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.
* * * * *
Se’if 5 – Mechaber: The plaintiff claims that the defendant owes him a maneh. The defendant denies the claim in its entirety. The plaintiff then produces witnesses who testify that the plaintiff lent the defendant money. In response to this testimony, the defendant admits that he borrowed the money, but now says that he paid it back. The defendant, having been contradicted by witnesses, is now considered a liar by the court and he must pay the amount claimed. The plaintiff may collect the money from the defendant without the need to take an oath. The defendant is only considered a liar, however, with respect to the money that the witnesses said he borrowed. He is not considered a liar with respect to other monies. If he is faced with another claim for other monies, he can deny the claim the same way as any other defendant could, as long as he takes the appropriate oath to support the denial.
Ner Eyal: The statement that a defendant whose denial of a claim was contradicted by witnesses, is considered a liar and must pay the amount claimed seems superfluous. The Mechaber has already said this in Se’if 4. Accordingly, this se’if must be dealing with another situation. It is dealing with the case of a defendant who had judgment entered against him because, like the defendant in our se’if, he made a statement that was subsequently contradicted by witnesses. After this judgment was entered against him, the defendant left the court house without paying the plaintiff. The plaintiff, therefore, sued the defendant for payment of the judgment amount. The defendant responded that he has already repaid it. Unless the defendant brings witnesses to prove that he already repaid the judgment amount, he will not be believed, because the court considers him a liar with respect to this money.
Even though there is a rule that a plaintiff who wishes to collect a debt from a defendant suffering from the general reputation of a liar cannot do so without taking an oath, the plaintiff in this case may collect the judgment amount without having to take an oath. This is because there is a difference between a defendant with a general reputation of a liar, on the one hand, and a person who was caught in a lie in the specific case before the court, on the other hand.
A person who has a general reputation of a liar is called a chashud al ha’shevuah. He is a person who cannot be trusted with an oath. This is because either a) he is known to have sworn falsely in the past, b) is known to have violated Torah or Rabbinic laws, or c) because he has the reputation of a scofflaw or a gambler.
The rule with respect to a chashud al ha’shevuah is that because he cannot be trusted to take an oath of denial, the right to take an oath and have judgment entered in ones favor is transferred to the plaintiff. In order to get paid, the plaintiff must take an oath that the defendant owes him the money. If, one might ask, the defendant has the general reputation of a liar, why is the plaintiff required to take an oath before he can take the money?
The answer is: Just because the defendant has a general reputation of a liar does not mean that he is lying in this specific case now before the court. But a defendant who is caught in a lie in the specific case now being tried before the court, has lost the credibility of that court. Accordingly the plaintiff may collect his money without the need to take an oath.
The defendant whose statement in court has been contradicted by witnesses is only considered a liar, however, with respect to the specific money that the witnesses said he borrowed and which he denied borrowing. He is not considered a liar with respect to other monies. He does not assume the category of a chashud al ha’shevuah, a person who can never be trusted to tell the truth. Although he loses his credibility in the case now before the court, he does not lose his credibility generally. His motive for lying in this particular case may simply be to play for time until cash flow permits him to repay the debt. But he has not done the things that would render him a chashud al ha’shevuah. He has not, for example, demonstrated a willful intent to swear falsely or an indifference to the consequences of doing so; he has not been involved in a flagrant violation of Torah or Rabbinic laws; and he is not engaged in a shady profession.
The Shach goes as far to say that even if, in the same case before the court, the defendant denied owing 100 dinarim and witnesses contradicted him and testified that he owed 50 dinarim, he is not considered a liar with respect to the 50 dinarim about which the witnesses did not testify. He may take the modeh bemiktzat oath of partial denial and judgment will be entered in his favor with respect to these remaining 50 dinarim.
Although a litigant whose statement in court is subsequently contradicted by witnesses loses his credibility only in the specific case before the court, but not in general, the Sma adds that there is a situation where a litigant who was considered a liar in a previous litigation will suffer negative consequences in a subsequent, unrelated litigation. The situation that the Sma refers to is one involving a shtar amanah.
A shtar amanah is an uncertified promissory note that is written by a potential borrower and handed over to the lender on trust in case the borrower should ever need a loan in the future. If that need should ever arise, the pre-prepared promissory note, already in the possession of the lender, could be used as evidence of the loan, thereby saving the time that would otherwise be required to prepare it. By handing over the promissory note to the lender, even though no loan has presently been made, the borrower trusts the lender that he will not produce the promissory note and sue the borrower unless he has actually lent him the money. If the lender then does sue, the borrower is barred from claiming that he never borrowed any money because, in trusting the lender with the promissory note, he has agreed not to raise this defense. Usually, in this situation, the lender who sues on the basis of a shtar amanah can collect from the borrower without the need to take an oath. However, a lender under a shtar amanah whose statement in court in a previous, unrelated case was subsequently contradicted by witnesses, and who was therefore considered a liar in that case, cannot collect his money from the defendant unless he takes an oath. This is because had the borrower known of this at the time he handed him the shtar amanah, he would never have trusted him.
