THE JERUSALEM INSTITUTE OF JEWISH LAW
Rabbi Emanuel Quint, Dean 

Lesson # 68 (2nd of 2 parts) - Recanting an Admission

In Shulhan Aruch Hoshen haMishpat, Rabbi Yosef Karo calls chapter 81 “If a Person Made a Voluntary Admission, When May He State That He Was Only Jesting?”

In last week’s lesson we discussed how a person admits that he owes someone money. Reuven made an admission that he owes Shimon $100. Shimon now wants to use this admission as proof that Reuven owes him the money and Reuven refuses to pay. If the admission stands up in Beth Din, Shimon does not have to prove the debt and may rest his case on the admission. If Reuven can recant the admission then Shimon will lose the case unless he can prove the debt independently.

There are several types of pleas that Reuven can raise regarding the admission that Shimon pleads that Reuven made.

Reuven may plead that he made the admission in error. Of course the debtor may recant an admission made in error. If the admission was made by the debtor because he mistakenly believed that he owed money to the creditor and thereafter the debtor discovers his error, he may recant his admission. This then becomes a question of proof that Reuven has to produce that the admission was in error. 

Or Reuven can also plead that he never made the admission. Here too it becomes a matter of proof with Shimon having the burden of proof to prove that the admission was made by Reuven.

Or Reuven may plead payment, unless Shimon is holding a writing that evidences the indebtedness. 

There are two other defenses that we will be discussing in this lesson.
Shimon sues Reuven in Beth Din based on the admission of Reuven that he owes Shimon $100. Reuven raises a defense that he was only jesting when he made the admission, which is the name of this chapter in Shulhan Arch. Or he may raise the defense that he made the admission so that people will think he owes out money and is not as wealthy as they think he is. He may not want people to think that he is wealthy for a variety reasons. If people think he is less wealthy than they thought he was, he may not be pressured to give large contributions to charity. Or he may want people who owe him money to feel sorry for him and repay their debts to him. Or he may believe in bad luck following him if people see how wealthy he is; or he fears tax collectors will give him a larger tax assessment; or any other variety of reasons. 

If Reuven raises a defense of the admission never having been made, and witnesses then testify that they were present when he made the admission, then Beth Din may permit Reuven to lead that he was jesting and does not remember the admission. A person is not required to remember all the jests that he makes. If the admission was made with a kinyan, then Reuven cannot raise the defense that he was jesting. 
The availability to plead the defense that the defendant was jesting applies only to individuals. It does not apply if the leaders of a community make an admission on behalf of a community. When an obligation is undertaken by a community it is the equivalent of an admission made by an individual with a kiynan. 

Reuven may not raise the defense that he was only jesting if he was critically ill when he made the admission. If Reuven recovered from the illness and is sued on the strength of the admission he may not plead that he was only jesting. A person does not jest about such things when he is critically ill. 

Another defense that Reuven may want to raise is that he made the admission so as not to appear too wealthy to the people in his community. There is authority that this defense can only be raised if it was Reuven who made the admission without being requested to do so by Shimon. But if Shimon requested him to make the admission, Reuven can raise this defense. 

Reuven, without being requested to do so, admits to a critically ill person that he owes him $100. Reuven may not thereafter plead that he made the admission so as not to appear wealthy. 

In those situations where Reuven pleads that he made the admission so as not to appear wealthy, he must take a hesseth oath (an oath instituted by the Rabbis of the Talmud in the fourth century). Reuven would have had to take a hesseth oath even if there were no witnesses that he made the admission since the Rabbis of the Talmud introduced a hesseth oath in all cases where a defendant denies any liability to the plaintiff. 

There are situations where admissions are made in business. There are two partners in a business, Reuven the active partner and Shimon the passive partner. Shimon relies on Reuven to give him his share of he profits every year. Reuven gives Shimon $100 representing the profits for the year 1999. Thereafter Reuven alleges that there actually were no profits in 1999, and the $100 he gave to Shimon should be treated as a return of principal to Shimon. If the profits were given by Reuven to Shimon in the presence of two witnesses or Reuven admits that he declared that it represented profits for the year 1999 when he presented the $100 to Shimon, Reuven cannot now plead that the $100 was a return of principal. If Reuven can prove to Beth Din that he had made a mistake in calculation or that the $100 was originally given by him to Shimon without stating what it was for, then he can plead that he made a mistake and take a hesseth oath and the money will be attributed to principal. 

Reuven invests $100 with Shimon and Levi for their business and they execute a writing and agree by oath that Reuven is at a certain date to receive back his $100 and he is also to receive 50% of the profits. Part of the writing includes a power of attorney in favor of Reuven, which permits Reuven to declare the amount of the profits. (This was a device to get around the Torah restrictions against the investor taking interest. Instead he received profits and he was to determine the amount of the profits.) Reuven asks for his investment and they give him $100. He asks them for his share of the profits and they state they had profits of $60. Reuven pleads that Shimon had previously admitted to him that they had profits of $80. Using his power of attorney, Reuven collected the $40 (one-half of the profits). 
Levi sued Reuven to recover the overage of the profits that Reuven took. Judgment was rendered in favor of Reuven. 

Reuven loans $100 to Shimon. Reuven pleads that the loan not having been repaid in a long time, Reuven by agreement with Shimon converted the loan into an investment and Reuven is to receive profits on his investment. This was a device to receive interest on a loan that was not repaid. Shimon denies the conversion into an investment. Judgment was rendered in favor of Shimon without even having the necessity of taking an oath. Shimon does not have to take an oath since the condition of conversion was not present when Shimon became obligated to Reuven.

The subject matter of this lesson is more fully discussed in Volume III, Chapter 81 of A Restatement of Rabbinic Civil Law by E. Quint and on sale at local Judaica bookstores. Questions to quint@inter.net.il