Siman 82

A lender who produced a document that is not authenticated and has not yet found witnesses to authenticate it, and the borrower admits that it is not forged and that he wrote it, but claims "I paid," he is believed, for "the mouth that prohibited is the mouth that permitted," and he is believed via a migo that had he wanted, he could have said "it is forged." And even when trustworthiness is written in the document, it is of no use, for regarding a document that is not authenticated as a valid document, what use is the trustworthiness in it? And who established it as a valid document? The borrower; and behold, he says it is paid. And the borrower shall swear a shevuat hesset that it is paid and is exempt for the time being. And so too when he claims another claim to nullify the document, such as saying it is a document of trust, that he had not yet received money from the lender but trusted him that he would not sue him as long as he did not receive the money from him; or if he says "I prepared this document to borrow with it and I have not yet borrowed, and it fell from me and the lender found it"; or if he says that it was made on a condition and the condition was not fulfilled. And even if he says "I was a minor when the document was written," he is believed. And even though there is a presumption that witnesses do not sign on a document unless they know that the borrower is an adult in years, and the witnesses themselves, had they claimed this, would not be believed, as is written in siman 46—this is because a person does not make himself out to be wicked; but the borrower is believed via a migo of "forged." And so too when he claims it is a document of trust, even though he says the witnesses knew of this and he makes them out to be wicked—for by the law it is forbidden for them to sign on a document of trust—nevertheless he is believed by reason of migo [Shach]. And although this is a migo in the place of a presumption, and we do not say migo in the place of a presumption, as will be explained, nevertheless we establish the money in the possession of its owner, and we do not have the power to extract money from the borrower by this presumption since the document is only based on his admission [it appears to me]. And all this is specifically when he invalidated it within the time of a continuous utterance of his admission; but if he admitted that he wrote it and after the time of a continuous utterance he said "trust" or "paid" or "condition," he is not believed, for immediately when he admitted, behold he admitted to his obligation, and after a time when he says "I paid," behold he has no migo then because of his previous admission. And if it is because previously he had a migo, we do not say a retroactive migo [Taz], as will be explained in the rules of migo in this siman. And know that regarding purchasers, he is not believed to say that he wrote it if it was not authenticated by witnesses, for we fear a conspiracy, as is written in siman 106.

If afterwards the lender found witnesses to validate the document in beit din, it is like all other documents, and he may collect with it even from purchasers who bought prior to the validation, for they caused their own loss and should not have purchased from the borrower due to the concern that perhaps the lender would validate his document. And even if the borrower already swore regarding a claim of "repaid" or other claims that have been explained, nevertheless he collects with it, for what does the lender care for his oath? Since the document was validated and is like a complete document, the borrower does not have the ability to exempt himself with an oath. Therefore, the borrower does not have the ability to compel the lender at the time of his oath to tear the document; on the contrary, the lender can compel him that for the time being he shall swear, and when he finds validation, he will validate it and collect with it [Shach and Taz].

If the borrower said that the document is forged, and after the lender brought witnesses to verify it, the borrower retracted and said that it is paid and he wishes to obligate the lender in an oath if it is not paid, according to the law of every verified document when the borrower claims "I paid" as will be explained, some say that the borrower is established as a liar and the lender collects without an oath. And even if he brought witnesses that he paid previously, they are not believed, for since he said "it is forged and I never borrowed," it is as if he admitted that he did not pay, for anyone who says "I did not borrow" is like one who says "I did not pay," and he is believed regarding himself more than a hundred witnesses, as written in siman 79. But if he brings witnesses that he paid after the document was verified, he is believed [Shach]. And even though the borrower himself is not believed, this is because he was established as a liar, and also the witnesses regarding before the verification are not believed because he himself contradicts them; but after the verification, when he is forced to pay, why should they not be believed? And all this is specifically regarding the borrower himself, but to collect from purchasers, the lender does not have the power when witnesses testify that he paid even before the verification, for the purchasers will say "we believe the witnesses." And similarly, when there are no witnesses and he collects from purchasers, the lender must swear to them according to the law of one who comes to collect from purchasers, even though the borrower was established as a liar [Urim VeTummim]. And there are those who disagree with the core of this law and hold that by claiming "forged" he is not established as a liar; and specifically when he claims "I did not borrow" or "these things never happened" is he established as a liar, but with "forged" one can explain his intent that he does not deny the loan, but rather he says "verify your document and afterwards litigate with me," and what he says "forged" he means to say "what will you litigate with me, for currently it is not verified and I have the power to say it is forged." And reason inclines toward the first opinion [see there in Urim VeTummim]. But regarding an heir, when he says "it is forged," even according to the first opinion he is not established as a liar, for the heir has the power to say so as long as the document has not been verified.

