the debt," or "you forgave me," or "you gave it to me as a gift," and the like. And if he claims a claim of a deposit as I have written, and the claimant says "it is true you had a deposit in my possession but the deposit was lost by accident," the claimant must swear the oath of guardians that it was lost by accident, and when he swears, the defendant automatically becomes like one who admits to a part, according to what was explained in the previous section, for anywhere that one is obligated by law for a part, he is like one who admits to a part and is obligated to swear a shevuat de'oraita.

There is no distinction regarding one who admits to a portion or one who denies everything, whether the claim was from a loan, a deposit, theft, robbery, or from a partnership or agency. In all of these, if he denies everything, he does not swear a biblical oath, and when he admits to a portion, he is obligated to swear a biblical oath. Similarly, in all of these, when there is one witness who testifies according to the words of the claimant, even though the defendant denies everything, he must swear a biblical oath to contradict the witness. And one should not raise a difficulty from what I wrote in section 4, that the primary reason for the oath is because he is merely stalling and does not intend to rob, and without this we do not impose an oath upon him; if so, in cases of theft and robbery where he admits to a portion, how do we impose an oath upon him? For it can be said that even in this we say that perhaps he has some doubtful monetary claim against the claimant, and therefore he robbed him or stole from him until he examines his accounts, and when he sees that nothing is due to him, he will return it to him; therefore they imposed an oath upon him [Sma]. And although this matter is very far-fetched to depend upon, nevertheless, since for many people the prohibition of an oath is more severe than the prohibition of robbery, therefore, even though on this alone we could not rely to impose an oath on a clear robber, nevertheless, anything we can depend upon, even in a far-fetched manner, to say that for the time being he is not suspected regarding money, we depend upon for this reason. And all the more so that one witness cannot disqualify a person from an oath. But when there are two witnesses that he stole or robbed, he is certainly disqualified from an oath, and his law is like that of a suspect in siman 92; for with two witnesses we do not depend upon the far-fetched concerns that we depended upon in his own admission—which has another reason, that a person does not make himself out to be wicked—or by the word of one witness, who does not have the power to disqualify him. But by the word of two witnesses, he is disqualified until he returns in repentance [it appears to me].

All that has been explained until now is when the defendant responds to the plaintiff with a claim of certainty, where he denies everything or admits to a part. However, when the defendant responds to him with a claim of uncertainty—if he responds to him, "I do not know at all if you lent to me" or "if you deposited with me," and likewise in all types of claims when he responds to him, "I do not know if I am liable to you"—he shall swear a shevuat hesat that he does not know and is exempt. And even though the plaintiff claims with certainty and the defendant responds with uncertainty, we do not say "certainty and uncertainty, certainty is preferable" to extract money, as will be explained in siman 223. And even if he initially claimed a claim of certainty, "You have nothing in my possession," and when they obligated him to swear a shevuat hesat he retracted and claimed uncertainty, nevertheless, this is not a retraction; for what difference does it make to me if he swears a shevuat hesat that he does not owe him or that he does not know that he owes him? But if he said previously, "I paid you," and they obligated him to swear a shevuat hesat, and he retracted and said, "I do not know if you lent to me," he must pay. For since he said previously, "I paid you," he has admitted that he borrowed in any event, and when he retracted and claimed, "I do not know that you lent to me," it is as if he says, "I know that you lent to me and I do not know if I paid you," for which he is liable to pay, as will be explained [it appears to me]. And all this is according to the law, that the beit din cannot obligate him more than an oath when he says, "I do not know if you lent to me," but the defendant himself, if he wishes to fulfill his duty toward Heaven, does not fulfill it with an oath and is obligated to pay. Since this one claims against him with certainty and for him it is a doubt, he is liable to pay when coming to fulfill his duty toward Heaven. And likewise, if the plaintiff seized from him without witnesses, he does not need to return it to him, for he is believed with a migo that if he wanted, he could have said, "I did not seize." But when he seized with witnesses, where he has no migo, he must return it to him [Netivot HaMishpat], and see what I wrote at the end of this siman.

And if the defendant responds to the plaintiff: "I know that you lent to me, but I do not know if I repaid you," he is liable to pay by law. Since the obligation is certain to him and the repayment is a doubt, a doubtful repayment does not remove a certain obligation. And regarding this we say "certain and uncertain, the certain is preferred," especially since the "uncertain" is a poor claim, for how can he not know if he repaid him or not? And even when the doubt of repayment precedes the obligation, such as when he says: "I know that you lent to me in Sivan, but it is a doubt to me if you did not borrow from me previously in Iyar," he is also liable to pay by law. Since in any case the obligation is certain and the repayment is a doubt [ibid.], and it is a poor claim. And he cannot even impose an oath upon the plaintiff, for an oath is not imposed on a claim of doubt, but he only has the ability to impose a herem stam on anyone who takes money from him unlawfully. Nevertheless, if the defendant retracted and said: "I remembered that I repaid you," he is believed with an oath, and this is not a contradiction to the first claim, for it is the way of the world that people forget and then remember. And he did not say previously that he certainly did not repay him, but only that he did not remember, and now he has remembered. And so too in any place where one becomes liable because he does not know—as will be explained regarding one who is obligated to swear and cannot because he says "I do not know"—he can afterwards say "I remembered." But if he retracted and said: "I do not know if you lent to me," he is not believed. Since he previously said "I know that you lent to me" and only regarding the repayment did he have a doubt, he has already admitted that he borrowed and he cannot retract. And see what I have written at the end of this siman.

