Sa’if 21, Mechaber: A plaintiff says his father told him the defendant owes his father a maneh. The defendant admits he owes fifty dinarim to the plaintiff’s father but denies he owes the other fifty. Some halachic authorities are of the opinion that the defendant is exempt even from taking the Shevuat Heiset oath of denial. Others are of the opinion that if the defendant denies the claim entirely, he must take the Shevuat Heiset oath of denial and if he admits it partially but denies it partially, he must take the Modeh Bemiktzat oath of partial admission.
Ner Eyal: As we saw in Sa’if 17, the defendant is not required to take a Shevuat Heiset oath of denial in response to a claim about which the plaintiff is not certain. What is debated in terms of the two opinions mentioned in this Sa’if is what testimony is required to render a claim certain. Clearly, if the plaintiff were to say he was present when his deceased father gave the loan to the defendant or was present when the defendant admitted to his father that he owed him the money, the claim would be sufficiently certain to require the defendant to rebut it with a Shevuat Heiset oath of denial.
But if the plaintiff was not a witness to the loan or to the admission and is simply basing his claim on what his deceased father told him, this is hearsay evidence that would not be admissible in beit din. It should, therefore, be deemed insufficient to oblige the defendant to take the Shevuat Heiset oath of denial. After all, the defendant in this situation could have remained silent and the case against him would have been dismissed. If he volunteered to admit that he owes the plaintiff’s father fifty dinarim, he is like someone who returns lost property. A person who returns lost property is exempt from taking an oath denying that he found more than he returned.
According to the Rambam, even if the plaintiff says his deceased father told the plaintiff that the defendant owes him money in front of two witnesses, this is insufficient evidence to oblige the defendant to take the Shevuat Heiset oath of denial because the plaintiff still has no firsthand knowledge of the loan.
Others, such as Rav Hai Gaon and the Ra’avad, are of a different opinion. They maintain it is sufficient for the plaintiff to claim his father told him or told witnesses in his presence that the defendant owes him money to require the defendant to take the Shevuat Heiset oath of denial.
The halacha is in accordance with the Rambam. As long as the plaintiff does not claim he knows the facts first-hand but is relying on what someone else told him, even if that someone else was his father, this is not sufficient to require the defendant to take the Shevuat Heiset oath of denial.
The Bach suggests that hearsay evidence, bolstered by strong circumstantial evidence, might in certain situations be enough. For example, while the defendant was alone with the plaintiff at home, the plaintiff turned his back for a moment and then discovered that what was in his drawer a moment ago was no longer there. Even though the plaintiff cannot testify that he saw the defendant steal it, the circumstantial evidence is sufficiently strong to require the defendant to take the Shevuat Heiset oath of denial.