Siman 84

One who impairs his document shall not be paid except with an oath, even if the borrower did not claim "swear to me," because one who pays is accustomed to be precise, but one who is paid is not accustomed to be precise; therefore, the sages imposed an oath upon him so that he would remind himself and admit. How is the impairment of a document such that the lender would need to swear? Behold, if his document was for one thousand zuz, and the borrower claimed that it is entirely paid, and the lender says "I was only paid part of it," he shall not be paid the remainder except with an oath similar to a Torah oath. And even if there were witnesses at the time he paid what the lender admits, or if he wrote him a shover, we do not say that since we see the borrower did not want to trust the lender without witnesses or without a shover, if he had paid more he would have had witnesses or a shover; nevertheless, we concern ourselves that perhaps when he paid him more, witnesses were not available to him and he did not have time to write a shover. And even if the lender was precise to include in his calculation what he received and says "on such-and-such day I received this much, and on such-and-such day this much," and included even less than a perutah's value, and we see that the lender was very precise and it is a sign that he was not paid more, nevertheless, it is an enactment of the sages that anyone who impairs his document shall not be paid except with an oath when the borrower says he received more than what the lender admits, unless there is a ne'emanut clause in the document; even if he did not specify that he has ne'emanut whether for all of it or part of it, he takes without an oath. And if the lender says "this payment I remember, and more I do not remember," since he does not claim with certainty that he was not paid more, the borrower is exempt and he shall return to him his document or his pledge [Sma], and even if there is a ne'emanut clause in the document, for in such a case, certainly "certainty and doubt, certainty is preferable."

And such is the law regarding orphans who came to collect their father's promissory note, and the debtor said, "I paid all of it," and the orphans say, "Our father told us that only part of it was paid," or if they say, "We know that only part of it was paid," the heirs are obligated to swear the oath of heirs that their father told them so, even if the debtor does not claim, "Swear to me." And all the more so when they claim that they themselves know of this, or that they themselves received part of the debt, that they swear a severe oath just as their father would have had to swear [Shach], not like the one who says that orphans do not need to swear; and so the great later authorities agreed [Urim VeTumim and Netivot HaMishpat]. And if they say, "We do not know at all if he paid or if he did not pay," the debtor must pay, and we do not obligate them in an oath unless the debtor claims, "Swear to me," for then they swear the oath of heirs, as will be explained in siman 108. [And it appears to me that this is the intention of our teacher, the Beit Yosef, in the name of the Ba'al HaTerumot which the Sma brought in subsection 1, and this is his wording: that if he impaired it, his son shall not swear, for the enactment they enacted was for him and not for his son, thus far his words; he means to say that if he impaired it, his son shall not swear a certain oath, but rather the oath of heirs, and this is according to the words of the Yerushalmi in the ninth chapter of Ketubot which the Shach brought, see there, and it does not disagree in law, and examine this well.] and in section 5 more will be explained regarding this.

In what case are these words said? When the time of the document has passed. But if it is within its time, even though he impaired his document, he is paid without an oath. For even though we see that in this document there is no presumption that "a person does not pay within his time," since he indeed paid him a small amount even according to the words of the lender, nevertheless, regarding that which the lender did not admit, we say this presumption applies. And if the borrower claimed, "Swear to me," our teacher, the Beit Yosef, wrote that the lender must swear. And there are those who disagree with him, for since it is within its time, he is paid without an oath [Sma and Shach]. And in my humble opinion, it appears like the words of our teacher, the Beit Yosef, for even without impairing, some say that the lender must swear when the borrower says "Swear to me," as our teacher, the Rema, wrote in siman 78, section 2, and we explained it there in section 4, see there. And granted that we do not rule accordingly, nevertheless, in impairing, where in this document this presumption is nullified, certainly everyone agrees that if the borrower demands an oath, he must swear. And despite this, when the borrower dies, the beit din does not claim on behalf of his heirs "perhaps the borrower paid all of it," even though he himself could have claimed so and obligated him in an oath, because it is an uncommon matter. And there are several things that we do not claim for heirs even though he himself could have claimed them if it is an uncommon matter [as the Tosafot wrote in Bava Batra 70b, starting with the words "The one who says," see there, and as is evident in Urim VeTummim, subsection 3].

And such is the law when one witness testifies regarding the document that it is paid; he shall not collect except with an oath, and this oath is also like a Torah oath, and even if he does not claim "swear to me," as in the case of one who impairs his document. And even when the borrower does not claim with certainty, we administer an oath based on the witness [Shach]. And why is there no "oath of one witness" here to contradict the witness? Because all Torah oaths are to swear and be exempt, and not to swear and collect. Furthermore, in a document there is a lien on lands, and by Torah law one does not swear regarding lands, as was written in siman 95. And if "trust" is written in the document without specification, it was explained in siman 71 whether it is effective against one witness or not. And all this is when its time has passed, but within its time, he collects without an oath. And if the borrower claimed "swear to me," there is also a dispute as in the case of one who impairs his document, which we explained in section 3; see there.