And specifically when a person sued him, but without a claim, rather he says to his fellow on his own: "I know that you lent to me and I do not know if I repaid you," or "you deposited with me," or "I robbed you," or "I stole from you and I do not know if I returned it to you," he is exempt by the laws of man even from an oath, since there is no claimant here. However, if he wishes to fulfill his obligation toward Heaven, he is obligated to pay, for regarding the laws of Heaven there is no difference whether the other party sues him or not, since the debt is certain to him and the repayment is a doubt to him. And by the laws of man he is exempt even if the claimant responds to him: "I do not know if I lent to you, but it is clear to me that you did not repay me," nevertheless he is exempt from paying, only that he must swear a shifting oath [Shach]. And if the claimant responds to him: "I know of this, and it was in my mind to sue you," or even if he said: "you have reminded me now and I remembered that you borrowed from me and did not repay me," he is obligated to pay, since in any case there is a claim of certainty and a claim of doubt here, and he admits that he certainly borrowed, and his claim of doubt is very poor, for how does he not know if he repaid him or not? Therefore, in any place where the defendant admits to the debt and regarding the repayment he claims doubt, and the claimant sues him with a claim of certainty, even if the defendant's claim preceded the claimant's claim, "certainty and doubt, certainty is preferred" in such a case [Imrei Binah, subsection 7]. And since the entire essence of his obligation to pay is because his doubt is a poor claim, as has been explained, therefore, if according to the matter he was not expected to know if he repaid him or not, and it turns out that his claim of doubt is a good claim, he is not obligated to pay even when the claimant sued him first, and he is exempt with a shifting oath that he does not know; for with a good doubt we do not say "certainty and doubt, certainty is preferred." And regarding "I do not know if I repaid you" and "I do not know if you lent to me," if no person sued him, he is exempt even from fulfilling his obligation toward Heaven, since he has a doubt regarding the obligation and no person is suing him, it is close to the matter that he is not obligated, for a claimant does not forget to sue for his debt. And likewise, if Reuven says to Shimon: "I owe you a maneh," and Shimon responds to him: "you owe me nothing," Reuven is exempt even if he knows clearly that he owes him, and even to fulfill his obligation toward Heaven he is exempt [Bach], for it is as if he waived it to him, and waiver does not require a kinyan. And therefore, even if Shimon says afterward: "I remembered and I scrutinized the account and it is due to me from you," he is not believed, for he should have scrutinized beforehand, for most often one to whom money is due scrutinizes well and does not forget; therefore we hang it on the fact that even beforehand he knew, but rather that he waived it to him, and now he wants to retract. Therefore, if Reuven knows regarding Shimon that he does not lie, and it is close to the truth that it is so that he forgot and afterward remembered, he is obligated if he wishes to fulfill his obligation toward Heaven. And likewise, if the beit din understands according to the matter that initially Shimon did not know of this debt, they obligate Reuven by the law to pay, such as there are major businessmen or very wealthy people who are capable of forgetting about some debt; if they say afterward that they remembered, he is obligated to pay, and we do not say that he waived it to him. And likewise in a matter where waiver is not effective, such as with a deposit of objects and the like, as will be explained in siman 241, if it is clear to Reuven that he is liable to him, he is obligated to pay by the law [it appears to me].

