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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Mechaber – Se’if 9: A person is only considered a liar by the court if he makes a statement to the court and that statement is subsequently contradicted by witnesses. But if a person makes a general denial – that he never owed the plaintiff anything – and the court then asks him to take an oath of denial, he may amend or refine his statement [without being considered a liar]. He may say that he did in fact borrow money, but that he repaid it. Or he may say that he does not know whether he borrowed money. He may also first say that he does not know whether he borrowed money and then say he did borrow the money but repaid it.
In all these circumstances, his amended defense is acceptable because both his original statement of general denial and his amended statement result in a judgment in his favor. The court does not view him as a liar for amending or refining his defense. Rather, the court views him as a person who made a general statement of denial and now wishes to explain this statement in greater detail so as not to swear falsely.
If his amended defense is that he does not know whether he borrowed money, the court will allow him to take an oath that he does not remember whether he borrowed money and will enter judgment in his favor.
Rema: Even if the defendant amends his general denial in the ways described above because he sees witnesses approaching the court who – he fears – might testify that he did borrow money, he still is not considered a liar by the court as long as he changes his defense before the witnesses testify. Similarly, if he amends his general denial because he has become aware that a rumor is circulating in town that he borrowed money, the court won’t consider him a liar so long as the rumor was not so widespread as to be equivalent to testimony itself.
If the defendant made a general statement of denial outside court and that statement was subsequently contradicted by witnesses, the court does not consider him a liar. If, however, the defendant made a general statement of denial outside court in the presence of two witnesses and the plaintiff then turned to the witnesses and said, “You are witnesses to this general denial of the claim,” and the defendant remained silent, the defendant may not later change his statement and say that he did borrow money but repaid the loan before his conversation in front of the witnesses. He is, however, believed if he amends his statement to say that he borrowed the money but repaid the loan after the conversation the witnesses heard.
Ner Eyal: The court will not consider a litigant a liar just because he amends an earlier statement he made to the court as long as his earlier statement is not contradicted by witnesses and as long as both the original statement and the amended statement are in his defense. If, however, his original statement would have resulted in a judgment against him, he may not change it to one which would result in a judgment in his favor.
Accordingly, when the defendant changes his general denial in court that he never owed the plaintiff anything before witnesses contradict him, the court will not assume he is lying. The court will reason that he is merely being as accurate as possible before taking the shevuat heseit oath of denial. The court will believe him based on a migo that if he wanted to lie, he could have simply stuck to his original defense that he never owed the plaintiff anything.
The reason why a person’s general statement of denial outside court – later contradicted by witnesses – that he never owed the plaintiff anything does not result in the court considering him a liar is because it is legitimate for a person to reserve his true defense for court and not to reveal his cards before he gets there.
An important difference between a general statement of denial made in court and a general statement of denial outside court is the following: The former, if contradicted by witness, results in the person being considered a liar by the court. Accordingly, nothing that he subsequently says in connection with the case will is believed. He isn’t even believed to say that he repaid the loan after the date on which admitted to owing money before witnesses.
If, however, the defendant made his general statement of denial outside court, the court does not consider him a liar, and he is believed to say he paid back the money after his admission before witnesses.
Rishonim debate what happens if the general denial of the defendant – that he never borrowed any money from the plaintiff – is subsequently contradicted by one witness (rather than two witnesses) and then the defendant changes his statement and admits that he borrowed money but claims to have repaid it.
According to the Rambam, the court rules against the defendant. Why? Because while the testimony of one witness is insufficient for the court to enter judgment against the defendant, it does oblige the defendant to take a Torah oath to contradict the testimony. However, in this case the defendant cannot take this oath because in his amended defense he admits to the truth of what the witness said. Thus, based on the rule of “he who cannot swear must pay,” judgment is entered for the plaintiff.
The Rashba, however, disagrees with the Rambam. According to the Rashba, the rule that “he who cannot swear must pay” only applies if the evidence of the witness would, if offered by two witnesses, have resulted in a judgment against the defendant. But even the evidence of two witnesses testifying that the defendant borrowed money would not have resulted in a judgment against him because it is always possible that the defendant repaid the loan.
It is interesting to note that the Mechaber does not mention the case of a defendant being contradicted by one witness in this se’if. The Tur, however, does and rules in accordance with Rashba. Elsewhere, though, he rules in accordance with the Rambam. The Mechaber rules in accordance with the Rambam elsewhere as well.
The Perisha attempts to explain the apparent contradiction in the Tur as follows: When the Tur rules that judgment is entered against the defendant, he is referring to a case in which the witness contradicted the general denial before the defendant changed his plea. In that situation, the court will not allow the defendant to amend his plea and swear that he repaid the loan. When the Tur rules that judgment is entered in favor of the defendant, though, he is referring to a case in which the one witness testified after the defendant had already amended his plea. His testimony can, therefore, be ignored.
The Sma prefers the explanation that when the Tur seems to be agreeing with the Rambam, he is actually merely quoting the Rambam’s opinion.