In the case of one who impairs his shtar and the lender died before he swore, the sages said [Shevuot 48b] that his heirs swear the oath of heirs and collect; that is, the oath "that our father did not command us that this shtar is paid." The Rambam, of blessed memory, wrote likewise in chapter 17 of Malveh, and similarly regarding a single witness who testified that it is paid and the lender died before he swore, and as our teacher, the Beit Yosef, wrote in siman 108, section 14. From the simple meaning of the language, it implies that they are obligated to swear even when the borrower does not demand the oath, and so we explained in siman 108, section 10, see there. And that which we wrote in section 2, that if the orphans say "we do not know" they are not obligated in an oath unless the borrower demands the oath from them, that is when they do not admit at all to the payment and there are no witnesses that he impaired the shtar; but in the case of one who impairs and dies, they are obligated to swear the oath of heirs even without his demand. And that which is said in the Yerushalmi, chapter 9 of Ketubot, regarding one who impairs his shtar, that the power of the son is greater than the power of the father in that they collect without an oath, this means that they do not have to swear a certain oath like their father, but they do swear the oath of heirs, as it concludes there, see there. And if the borrower died during the lifetime of the lender, such that the orphans of the lender must collect from the orphans of the borrower, they do not collect with it at all, because the lender already became obligated in an oath to the children of the borrower, and a person does not bequeath an oath that he was supposed to swear to the heirs of the borrower to his children. But if the lender died during the lifetime of the borrower, even if afterwards the borrower also died, the heirs swear and collect, since the initial oath that their father became obligated in was not in order to collect from orphans but from the borrower himself. The principles of these laws and their reasoning we explained there with the help of Heaven. And even though there is one who says that when the lender dies and the borrower is alive, if the borrower wishes he may swear and be exempt [see Urim VeTummim that this is the opinion of the Ba'al HaHalachot Gedolot], the halacha is not so, and most of the poskim ruled as we have written. [And what the commentator wrote in section 170 on the Yerushalmi there, that regarding a single witness he does not bequeath his oath to his children, I have not found a companion for him, and it is also puzzling, for behold this is not a Torah oath as we wrote in section 4].

But one who reduces his document is paid without an oath. How so? If his document was for one thousand zuz, and the borrower claims, "I paid you everything," and the lender says, "I was not paid anything, but you only owe me five hundred zuz, and that which was written in the document as one thousand was an agreement of trust (amana) between us," even if it does not contain a clause of trustworthiness, he is paid without an oath, for the lender is believed through a migo. And this is not a migo to extract, since he has a debt document in his hand. And if the borrower said, "Swear to me," he must swear, for it is no worse than any document where the borrower claims, "Swear to me that I did not pay you," where he is obligated to swear, as I wrote in siman 82. In what case does this apply? When the witnesses did not know about this, that there was an agreement of trust between them for five hundred gold pieces. But if they knew of this, the document is invalid, for they acted unlawfully by signing themselves onto a document of trust, as he could have collected with it from purchasers, as I wrote in siman 46. And its law is only like an oral loan, where the borrower is believed to say "I paid," and he swears a hesat oath and is exempt [see Sma, subsection 11]. And so too, if the lender says that the witnesses erred and wrote one thousand instead of five hundred, he is admitting that they testified falsely and the document is invalid, and its law is like an oral loan. And even if there is a clause of trustworthiness in the document, it is merely a shard of clay. And according to the poskim who hold that we say migo to extract, the lender is believed through a migo, and therefore it is a legal doubt, and if he seized it, we do not remove it from him [Shach]. And we have already written in the rules of migo that most poskim do not hold accordingly; and see what I wrote at the end of the previous siman.

And regarding one who impairs his shtar, our teacher, the Beit Yosef, wrote that if the payment is written between the lines, it is not considered as impairing his shtar to obligate him in an oath when the borrower does not demand the oath. For since the payment is written in the shtar, it is as if the shtar was written from the first moment for the remaining sum. Furthermore, had he paid him more, he would have written it also in the shtar; for specifically regarding witnesses or a separate shover, we wrote in section 1 that it is possible that regarding another payment it was difficult to do, but to write within the shtar would have been easy for them to do, and since they did not do so, there is some proof that more was not paid. And it is not specifically between the lines, for the same law applies if the receipt is written at the bottom or on the side or on the second side of the shtar, for in all these it does not have the law of one who impairs his shtar, as I have written. And all this is specifically when the first payment was written with the knowledge of the borrower, for then we say that had he paid him more, the borrower would have commanded him to write also the second and third payment. But if the lender wrote it without the knowledge of the borrower, its law reverts to that of any who impairs his shtar, and he shall not be paid except with an oath [Shach]. And also, even if it was written with the knowledge of the borrower, if the borrower claims that before he paid him the payment written in the shtar he had also paid him and did not demand that he write the payment in the shtar because he trusted him, and afterwards, seeing that he denied it, he forced him to write regarding the second payment, his claim is a valid claim and his law is as one who impairs [see Urim VeTumim].

There was a case concerning a document in which the payment was written between the lines as 400 gold pieces over an erased area, and the borrower claimed that he had paid him more and that the lender erased the place of payment and wrote what he desired. The Rosh, of blessed memory, ruled that if the writing of the payment is in the handwriting of the borrower, the law is with the lender, and we do not fear that he erased and forged his handwriting as well. But if it is the handwriting of another, the law is with the borrower, and we fear forgery; the lender may not collect with this document, and the borrower swears how much he owes and is exempt. It appears to me, however, that regarding purchasers we do not collect with it even if it is the handwriting of the borrower, and even if the borrower admits to the lender, for we fear payment and collusion since there is a defect in the document.

All the laws that have been explained do not apply to a document in his own handwriting without witnesses, since the borrower is believed to say "I paid," just as with an oral loan, as I wrote in siman 69. However, in a place where he is not believed to say "I paid" according to what we explained there, if he impaired the document, the lender must swear an oath similar to a Torah oath. And if it is within its time, he does not need to swear unless he sues him, as I wrote in section 3, and its law is like a document with witnesses.