It has already been explained several times that in any place where two witnesses obligate payment, one witness obligates an oath from the Torah, that he must swear a shevuat de'oraita to contradict the witness. It has also been explained that in any place where one is obligated in an oath from the Torah and is unable to swear the oath that the Torah obligated him, he must pay. The reason is that since the Torah obligated him in this oath to exempt himself, if he is unable to swear and exempt himself, he must perforce pay. Therefore, if the plaintiff says, "I have a maneh in your hand," and one witness testifies according to his words, if the defendant contradicts the witness and says that he did not borrow from him, he swears a shevuat de'oraita to contradict the witness. However, if he says, "I do not know," he is obligated to pay. There is no difference between when he says, "I do not know if you lent to me," and when he says, "I do not know if I repaid you"; since he cannot swear, he pays. Even though the witness does not testify that he did not repay him, nevertheless, he is not believed with a migo that he could have said he repaid him, since he now claims "I do not know," and the Torah did not obligate him to swear that he does not know, and the oath that the Torah did obligate him he cannot swear; it is a case of "obligated in an oath and unable to swear," and he pays. This is specifically when the witness testifies that he certainly lent to him, but if he testified that he saw that he counted out money to him and does not know if it was a loan or another matter, it is nothing [Shach], since he does not testify exactly according to the words of the plaintiff. Similarly, if the witness testified exactly according to the words of the plaintiff that he lent to him, and the defendant responds, "I borrowed and I repaid," if the witness does not contradict the repayment, it is certain that the defendant is believed with a shevuat hesset, for even when two witnesses testify to a loan, he can say "I repaid," as we establish: One who lends to his fellow in the presence of witnesses does not need to repay him in the presence of witnesses. Similarly, even if he does not say "I repaid" but instead claims, "I have [assets] in your hand against the debt," or claims, "You waived it for me," or "You gave it to me as a gift," he is believed with a hesset through a migo of "I repaid," for since he is not obligated in a shevuat de'oraita by the word of the witness, we say migo. However, if the witness contradicts the repayment, such as if he says that his hand did not move from his hand and he knows that he did not repay him, or if he says that it is still within its time and the presumption is that a person does not repay within his time—if the defendant contradicts him and says "I repaid," he swears a shevuat de'oraita to contradict the witness, for what does it matter to me if he contradicts the witness regarding the essence of the loan or if he contradicts him regarding the repayment? But if he does not say "I repaid" but instead claims, "I have [assets] in your hand against the debt," or "You waived it for me," or "You gave it to me as a gift," he is not believed and is obligated to pay. Even though he has a migo of "I repaid," nevertheless, since regarding "I repaid" he would have been obligated in an oath to contradict the witness, and in these claims there is no shevuat de'oraita since the witness does not contradict them, and these claims are only through a migo of "I repaid," we do not say migo, and he is unable to swear and pays. For as long as he has not sworn to contradict the witness, the witness stands in the place of two witnesses, and just as if two witnesses were testifying that he did not repay he would not be believed in these claims because there is no migo—as we do not say migo in the place of witnesses—this exact law applies to one witness as long as he has not sworn to contradict him. Therefore, we judge in this case: "Since he is unable to swear, he pays." Similarly, if the defendant initially claimed, "These things never happened," and the plaintiff brought one witness that he borrowed from him, and the defendant retracted and said, "I borrowed and I repaid," we judge in this case as well the law of "obligated in an oath and unable to swear," and he pays. The reason is also for the reason that has been explained: that just as if there were two witnesses to the loan he would have to pay because he was established as a liar—for anyone who says "I did not borrow" is like one who says "I did not repay"—so too with one witness, when he does not swear to contradict him, such as in this claim where he retracted and admitted to the loan and the witness does not contradict him regarding the repayment, his law in this is like two witnesses, and he is established as a liar and is obligated to pay. There are those who disagree on this and hold that since with two witnesses his obligation was only because he was established as a liar, and by the word of one witness it is impossible to establish him as a liar, we do not judge in this the law of "since he is unable to swear, he pays." Our teachers, the authors of the Shulchan Aruch, established the halacha according to the first opinion. Similarly, when he sues him for seizing an object from him and brought one witness who testifies according to his words, and the defendant responds, "It is true that I seized it, but the object is mine," we judge in this case as well the law of "obligated in an oath and unable to swear," and he pays. The reason is because a person is not believed to seize an object from the hand of his fellow and say "it is mine" [Rashbam, Bava Batra 34a]. If he had claimed "I did not seize it," he would have sworn to contradict the witness, and now that he admits this to the witness and claims the claim of "it is mine," and in this the witness does not contradict him, it is impossible for him to swear this oath. As long as he does not swear to contradict him, his law is like two witnesses, and just as if two witnesses testified to the seizure of the object he would be obligated to pay, so too with one witness as long as he does not swear to contradict him. This is specifically when the witness sees the object now in his hand, but if he did not see it, the defendant has a migo of "I returned it to you," for even with two witnesses he could have said "I returned it to you," as one who robs his fellow in the presence of witnesses does not need to return it to him in the presence of witnesses. Since he has a migo of "I returned it," he is also believed to say that it was his. However, when the witness sees the object, he has no migo, for he would have been obligated in an oath to contradict him [Shach]. See the following section.

That which we explained regarding one who snatched a vessel from his hand and there is one witness, such that he becomes obligated to swear and pays—this is specifically when the witness testifies that he snatched it from his hand but is not known to testify for what reason he snatched it. However, if the witness testifies that he snatched it from his hand as a mashkon, and it is known to the witness that the owner of the object owes money to the snatcher, only that he does not remember how much he loaned upon it, this snatcher is believed with an oath as to how much he loaned upon it. We do not say that he becomes obligated to swear and is unable to swear and pays, since it came into his hand lawfully. And even though the sages, of blessed memory, did not believe a creditor to swear regarding a mashkon except with a migo of "purchased" or "I returned it," as written in siman 72, section 40, and here he cannot claim "I returned it" since he sees it now in his hand, as written in the previous section, and he also does not have a migo of "purchased" because he does not want to be brazen against the witness who knows that it came into his hand as a mashkon—nevertheless, he is believed with an oath as to how much he loaned him upon it because he is called the muhzak. For we establish that a creditor acquires a mashkon, and since he is the muhzak, he swears and is exempt, like all those who swear where the muhzak swears to exempt himself. And there are those who disagree and hold that regarding a mashkon he is not called the muhzak, and the owner of the object is called the muhzak; therefore, the owner of the object swears how much he borrowed from him and pays him and takes his mashkon. We have already explained these two opinions there in section 45 regarding two witnesses in such a case, for there is no difference in this between one witness and two witnesses. And from our words there it was explained that the mind leans more toward the first opinion, that the creditor is called the muhzak and he swears and takes; see there.