When the shtar is authenticated and the borrower claims "I paid" all or part of it and the lender denies it, if the borrower claims "Swear to me that I was not paid by you," we administer to him the oath of the Mishnah with the holding of a sacred object like a Torah oath, and he collects. For although it is not like a loan by word of mouth where the borrower swears and is exempt, nevertheless, in every case of "one who swears and collects," the sages ordained that he must swear a severe oath like a Torah oath, as will be explained in siman 89. And this is specifically when the borrower claims "I am certain that I paid you," but if he claims "perhaps," the lender does not need to swear. Moreover, even if the lender also claims "perhaps," the shtar remains in its presumption and he does not need to swear; for when the borrower claims "certain" and the lender claims "perhaps," he does not collect with it, as I wrote in siman 59. But when both of them claim "perhaps," there is nothing to their claims and the shtar is in the presumption of being unpaid. And there is no difference in all of this between whether the time of the shtar has passed or it is still within its time [our teacher, the Beit Yosef]. And when the borrower claims "perhaps," he can impose a herem stam on anyone who takes his money unlawfully. And one should not wonder where we find that the claimant collects based on a claim of "perhaps" and without an oath, for regarding a shtar it is certainly so; for although there is a slight weakness in the claim of the lender when he claims "perhaps," nevertheless there is more weakness in the claim of "perhaps" of the borrower than in the "perhaps" of the lender, for one who pays must be more precise than the one who is being paid [Ketubot 87b]. And although regarding a loan by word of mouth in such a case we do not compel the borrower to pay, nevertheless regarding a shtar we place "perhaps" against "perhaps" and the shtar remains in its presumption. And because the "perhaps" of the borrower is worse for the reason we explained, therefore it also does not have the power to obligate an oath upon the lender [it appears to me].

And specifically when the borrower claims, "Swear to me that I have not paid you," but if he does not claim so, but only claims that he paid him and does not demand an oath from the lender, the beit din does not administer an oath to the lender, and they say to the borrower, "Pay him." For specifically in the case of one who impairs his shtar, the beit din administers an oath to him even without the claim of the borrower, as will be explained in siman 84. But regarding a shtar that has not been impaired, why should we administer an oath to him since the shtar is authenticated? And only when the borrower claims, "Swear to me," are we unable to collect for him without an oath. But when he only claims, "I paid," we say to him, "You are not believed," since the shtar is in the hand of the lender. And such is the law when the shtar was for installments, and after some of the installments passed, the borrower claims, "I paid you the installments that passed, and I left the shtar with you because of the future installments," and the lender says that nothing was paid, and the borrower has no witnesses nor a shover for the payments he claims; if the borrower claims, "Swear to me that I did not pay you the installments that passed," we administer an oath to him. And if he does not demand an oath, we command him to pay, unless he admits to partial payment, for then he has impaired his shtar and we administer an oath to him, as I wrote there. And know that all this is regarding a shtar with witnesses, but a shtar in the borrower's own handwriting, its law is like a loan by word of mouth, and the borrower swears a shevuat hesset and is exempt, as I wrote in siman 69; see there.

When the borrower claims that the lender must swear, the lender may say to him, "Bring the money and afterwards I will swear." If he does not have money, he shall bring a mashkon [Urim VeTummim]. If the lender does not say "Bring the money," the beit din is not obligated to command the borrower to bring the money unless the beit din knows that the borrower is not of sufficient means; then the obligation is upon the beit din to command him to bring money or a mashkon to the beit din, and afterwards he shall swear [ibid.]. And so too even when the borrower is of sufficient means but is not trustworthy. If the borrower has nothing with which to pay, the borrower shall swear that he has nothing, and when his hand attains [the means], he shall cause the lender to swear that he was not paid and give to him. And there is one who says that the borrower is not obligated to swear now that he has nothing [Taz], for he can say, "Perhaps when my hand attains [the means], the lender will not then agree to swear, and why should I swear now for nothing? It is better for me to wait until my hand attains [the means], and then if the lender swears I will pay him." Or, let the lender swear now first, and afterwards I will swear, like all those who swear and take which will be explained in siman 92, where when he claims "I have nothing," they do not command him to swear that he has nothing except after the oath of the opposing party. But in truth, it is not similar to there, for there, by Torah law he does not need to take even with an oath, but the sages enacted that he should take with an oath; therefore, when he claims "I have nothing," he can delay his oath until the opposing party swears. But here regarding a shetar, by Torah law he must take without an oath, and the sages were stringent upon the lender that he should not take without an oath when the borrower claims "Swear to me." Therefore, it is not within the power of the borrower to delay his oath until the lender swears first, since by Torah law the payment is incumbent upon him without an oath [Shach, Urim VeTummim, and Netivot HaMishpat]. And so one should instruct.

