Se’if 4 – Mechaber: The plaintiff claims he lent the defendant money in front of witnesses. The defendant counters that this transaction never occurred. The plaintiff then produces witnesses who testify that they saw the plaintiff count out and hand money to the defendant. The witnesses, however, do not know whether the money was given as a loan or a gift. The defendant in this case is considered a liar.
Accordingly, if, after the witnesses testify, he amends his plea and says the money was given to him – but as a gift, not as a loan, or that it was given to him in repayment of a loan that the plaintiff owed him, or that it was a loan but he already repaid it – the court should not believe him.
If, however, the defendant initially admitted the claim, but explained to the court – before the witnesses testified – that the plaintiff gave him the money as a gift or in repayment of a loan that the plaintiff owed him, or that he already repaid the loan, the court should believe him because he is not contradicting the witnesses’ testimony. In this case, if the defendant takes a shevuat heseit oath of denial, the court should enter judgment in his favor.
Ner Eyal: The first case discussed by the Mechaber has its origin in a debate in the Gemara regarding the type of evidence that is admissible in monetary disputes – dinei mamanot – as opposed to cases involving capital punishment – dinei nefashot. For dinei nefashot, the requirements are stricter.
Thus, if, for example, one witness looking out a window saw the accused chasing the murder victim and the second witness saw the same thing from another window, but the witnesses did not see each other at the time, the testimony is thrown out because the occurrence of a criminal event can only be established by the testimony of two witnesses who observed the same event in each other’s company. If they witnessed the event in isolation from each other, their testimony is inadmissible. In monetary cases, however, the evidence of two witnesses who saw the same transaction while not in each other’s presence is admissible.
Similarly, evidence is admissible that a certain transaction took place even if the witnesses do not know all the details of the transaction. An example of this is the first case in this se’if. The witnesses testify that they saw the plaintiff give money to the defendant but they don’t know the nature of the transaction. They do not know if it was a loan, a gift, or something else. The evidence is at least acceptable to establish that the plaintiff handed money to the defendant.
Consequently, if the defendant denies ever receiving the money from the plaintiff and his statement is subsequently contradicted by witnesses who testify that the event did take place, the defendant has been caught in a lie and is considered a liar. The court will now not believe anything else he might say to fill in the missing details of the event about which the witnesses were silent.
According to some halachic authorities, including the Mechaber, the defendant has the status of a liar only if the plaintiff asserts that he lent him the money in front of witnesses. According to these authorities, the plaintiff’s statement that the loan took place in front of witnesses should have put the defendant on notice of the seriousness of the claim. It should have prompted him, if he were honest, to immediately explain the circumstances under which he accepted the money. He might have explained that he accepted it because it was given as a gift, or in repayment of a loan that the plaintiff owed him.
But if the plaintiff simply claimed the defendant lent him money, but did not add that the transaction was witnessed by two people, the defendant’s denial of the whole event is reasonable. He is simply denying an unsubstantiated loan without bothering to disclose the details that he would have shared had he been told that witnesses were present.
According to other halachic authorities, though, including the Rambam, the defendant, whose denial of the event was subsequently contradicted by witnesses, is assumed to be a liar in either event. According to these authorities, the very claim itself, even if unaccompanied by a statement that the loan took place if front of witnesses, should have sufficed to elicit an honest and full response from the defendant. If, instead, it elicited a wholesale denial, which was subsequently contradicted by witnesses, the defendant must be lying.
Editor’s Note: Although the material in this column is a bit dense, The Jewish Press believes it is 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.