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.
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Se’if 6 – Mechaber: The plaintiff claims the defendant owes him a maneh. The defendant wholly denies the claim. The plaintiff produces a promissory note bearing the signature of two witnesses attesting to the loan. The defendant, whose denial is contradicted by the promissory note, is considered a liar by the court and must pay the amount claimed. The court will enter judgment for the plaintiff without requiring him to take an oath, even if the promissory note was not a shtar amanah.
Ner Eyal: The point the Mechaber is making is that the defendant is considered a liar, not only if his statement is contradicted by witnesses in court, but even if it is contradicted by the signatures of witnesses on a promissory note.
There is no defense to a claim based on a properly-drawn up promissory note signed by witnesses who testify that the signatures on the note are theirs or whose signatures have been confirmed by the court comparing them to signatures it has on file.
Of course, it is always possible that the note was forged or that the witnesses were lying. In order to address this remote possibility, the court can request the holder of the promissory note to swear that the defendant owes him money. However, considering the strong, prima facie evidence in favor of the plaintiff, the court will not initiate this request. It must be initiated by the defendant. Only if the defendant insists that the holder of the note swears that the defendant owes him the money will the court require the plaintiff to do so before entering judgment in his favor.
There is one situation, however, in which the defendant cannot insist that the court make the plaintiff swear. That situation is one in which the plaintiff sued on the basis of a shtar amanah. A shtar amanah is a promissory note written by a potential borrower and handed over to the lender on trust in case the borrower should ever need a loan. If he should, the pre-prepared promissory note, already in the possession of the lender, is used as evidence of the loan, thereby saving the time that would otherwise be required to prepare it.
In handing over the promissory note to the lender – even though no loan was made at the time – the borrower trusts the lender not to produce it and sue him unless an actual loan takes place. If the lender sues on the note, the borrower is barred from claiming that he does not owe the money because in agreeing to place the note with the plaintiff on trust, he has agreed not to raise any defense, not even the defense of forgery. The lender who sues on the basis of a shtar amanah can, therefore, collect from the borrower without the need to take an oath.
The Mechaber stresses that even when we aren’t dealing with a shtar amanah, the defendant cannot make the plaintiff take an oath if he has already been caught in a lie by claiming never to have borrowed money when witnesses or a promissory note confirm that he did.