Just as the law regarding one witness is that when one is obligated to take an oath and is unable to swear, he pays, so too regarding the oath of one who admits to a partial claim. For example, if the claimant claims a maneh from him and the defendant answers him: "I know that fifty are due to you, and regarding the other fifty, I do not know," since he is unable to swear, he pays. The claimant does not need to swear; however, the borrower may impose a herem stam upon anyone who takes his money unlawfully. The law is the same regarding the oath of guardians, and the reason is as I wrote regarding one witness. But if he answered him: "I borrowed fifty from you and I repaid you, and regarding the other fifty, I do not know," he takes a shevuat hesset that he repaid the fifty, and regarding the remainder "I do not know," and he is exempt. For since regarding the fifty that he admitted to he says "I repaid," he is like one who denies everything regarding the rest. So too if he spoke in this language: "I do not know that I owe you more than fifty," he swears and is exempt, for this is exactly like one who admits to a partial claim, as this language is not like an admission that he has a doubt regarding the rest, but rather it is certain to him that only fifty are due to him.

In all these cases that we have explained, where because he is unable to swear he must pay, nevertheless after he has paid, this defendant can administer a shevuat hesset to the plaintiff regarding whether he took his money according to the law, as will be explained in siman 82 regarding a document. And so too in every place where the defendant pays, he can afterwards administer an oath to the plaintiff regarding what he took from him; except for the case of "fifty I do not know" in the previous section, where he cannot administer an oath to him even afterwards, since he claims "I do not know," and one does not administer an oath on a claim of doubt [Shach].

We do not say "one who is obligated to take an oath and is unable to swear must pay" except regarding a Torah oath, for since the Torah obligated him in an oath, he is forced to either swear or pay, and since he cannot swear, he pays. However, regarding a rabbinic oath—such as in a case of partial admission when he says to him "here it is before you," or regarding lands, slaves, and documents for which one does not swear according to the Torah, or when the admission is not of the same type as the claim, or where there is no denial of two ma'ah of silver, or when the claim is not for something of measure or weight, or such as in a matter where even two witnesses would not obligate the defendant in money without the oath of the claimant, as will be explained in siman 89 regarding a hired worker and the like—we do not adjudicate in all these cases according to this law. For even though the sages imposed an oath upon him, nevertheless they did not treat it so strictly as to say "since he is unable to swear, he pays"; rather, he swears that he does not know and is exempt, or he reverses the oath upon his counterpart, for regarding a Torah oath one does not reverse it, but regarding a rabbinic oath one reverses it, as will be explained in siman 87.

Some say that regarding a gilgul shevuah, we do not apply the law of "since he is unable to swear, he must pay," even though a gilgul shevuah is from the Torah as written in siman 94. Nevertheless, we do not apply this law to a gilgul. Whether he is unable to swear regarding the primary claim and must pay—for example, if he claimed a maneh from him and he responded, "fifty I know and fifty I do not know," and the claimant rolled other claims upon him—even though regarding the primary claim he must pay, nevertheless he is not obligated to pay the claims of the gilgulim as well. Not only that, but he does not even have a shevuat de-oraita regarding the gilgulim, only a shevuat hesset, because the Torah did not obligate an oath on a gilgul except when he must swear on the primary claim. But when he is liable to pay on the primary claim, the payments do not pull the gilgul; rather, the gilgul is like a claim on its own, for the Torah only said that an oath drags a gilgul, and not that payment drags it. Therefore, on the gilgul he shall swear hesset or reverse it upon his counterpart according to the law of hesset. And similarly, if on the primary claim he is able to swear but on the gilgulim he is unable to swear—for example, if on the primary claim he admitted to a part and denied the rest, such that he is liable for a shevuat de-oraita, and on the gilgulim he claimed "I do not know"—we do not apply this law to this, but rather he shall swear on the gilgulim that he does not know and is exempt. And what oath is he liable to swear on the gilgulim? If the claimant claims with certainty that the defendant knows, and the defendant claims that he does not know, he is liable to swear a shevuat de-oraita that he does not know by the power of the gilgul shevuah. And if the claimant does not claim with certainty that the defendant knows, he cannot roll a claim of doubt from the Torah, as will be explained there, and he swears hesset. However, if even the primary oath is based on a claim of doubt, such as the oath of guardians, then he can roll upon him a shevuat de-oraita of "I do not know" even on a claim of doubt [Netivot HaMishpat]. And there are those who disagree with the latter law and hold that since he became liable for a shevuat de-oraita on the primary claim and he claims on the gilgulim "I do not know," we apply to the gilgulim this law of "since he is unable to swear he must pay." For since he became liable for a shevuat de-oraita, it automatically drags after it the gilgulim from the Torah, and the Torah obligated him in an oath, and since he is unable to swear, he pays. And on the primary claim he shall swear a shevuat de-oraita and be exempt. And the power of the gilgul is not so great that he should pay even on the primary claim due to the fact that he cannot swear on the gilgulim. Furthermore, in the claim itself he would be exempt in such a case because payments do not drag, as we explained, and the power of a gilgul should not be greater than a primary claim. For regarding the first law, even this opinion agrees that when he pays on the primary claim, it does not pull the gilgul after it.

