Modeh Bemiktzat Oath Of Partial Admission
After Testimony In Court
Sa’if 5. Mechaber: The plaintiff claims he lent the defendant one maneh, which is the equivalent of 100 dinarim, in one loan transaction and another maneh in a subsequent loan transaction. The defendant answers that he owes the plaintiff nothing because he has repaid both loans. The court, listening to what the defendant testifies before it in his own defense, concludes that he still owes the plaintiff 20 dinarim.
The court’s conclusion is equivalent to the testimony of two witnesses, because the judges heard in court, directly from the defendant, what he told them in his defense. Accordingly, the defendant must swear the Modeh Bemiktzat oath of partial admission and pay the 20 dinarim. But he is excused from paying the 180 dinarim that he denies.
Rema: The foregoing applies only if the court, in arriving at its conclusion that the defendant owes 20 dinarim, believed the facts pleaded by the defendant in his defense. If, however, the court arrived at its conclusion because it did not believe the facts pleaded by the defendant, then the defendant is not entitled to take the Modeh Bemiktzat oath of partial admission and he must pay the plaintiff the entire amount of his claim.
Ner Eyal : What the court hears first hand from the defendant’s testimony is at least as good as, if not better than, the testimony of two witnesses, which as we saw in Sa’if 4 has the power to obligate the defendant to swear the Modeh Bemiktzat oath. In the first case mentioned in this Sa’if 5, in which the defendant is given the right to swear the Modeh Bemiktztat oath of partial admission, pays the 20 dinarim, and is excused from paying the balance, the court believed the facts underlying his defense. Nevertheless, it came to the conclusion that these facts did not amount to a valid defense at law.
For example, the defendant testifies that he repaid 180 dinarim but regarding the balance of 20 dinarim claims he does not owe it for the following reason: The plaintiff acted as the guarantor for a loan of 20 dinarim which the defendant lent to a third-party borrower. That third party defaulted on the loan. The plaintiff now owes the defendant 20 dinarim under the guaranty. The defendant believes he is entitled to deduct the 20 dinarim owed to him by the plaintiff under the guaranty from the loan that the plaintiff is now claiming from him. The court believes these facts but comes to the conclusion that the guaranty was defective at law, because it was given by the plaintiff after the loan was given by the defendant to the third party.
Because the court believes the facts as recited by the defendant, even though it reached a different conclusion at law, the defendant has not lost his credibility as a witness of facts, although he was mistaken about the law. He can, therefore, still be trusted with the Modeh Bemiktztat oath of partial admission.
In the second case, however, the defendant is not permitted to swear the Modeh Bemiktzat oath of partial admission. This is because in that case the court reached the conclusion that the defendant owes 20 dinarim because it did not believe his testimony on the facts. It concluded that he made up the story about the guaranty. Such a defendant has lost his credibility and cannot be entrusted with the Modeh Bemiktztat oath of partial admission. He must pay the entire claim.