THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean

Lesson # 95 (part 2) • Three-persons-presence rule

Assuming the halachah follows the first view in the preceding lesson, if while they were all together and Reuven instructs Shimon to pay the $100 to Levi, and unbeknownst to Reuven and Levi, Shimon does not have nor can he raise the $100, Levi can cancel the three- persons-presence transaction. The result is the same if Reuven knows that Shimon is without ability to pay the $100 and fraudulently hides that fact from Levi. However, if Levi knows that Shimon does not have $100 or if Shimon does have $100 at the time of the three- persons-presence transaction and later loses the $100, then Levi cannot, according to the first view, sue Reuven.

Levi sues Reuven, pleading that Shimon did not have the $100 when the three-persons-presence transaction took place and that Levi was duped into thinking that he did have the $100. Reuven defends on the grounds that Shimon did have $100 when the three-persons-presence transaction took place and lost his money subsequent to the three- persons-presence. (1) If the debt from Reuven to Levi is evidenced by an instrument of indebtedness. and the instrument contains a credence clause, then Levi will win the case against Reuven without even having to take an oath; if the instrument of indebtedness does not contain a credence clause, then Levi will win the case by taking an oath that he has not been paid. [A credence clause in the instrument states that Reuven should e believed no mater what he pleads regarding the instrument.] (2) If the loan from Levi to Reuven is an oral loan, then Reuven may take a hesseth oath that Shimon had the $100 at the time the payment was due from him to Levi.

After the three-persons-presence transaction has taken place, Levi demands that Shimon pay him the $100. Shimon responds that subsequent to their meeting together, he examined his records and realizes that he does not owe Reuven any money. Shimon has the burden of proving with competent witnesses that he does not owe the money? In such a case, Levi may look to Reuven for payment for the $100 that Reuven owes to Levi. If the $100 payment from Shimon to Levi was to have been a gift from Reuven to Levi, then Reuven does not have to make the gift, since Shimon does not really owe him the $100. 

The three-persons-presence transaction takes place in the presence of two witnesses, at which time Shimon admits that he owes Reuven the $100, and there is a time fixed for Shimon to pay Levi. Shimon later pleads that he was mistaken when he admitted that he owed Reuven the $100. If Shimon cannot prove that he does not owe Reuven the $100 and the time fixed for the payment has not arrived, Shimon cannot plead that he had made a mistake when he admitted that he owed the $100 to Reuven. If there are no witnesses present when the three-persons-presence transaction takes place and when Shimon admits that he owes Reuven $100, then Shimon may successfully plead that he was mistaken when he stated that he owed the $100 to Reuven. If the time fixed for payment has passed, there is a view that Shimon can successfully plead that he did not owe Reuven the $100, since he could have pleaded that he had paid the debt; and there is a view that he cannot plead payment, for a person does not admit in the presence of witnesses that he owes a debt unless he has first ascertained that he does. If in any of these events Shimon is out of the picture, Levi has to deal with Reuven for the $100 owed to Levi. 

The three-persons-presence takes place and thereafter Shimon pleads that he was mistaken when he admitted that he owed Reuven $100 and Reuven concurs and says that it was a mistake. Levi does not know if Shimon does or does not owe Reuven the $100. If the transfer of the $100 to Levi was to pay off a debt that Reuven owed to Levi, if Reuven has assets to pay Levi, then Reuven can successfully plead that Shimon does not owe him the $100 and Levi can collect from Reuven. 

However, if Reuven does not have the $100 to pay Levi, then Reuven cannot successfully plead that he and Shimon were mistaken when they told Levi that Shimon owed Reuven $100.

However, if instead of Reuven owing Levi $100 he wants the $100 held by Shimon to be given to Levi as a gift, then Reuven cannot plead that Shimon really does not owe him the $100, even if Reuven has $100 to make the gift to Levi. Then Shimon has to pay the $100 to Levi and Shimon may sue Reuven for the $100.

Levi admits that there was a mistake made in Shimon's calculations and Shimon does not owe Reuven $100, but Reuven pleads that Shimon does owe him $100. Shimon does not have to pay Levi, nor is he obligated to take an oath that he does not owe Reuven the money. If Reuven wanted Shimon to pay Levi $100 to satisfy the debt that Reuven owed to Levi, then Reuven takes an oath that Shimon owes him the $100, and Reuven need not pay Levi. If the $100 that Reuven instructed Shimon to pay to Levi was for a gift to Levi, Reuven does not have to give the $100 to Levi and need not even take an oath to absolve himself of that liability .

If Shimon has commenced to make payments to Levi pursuant to three-persons-presence and then pleads that he discovered that he does not really owe Reuven the $100, he need not make any further payments. assuming that he may do so pursuant to laws stated above. However, those payments that Shimon has already made to Levi will not be taken back from Levi. 

Shimon leases realty from Reuven and owes him a specified rent of $100 for a specified period to be paid on February 1. Reuven owes Levi $50 from a different transaction. Reuven in a three-persons-presence transaction instructs Shimon to pay to Levi $50 from the rent money due to him. Thereafter either Reuven or Shimon terminate the lease. Shimon claims that he does not owe Reuven the $50. Thus even if Shimon does not owe Reuven the full $50 because the lease had prematurely terminated, it does not affect Lev’s right to be paid $50 by Shimon. For at the time that the three-persons-presence transaction takes place, there is an obligation from Shimon to Reuven to pay $100 for the period of the lease. If after Shimon pays to Levi he feels that he did not owe Reuven the full $50 or any part thereof, he may sue Reuven for the amount that he feels he did not owe and paid Levi. Shimon leases some realty or personal property from Reuven without any specified period, but for $1 a day for each day that he requires the realty or personal property. Reuven owed $100 to Levi. In a three-persons-presence transaction Reuven instructs Shimon to pay to Reuven $100 from the lease payments due to Reuven from Shimon.

Shimon terminates the lease after 40 days, since he no longer requires the realty or personal property, and thus Shimon owes $40 to Reuven. If at the time of the three-persons-presence transaction Shimon says to Levi he will pay him the $100 from the rents that he will owe to Reuven, he must pay him $100 although the final rental never reached $100. However, if Shimon at the time of the three-persons-presence transaction says to Levi he will pay him out of rental moneys due to Reuven, he need pay Levi only $40. 

In a three-persons-presence transaction Reuven assigns to Levi $100 that Shimon owed to Reuven. Shimon produced Yehudah as a surety for the obligation. Yehudah is liable as a surety although there was no formal kinyan making him a surety.

What if one of the three parties to a three-persons-presence transaction is a Gentile? The place of Reuven is taken by a Gentile, the one who instructs Shimon to pay money to Levi. If Shimon agrees. then the transaction is valid and none of the parties can cancel the transaction.

The place of Shimon is taken by a Gentile. If Levi agrees, the transaction is valid and none of the parties can cancel the transaction. Then Levi cannot sue Reuven if the Gentile does not make the payment to Levi.

The place of Levi is taken by the Gentile. Unless Reuven cancels the transaction, Shimon may make the payment to the Gentile. Once the payment has been made, Reuven can no longer cancel the transaction. If the secular laws of the land where the three-persons-presence transaction takes place makes the three-persons-presence transaction binding, then Reuven cannot cancel the transaction. 

The subject matter of this lesson is more fully discussed in Vol. IV, Ch.126 of A Restatement of Rabbinic Civil Law by E. Quint, published by Jason Aronson, Inc. and on sale at local Judaica bookstores.

Questions to quint@inter.net.il