Editor’s Note: Although the material in this column is a bit dense, The Jewish Press believes it worth presenting to the reading public as it represents the first ever translation of Chosen Mishpat into English. Many people study Orach Chayim; very few study Choshen Mishpat, a fact that Rabbi Grunfeld said his father – Dayan Isador Grunfeld, z”l – would often bemoan. “Either God is everywhere or nowhere, and if you expel Him from the business place, he is nowhere,” Dayan Grunfeld said.
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Se’if 7 – Mechaber: The plaintiff claims the defendant owes him a maneh and produces a piece of paper, written by the defendant, recording that he borrowed a maneh from him. The defendant denies the claim in its entirety. He also denies that the piece of paper was written by him. If the court can establish that the handwriting is his, or witnesses testify to that effect, the defendant is considered a liar and judgment is entered against him. Any defense he might subsequently raise – e.g., he repaid the loan – is not believed. If, however, the plaintiff admits the loan was repaid or the defendant brings witnesses to that effect, judgment is entered for the defendant.
Rema. A defendant who admits in court that he borrowed money, but then remembers that he repaid the loan, is believed if he produces witnesses to that effect.
Ner Eyal: The point the Mechaber is making is that the defendant is considered a liar, not only if his statement is contradicted by live witnesses or a promissory note with the signature of witnesses, but even if his testimony is contradicted by a piece of paper he wrote himself.
Se’if 8 – Mechaber: Any plaintiff whose adversary the court considers a liar is entitled to collect without having to take an oath. If the defendant, who was forced to pay, believes the plaintiff was lying, he may ask the court to excommunicate anybody who takes somebody else’s money illegally.
Ner Eyal: A person with a reputation of being a liar is different than a person caught lying in a specific case. A person with a general reputation of being a liar is called a “chashud al hashevuah.” He cannot be trusted to be telling the truth when swearing since he has either 1) sworn falsely in the past; 2) violated biblical or rabbinic laws; or 3) earned a reputation of being a scofflaw or a gambler.
The rule with respect to a chashud al hashevuah is that the right to take an oath is transferred to the plaintiff. In order to get paid, the plaintiff must take an oath that the defendant owes him the money. Why is an oath necessary altogether? Because even though the defendant is known to be a liar, that doesn’t mean he’s lying in the specific case at hand.
In contrast, a defendant caught lying regarding a specific case being tried before a court loses credibility for that case. Accordingly, the plaintiff may collect his money without taking an oath.
Generally, when a litigant is forced to pay because his adversary supported his claim with an oath, he may – if he believes his adversary is lying – ask the court to personally warn him that he will be subject to excommunication if he takes something that does not belong to him. But if the defendant is considered a liar by the court in a particular case, the court will not issue a personal warning to the plaintiff. Rather, the Mechaber says, the court will only make a general statement that anybody who takes somebody else’s money illegally will be subject to excommunication.