And all this is when there is no clause of ne'emanut in the document, but when there is ne'emanut in the document, even a standard ne'emanut, he cannot make him swear, as was written in siman 71. However, if there is a later creditor than him who cannot collect his debt because of the debt of this one who preceded him, as will be explained in siman 104, then the ne'emanut is not effective even if he wrote to him explicitly that he believes him without an oath even against a later creditor; for what does the creditor care regarding that which he believed him? And just as it was explained in siman 71 that ne'emanut is not effective against purchasers, so too it is not effective against a later creditor. And the earlier one cannot say, "I will not swear until you swear that you have not been paid your debt," for since both of them are creditors, the one who comes to collect must swear. And only the earlier one can impose a herem stam on whoever makes him swear for nothing. And just as with ne'emanut the lender does not need to swear, so too when the borrower is established as a denier, we do not obligate an oath from the lender, as was written in section 3. And also witnesses are not believed when they testify that he paid previously, as was written there. And in all the laws of being established as a denier, there is no difference between a loan by word of mouth and a loan by document.

It has already been explained that when the borrower claims "swear to me," the lender is obligated to swear that he has not been paid from the document. And if he does not wish to swear, some say that we take the document from him and tear it [Taz], and some say that we do not take the document from him, but rather we compel him so that he shall not collect without an oath [Shach and Acharonim]. And so it stands to reason, for since according to the Torah he collects without an oath, we do not have the power to take his document from him because he did not swear; however, we compel him because he is violating a regulation of the sages. And if he seized from the borrower, even if he seized in the presence of witnesses such that he does not have a migo of "I did not seize," we do not remove it from him, since according to the Torah he collects without an oath. And some say that seizure is only effective before the beit din ruled that he must swear, but after they ruled an oath upon him, seizure is not effective [Urim VeTumim] unless he seized without witnesses where he has a migo that "I did not seize," for after the ruling it becomes like a Torah obligation. And all this is when the plaintiff is not a talmid chacham, but when he is a talmid chacham, the beit din does not attend to his oath, for we must not disparage his honor and suspect him of wanting to rob, and also to collect for him we do not attend to him, since the borrower demands an oath from him. Therefore, the beit din withdraws themselves from this, and if he seized, he seized, even if he does not have a migo. And if the talmid chacham himself wishes to swear and collect his debt, we do not prevent him. And if both of them, the plaintiff and the defendant, are talmidei chachamim, the law returns to be like any person, for perforce one of them is lying. And also in this time, there is the law of a talmid chacham regarding this matter, for anyone who is presumed to have fear of Hashem, we do not compel him to swear, as he is not suspected of robbery. And when the lender swears, there is a cherem hastat upon the borrower for requiring him to swear in vain.

And all this that we have said, that the borrower can compel the lender to swear to him that he was not paid, this is specifically when the lender is claiming his money; but if the lender is not currently claiming based on the document but rather is waiting, he cannot compel him to an oath, but rather he imposes a cherem hastam upon anyone who withholds a paid document in his hand.

If the creditor died and his heirs produce the document, and the borrower claims that it is paid and says to the heirs, "Swear to me" [Shach], they swear the oath of the heirs: an oath that our testator did not command us that this document is paid, and that we did not find among his documents and writings that this document is paid, and he pays them. And they impose a cherem stam that he does not require them to swear in vain. And if he did not demand the oath from them, but only says "it is paid," we do not command them to swear, but rather we command the borrower to pay them, just as with the creditor himself.

If the lender was suspected of swearing falsely, some say that the defendant swears a shevuat hesset and is exempt, as is the case with all oaths, as will be explained in siman 92, for when one is suspected of swearing falsely, the opposing party swears a shevuat hesset and is exempt. And some say that here the lender takes without an oath, and this is more logical. It is not similar to there, for by Torah law he would not take even with an oath, and the enactment of the sages of blessed memory was that he should take with an oath; therefore, when he is suspected, it remains according to Torah law and he does not take, but rather the opposing party swears a shevuat hesset as in all claims. But here, where by Torah law he takes without an oath, and the sages of blessed memory enacted that he should not take without an oath, when he is suspected and remains according to Torah law, he takes without an oath. And in Even HaEzer siman 96 it was explained regarding a ketubah that when she is suspected, the opposing party swears and is exempt because a ketubah is not from the Torah [Shach]. And according to this opinion, also in siman 92 regarding one who holds a document, such as one who impairs his document and the like, he takes without an oath for the reason we have written.

If he was not suspected, but rather desires to reverse the oath upon the borrower so that he should swear that he repaid him, we do not listen to him according to what I wrote in section 4, for the law of this oath is like that of a Torah oath, and regarding a Torah oath one does not reverse it, as will be explained in siman 87. And as with all oaths of those who swear and take, which one does not reverse, as I wrote there the reason: that specifically regarding one who swears and is exempt is it relevant to reverse, for he says to the claimant, "Take the money and you swear." But regarding one who swears and takes, it is not relevant to reverse and say to his litigant, "You swear and be exempt," for this one will say to him, "I am not taking money, and why should I swear? If it is your desire to take money, swear according to the enactment of the sages and take, and if not, do not take." And here too this reasoning applies. However, if the lender says, "I do not desire the enactment that the sages enacted for me to swear and take, and behold I am like all other claimants by oral claim without a document, whose law is that the defendant swears a heset oath and is exempt," we listen to him, and the borrower must swear a heset oath. And according to this, since the lender makes it like an oral claim, the borrower can reverse the heset oath upon the lender and say to him, "Swear and take," as with all heset oaths. Thus it results that the lender can never escape from an oath if the borrower desires that the lender swear, except that he can lighten the oath from a severe oath to a heset oath, as has been explained.

