THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean 

Lesson # 83 • The Debtor's Oath

So many of us who are owed money have heard our debtor say to us, “I wish I had the money to repay that which I owe to you”. Very often we as individuals or in business feel frustrated by the feeling that the debtor possesses assets to be able to repay but we cannot prove it. 

Your friend Shimmy who sits next to you in the synagogue for fifteen years begins from week to week to tell you of the great opportunity he has to finally make a lot of money if he only had a small sum to invest. Or he would like to buy a house close to yours but he cannot make the final few thousand dollars to close the deal. Or his sick mother needs a desperate operation if only he had some money to pay for it.

Finally after many weeks you discuss the matter of Shimmy’s golden opportunity to go into business with your wife. Her first reaction is “Darling, did you go to shool to doven or to talk. If you would have dovened like you are supposed to then Shimmy could not have asked you for this favor. I never liked his wife and I don’t trust them but since you are the business man in the family, do what you think is right.” So you lend Shimmy ten thousand dollars for him to invest in a sure thing. Every Shabbat morning as he sits down next to you in shool he holds up his fingers to indicate all is going exceedingly well but he just can’t tell you about the precise details.

After a few months his fingers no longer make that exuberant sign and you begin to feel a little uneasy. There has been a “temporary setback” but things will work out. Finally after a few more months he says, “Can we discuss this after dovening”. You meet him after shool at the kiddush sponsored by the father of sextuplets and after Shimmy has fortified himself with a few Jack Daniels he says to you in a confidential whisper “Please swear that you won’t tell anyone, not even your wife. My wife will divorce me if she ever finds out what I did with our life savings, but I don’t want you to worry because I will repay you your ten thousand dollars, if it’s the very last thing I ever do.” When your wife hears this sad tale of woe including the solemn pledge not to tell Shimmy’s wife, your wife explodes and says “How come Shimmy’s wife just bought a new mink coat?” You look at your wife incredulously and say: “Are you sure she has a new mink coat. Maybe her cousin bought it for her. And don’t worry I will get you one too.” You have been had, but what can you do about it? For one thing you can stop talking to Shimmy during dovening. But what of a more practical nature can you do? What can a person do according to halachah in such an instant? 

There is a chapter in Shulhan Aruch Hoshen haMishpat called: “The Procedure For Administering The Oath To The Borrower [To Ascertain] If He Possesses [Assets]; A Ban Placed On Those Who Know If He [The Borrower] Has Assets; If He [The Borrower] Is Honest Or Dishonest; And If He Transferred His Assets By Gift." As can be seen from the title, there are times when the judgment debtor alleges that he desires to pay the judgment to the plaintiff, but does not have any assets to make the payments at the time and expects to obtain assets and make the payment at a future stated time. There are times when others know of the assets the debtor has, and there is a procedure for asking those people to come forward and testify about the debtor's hidden assets. There are times when a person is about to borrow money or go into business makes gifts to people close to him so that at the time that he is testifying, he can honestly say that he does not have assets. 

There is an oath that was instituted by the Geonim, who were the heads of the Jewish academies in Babylonia, the center of Jewish intellectual life from the sixth through the tenth centuries C.E. They saw that debtors were pleading that they had no assets to pay their creditors. Unless it was obvious that they were lying, there was nothing that the creditor could do, according to Torah law. The result was that borrowers suffered, since lenders were loath to lend to borrowers, knowing that the loan might not be paid back if the borrower pleaded that he had no assets with which to repay. In order to lessen this obstacle in the way of borrowing, the Geonim required a borrower who pleads that he cannot repay because he has no assets to take an oath. I have called this the "debtor's oath"; in these lessons it is referred to as the "debtor's oath" or just "the oath." As will seen, the oath was to be carried out in a manner similar to a Torah or Mishna oath, that is, while holding a sacred object. The theory was that even a person who might tell an untruth regarding his assets would not be likely to take a false oath. 

There are times when a debtor may allege that the assets he does have in his possession are not his, but belong to others. These lessons discuss when the debtor’s allegations are to be given credence and when not. It also discusses those persons who will not be administered the oath, either because they are believed when they state that they have no assets or, at the other extreme, because their oath is not to be trusted. 

There are some debtors who sometimes arrange fraudulent transactions to hide their assets, such as giving a deed of gift to a third party with an informal understanding that the third party will return the deeded objects to the debtor when he is no longer actively pursued by the creditor. As a corollary to this type of fraud there is also discussed the fraud that a husband wants to perpetrate on his wife regarding her kethubah, which is a lien on the assets of the husband. The kethubah is a document that is executed at the time of the wedding ceremony. It is in the nature of an instrument of obligation, whereby the husband undertakes to pay to his wife a specific sum if he divorces her, or that his estate will pay to her that specific sum if she is still married to him when he dies. The kethubah also contains other obligations that the husband undertakes to support his wife.

The kethubah, as any other note of indebtedness, is subscribed by two witnesses, and generally conforms to the requirements of a note of indebtedness. The obligation becomes binding upon the groom taking a handkerchief (usually the rabbi’s) and makes a formal kinyan. The custom in Jerusalem is that the husband also signs the kethubah. 

IYH, in the next lesson we shall discuss how the oath is administered, priorities for after-acquired assets, and other topics dealing wit these issues.

The subject matter of this lesson is more fully discussed in Vol. IV, Ch.99 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