Translation:Shulchan Aruch/Choshen Mishpat/88

Paragraph 1- One who partially confesses is not required to swear unless the admission is, at a minimum, a perutah, and the denial is, at a minimum, two maein of silver. Thus, the defendant will not be required to swear unless the claim was 2 maein and a perutah and he confesses on the perutah and denies the two maein, If, however, the plaintiff made a claim against him for two maein and a perutah and the defendant confessed on two perutos or he confessed on half a pertuah, he would be exempt because there was no denial of two maein or there was no confession on a perutah. The calculation of a perutah is the weight of half a barley of clean silver. The calculation of two maein is the weight of 32 barleys of clean silver.

Paragraph 2- Similarly, if the plaintiff did not make a claim on silver but on forms of merchandise and the defendant partially confessed, we would evaluate the denial and confession. If the value of the denial is two maein and the value of the confession is one perutah, he would be obligated to swear.

Paragraph 3- When is this true? Where the plaintiff made a claim on fruit or forms of merchandise. If, however, the plaintiff made a claim on two vessels and the defendant confesses on one of them, there is no value requirement. Rather, even if ten needles are worth a perutah and the plaintiff makes a claim on two and the defendant confessed on one of them, the defendant would be obligated to swear. If the plaintiff made a claim on silver and vessels and the defendant confessed on the vessels and denied the silver and the denial was two maein, the defendant would be required to swear. If it was not worth two maein, he would be exempt. If the defendant confessed on the silver and denied the vessels and the confession was worth a perutah, he would be obligated to swear.

Paragraph 4-This that we need a denial of two maein is only with respect to a partial confession. In the case of a complete denial where a solo witness contradicts the defendant, however, the defendant would be required to swear, even if he only denied a perutah.

Paragraph 5- A guardian-oath also does not require two silvers. Rather, even if the plaintiff only deposited a perutah or something worth a perutah and the defendant claims it was misplaced, he would have to swear. Anything worth less than a perutah is not money and the court will not assist on such a claim. There are those that says that a guardian-oath also requires two silvers and this seems to me to be the primary view.

Paragraph 6- A heses oath would also be required even on something worth a perutah.

Paragraph 7- A partial confessor is only required to swear where he confesses on the form of the claim. How so? If the plaintiff made a claim on a kur of wheat or a kur of grain and the defendant confesses on half a kur of beans, he would be exempt from swearing. If, however, the plaintiff makes a claim against him on a kur of fruit and he confesses to half a kur of beans, he would be required to swear because beans are included in the category of fruits.

Paragraph 8-If the plaintiff did not make a claim on a specific item but said the defendant has a maneh-worth of the plaintiff’s items in the defendant’s possession, anything the defendant confesses to is considered a form of the claim because everything is included in “worth.” If, however, the plaintiff made a claim on a maneh of a specific item and the defendant confessed to something worth a maneh, that would not be considered the form of the claim.

Paragraph 9-If the plaintiff made a claim on a dinar of silver or a dinar of gold, it is as if he made a claim on an item worth a dinar of silver or a dinar of gold, and whatever the defendant confesses to is considered the form of the claim. This is only where the plaintiff makes a claim on a currency that is in general circulation because we say he presumably meant an item worth a dinar since it is standard practice for a person to evaluate everything with currency. If, however, the plaintiff makes a claim on a liter of gold or a void currency that is not in general circulation, it is not considered as if the plaintiff made a claim on an item’s worth. Similarly, if a plaintiff makes a claim on a dinar of golden gold, which means the plaintiff is saying you have currency of mine in your possession, that is not considered as if he said an item worth a dinar, even though gold is in general circulation. Rather, the plaintiff specifically means a dinar, and even if the defendant were to confess on currency of half a dinar, it would not be considered the form of the claim.

Paragraph 10- There are those that say that this that we said that if the plaintiff makes a claim on a dinar of silver or a dinar of gold is as if he made a claim on an item worth dinar of silver or an item worth a dinar of gold, is only true with respect to a loan. With respect to a deposit, however, the plaintiff specifically means a dinar of gold and not item worth a dinar. There are those that disagree and say that the rules of a deposit are the same as the rules of a loan.

Paragraph 11- If the plaintiff made a claim of 100 dinar of such and such currency and the defendant responds I only have 50 of another currency, it is not considered the form of the claim unless he says the plaintiff says he gave a dinar of gold to exchange for currencies or I sold you merchandise for money and the defendant says I gave you everything except for one coin. In any other scenario, however, the defendant would not be required to swear, even if the plaintiff makes a claim on a dinar of gold and the defendant confessed on a currency worth half a dinar.