Our teacher, the Beit Yosef, wrote in section 9: If the plaintiff says, "I will not swear and I will not take, but rather I will impose a herem stam," the authority is in his hand, and the borrower cannot say, "Either swear and take according to the enactment of the sages, or exclude me from the general ban." And if the borrower left and did not want to hear, we do not excommunicate him, but we curse not in his presence. Thus far his words. Because the curse takes effect upon him if he is lying even not in his presence, as was written in siman 71. And it must be understood regarding what he wrote, that the borrower cannot say "swear and take" in order to be exempt from the curse; for in every oath there is a curse upon the one who imposes the oath if he does not compel him for naught to an oath, as was written in siman 87, and what would he gain by this? And indeed, because of this difficulty, there are some of the great authorities who inferred that there are types of oaths where there is no curse upon the one who imposes the oath, and likewise in the reversal of an oath [Taz]. And some say that certainly in all types of oaths there is a curse upon the one who imposes the oath, only here it is dealing with where the borrower says "swear and take" without the imposition of a curse [Sma]. And behold, in all the beit dins they judge according to this opinion, that in all types of oaths there is a curse upon the one who imposes the oath [Acharonim], except in a place where the custom is according to the first opinion, one should act accordingly. And also the great Acharonim wrote that in a place where it is written in the Shulchan Aruch "herem stam," the custom now is that they compel to accept an explicit curse [Urim VeTumim and Netivot HaMishpat and Sha'ar Mishpat and Noda BiYehudah]. And therefore, according to this, it is not in the power of the borrower to escape in any way from accepting an explicit curse, and they compel him to take a curse upon himself if he did not pay him; for even if he says to the lender "swear and take," behold he will also need to take upon himself that he is not imposing an oath upon him for naught, and what would he gain by this? And therefore, it is in the power of the lender to impose it upon him even without his oath.

Specifically with a claim of "paid," the borrower can compel the lender to swear regarding a validated document, but with other claims, such as "forged," or "trust," or "I wrote it to borrow but did not borrow," and similarly when the borrower claims "this debt is interest" and the lender denies it—in all these, the borrower cannot compel him to swear. For specifically with a claim of "I paid," he can compel him to swear because every document stands to be paid; but with these claims, where he comes to undermine the essence of the document's obligation and the document is validated, there is nothing in his words. And even though he has a migo that if he wanted he could have claimed "paid" and compelled him to swear, nevertheless it is like a migo in the place of a powerful presumption. Furthermore, just as we do not say a migo to be exempt from an oath, so too the migo is not powerful if it is only regarding the obligation of an oath [it appears to me], but rather we command the borrower to pay him, and afterwards if he wishes to claim against him, he shall sue him in beit din and claim whatever he wishes and obligate him a shevuat hesset as with all claims. However, with a claim of "forged," he is unable to claim even afterwards since the document is validated [Shach]. And with a claim of interest, the law is also different from all other claims when the lender admits and says "I took it permissibly according to an iska" and the like; for if the borrower sues him after he paid the lender, he cannot compel him to swear, for we are witnesses that one does not leave that which is permitted and consume that which is forbidden, as is written in Yoreh Deah siman 169, see there. But if he sues him beforehand, it is like a claim of "paid" and he can compel him to swear [Sma and Taz in Yoreh Deah ibid. and Acharonim]. And the reason is because before payment, when he admitted that he took it but permissibly, in any case he himself somewhat weakens the power of the document since he admits that he took money upon it; and although he has a presumption that one does not leave that which is permitted and consume that which is forbidden, nevertheless because of this reasoning, he does not have the power to extract money without an oath. This is not the case after payment, when he comes to exempt himself, we exempt him because of this presumption [it appears to me]. However, if the lender denies it entirely and says that there was no interest in it at all, it is like all the claims that were explained, that beforehand he cannot compel him to swear and afterwards he can compel him to swear.

And regarding a claim of forgiveness where the debtor claims, "You forgave me my debt," there is one who says that his law is like one who claims, "I paid," because even with this claim he does not nullify the power of the document, as he admits it is a valid document but that he forgave him; and what difference is there to me between a claim of payment or a claim of forgiveness? Moreover, his power is greater than with "I paid," for with "I paid," when there is a standard trust clause in the document, he cannot claim "I paid," as has been explained, yet he can claim a claim of forgiveness, because a standard trust clause only applies to payment since every document stands to be paid and he would have it in mind that he might claim so, but forgiveness he would not have in mind. Therefore, those who are precise write in the trust clause: "And I have trusted him to say that I have not been paid and regarding all matters of this debt," and automatically forgiveness is also included since he trusted him regarding all matters, or he explicitly excluded forgiveness. However, there are those who disagree with all of this and hold that a claim of forgiveness is like a claim of trust or other claims that were explained, because forgiveness is a poor claim and a document does not stand for forgiveness, and he is not trusted to say so. And such is the opinion of the Rambam, of blessed memory, and he only has the ability to impose a herem stam upon the lender, or he shall pay him and afterwards claim against him and have him swear a shevuat hesset [Levush].

