Sai’f 20, Mechaber: A plaintiff says he thinks, but is not certain, the defendant owes money to the plaintiff’s deceased father. Or the plaintiff says he thinks, but is not certain, that the defendant’s deceased father owed money to the plaintiff’s deceased father. In either case, the defendant does not have to take an oath. But the plaintiff may ask the court to warn the defendant that if he is lying, he will be subject to excommunication.
If the plaintiff says he is certain the defendant owes a maneh to his deceased father and the defendant admits part of the claim but denies the other part, the defendant must take the Modeh Bemiktzat oath of partial admission. If, however, the defendant denies the claim entirely, he must take a Shevuat Heiset oath of denial. (Rama: This is the case whether the plaintiff claimed it from the debtor himself or from the debtor’s heirs.)
Ner Eyal: We have seen earlier, in Sa’if 16, that there is a difference between the alleged debtor who says he does not know whether he borrowed money on the one hand and his heir who says he does not know whether his father owed money on the other hand. Whereas the debtor himself ought to know whether he borrowed money and therefore must swear that he does not know, his heir is exempt from taking an oath. This is because the heir cannot be expected to be familiar with his father’s business affairs. But there is no difference between the creditor who says he thinks, but is not certain, the defendant owes him money and the heir of the creditor who says he thinks, but is not certain, the defendant owed money to his deceased father.
Either way, the defendant does not have to take an oath to rebut the claim of an uncertain plaintiff. It makes no difference whether that plaintiff is the creditor himself or the heir of the creditor. Accordingly, if the heir of the creditor says he thinks, but is not sure, the defendant (or the defendant’s father) owed his deceased father money, it does not matter whether he sues the borrower himself or the heir of the borrower. Neither is obliged to take the Shevuat Heiset oath of denial and the claim will be dismissed.
Even if the borrower or his heir makes a partial admission, there is no requirement to make a Modeh Bemiktzat oath of partial admission. This is because the plaintiff was uncertain of the claim and the defendant could have remained silent and won the case. So if instead of remaining silent the defendant volunteered a partial admission, it is as if he returned the plaintiff’s lost property. If an owner of lost property claims he lost more than what was returned to him, the finder is not obliged to take an oath that he did not pocket part of what he found.
In short, it is not sufficient for a plaintiff, whether he is the creditor himself or the heir of the creditor, to say he thinks but is not sure the defendant owes money. He will lose his case unless he claims with certainty. But it is a sufficient defense for the borrower to say he does not know if there was a loan. He will win the case. If it is the borrower himself who says he does not know, he will have to take an oath to that effect. But if it is the heir of the borrower who says he does not know, the case against him will be dismissed without the need to take an oath.