Paragraph 12- If the plaintiff made a claim on items, such as wheat and barley, and the defendant confessed on one of them, the defendant must give what he confessed to and swear on the rest. If, however, the plaintiff made a claim on wheat and the defendant confessed to barley, the defendant would even be exempt from paying barley. There are those that says that the rationale is because it is as if the plaintiff confessed that the defendant does not owe him barley and therefore, even if there were witnesses on the barley, the defendant would be exempt because a party’s confession is like 100 witnesses. ''Even if the defendant knows that he owes the plaintiff barley, he would be exempt from paying the plaintiff, because it is as if the plaintiff waived the debt, similar to what was explained above in 75:11. This seems to be correct to me- not like those who disagree.'' There are others that say that this only applies where the plaintiff says I lent you wheat on such and such day at such and such hour and the defendant says it was barley, because had the plaintiff lent both he would make a claim on both since they were lent at the same time, so he must be confessing that he did not lend him barley. In any other case, the defendant would certainly be liable because a person does not waive other claims by virtue of only making one claim. If the plaintiff takes possession of the value of the barley, we would not take it away from him. ''There are those that say that this is only where the plaintiff took possession before he made the legal claim. If, however, he took possession after they stood in judgment, we would remove it from him. This seems to me to be the primary view.''

Paragraph 13- If one makes a claim against his adversary that he lent him a maneh and the defendant responds that he only has 50 zuz worth of such and such item that the plaintiff gave him and the item is still in existence or the item was lent to me on the condition that the plaintiff would only collect from the actual item, or in the reverse case where the plaintiff says that the defendant has such and such item which was designated for collection for a maneh that he owes him and the defendant only confessed to a standard loan of 50, there are those that say that that which was claimed was not confessed to and the defendant would be exempt from both paying as well as a biblical oath and would only be required to take a heses oath.

Paragraph 14- If the plaintiff made a claim of a kur of wheat and before he had a chance to finish the claim and add a claim of a kur of barley the defendant prematurely said he only has a kur of barley and the plaintiff says he was also going to demand the kur of barley and it was done in a trickery fashion where the defendant deliberately jumped in before the plaintiff could finish his claim, the defendant would be required to swear because we consider it as if the plaintiff already made the claim on both. If the defendant did it incidentally, the defendant would be exempt from a biblical oath and from repayment, even if the plaintiff immediately responded- within kidei dibur- that he also wanted to claim barley from the defendant. If, however, the plaintiff said following the confession that it is certainly true that the defendant has barley of his, but he is not requesting it now, the defendant would be required to pay for the barley.

Paragraph 15- If the defendant first said that he has the plaintiff’s barley in his possession and the plaintiff then made a claim on wheat, which the defendant denied, because the confession on barley was made before the claim on wheat, there is no partial confession and the defendant would pay for the barley and take a heses oath on the wheat.

Paragraph 16- Similarly, if the plaintiff made a claim on wheat and the defendant confessed, and the plaintiff then made a claim on barley, which the defendant denies, because the defendant confessed on the wheat claim before the claim on barley was made, there is no portion of the claim and the defendant would pay for the wheat and takes a heses oath on the barely. There are those that say that in this case as well we would consider whether the defendant rushed to confess before the plaintiff could finish his claim, in which case the defendant would be obligated to swear.

Paragraph 17- If the plaintiff made a claim on wheat and the defendant responds that he is unsure whether he owes the plaintiff wheat or barley, the defendant would take a heses oath stating he does not know and would pay for the barley. ''There are those that say that even in this case the defendant would be exempt from paying for barely unless he wants to fulfill his heavenly duties. This seems to me to be the primary view.''

Paragraph 18- If the plaintiff says the defendant has 10 full jugs of oil in his possession and the defendant says he has 10 jugs without oil, the defendant would be exempt from swearing because the plaintiff made a claim on oil and the defendant confessed on pottery. If the plaintiff says the defendant has ten jugs of oil in his possession or he says the defendant has 10 jugs filled with oil and the defendant says he only has 10 empty jugs or only confesses on the oil, the defendant would be required to take a biblical oath because the plaintiff made a claim on both the jugs and the oil. If, however, the plaintiff says the defendant has 10 oil-jugs in his possession the claim is only on the jugs and if the defendant confesses on the oil it would not qualify as a form of the claim.

Paragraph 19- If the plaintiff says the defendant has a maneh in his possession via a loan and the defendant says this never occurred and he never borrowed from him but that he has 50 dinar in his possession via a deposit or something similar, that would qualify as a partial admission and the defendant would swear a biblical oath. The same would apply in a claim that the defendant borrowed or rented.

Paragraph 20- If the plaintiff made a claim for the defendant’s father’s debt and the defendant confesses on his own debt, the defendant would pay back his personal debt that he confessed to and would take a heses oath on his father’s debt assuming the plaintiff made a certain claim that his father owed money.

Paragraph 21- If two parties are each making claims against each other, and the two claims are not the same, but one party says he lent the other a maneh and the defendant confesses on a dinar, and the second party claims the other party has a kur of his wheat and the first party partially confesses and denies the rest, and the seconds confession is the same amount as the first’s confession, they would each be exempt from a biblical oath because it is a case of “here it is.” If, however, the second’s confession was more than the first’s confession, the second party would be required to take a biblical oath because he did not say at the time of the claim that the incident never occurred because you have my items in your possession and that is why I am taking possession of your stuff. Rather, he confessed a standard confession to him and is a partial confessor.