If the borrower claimed that the document was made upon a condition, such that "if I fulfill it I shall be exempt," and "I have fulfilled it," and the lender says that there was no condition at all in the matter: if it is written therein that it was made without a condition, or if it is written therein "without reservation," for this is also like writing "without any condition," or another phrasing where he admits according to the assessment of the beit din that there was no condition in the matter, the borrower is not believed. And even after he pays, he cannot claim this and obligate the lender in a shevuat hesat [it appears to me]. And if it is not written so therein, the lender swears a severe oath and collects, as in a claim of "I have paid." And even when "trustworthiness" is written therein in a general sense, for general trustworthiness is only regarding payment and not regarding another claim, unless it is written therein that regarding all matters of this document he gave him trustworthiness, as I have written regarding the matter of waiving a debt [it appears to me]. And if the lender admitted that it was made upon a condition, but says that the borrower has not yet fulfilled it, it is upon the lender to bring proof. And if he has no proof, the borrower swears a shevuat hesat and is exempt. And we do not say in this case that the lender shall swear and collect as in a claim of payment, for since according to the words of the lender himself there is a flaw in the document in that it was made upon a condition, the document has lost its power. And even though the lender has a migo, in that he could have said that it was not made upon a condition, it would be a migo to extract money, and we do not say "migo to extract" when the lender himself admits that there is a flaw in the document. For specifically when there is no flaw in the document according to the words of the lender, such as in a claim of "sitrai" in siman 58 and the like, he is certainly believed with a migo to maintain his document; but in this case, where the lender himself admits that there is a flaw in it, we do not say "migo to extract" [see Tosafot Bava Batra 32b, s.v. "Amai"]. And there are those who disagree in this, for since according to the words of the lender the document is now valid because the condition was not fulfilled, the document was not flawed, and we say migo, and the lender swears a severe oath and collects as in a claim of payment [Shach]. And there are also those who disagree with the fundamental ruling we have written that we do not say "migo to extract," and they hold that we do say "migo to extract," and it will be explained in the rules of migo at the end of this siman. And if the borrower has witnesses that the document was made upon a condition, we accept their testimony. And even the witnesses of the document themselves are believed to say that it was made upon a condition, for this is not like "returning and testifying" [to contradict their signature], as a condition is a separate matter and does not cancel the document, and when the condition is fulfilled, the document is valid, as I have written in siman 46. And when the condition is upon the lender to perform an action, and the borrower says that he has not yet fulfilled it, the borrower is believed in this. But if the condition is upon the lender in a "sit and do not act" manner, the lender is believed to say that he did not transgress it. And if the condition is upon the borrower to perform an action, the lender is believed to say that he has not yet done it. And if it is upon the borrower in a "sit and do not act" manner, the borrower is believed to say that he did not transgress it [Acharonim]. And if the witnesses testify that the condition was fulfilled, or testify that it was not fulfilled, they are believed in every case, even when their handwriting is established from elsewhere, and the one whom they assist is exempt even without an oath. And it has already been explained in siman 46 that there are those who say that when their handwriting is established from elsewhere they are not believed [see Shach, subsection 34]. And likewise, if one witness says "it was upon a condition" and one witness contradicts him, it was explained there.

If the borrower claimed regarding a validated shtar that half of it is repaid, and the lender says that nothing was repaid from it, and witnesses came and testified that it is entirely repaid, the borrower swears a shevuat de'oraita according to the law of one who admits to a portion. For since the witnesses testify regarding the shtar that it is entirely repaid, the power of the shtar is voided, and the borrower is liable to pay the half that he admitted because he is more believed regarding himself than a hundred witnesses, and his law is like the law of a loan by word of mouth where when he admitted to a portion he swears a shevuat de'oraita [Sma]. Therefore, the lender only collects the half that the borrower admitted from unencumbered property and not from liened property, for regarding purchasers the shtar is voided. And if the witnesses came before the borrower admitted to the half, the borrower is exempt from an oath because it is like returning a lost object; but when he admitted before the arrival of the witnesses, this is not returning a lost object, for he admitted against his will because of the shtar and the witnesses had not yet come. And if there is written in the shtar a clause of ne'emanut that he believed him against himself like two witnesses, he collects the entire shtar from unencumbered property without an oath, but regarding purchasers the ne'emanut is not effective, as I wrote in siman 71. And when the borrower claims "I remembered that I repaid it all," some say that he is believed in a shtar that does not have ne'emanut since there are witnesses who support him, and as I wrote in siman 79 [Shach].

