Jewish American Heritage Month

Posted By admin on June 29, 2017

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Saif 19, Mechaber: The plaintiff claims he lent the defendant money and though he cannot remember how much, it was at least two silver maot and one perutah. Alternatively, the defendant admits he borrowed money but cannot remember how much. In each case, the court should ask the defendant whether he remembers borrowing at least one perutah. If the defendant admits this, he must take the Modeh Bemiktzat oath of partial admission. However, he is unable to take the Modeh Bemiktzat oath of partial admission because he does not remember how much he borrowed. Accordingly, judgment in the amount of two silver maot and one perutah will be entered against him in accordance with the rule one who cannot swear must pay.

Before entering judgment against him, however, the beit din must satisfy itself that the claim is feasible in so far as the plaintiff had the means to make such a loan to the defendant and that the defendant needed the money. As always, the defendant may ask the court to warn the plaintiff that if he is lying he will be subject to excommunication for having taken something that in fact does not belong to him.

If the defendant cannot remember whether what he borrowed was even worth a perutah, he must take the Shevuat Heiset oath that he does not remember, and the case against him will be dismissed. Some halachists are of the opinion that the very admission of having taken a loan justifies a judgment against the defendant because there is no loan at law of less than one perutah.

Ner Eyal: A maah (singular of maot) was the smallest silver coin of legal tender in the days of the Talmud. A perutah was the smallest copper coin of legal tender in the days of the Talmud and anything less than that has no legal worth. Thirty-two perutot equal one maah.

Whereas the plaintiff discussed previously in Saif 18 had no recollection whatsoever how much he lent the defendant, the plaintiff in this case is able to say for sure that he lent him at least two silver maot and one perutah. The significance of this amount is that it is the minimum amount required to trigger the Modeh Bemiktzat oath of partial admission.

Before the Torah obliges a defendant to take the Modeh Bemiktzat oath of partial admission, the defendant must admit at least one perutah of the claim and deny two maot. This means the claim itself cannot give rise to the Modeh Bemiktzat oath of partial admission unless it is at least a claim for two maot and one perutah.

Now that the plaintiff states that what he lent was at least that amount, and the defendant admits to having borrowed money from him, the beit din should inquire whether the defendant remembers borrowing at least one perutah. If he does, the beit din can oblige him to take the Modeh Bemiktzat oath of partial admission. Since he will not be able to do so because he does not remember how much he borrowed, judgment will be entered against him for the whole amount of the claim in accordance with the rule he who cannot swear must pay.

If the court, before rendering judgment, does not think it feasible that somebody in the plaintiffs financial circumstances had the means to make such a loan to the defendant or that the defendant did not need so much money, it can reduce the judgment amount to what it believes is feasible.

The Baal Heterumot was not sure if the court could initiate the question as to whether the defendant remembers borrowing at least one perutah and thereby trap the defendant into a judgment against him based on the one who cannot swear must pay rule. However, after consulting with the Ramban, the Baal Haterumot ruled that the beit din should initiate the question and the Mechaber rules accordingly.

Continue reading here:

Can The Court Can Initiate Questions Leading To Judgment Against A Litigant? (Siman 75:19) - The Jewish Press - JewishPress.com

Category: Talmud
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