Paragraph 22-If the plaintiff makes a claim on a maneh and the defendant confesses to 50, but when it comes time to swear the defendant says he does not want to swear and will instead pay the full maneh if the plaintiff swears to him first that the defendant owes him the maneh and the plaintiff says he will not swear unless the defendant first pays him, the plaintiff is in the right because the defendant is required to either swear a biblical oath or pay. If he wants, however, the defendant can place a general cherem on anyone who makes an inaccurate claim against him and would then pay. Once he has paid, the defendant is able to have the plaintiff swear a heses oath that he has not illegally collected.

Paragraph 23- One who partially confesses is not obligated to swear unless the claim was something that can be measured, weighed or counted and the confession was on something that can be weighed, measured or counted. How so? If the plaintiff says that the defendant has 10 dinar, a kur of grain or two liters of wool in his possession and the defendant responds that he only has a dinar, half a kur or one liter. If, however, the plaintiff says that the defendant has a wallet full of money and the defendant responds that he only has 3 dinar, or if the plaintiff made a claim on 100 dinar and the defendant says he only has the bundle that the plaintiff gave him and he doesn’t know how much is in it because he did not count it and the plaintiff can take what he left, the defendant would be exempt from a biblical oath.

Paragraph 24- If the plaintiff says that the defendant has a house full of fruit in his possession and the defendant says he only has 10 kur or the plaintiff claims 10 kur and the defendant responds that he doesn’t know how much there are because he did not measure it and the plaintiff can take what he left, the defendant would be exempt from an oath, even if the plaintiff made a claim on “this” house full of fruit. If, however, the plaintiff claims “this house that had fruit until this attachment” and the defendant says he only had until the window, the defendant would be required to swear. An example of this would be where the fruit rotted via negligence and the defendant is required to pay. Otherwise, it would be a case of “here it is” and the defendant would be exempt from an oath.

Paragraph 25- If the plaintiff made a claim on a large lamp and the defendant confessed to a small one, the defendant would be exempt from an oath. If, however, the plaintiff made a claim on a lamp worth 10 liter and the defendant confessed to one worth five liter, he would be obligated to swear. If the plaintiff made a claim on a lamp with parts, the defendant would be obligated to swear in all cases.

Paragraph 26- If the plaintiff made a claim on a large belt and the defendant confessed on a small one, the defendant would be exempt from swearing. If the plaintiff made a claim on a belt with parts, the defendant would be obligated to swear.

Paragraph 27- If the plaintiff made a claim of a 10-measurement curtain and the defendant confessed on a five-measurement, he would be obligated to swear.

Paragraph 28- A confession on a document is not considered an admission to require a biblical oath on a denial. How so? If the plaintiff made a claim of 50 maneh in a document and 50 in an oral loan, not only in a case where the defendant confesses to the oral 50 and denies the documented 50 would there not be any oath and the defendant would pay the 50 he confesses to and the plaintiff would swear on the 50 in the document and collect, but even if the defendant confessed to the documented 50 and denied the oral 50, the defendant would not swear a biblical oath because a document is like real property since it contains a lien on real property. Just as one does not swear on a denial of real property, so too would his admission not require an oath. When is this true? With respect to a document that can be verified. With respect to a document that cannot be verified, however, the admission is considered an oral one and the defendant would swear on the denial. It goes without saying that if the plaintiff lent with a document and claims he misplaced the document and the defendant confessed that he made the document but partially denies the amount or confesses to the entire document but says that some of it was paid back, the defendant would be required to take a biblical oath just like any other partial confessor. Paragraph 29- When is this true? With respect to a document with which the lender can collect from third-party buyers. With respect to a party’s handwriting, however, because the lender cannot collect from third-party buyers its status with respect to a biblical oath would be the same as an oral loan, even if the document contains a believability clause.

Paragraph 30- If the borrower gave the lender his handwritten document in front of witnesses, it was explained above in Siman 40 and 69 that it has the status of a document with witnesses signed on it.

Paragraph 31- If the plaintiff claimed that he lent a maneh in Nissan and a maneh in Tishrei and the defendant confesses on one of them, it is considered to be a form of the claim even though it was not lent at the same time.

Paragraph 32- If a loan document simply said selaim or dinarim and the lender says the amount was five and the borrower says it was two, the borrower would be exempt from taking a biblical oath because there is no confession since even without his confession the minimum amount that qualifies as selaim is two so he only confessed to that which was in the document and there is no bona-fide confession. Even if the borrower confessed to three, which is a confession of one more than the document implies, he would still be exempt from swearing because he has the status of one who returns a lost item since if he wanted he could have said two. Therefore, if a party says I or my father have a maneh of yours in my possession and I paid you back half and the plaintiff responds I didn’t remember but now that you reminded me I know that you did not pay back anything, the defendant would even be exempt from a heses oath because he is a lost-item returner.

Paragraph 33- Just like a confession on a documented loan does not qualify as a confession, so too does a confession on a loan via kinyan where there are witnesses on the kinyan not qualify as a confession because a standard kinyan is meant to be documented and thus has the status of a document. Therefore, if the plaintiff says the defendant has 50 maneh in his possession via a kinyan and 50 without a kinyan and the defendant confesses to the 50 via kinyan and denies the others, the defendant would take a heses oath and be exempt.