THE JERUSALEM INSTITUTE OF JEWISH LAW
Rabbi Emanuel Quint, Dean 

Lesson # 63 - PLEADINGS

In all of the instances stated below, there is no proof by witnesses or by documents to support the positions of plaintiff (the person who is suing) or the defendant (the person being sued).

Assume that the plaintiff pleads that the defendant owes him $100.
In the last lesson it was shown that if the defendant admitted part of the claim and denied the balance he would pay the part that he admitted and he could take a Torah oath denying the balance. The defendant would obtain a judgment from the Beth Din dismissing the plaintiff’s claim for the balance. For example, the plaintiff sued for $100 and the defendant admitted that he owes $40, he pays the $40 and he has two options regarding the balance of $60. The defendant can take a Torah oath that he does not owe the remaining $60 and the defendant will win that part of the case regarding the $60. Or he may refuse to take the oath in which event the plaintiff will obtain a judgment for $100, the $40 that the defendant admitted and the other $60 for which the defendant refused to take a Torah oath of denial of balance of debt claimed. 

Assume that when the plaintiff pleads that the defendant owes him $100, the defendant denies the entire claim. The denial may be based on any one of a number of reasons. For example, there was never an indebtedness; or repayment; or the defendant admits the claim but pleads a set-off; against the debt since the plaintiff is holding some personal property belonging to the defendant; or the defendant admits the original indebtedness but pleads that the plaintiff forgave him the debt or made a gift of the debt to the defendant. (A set-off is a deduction that the defendant has against the claim of the plaintiff. The set-off may diminish or entirely cancel the claim of he plaintiff, depending upon the amount of the claim and the amount of the set-off.) In all of these instances, since the defendant denies the entire claim of the plaintiff, the defendant is relieved of having to take a Torah oath of denial to win the case. However, the Rabbis of the Talmud have decreed that the defendant need take a hesseth oath to defeat the claim of he plaintiff. 

A similar result would follow if the defendant denies the indebtedness and he plaintiff produces two witnesses who testify as to the creation of the indebtedness but do not know if it has been repaid, and the defendant pleads payment. If the defendant pleads that there was never a loan and the plaintiff produces two witnesses that there was a loan but do not know if he loan was repaid, the plaintiff will win the case since the defendant by denying that the loan was ever made includes in such a denial that he paid the loan. Why would a person who denies a loan repay it? 
The plaintiff pleads that the defendant robed him of $100 and the defendant pleads that the robbery never took place. The defendant may take a hesseth oath and win the case. 

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There is a general principle that, in all instances where two witnesses testifying on behalf of he plaintiff (which testimony is not refuted or disproved by other witnesses) will result in the plaintiff winning the case and the defendant losing the case, one witness testifying on behalf of the plaintiff affords the defendant the opportunity to take a Torah oath to contradict the witness and win the case. If the defendant will not or cannot take this oath, he will lose the case. 

For example, the plaintiff pleads that he loaned the defendant $100 on January 1, and he produces one witness who testifies that he witnessed the loan on January 1. The defendant may take a Torah oath that he did not borrow $100 from plaintiff on January 1, and he is free of obligation. If the defendant does not remember the loan or whether he repaid the loan, he cannot take the oath with certainty and will lose the case. 

Upon the same set of facts as in the previous paragraph except the defendant does not deny the loan, but denies liability because he repaid the loan, the defendant may take a hesseth oath and win the case. 

If the plaintiff produces one witness who testifies in his favor and the defendant brings one witness who testifies in his favor, then it is considered as if none of the litigants produced any witness. The defendant may win the case by taking an oath, either a Torah oath if there is a partial admission, or a hesseth oath if he denies the entire claim of the plaintiff.

Sometimes the pleas of the plaintiff contained in the complaint are not pleaded with certainty, such as the complaint states that the plaintiff believes that the defendant owes him money for a loan that he thinks he made to defendant. If the defendant denies the plea with certainty, the defendant need not take any oath to win the case. 

The plaintiff without proof, pleads that the defendant owes him $100 that he loaned to him, or for a bailment that he deposited with the defendant. The defendant pleads lack of knowledge as to the plaintiff’s allegations. The defendant may take a hesseth oath that he does not know if he is liable. The defendant wins the case. Nevertheless, if the defendant wants to fulfill his duty toward Heaven, he will pay the plaintiff the $100. The plaintiff’s plea of certainty and defendant’s plea of lack of certainty combine to show that there may be truth to the plea of the plaintiff. The defendant in paying the money would be acting lifnim mishurath hadin. (See my essay on Lifnim Mishurath Hadin in the Annual Volume of the Council of Young Israel Rabbis in Israel, Volume 2, pp. 97-122.)

If the pleas of both parties lack certainty, the defendant need not take a hesseth oath to win the case. For example, the plaintiff pleads that he loaned the defendant money, but “I do not remember how much I loaned to him”. The defendant admits the loan, but he too does not remember the amount of the loan. In such a case the defendant may pay to the plaintiff that which he thinks he owes him and he need not take an oath regarding the balance. The same would hold true if there was a loan without any memorandum and the parties know the amount of the loan but neither party remembers if the loan was repaid. (If the loan was evidenced by an instrument of indebtedness, then the amount in the instrument would be controlling.) The defendant should pay the amount that he thinks he may still owe and thereby fulfill his obligation to Heaven. 

The subject matter of this lesson is more fully discussed in Volume III, Chapter 75 of A Restatement of Rabbinic Civil Law by E. Quint and on sale at local Judaica bookstores. 

Comments & questions to quint@inter.net.il

With the Chagim and other responsibilities I have fallen behind in answering your communications. I apologize and hope to get back on track after the chagim. - EQ