The rules of the laws of mingo are deeper and wider than the sea, and we will explain some of them with the help of Heaven: <b>1.</b> We do not say mingo in the presence of witnesses, for the essence of the matter of mingo is to believe him in this claim because it is the truth, since if he wanted, he could have made another claim; and since witnesses contradict his claim, what do we care for his mingo? And even if there are no actual witnesses, but it is a case of "we are witnesses" (anan sahedi) that it is so, it is like a mingo in the presence of witnesses. Similarly, a mingo in the presence of a rumor [Knesset HaGedolah] in a place where the rumor is very well-known is like a mingo in the presence of witnesses [see Noda BiYehudah siman 30 who questioned the Knesset HaGedolah, and according to our words it is well-settled; and study this]. <b>2.</b> We do say mingo in the presence of a legal presumption (chazakah), and only in the presence of a powerful presumption, such as the presumption that "a person does not pay within his term," do we not say it. According to this, this law has "fallen into a pit," for who can measure what is a powerful presumption or not? And you have nothing in it except what the Sages, of blessed memory, stated [Shach]. And in a place where it is not explicit, we follow the one in possession (muchezak) [Netivot HaMishpat]. <b>3.</b> We say mingo in the presence of a document (shtar), as will be explained in siman 293, that one is believed to say regarding a document of deposit "I returned it" with a mingo that "it was lost to an accident" (ne'ansu), and we do not say "what is your document doing in my hand?" <b>4.</b> Regarding a mingo to extract (lehotzi) money, there is a dispute among our teachers whether we say it or not. However, when a valid document that has not been weakened assists the mingo, everyone agrees we say mingo even to extract. Similarly, in a case of "certain and uncertain" (bari ve-shema), when this one comes to extract and claims "certain" and the one against him claims "uncertain," we say mingo even to extract. Likewise, when there is a presumption along with the mingo, we say it even to extract [Shach, subsection 15]. But without these, the consensus of most poskim is that we do not say mingo to extract [and the question of the Shach from the beginning of the second chapter of Ketubot, which asks "what is the difference between this mingo and that mingo," is not a question at all, for in the case of "after I was betrothed I was raped" it is a case of certain and uncertain [Urim VeTumim] and they are similar to each other; and furthermore, there she has a ketubah, and even though the Ran wrote there that a ketubah is like a condition and it is upon her to clarify, nevertheless, since she has a mingo, the document in her hand is strengthened, as the Beit Shmuel wrote in siman 68, subsection 22, see there; and the Tumim rightly questioned it, and the question of the Netivot HaMishpat at the end of subsection 1 is not a question at all. However, even the question of the Tumim against the poskim is not a question, for they are stating a stronger point than that, and furthermore, it is one and the same, for if not for her "certain" claim, the mingo would also be weakened; and study this]. And regarding land, mingo to extract is not applicable [Sma, subsection 44]. <b>5.</b> We do not say a retroactive mingo (mingo le-mafrea), since now he has no mingo because of his previous admission, and the fact that he had a mingo then is nothing; for since he did not then stand in judgment, he did not care to claim the mingo claim. And even if he stood in judgment and admitted and remained silent, and after "the time it takes to speak" (toch kedei dibur) he made some claim to his benefit, he is not believed based on the mingo he had previously, since he did not claim his right within the time it takes to speak, his claim is weakened. Therefore, in the second chapter of Ketubot regarding "I was taken captive and I am pure," and similarly "I was a married woman and I am divorced," where she is believed, it is only when she said it within the time it takes to speak; but after the time it takes to speak, it is a retroactive mingo. But in a case where his words require explanation, such as regarding the name in "I gave my daughter to a man," he is believed even retroactively, for anything that requires explanation does not need a mingo at all [Tosafot there, starting with "Minayin"]. <b>6.</b> A mingo in the presence of a majority (rov), where the majority is against the mingo he could have claimed, we do not say; for even in the presence of a presumption our Sages, of blessed memory, had a doubt [Bava Batra 5a], and a majority is superior to a presumption. And the fact that we do not follow the majority in monetary matters is not because a monetary presumption is superior to a majority, for a physical presumption (chazakat ha-guf) is superior to a monetary presumption [as is proven in HaMadir 75b according to Rabban Gamliel, like whom we rule, see there and study this], and a majority is superior to a physical presumption, and certainly to a monetary presumption. Rather, the reason is that since in any case the minority also exists in the world, it is impossible to extract from his hand, for perhaps he is from the minority, and certainly if he claims so [this is the intention of the Rashbam at the beginning of the sixth chapter of Bava Batra, starting with "Lo azlinan batar ruba" etc., see there]. Therefore, if the Torah decreed that the minority is as nothing, such as with judges where two convict and one acquits, where the Torah decreed "to incline after the majority," we extract money based on them [this is the intention of Tosafot at the beginning of HaManiach, starting with "Kamah mashma lan," see there; and many great later authorities labored over this matter, and in my humble opinion it is clear as I have written]. And granted that if he makes a claim against the majority we accept it from him for the reason we wrote, nevertheless, to say a mingo that he could have claimed against the majority, we do not say [and although the Netivot HaMishpat wrote in his rules that we do say such a mingo, nevertheless it appears clear to me as I have written]. <b>7.