Our Sages, of blessed memory, said that this law of "since he cannot swear, he must pay" is only adjudicated regarding the defendant himself and not regarding his heirs. For example, if one sues an heir and says, "Your father owed me a maneh," and the heir responds, "I know of fifty, but regarding the other fifty, I do not know if you are owed it from my father or not," or if he responds, "I do not know at all if anything is owed to you," and witnesses testify that they know he is owed fifty but they do not know regarding the rest; or if the heir says, "I know that he borrowed a maneh from you, but I do not know if he repaid you or not," he is exempt even from the oath of heirs and does not pay except for what he admitted or what the witnesses testified. And the reason, as our teachers the Rishonim wrote, is that the essence of this law—that since he cannot swear, he must pay—is because from the perspective of logic, the Torah obligated him to pay, as it appears his claim is a lie; for how can he not know if it is owed from him or not? And all this applies to his own dealings, but regarding his father's dealings, where he would not have known, why should he pay, and what sin did he commit in not knowing? According to this, even in his own dealings, if in that matter he would not have known, we do not adjudicate this law. Many laws will be explained in Choshen Mishpat in the laws before us, that even though there is this law of "since he cannot swear, he must pay," nevertheless, since he would not have known, we do not adjudicate this law. And there are some of our teachers, and among them the Rambam and the Ramban, who disagree with this reason and hold that from the essence of Torah law it is so: since the Torah obligated him in an oath, he must either swear or pay, even in a place where he would not have known. And that which the heir is exempt is because he is not his own litigant, and we claim on their behalf that perhaps if his testator were alive, he would have denied the plaintiff [see Shach siman 72, subsection 51]. And why is he exempt even from the oath of heirs, which is an oath that "my father did not command me that so-and-so is owed such-and-such"? Because an heir only swears the oath of heirs when he comes to collect; however, the plaintiff has the ability to impose a cherem hastam on anyone who knows that this person's father owed him and the heir is not paying his debt. And if the plaintiff claims with certainty, "Your testator commanded you to pay," the heir is obligated to swear a shevuat hesset to deny him, as with all claims. Similarly, if the heir admits to fifty and denies fifty, he is like any other who admits to a portion and is obligated to swear a shevuat de'oraita since he claims with certainty; for there is no difference between him and his testator except in a claim of "I do not know." Therefore, if the heir is clever and knows that his testator only owed him fifty, he should claim regarding the rest that he does not know and be exempt from an oath. And even according to the opinion of the Rambam and the Ramban that was explained, if the plaintiff himself knows that the defendant does not know regarding the rest, we do not adjudicate in this case the law of "since he cannot swear, he must pay" [ibid.].

Any claim of doubt, one does not administer an oath upon it at all. How so? If one says to him, "It seems to me that I have a maneh in your possession," or if he says, "The maneh that I lent to you, it seems to me that you have not repaid me," he is exempt even from a shevuat hesset. And even to fulfill his duty toward Heaven he is not obligated when he claims with certainty and the claimant claims with uncertainty. And if the claimant says, "It seems to me that you owe me a maneh," and the other says, "I repaid you," and the claimant says, "Regarding this I am certain that you did not repay me," some say that he is obligated to swear a shevuat hesset [Mabit], and some say that he is exempt [Shach]. And it appears like the first opinion, as I wrote in section 7. And even though he has a migo that if he wanted he could have said "I do not owe you anything," many poskim hold that we do not say a migo to be exempt from an oath. And it is not similar to what will be explained in siman 88 regarding a document where he is exempt even from a shevuat hesset, for it is different there because the document assists the defendant and it is like one who returns a lost object [see there in the Sma, subsection 57].

And so, if a person says to his fellow, "You became obligated to me for a maneh because you admitted to me that you took from mine," but the admission was not before witnesses, this is not a certain claim. Since the claimant only sues him based on the mouth of the defendant, and the admission was without witnesses—or even with witnesses but he did not say "you are my witnesses"—it is nothing. If this one denies him and says "the matter never occurred" or "I was mocking you," he is exempt even from a shvuat hesset. But if he said to him, "You admitted before witnesses that you owe me a maneh, and I said to the witnesses 'you are my witnesses,' or you said 'you are witnesses,'" and the witnesses are not here, this is a certain claim and he can swear him a shvuat hesset that neither of them said "you are witnesses." And the reason is that since, according to the words of the claimant, he admitted to him with a complete admission, even though he himself does not know if he owes him—for just as if there were witnesses before us and they testified so, we would obligate him even if the claimant himself does not know, so too when the claimant claims so, that he admitted before witnesses with a complete admission, it is a certain claim and he swears him a shvuat hesset. And if the defendant wishes, he may reverse the oath upon the claimant, that he should swear that he admitted to him with "you are witnesses," and he shall take. And the details of the laws of admission will be explained in siman 81. And according to all the opinions that will be explained there, the rule is: if according to his claim he admitted in a manner that if witnesses testified so he would be obligated to pay, he must now swear; and if witnesses testified to this and he would not have to pay, here too he does not need to swear.

And even though one does not administer an oath for a claim of doubt, nevertheless, if according to the assessment of the beit din there are grounds for the matter, they administer an oath even for a claim of doubt. For example, if Shimon was in the house of Reuven and Reuven found his chest broken into and money or objects taken from it, and he suspects Shimon more than all the people who were there, he can administer an oath to him that he did not steal. And similarly, if something fell from him and only one person was there, he can administer a shevuat hesset to him that he did not find the object, and similarly regarding other matters. And in this, the defendant cannot reverse the oath upon the plaintiff, since the plaintiff does not claim certainty, how could he swear? And he has against him only a suspicion that he suspects him, and this depends on the assessment of the judges according to the matter, and as I wrote in siman 15, that it is within the power of the judge to administer an oath even in a place where there is no obligation of an oath in order to clarify the truth [Shach]. And even though in such a case they administer an oath for a claim of doubt, nevertheless, seizing does not avail in this, that the plaintiff should seize from the defendant, even without witnesses [Shach and Taz].

