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Sa’if 24, Mechaber: The plaintiff claims he lent the defendant a maneh. The defendant denies he owes anything or he responds that he repaid the loan. The plaintiff then asks the defendant to take the Shevuat Heiset oath of denial. The defendant responds that he is not prepared to take the Shevuat Heiset oath of denial at this time because the plaintiff has in his possession the promissory note that the defendant issued in respect of the loan.

The defendant is concerned that if he takes the Shevuat Heiset oath of denial now, the plaintiff will then produce the promissory note in respect of the loan that the defendant claims he has repaid or never borrowed and claim the loan based on the promissory note.

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In this situation, the court will ask the plaintiff to produce the promissory note before the defendant takes the Shevuat Heiset oath of denial. If the plaintiff responds that there never was a promissory note, or there was one but it got lost, the court will require the plaintiff to revoke, in writing, all promissory notes issued by the defendant in the plaintiff’s favor up to the present time. Only then will the court require the defendant to take the Shevuat Heiset oath of denial.

Alternatively, if the plaintiff refuses to revoke all promissory notes as requested, the plaintiff may ask the court to adjourn the case while he searches for the promissory note and in the meantime to warn the defendant that if he is lying, he will be subject to excommunication.

Ner Eyal: Short of claiming that a promissory note was forged, there is no defense to a claim based on a properly constituted promissory note, attested to by witnesses and certified by the court. Even if the defendant tells the court he repaid the loan, the court will tell him he should have taken the promissory note back from the plaintiff after doing so or he should have made sure it was destroyed so that the plaintiff could not use it to claim the loan from him a second time. If he did not do so, he only has himself to blame and must pay again.

Even if the defendant tells the court that the promissory note he issued was a shtaar amanah – a note issued on trust – and the plaintiff breached that trust and sued him on the note even though the defendant never borrowed any money, the court will enter a judgment against the defendant. A shtaar amanah is a promissory note given to the plaintiff on trust that in the event the defendant requires a loan sometime in the future, the plaintiff will lend him the money based on the pre-issued promissory note.

The court will take the position that a properly constituted promissory note, attested to by witnesses and certified by the court, creates an absolute and undeniable obligation to pay. If the defendant trusted the plaintiff with such a dangerous weapon as a promissory note, he only has himself to blame. He must pay the price if the plaintiff breached his trust. The court cannot and will not dilute the evidential power of a promissory note by accepting defenses that do not rise to the level of forgery.

The defendant in the situation discussed in this Sa’if is well aware of this. Accordingly, he is concerned that if he takes the Shevuat Heiset oath of denial, the plaintiff will then produce the promissory note. If that were to happen, the defendant would have no defense. He would have to pay the amount stated in the promissory note. The Shevuat Heiset oath of denial he took would turn out to be unnecessary and of no avail. In order to avoid this possible scenario, he asks the court to rule that the plaintiff produce the promissory note before he takes the Shevuat Heiset oath of denial. The court will accede to this request.

If the plaintiff responds that the defendant’s fear is unfounded because there never was a promissory note or if there was, it got lost, the court will lock the plaintiff in to this statement by making him revoke, in writing, any promissory note ever issued to him by the defendant. This will render any note the plaintiff may subsequently produce null and void. It would remove the defendant’s fear that made him pause before taking the Shevuat Heiset oath of denial. If the plaintiff refuses to revoke all notes as requested because he believes that, after a thorough search, he will find the note in question, he may ask the court to adjourn the case while he looks for it. In the meantime, he can ask the court to warn the defendant that if he is lying, he will be subject to excommunication.

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Raphael Grunfeld received semicha in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Rav Dovid Feinstein. A partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, Rabbi Grunfeld is the author of “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerayim” and “Ner Eyal: A Guide to the Laws of Shabbat and Festivals in Seder Moed.” Questions for the author can be sent to rafegrunfeld@gmail.com.