</b> We do not say mingo in the presence of a custom (minhag), for he cannot claim something that is against the custom, and certainly we do not say a mingo that he could have claimed against the custom, for this is like a mingo in the presence of witnesses [this law is explained in Bava Metzia 110 regarding a sharecropper who says "for half" etc., where the law is like Rav Nachman, and as the Nimukei Yosef wrote in the name of the Geonim there]. And this is specifically regarding a fixed custom for the whole world; but when it is a custom for private individuals and for the whole world it is the opposite of this, such as in an iska which is only permitted as half-profit and half-loss, and the money of orphans which is permitted to be lent "close to profit and far from loss," if the recipient claims that he received it as half-profit and half-loss, he is believed when he has a mingo [and with this the words of the Shach in Yoreh Deah siman 160, subsection 28 are well-settled, and the question of the Tumim is not a question, and the answer of the Netivot HaMishpat is very forced; and in this the Rishonim disagreed in the Mordechai in the first chapter of Bava Metzia, and everyone holds that we do not say mingo in the presence of a custom, and in vain did the great later authorities force themselves in this, and study this]. <b>8.</b> We do not say mingo in a claim that is uncommon (lo shechiach). And the fact that one is believed regarding a document of deposit to say "I returned it" with a mingo of "it was lost to an accident," even though an accident is uncommon, is because this is not by reason of mingo, but rather that with such a document he is not concerned about leaving it in the hand of the depositor because he can exempt himself with this claim, and if so, "I returned it" itself is a fine claim; and also it is from an uncommon thing to an uncommon thing, for "I returned it" is also uncommon that he would return it and leave the document in the hand of the depositor. But for other claims that are common, it is possible to say that he is not believed with a mingo of "it was lost to an accident." Similarly, in a matter that is not "the way of the land" (orach ara), we do not say mingo [Netivot HaMishpat]. <b>9.</b> Regarding a "mingo of audacity" (mingo de-ha'azah), that he could have made a claim that involves audacity, there is a dispute among our teachers whether we say the mingo or not, and all of them have sound proofs. And what appears to me from the words of our teachers the authors of the Tosafot in Bava Kamma 107, starting with "Eiruv parashiyot," who wrote at the end of the discussion, this is their wording: And now it is well-settled regarding that which says "all those who swear," which says "since he could say 'it never happened' (lo hayu devarim me-olam) he can say 'it was lost to an accident,'" even though this is not a complete mingo, for this is considered audacity and that is not considered audacity, for in this one he knows and in that one he does not know, nevertheless it compares it to the mingo above, for that also is not a mingo, etc. And that of the third chapter of Bava Batra regarding those goats that ate peeled barley, etc., and in the second chapter of Ketubot regarding "this field belonged to your father," etc., even though in this one he knows and in that one he does not know, it is not similar to a matter of denial, for to deny he certainly does not have audacity in a matter that his fellow knows about, and those cases there are not matters of denial. Thus far their words. And their words are cryptic, and great later authorities labored over their words [see Shach subsection 6 and Urim VeTumim subsection 72]. And it appears to me that this is the explanation: that it is certain that he can have audacity even in what his fellow knows is a lie; but to have audacity and say "it never happened" and to deny everything against his fellow in what he had dealings with his fellow—in such a denial he cannot have audacity. But other types of audacity he can have, even though his fellow recognizes his lie [and with this all the words of the Rosh that the Shach cited are well-settled, and also the words of Rashi at the beginning of Bava Metzia regarding "why did the Torah say 'one who admits to a part'" etc., are well-settled according to our words; and study this]. But if there is also audacity in what he claims, he has a mingo of audacity even for the audacity of "it never happened," since there is also audacity in what he claims. <b>10.</b> We do not say mingo to be exempt from an oath; so the poskim concluded, even when he has a good mingo. And the reason we explained in siman 93. and this is specifically if he comes to take, but if he comes to exempt himself and he has a mingo, if we exempt him from an oath, there is a dispute of the poskim in this. But if in the claim he could have made there was also an obligation of an oath, everyone agrees we do not say mingo even in such a case. And even if the claim he could have made was a good claim and he would have had more monetary gain than what he claims now, nevertheless we do not exempt him from an oath, for perhaps he is acting with artifice in order to be exempt from an oath [Netivot HaMishpat]. <b>11.</b> If in the claim he makes he does not need an oath, and in the mingo he would have had an obligation of an oath, we do not say mingo, for perhaps he did not want to claim so in order that he would not be obligated in an oath. But if in the claim he makes there is an oath, even a rabbinic oath, we say mingo even if in the mingo there is a Torah oath [Shach subsection 28; and the first law is explained from Kiddushin 43b and the second law from Bava Batra 70a]. <b>12.