Some say that sometimes one does not administer an oath even on a claim of certainty, such as when the plaintiff claims something that is uncommon, and according to the perception of the beit din the claim is not true. This is like an incident that occurred with one who sold land to his fellow with a deed, and within three years the seller claimed: "You went back and sold it to me," but he had no deed in his hand from the buyer, and the buyer was in possession of the land and the deed of sale was also still in his hand. They ruled that his fellow does not need to swear even a shevuat hesset, for it appears to all that it is not true; for if it were true as he says, he would have received his deed back from him or he would have received another deed from the buyer [Taz]. And in similar cases, in all matters where the beit din understands that this claim is far from the way of the world, they do not grant an oath, and a cherem stam is sufficient. We have already explained in siman 15 that if the beit din understands according to the claim of the plaintiff that his desire is only to impose an oath upon the defendant because he knows that the defendant will not swear and will compensate him in exchange for the oath, the beit din should not rule an oath for him, and the judges must be very, very careful in this.

If both of them claim uncertainty, such as if he claimed, "I lent to you and I do not know how much," and this one responds to him, "It is true that you lent to me and I also do not know how much," the defendant does not swear even a shevuat hesat, and he pays him what is certain to him that he owes him, and he thereby fulfills even his obligation toward Heaven. And there are those who say that since he remembers that he borrowed, he does not fulfill his obligation toward Heaven until he reaches a compromise with the claimant for whatever amount they agree upon. In any event, the lender may impose a herem stam upon anyone who knows that he owes him and does not pay him. All of this applies to uncertainty regarding how much the loan was; however, if the loan is known to both of them as to how much it was, and regarding the repayment there is uncertainty for both of them: if the loan is with a shetar, he is obligated by the law to pay the larger amount until they remove the uncertainty from their hearts; and if it is a loan by word of mouth, he is obligated only if he wishes to fulfill his obligation toward Heaven [Shach]. The reason is that with a shetar, the debt is certain, and if he had repaid it, he would not have left his shetar in the hand of the lender; therefore, even though there is uncertainty also for the lender, nevertheless he is obligated to pay, for the lender can claim from him by the power of the shetar found in his possession even though the repayment is uncertain to him, which is not the case with a loan by word of mouth. Nevertheless, he is obligated to fulfill his obligation toward Heaven, for this is similar to "I do not know if I repaid you," where one is obligated to pay when the lender claims with certainty; therefore, in a case of "perhaps," he is obligated at least to fulfill his obligation toward Heaven. It has been explained many times that a shetar in the handwriting of the borrower without witnesses has the status of a loan by word of mouth; and see in siman 69.

That which we said, that when both of them claim uncertainty regarding the loan he does not even need to swear, this is specifically when the plaintiff does not know with clarity at all even regarding two silver ma'ah and a perutah, and the defendant does not admit with clarity regarding a perutah, for this is the measure of a claim and an admission from the Torah regarding one who admits to a part of the claim for the matter of an oath, as will be explained in siman 88. However, if the plaintiff claimed against him: "I do not know how much I lent you, but this I know with clarity, that I lent you two silver ma'ah and a perutah," and certainly if more, and the other says: "True, you lent me, and I do not know how much, but this I know with clarity, that I borrowed a perutah from you," he becomes obligated in an oath from the Torah, and since he cannot swear, he pays. And even when he does not explicitly admit to a perutah, the beit din must investigate and inquire of him, for even though he does not know the sum, he knows at least of a perutah, and when he admits to a perutah, it is an admission to a part of the claim, and he cannot swear and pays. And specifically a perutah, but if he admitted to more than a perutah and the plaintiff knows regarding two silver ma'ah and a perutah, then there is no longer an oath from the Torah because the denial of two silver ma'ah is lacking, as is written there, and he swears only a hesset oath. And similarly, when he admitted to less than a perutah, he swears only a hesset oath even when the plaintiff claims much, and he is exempt by the laws of man, but by the laws of Heaven he is liable since the plaintiff says "certain" and he says "perhaps." And some say further that even if he does not explicitly admit to a perutah, since he says "I knew that something is due to him," it is like an admission to a perutah, which is the least of coins, and since he cannot swear he pays; and we do not say that perhaps his admission was more than a perutah and there is no denial of two silver ma'ah and there is no oath from the Torah when he claimed from him with clarity two silver ma'ah and a perutah, for we do not have to hang the admission on more than what is necessary [ibid.]. And how much shall he pay him? If he claims from him with certainty two silver ma'ah and a perutah, he pays him two silver ma'ah and a perutah, and if he claims from him with certainty a maneh, he pays him a maneh, everything according to the certain claim, provided that the plaintiff is assessed to be capable of possessing that which he claims with clarity. And if he is assessed for half, he pays him half, and we do not say that since he is not assessed for the entire claim he is established as a liar, for in any case, regarding that which he is assessed, the defendant becomes obligated in an oath and since he cannot swear he pays [ibid.], for being established as a liar only occurs when he is established by witnesses and not by an assessment. And similarly in all claims where a person claims that which he is not assessed for, we do not judge in this the law of "since he cannot swear he pays," and only with an oath can one obligate even in that which he is not assessed for, and we do not descend to be exacting in this since he does not have to pay money. And also in this, if the beit din sees that his desire is only to impose an oath upon him so that he will appease him for the sake of the oath, we do not grant him an oath, as is written in this siman and in siman 15.

