Sa’if 7. Mechaber: In response to a claim for a maneh, the defendant responds with one of the following alternative defenses. He owes the plaintiff nothing. He did owe the plaintiff money, but he repaid the loan in its entirety. The plaintiff is holding a garment or chattels that belong to the defendant which are also worth a maneh. He admits that he received the money but says the plaintiff waived the debt or gave him the maneh as a gift.
The common factor in all these defenses is that the defendant denies that he owes the plaintiff anything. He is, therefore, exempt from the Modeh Bemiktzat oath of partial admission. He must, however, swear the Shevuat Heiset oath of denial that all defendants must swear before they can walk from a claim which they deny in its entirety.
Even if two witnesses testify that the defendant borrowed the money from the plaintiff but have no knowledge whether the loan was repaid, the defendant is eligible to swear the Shevuat Heiset oath of denial in support of his defense that the plaintiff is holding a garment or chattels of the defendant worth a maneh or that the plaintiff waived the claim.
Ner Eyal: Common to all of these defenses is that the defendant denies he owes the plaintiff anything. The defendant is therefore exempt from the Modeh Bemiktzat oath of partial admission imposed by the Torah. However, like any other defendant who denies the entire claim, he must swear the Shevuat Heiset oath of denial imposed by the rabbis.
The fact that two witnesses testify that the defendant borrowed the amount in dispute from the plaintiff does not discredit the defendant or disqualify him from taking the Shevuat Heiset oath of denial. This is because a loan made in the presence of two witnesses does not have to be repaid in the presence of two witnesses, unless that was a condition of the loan.
If the defendant’s defense is that the plaintiff is holding one of his garments or chattels worth a maneh, the defendant is entitled to swear the Shevuat Heiset oath of denial and prevail, only if the plaintiff denies that the defendant deposited the garment or chattels with him. If, however, the plaintiff admits he received the deposit but claims in his defense that the garment or chattels were removed from his possession through no fault of his own, under circumstances that would absolve him from responsibility at law, the result would be different. If in this situation the plaintiff is prepared to swear the Torah oath that all bailees who raise this defense must swear, the defendant loses his privilege to take the Shevuat Heiset oath of denial and must repay the loan in full.
Furthermore, if following the Shevuat Heiset oath of denial sworn by the defendant, the plaintiff argues that the defendant lied under oath and then takes the law into his own hands and forcibly or clandestinely removes the money from the defendant’s possession, the court will not remove the money from the plaintiff’s and will not return it to the defendant.
This is so even though the defendant was entitled to keep the money as a result of the Shevuat Heiset oath of denial he took. Two conditions, however, must be fulfilled for the plaintiff, who takes the law into his own hands, to prevail. The first condition is that the plaintiff did not remove the money from the defendant’s possession in front of witnesses. The second condition is that the plaintiff must swear a Shevuat Heiset oath that the defendant indeed owes him the amount he removed.
The reason the plaintiff prevails is because in the absence of witnesses to the removal of the money, he could have denied he removed the money from the defendant’s possession. Accordingly, if the plaintiff voluntarily admits he did so, the court will assume he is telling the truth when he claims the defendants did indeed owe him the money and lied under oath.
