Sa’if 4. Mechaber: If, in response to a claim for 100 dinarim, the defendant denied that he owed anything at all, but witnesses testified that he owed the plaintiff 50 dinarim, the defendant must pay 50 dinarim and swear the Modeh Bemiktzat oath of partial admission with respect to the 50 dinarim he denies, just as he would had he admitted owing the 50 dinarim of his own accord.
This is so because the defendant’s own admission has no greater power to obligate him to swear than the testimony of witnesses. According to some opinions, he must take the Modeh Bemiktzat oath of partial admission only if the witnesses testify orally to the loan of 50 dinarim, but not if the loan was evidenced by a promissory note bearing the signature of the witnesses, or by an act of acquisition, such as a kinyan sudar, performed by the debtor to acknowledge the loan in the presence of the witnesses.
This is because there is almost no defense to a debt evidenced by a promissory note or by a kinyan sudar acknowledging the loan in front of witnesses. Accordingly, it is as if the defendant threw up his hands and said heilach, take the fifty dinarim supported by the promissory note or the kinyan sudar, so that now the only remaining claim before the court is for the 50 dinarim which the defendant denies entirely. A defendant who denies the entire claim is exempt from the Modeh Bemiktzat oath of partial admission. Others, however, are of the opinion that the defendant must take the Modeh Bemikzat oath of partial admission even if the loan of the first 50 dinarim is supported by a promissory note or by the act of a kinyan sudar in front of witnesses.
The defendant is only permitted to take the Modeh Bemiktzat oath of partial admission and have judgment entered in his favor for the disputed 50%, if the dispute was about a loan of money. But if the dispute was about a deposit of goods which the defendant denied in its entirety and witnesses testified that at the time of the denial they saw half of the claimed goods in the defendant’s possession, the defendant is precluded from taking the Modeh Bemiktzat oath of partial admission. This is because he has been caught in a lie and can no longer be trusted to take an oath. In this situation, the plaintiff takes an oath that the defendant still owes him 50% of the goods and judgment will be entered for plaintiff.
Ner Eyal: The testimony of witnesses against a defendant is more powerful than the defendant’s own admission. This is illustrated by the fact that a defendant cannot be made to pay a fine based solely on his own admission but can if witnesses testify against him. Accordingly, if the defendant’s own admission that he owes 50 dinarim obligates him to take the Modeh Bemiktzat oath, certainly the testimony of witnesses that he owes 50 dinarim should obligate him to do so.
Those who are of the opinion that a loan which at the time it was granted was supported by a promissory note bearing the signature of the witnesses, or by a symbolic act of acquisition, such as a kinyan sudar in the presence of the witnesses, exempts the defendant from the Modeh Bemiktzat oath of partial admission. The reason: Both these forms of loans create a security interest in the debtor’s land in favor of the plaintiff. The security interest is equivalent to heilach, tendering payment of the debt, because it empowers the court to seize and sell the defendant’s land to cover the debt.
Alternatively, the security interest the plaintiff has in the land gives him the legal right of possession of the land. Where the defendant admits to a loan supported by a security interest in land, he is exempt from the Modeh Bemikzat oath of partial admission. Most authorities agree however, that where the defendant does not own any land, he must take the Modeh Bemiktzat oath of partial admission, even when the first 50 dinarim is supported by a promissory note or by a kinyan sudar in the presence of witnesses.
The purpose of the imposition of the Modeh Bemiktzat oath of partial admission is to discourage a borrower of money, who knows full well that he owes the balance of the disputed amount, from delaying payment by initially denying he owes it, even though he intends to ultimately pay it when cash flow permits. The irrevocable consequences of taking a false oath would deter him from employing such delay tactics.
Such delay tactics are only relevant however, where the dispute was about a loan of money, because money is loaned to be spent. The lender does not care whether he gets the same coins back he lent as long as he gets back the amount he lent. A deposit however, is meant to be kept in the bailee’s possession and under his guard. The concern that the bailee removed it from his possession, intends in fact to return it, but is playing for time, is not applicable.
Unlike money which the borrower can spend, as long as he returns the same amount, removing a deposit from the bailee’s possession would be a breach of the terms of the deposit. Either the defendant has the deposited item in his possession or he does not. If he denies having it and witnesses testify that it was in his possession at the time he denied it, there is only one possible conclusion. He is lying and intends to steal it. Somebody who has lied in court or who is a thief cannot be trusted with an oath because presumably he will lie under oath too.
Accordingly, such a defendant loses the privilege of taking the oath and having the case against him dismissed. The privilege to take the oath is now transferred to the plaintiff who may swear that the defendant owes him the whole deposit and judgment will be entered in the plaintiff’s favor.