The heirs of the lender, when they plead a claim of uncertainty, saying "it seems to us that our father has a maneh in your possession," whether they are suing the borrower himself or suing his heirs, they have no claim of an oath against him or against his heirs, but rather a cherem stam. However, if they pleaded a certain claim that "our father has a maneh in your possession," if he admitted to a portion, he must swear a shevuat de'oraita, and if he denies everything, he must swear a shevuat hesset. And likewise the heirs of the borrower, when they admitted to a portion, are obligated in a shevuat de'oraita, and a shevuat hesset when denying everything, when assets remained from the borrower, for we have already explained that regarding a certain claim there is no difference between the borrower and his heirs. And similarly, when they say to the heir, "you know with certainty that your father owes me a maneh," he must swear a shevuat hesset [ibid.], for this is like all claims. And if the heir answers him, "fifty I know of and fifty I do not know of," he must swear a shevuat de'oraita according to the law of one who admits to a portion. And we do not judge regarding an heir the law of "since he is unable to swear, he must pay," as will be explained.

One who says to his fellow, "My father told me that he has a maneh in your possession," and the other says, "He has only fifty in my possession," some say that he is exempt even from a shevuat hesset, since the heir himself does not know of the debt, it is like one who returns a lost object. And so too, even if he did not admit to anything, they do not administer a shevuat hesset to him, for this is a claim of uncertainty [the Shach according to the Rambam and other poskim]. And some say that he is obligated to swear a biblical oath in a case of partial admission, and a shevuat hesset in a case of total denial, for when the heir comes with the testament of his benefactor, it is like a claim of certainty from his own claim. And some say that whether in a case of partial admission or in a case of total denial, he only swears a shevuat hesset. And if there are grounds for the matter, such that according to the sight of the beit din it is due to his benefactor, even according to the first opinion they administer an oath to him, for it is no worse than another, as will be explained in section 32.

And similarly, when he says, "I found written in the ledger of my testator that you owe him a maneh, and it is clear to me that it is his handwriting," it depends on the opinions that were explained in the previous section. And if he brought the ledger to beit din and witnesses recognize the handwriting of the deceased or his script, it is like a claim of certainty, and even according to the first opinion, the defendant swears a shevuat hesset [it appears to me]. And similarly, if the heir brought witnesses who heard it from his testator before his death, even one witness makes him swear as well. And when he admitted to a portion, it is possible that he can also make him swear a shevua de-oraita, but in any case, he certainly makes him swear a hesset, for this is not like one who returns a lost object, as he cannot be brazen when there are witnesses or his script proves it, and this is not a claim of uncertainty [it appears to me].

One who sues his fellow based on a witness, such as when he says, "So-and-so told me that you took a maneh of mine," and he denies it, and he brought the witness—he administers a shevuat de'oraita to him to contradict the witness, just as if he had claimed a certain claim. For since if there were two witnesses testifying thus he would pay automatically, based on one witness he is obligated in a shevuat de'oraita. And this is specifically when the witness is before us and testifies thus, but if the witness is not before us, what he says he heard from the mouth of the witness is not called a certain claim. And even when he says he heard it from the mouths of two, we do not administer an oath for this when they are not before us, for it is a doubtful claim. And some say that if he says it was told to him by a trustworthy man, even his relative, we administer a shevuat hesset when there are grounds for the matter according to the assessment of the beit din [Shach]. And our teacher, the Rema, wrote that one should rule accordingly. And this is specifically when the one whose mouth he speaks from is not an interested party in this testimony; but if he is an interested party in the testimony—such as Reuven who sent money by the hand of Shimon to deliver to Levi, and Shimon says he delivered them to Levi and Levi contradicts him—one should not believe Shimon such that Reuven would have the power to administer an oath to Levi based on Shimon, since Shimon is an interested party in the testimony, for he must swear against Reuven. However, Shimon himself certainly can administer an oath to Levi, since he claims against him with certainty that he delivered it to him. and in similar cases in other matters, the beit din must understand such things.

