THE JERUSALEM INSTITUTE OF JEWISH LAW
Lesson # 63 - PLEADINGS (cont.)
As was stated in the prior lesson, there are times when the defendant does not know for certain how to plead. Lets assume that he has forgotten the facts. This lesson deals with such a situation.
The borrower simultaneously borrows a total of $300 from two lenders, one loaning him $200 and the other lender loaning him $100 and the borrower was then aware which lender loaned which amount. The loan was not evidenced by a note of indebtedness. At the time of the repayment the borrower does not recall which lender loaned $200 and which lender loaned the $100. Each lender now sues and pleads with certainty that he loaned the borrower the $200. The borrower may insist that each lender take an oath that he is the one who loaned the $200 to the borrower, and if they both take the oath, the borrower will pay each lender $200. If the lenders plead with uncertainty as to which of them loaned the $200, then the borrower may repay each one $100 and the remaining $100 is divided between the two lenders. However, if the borrower wishes to fulfill his obligation to Heaven, he will pay each lender $200 acting lifnim mishurath hadin. If one lender pleads with certainty that he loaned the $200 and the other lender pleads with uncertainty, the borrower pays the $200 to the lender who pleads with certainty and $100 to the lender who pleads with uncertainty.
Assume that the loan was evidenced by a note of indebtedness for $300 without stating which of the lenders loaned $200 and which loaned $100. At the time the loan was made the borrower was aware who loaned the larger sum and who loaned he smaller sum, but does not now remember and each lender pleads that he loaned the larger sum. If the borrower now takes a hesseth oath that he does not now recall, he pays $100 to each lender and the last $100 shall be paid into the Beth Din to remain in limbo until the coming of Eliyahu HaNavi. (See my Volume II of a Restatement of Rabbinic Civil Law chapter 65 regarding the topic of the “coming of Elijah” in civil law.) Should the borrower refuse to take such a hesseth oath, he will have to pay each lender the $200 pleaded by each lender.
A situation may arise where there two persons who sue the defendant and each plaintiff pleads that he loaned $100 to the defendant. Defendant admits borrowing $100 from one of the plaintiffs, but cannot remember from which plaintiff. If each plaintiff takes an oath that he loaned $100 to the defendant, the defendant must pay each plaintiff $100. If the pleas of the lenders are not made with certainty, that is, each plaintiff thinks he loaned $100 to the defendant, then the result would be different; the defendant need not pay each alleged lender.
Assume that there are no lawsuits pending against the borrower, but he comes to Beth Din and pleads that he remembers that he borrowed $100 from either Mr. A. or Mr. B. and cannot remember from whom. He need not make any payment to either of them, although there is an opinion that to fulfill his obligation to Heaven, the borrower should pay $100 to Mr. A. and $100 to Mr. B.
If one person borrows from two lenders and one of the lenders forgives the debtor, the debtor must still pay the other lender, even if both debts were incorporated into one note of indebtedness. This holds true even if the note of indebtedness named, as the creditor, the creditor who forgave the debt. If the debtor enters into a compromise with one of the lenders, he need not admit the claim of the other lender.
If one of the lenders comes to the borrower to claim his share of the debt, the debtor may insist that the other lender be notified of the proposed repayment and suggest that he be present when he pays the one of the lenders his share. Just as the borrower received the loan from the two lenders he may insist that the repayment be made in the presence of the two lenders. It may be that the borrower does not know the internal arrangements between the two lenders. If the other lender is in the city and is invited to attend and does not do so, then the borrower may repay to the lender who has made demand for payment the full amount due. If the borrower knows the precise amount due to the lender who seeks repayment, the debtor may pay him that amount and may pay the balance of the debt to the Beth Din. The same law applies if two persons deposited an object with one bailee.
If the debts to both lenders are contained in one note of indebtedness, and the note contains the name of only one lender, he may collect the entire debt without the necessity of producing a power of attorney from the other lender. If the lender not named in the note comes to collect from the borrower, the borrower is not under any obligation to make any payment to him unless he produces a power of attorney from the lender named in the note. If the names of both lenders are written into the note, then either one of them may collect the entire debt without the necessity for a power of attorney from the other lender. If the borrower pleads that he paid the lender named in the note, the other lender has no claim against the borrower. This assumes that the note produced is not an authenticated note of indebtedness against which the borrower cannot plead payment. An example of a note against which the borrower can not plead payment might be a promissory note written by the borrower when he simultaneously borrowed $50 from lender A and $50 from lender B, and stating in the promissory note “I owe lender A $100 that I borrowed”.
IYH, the next lesson is the converse of this lesson. This lesson was one borrower and two lenders, next lesson two borrowers and one lender.