Sa’if 1, Mechaber: A person borrowed three hundred dinarim from two lenders. From one lender he borrowed one hundred dinarim and from the other he borrowed two hundred dinarim. The loan was recorded in one promissory note for the aggregate amount of three hundred dinarim.
At the time they advanced the money, each lender informed the borrower how much he was lending. The two lenders subsequently sue the borrower, each claiming he was the one who lent him two hundred dinarim. The borrower does not remember who gave him one hundred dinarim and who gave him two hundred dinarim.
The halacha (according to the Rosh) is that each lender must swear that he lent two hundred dinarim. The borrower must then repay each lender two hundred dinarim.
Ner Eyal: Previously in this Sa’if 1, the case of an oral loan was discussed and we repeat the text of the Mechaber above for ease of reference. The borrower did not remember who lent him one hundred dinarim and who lent him two hundred dinarim, even though he was told this at the time of the loan. The halacha in that case was that the borrower must pay a total of four hundred dinarim, being two hundred dinarim to each lender, leaving him one hundred dinarim out of pocket.
Before receiving two hundred dinarim, each lender must swear he was the one who lent two hundred dinarim. We explained that by specifically informing the borrower who lent him what, the two lenders indicated to the borrower they were not partners in one transaction. They did not want the borrower to assume they trusted each other. Their purpose in telling him who lent what was so the borrower should take note of it. He should remember it when they would come to claim their money. It was incumbent upon the borrower to remember who gave him what, just as if there had been two separate transactions at different times.
In connection with the case of the oral loan where the plaintiffs plead with certainty that each lent two hundred dinarim, the following question is asked: Why are the plaintiffs obliged to take an oath before collecting the four hundred dinarim? After all, they both pled with certainty that they each gave two hundred dinarim.
We have seen in Siman 75 Sai’f Katan 11 that a defendant who is obliged to take a Torah oath and is not able to do so, must pay. In this case the defendant admits he owes three hundred dinarim but denies that he owes four hundred dinarim. He denies that he owes two hundred dinarim to each plaintiff. This means he admits part of the claim and denies the other part.
As such, he should be treated as one who must take the Modeh Bemiktzat oath of partial admission before he is excused from paying what he denies. However, this defendant is unable to swear, because he does not know who gave him two hundred dinarim. Accordingly, he should have to pay the four hundred dinarim in accordance with the rule “he who cannot swear must pay.” So the plaintiffs should therefore be entitled to two hundred dinarim each without having to take an oath?
Several answers are offered to this question.
The first is that the defendant is not making a partial admission. He is making a total admission. He admits he owes three hundred dinarim. The two plaintiffs are having the dispute about who should get the one hundred dinarim and who the two hundred dinarim. The defendant is being penalized by having to pay an extra one hundred dinarim, even though he only borrowed three hundred dinarim. True, this is because he was negligent in not writing down who lent him what. But he should not be further penalized by having to take an oath. Accordingly, the oath should be taken by the two lenders, but not by the borrower.
The second answer is that the purpose of the “he who cannot swear must pay” rule is to discourage defendants from claiming they don’t know whether they owe money or not just as a pretext to hold on to the money for as long as they can. The purpose of the oath is to discourage such delay tactics. But here, the defendant is not trying to hold on to the money. He is prepared to pay the three hundred dinarim he borrowed. He just does not know whom to pay it to.
The third answer is that in tendering three hundred dinarim, the defendant has the din of heilech. That is, he has immediately tendered in court payment of the amount he agrees he owes. By immediately tendering the money he agrees he owes, he has reduced the amount in dispute to one hundred dinarim, which he denies entirely. The Modeh Bemiktzat of partial admission is not applicable in a case where the defendant denies the amount in dispute entirely.