And specifically in a case such as this, regarding the transport of money where there is reason to suspect that the agent took it for himself, and similarly in other matters where there is reason to suspect the one based on whose word he wishes to impose an oath; but in matters where there is no suspicion regarding him, the plaintiff may impose an oath upon the defendant based on the word of this person, even if he is a relative, provided he claims with certainty and is the agent of the plaintiff for this matter, for a person's agent is like himself. And an incident occurred with one who arranged a match for his son, and after some time said to the father of the bride: "Such and such you stipulated before me." The father of the bride said: "These things never happened, and you are not my legal adversary; when your son, your son-in-law, sues me, I will know what to do." His son-in-law came and sued him. His father-in-law said to him: "Did you hear at all that I stipulated such and such to you?" His son-in-law said to him: "Thus my father told me, and on this basis I betrothed your daughter." His father-in-law answered him: "Since your father is not fit to testify for you, and you yourself do not claim with certainty, you do not even have a claim for a shevuat hesset against me." Our teacher Tam, of blessed memory, ruled that the law is with the son-in-law, for in the entire Torah a person's agent is like himself, and he can impose an oath upon him based on the certain claim of his father, as if he himself were claiming with certainty. Similarly, the son may write a power of attorney to his father, and he may impose an oath upon the father of the bride. Likewise, if the father of the groom was the possessor and the father of the bride came to extract from him, if the son writes a power of attorney to his father, the father of the groom may swear that such was the stipulation between them and be exempt. From this one may learn for all matters [Shach and Maharshal]. The great later authorities wrote that a power of attorney in other matters is not effective when given to a relative if for him it is a claim of doubt, even though the relative knows the matter clearly, unless he transfers the business to him and it becomes his, such as if he sells him the document or the like, and then the relative becomes the legal adversary of the defendant. But with a mere power of attorney, that his relative should be like himself when he was not his agent in this business, he does not have the power when there is a legal difference between him and his relative—such as where for him it is a claim of doubt and for his relative it is a claim of certainty—he cannot impose an oath based on his word. Similarly, when his relative is the possessor and he is not the possessor, he is not called a possessor based on his relative, and so too in all matters [Urim VeTummim and Noda BiYehudah and Netivot HaMishpat, not like the Shach]. However, if according to the eyes of the beit din there are grounds for the matter, it has already been explained that they have the power to impose an oath even on a claim of doubt. The general rule of the matter: although a person may give a power of attorney to his fellow and he stands in his place, for a person's agent is like himself, this is specifically when there is no legal difference between his own claim and the claim of his authorized representative. But when there is a legal difference, such as where for him it is doubt and for the representative it is certainty, and the representative is not fit for testimony because he is a relative, or he is not the possessor and the representative is the possessor, no power of attorney is effective for him to stand in his place so that the certainty or possession of the representative should benefit the authorizer, unless he transfers the business to him entirely, if it is possible to transfer it according to the law, or if he was previously his agent in this business; but in any other manner, it is not effective.

One who says to his fellow, "I have a maneh in your possession," and the other says, "You have nothing in my possession" or "I paid you," and the claimant said, "Swear to me a shevuat hesset," and the defendant replied, "Do you not have a deed against me? And the deed is paid, and you wish to make me swear first and afterwards you will produce the paid deed and collect with it, for my oath is not effective against a deed; therefore, it is not my will to swear until you remove the deed from your possession," the law is with the defendant. And it appears to me that even if it is only a deed in the handwriting of the borrower, where he would be believed to say "I paid," nevertheless, he can delay the oath until he removes the deed from his possession. Since he is exempt through his oath, why should he keep the deed in his possession? And the beit din commands him to bring the deed to the beit din, and after the oath, they tear it. And if the claimant says, "I never had a deed," or "I had one and it was lost," they say to the claimant: "Nullify every deed that you have against him prior to this time," which means that you shall write a voucher that until this day nothing is due to you from this defendant, and afterwards you may make him swear. And if it is not your will to do this, you do not have the ability to make him swear now; rather, place upon him a cherem stam and go out and seek this deed that the defendant mentions. And if you find it, you shall collect with it when it is a deed with witnesses. And if you do not find it, you shall nullify every deed and make him swear. And this is specifically when the defendant claims that he has a deed in his hand, for then he can delay his oath. But if he claims regarding a matter that even to the claimant is not known now, such as if he says, "Perhaps after my oath witnesses will come and testify according to the words of the claimant and I will have to pay, and therefore I will not swear until the claimant nullifies any witnesses who would testify in this matter and disqualifies them," his claim is not a claim. Since now the claimant does not know of them, and if indeed witnesses come after his oath he will certainly pay, and behold, the oath is due to him now by law. However, if the defendant specifies people, "So-and-so and So-and-so," that they should be asked before the oath because it seems to him that they know of this matter, and "perhaps they will testify according to my words or according to the words of the claimant and I will not need to swear, and if it is not your will for this, nullify their testimony," his claim is a claim [Shach]. And if a lender produced a deed that is not authenticated and the borrower claims "I paid," and the lender says, "Swear to me that it is indeed as your words," and the borrower does not want to swear until he nullifies the deed or tears it, and the lender says, "Now I do not find authentication for the deed, and perhaps in the course of time I will find authentication and collect with it, but in any event, now swear to me according to the law," the law is with the lender, since for the time being the witnesses of authentication are not known to him [Taz].

It has already been explained in sections 13 and 14 that in a case of "I do not know if you lent to me," he is exempt, and in "I do not know if I repaid you," he is liable. Now, there are matters in which a doubt arises whether it is similar to "I do not know if you lent to me" or to "I do not know if I repaid you," such as an incident that occurred with one who repaid his fellow a sum of money, and after the repayment the lender came and showed him one counterfeit coin and said that he received it from the borrower within the sum of money that he gave him, and the borrower answered him, "I do not know if this coin was among that money." The Taz, of blessed memory, ruled that since he was released from him with the presumption of repayment, it is like a new claim and is similar to one who says, "I do not know if you lent to me." The Shach, of blessed memory, in siman 232 brought such an incident from the responsa of the Maharshdam and ruled that it is similar to "I do not know if I repaid you," and the Shach agreed with him. Several of the great later authorities disagreed on this reasoning, for there are arguments for this side and for that side, and the mind inclines more toward the reasoning of the Taz, of blessed memory, and particularly since if according to the understanding of the beit din the borrower would not have been expected to know of this, he would be exempt even in a case of "I do not know if I repaid you" in such a circumstance, as I wrote in section 15. Several of the great authorities agreed with the reasoning of the Taz, of blessed memory; nevertheless, it is proper to make a compromise in such matters.