Sa’if 17, Mechaber, continued: The plaintiff claims the defendant stole an article from him. The defendant admits he stole the article, but the admission was not made in the presence of witnesses appointed by the defendant to hear it. Such an admission is meaningless. The defendant can claim his admission was not serious. His admission was as frivolous as the plaintiff’s claim and is not to be taken seriously.
The result would be different in the following situation. The plaintiff pleads with certainty that the defendant volunteered the admission in the presence of witnesses appointed either by the plaintiff or the defendant for that purpose. Afterward the defendant claims that his admission was made frivolously. The witnesses are not present to testify that the admission was made in their presence. In this situation, if the defendant takes the Shevuat Heiset oath of denial and swears that he did not in fact appoint witnesses to hear the admission, judgment will be entered in his favor.
Alternatively, the defendant may request that the plaintiff take a Shevuat Heiset oath that the defendant did make the admission in the presence of appointed witnesses in which case judgment will be entered for the plaintiff.
Rama: Some are of the opinion that the defendant must take the Shevuat Heiset oath of denial if there is circumstantial evidence supporting the claim, even if the plaintiff is not certain of it. An example of such a situation would where the defendant was in the plaintiff’s house at the time something was taken from the plaintiff’s drawer while his back was turned.
Ner Eyal: If the defendant admits to the plaintiff outside court that he owes the plaintiff the money claimed but does not make that admission in the presence of witnesses appointed to hear it, he can maintain the admission was made frivolously in response to what he considered a frivolous claim.
Or, even if a person volunteers an admission that he owes money where no claim was brought against him, he can claim the admission was not real because all he wanted to do was to pretend he is more debt-ridden and poorer than he really is in order to discourage people from asking him for money.
In order for an admission to be acceptable in court, it must be made in front of two witnesses appointed to hear it. If the witnesses testify in court that such an admission was made in their presence, the defendant must pay what the plaintiff is claiming. If, however, the witnesses are, for some reason, not available to testify in court and the plaintiff maintains that the defendant made the admission in front of them but the defendant denies this, the defendant must take a Shevuat Heiset oath of denial, that he made no such admission in front of witnesses, before judgment will be entered in his favor.
There are situations, however, in which although the plaintiff is not one hundred per cent sure of his claim, the defendant is still obliged to take a Shevaut Heiset oath of denial before judgment will be entered in his favor. Such is the case when there is compelling circumstantial evidence in favor of the plaintiff.
For example, the defendant was the only one in the plaintiff’s house when money was taken from the plaintiff’s drawer. Although the plaintiff did not see the defendant with his hand in the till, he knows the money was there before he turned his back and was gone after.
Usually, a defendant who does not want to take a Shevuat Heiset oath of denial is given the option to shift the Shevuat Heiset oath to the plaintiff. If the plaintiff agrees to take the oath in the defendant’s place, the court will enter judgment for the plaintiff. In this case, however, the option to shift the oath to the plaintiff does not apply. The plaintiff is unable to swear that he actually saw the defendant take the money, even though circumstantial evidence is on his side.
This situation is similar to a defendant who is sued by a plaintiff who cannot be trusted to take an oath because he is known to have sworn falsely in the past. It is also similar to the case of a defendant who is sued by a minor who is not eligible to take an oath. In all of these cases, the defendant has no alternative but to take the oath himself if he wants judgment to be entered in his favor. If he does not want to take the oath, judgment will be entered against him.