Sa’if 9, Mechaber: The plaintiff claims he lent the defendant a maneh. Or he claims he deposited a maneh with him or the defendant stole a maneh from him. The defendant responds that he does not know whether he did any of those things. The defendant must swear a Shevuat Heiset oath that he in fact does not know whether he did any of these things. Having taken that oath, he is not liable to pay anything to the plaintiff. However, if the defendant wants to go beyond the black-letter law and exonerate himself ethically in the eyes of God, he should pay the amount claimed.
Even if the defendant originally denied the plaintiff’s claim but when asked to swear a Shevuat Heiset oath of denial changed his response and said “I don’t know if I borrowed money, if I stole from him or whether he deposited something with me,” he is still permitted to take the Shevuat Heiset oath and is exempt from payment.
The plaintiff claims that he lent the defendant a maneh, that he deposited a maneh with him, or that the defendant stole a maneh from him. The defendant responds by admitting he borrowed the money, stole it, or had something of value deposited with him, but does not know whether he repaid the money or gave the item back. In such a case, the defendant must pay the money or return the item and the plaintiff need not swear a Shevuat Heiset oath. However, the defendant may ask the court to excommunicate the plaintiff for having taken something that in fact does not belong to him, if he is lying. If subsequently the defendant claims he now is sure he repaid the money or returned the item, he is permitted to take the Shevuat Heiset oath of denial and is exempt.
Ner Eyal: In the first case mentioned above, the plaintiff is certain of his claim and the defendant is uncertain of his defense. There is a rule of bari veshema bari adif, which says that a claim about which the plaintiff is certain should defeat a defense about which the defendant is uncertain. There is another rule that says uka memonah bechezkat marei, which means that when in doubt, the money should remain where it is. Despite the rule of uka memonah bechezkat marei, the defendant must swear a Shevuat Heiset oath that he does not know whether he borrowed a maneh from the plaintiff, or whether he stole a maneh from him, or whether he is retaining a deposit of the plaintiff, in the same way as he would have to swear a Shevuat Heiset oath of denial if he denied the claim outright.
However, in deference to the rule of bari veshema bari adif, if the defendant wants to go beyond the black-letter law and exonerate himself ethically in the eyes of God, he should pay the amount claimed. It is up to the defendant whether he wishes to volunteer payment in this way, not the plaintiff. Accordingly, if the plaintiff is seen by two witnesses to have grabbed the money from the defendant, he must give it back. However, if the plaintiff snatches it from the defendant without witnesses seeing him, he may keep it on the basis that if he wanted to lie, he could have denied snatching it.
The Tur explains the reason why the defendant might change his pleading from outright denial to pleading he does not know whether he borrowed a maneh from the plaintiff, whether he stole a maneh from him, or is retaining a deposit of the plaintiff. The defendant does not want to risk swearing that he does not owe the money for fear that he might be wrong or that witnesses might testify that he does. If he swears the oath he will be guilty of a false oath and be disqualified from taking another oath in the future. Therefore, he says he does not know whether he did any of these things. This way, even if witnesses testify he did borrow money, he is not guilty of a false oath because they do not testify he knows he borrowed the money. This amended plea is permissible because it is not inconsistent with his first plea. Both the original and the amended plea result in the defendant being exempt from payment.
The reason the defendant must pay the money or return the item if he admits that he borrowed the money, stole it, or had something of value deposited with him but does not know whether he repaid the money or gave the item back, is as follows. The plaintiff is certain he lent the money and the defendant is certain he borrowed the money but uncertain whether he repaid it. Two certainties prevail over one uncertainty. If subsequently the defendant claims he now is sure he repaid the money or returned the item, he is permitted to take the Shevuat Heiset oath of denial and is exempt because he never admitted the claim. His amended plea is not inconsistent with his original plea.