</b> We only say mingo in a claim that is revealed to all that if he had made this claim he would be exempt; but if in the claim he could have made it is not revealed to all that he is exempt with this claim, we do not say mingo, for perhaps he did not want to claim so because he thinks that with this claim he will not exempt himself [so it appears to me is the explanation of the Mordechai in the eighth chapter of Ketubot which the Shach cited in subsection 7 and wrote that its meaning is cryptic, see there; and it is not cryptic, for if the mingo claim is not revealed to all as a right of the claimant, like "I paid" or "you forgave me" or "I returned it to you," as in the incident of the Mordechai there where the return was a disadvantage to the claimant because it was as if he admitted that it was not due to him from her husband, and the mingo is that if he wanted he could have said "I did not return it to her," and seemingly on the contrary "I did not return" is a debt for the claimant, except that according to the depth of the law it is his right—in such a case it is possible that he is not believed on his claim, for certainly it is not a mingo, and not every person is learned in the law]. <b>13.</b> We do not say mingo in a case where he thinks he is telling the truth and we say that he was not precise in this and the event was not so, only it seemed to him that it was so as he claims; and even if he had made the other claim we would not have scrutinized after him and we would have acted according to his words, nevertheless we do not say such a mingo since he thinks he is telling the truth but is mistaken in this. For the entire essence of the reason for mingo is that we say he is certainly telling the truth, for if he wanted to claim a lie he would have made a better claim than this claim, and in this we say he certainly did not want to claim a lie; but he is mistaken himself and speaks out of imagination. Nevertheless, if this claimant exerts himself and says that he did not err in this and says "it is certain to me that it is so as I said and I did not err by the power of imagination," or if we see according to the matter that he was very precise in this and did not speak out of imagination, we say mingo [so it appears to me, and with this the words of Tosafot in Yevamot at the beginning of the fifteenth chapter, starting with "Mi," and Shevuot 45b, starting with "Mitokh," are understood; see there]. <b>14.</b> We do not say mingo with two people, for two cannot coordinate in one lie. But a mingo of "if they wanted they could have remained silent" we do say even with two, for in this agreement is easy. Similarly, if in the mingo they would exempt themselves from money, we also say mingo, for to exempt themselves both easily agree to one claim. Similarly, if it is a matter that is truly in the hands of both of them to do, we also say mingo, for on the side of truth the agreement will occur [see Netivot HaMishpat subsections 15, 16]. And it is explained in the responsa of our teacher, the Maharam of Rothenburg, siman 167, that we say mingo even if in the mingo claim it was possible that witnesses would contradict him and in his claim that he makes now it is impossible to contradict him; and the proof is that with an unverified document one is believed to say "I paid" with a mingo of "it is forged," even though with "forged" it is possible for witnesses to contradict him and with "I paid" it is impossible to contradict him [and see Tosafot Ketubot 19a starting with "Modeh," and study this]. <b>15.</b> If in the claim he could have made he would be making himself a wicked person (rasha), we do not say this mingo, for "no man makes himself a wicked person." And if also in this claim that he makes he makes himself a wicked person, it appears that we do say mingo; and see Yoreh Deah siman 169 that there is a dispute of the poskim in this, and it requires further study for the law. Similarly, "stolen" with a mingo of "borrowed" we do not say, and it will be explained in siman 90 [Netivot HaMishpat]. <b>16.</b> A mingo that "if he wanted he could have made a claim that is a dispute of the poskim" and it was not decided like whom the law follows, we do not say; but in a place where most poskim hold so, we say mingo [ibid.]. And specifically that it is revealed to all that he would win with this claim, as I wrote in subsection 12. <b>17.</b> We say mingo from this money to other money [Shach subsection 13], and even though there are those who disagree in this, nevertheless such is the decision of most poskim; for example, one who withholds his fellow's object because of money that he says is due to him from the owner of the object, if he has a mingo regarding this object, we believe him, as is explained in several places. But in what does not concern himself but others, we do not say mingo except for a trustee (shalish), as we explained in siman 108 section 14, see there for the reasoning of the matter, and it depends on the dispute there. And in siman 138 it will be explained that sometimes we do not say mingo from money to money, and further great rules will be explained there in the laws of mingo with the help of Heaven, see there in section 3. <b>18.</b> A mingo of "if he wanted he could have said 'I erred'" is not a good mingo, for certainly every person is precise in his accounts, and it is like an uncommon claim as explained in subsection 8. However, this is not a fixed rule, for if it appears according to the matter that he could have said "I erred," that the error was likely in this matter, we certainly say mingo [so it appears to me, and see Shach subsection 30]. There are many more specific details in the laws of mingo, and in many places in Choshen Mishpat further details in this were explained, and sometimes they reject the mingo with a slight reasoning. This is the wording of the Shach, of blessed memory, at the end of the laws of mingo: that one should not extract money because of a mingo unless in a matter that is exactly similar, for it is easy to differentiate between them. However, the main foundations of mingo we have explained with the help of Heaven; "give to the wise man and he will become yet wiser."