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|KESUVOS 18 (1 Adar) - dedicated in memory of Mordecai (Marcus) ben Elimelech Shmuel Kornfeld, who perished in the Holocaust along with most of his family. His Yahrzeit is observed on 1 Adar. May his death and the deaths of the other Kedoshim of the Holocaust atone for us like Korbanos.|
One who borrows money in front of witnesses does not have to pay back in front of witnesses.
If one tells his friend, "I owed a Maneh to your father and I paid back half," the Tan'aim disagree about whether he must swear. (1)
A person does not have to counter a claim from a Cheresh, Shoteh, or Katan.
Rabah says that the reason why the Torah obligates a Modeh b'Miktzas to swear is that the only reason he admitted to half is because he did not have the audacity to deny the entire debt in front of his creditor. (2)
Rebbi Eliezer ben Yakov: A person does not have the audacity to deny an entire debt even in front of the son of a creditor. Chachamim: He does have the audacity to deny an entire debt. (3)
Witnesses who confirmed their signatures but they say that they were forced to sign or they were Ketanim, or Pesulei Edus, they are believed. (4)
Witnesses who have signed a document are considered to have been interrogated by Beis Din.
Once witnesses testify in Beis Din, they may not retract their testimony.
Witnesses are not believed to say that they signed a document falsely for monetary reasons, because a person is not believed to make himself into a Rasha.
Rebbi Meir maintains that witnesses are not believed to say that they were forced to sign or that they were Ketanim or Pesulei Edus when they signed.
A BIT MORE
1. Rebbi Eliezer ben Yakov: He must swear because he is a Modeh b'Miktzas: he admits to half a claim, and the Torah obligates a Shevu'ah in such a case. Chachamim: He is not regarded as a Modeh b'Miktzas. Rather, he is regarded as a Meshiv Aveidah, someone who is returning a lost object, and thus he is exempt from swearing.
2. This logic, however, does not motivate him to admit the entire debt, because even though he wants to admit it all, he reasons that he will deny half until he is able to come up with the rest of the money.
3. The Chachamim maintain that a person does have the audacity to deny a debt in front of the son of the creditor. Therefore, if one admits to half of the debt, he is not regarded as a Modeh b'Miktzas. Instead, he is regarded as a Meshiv Aveidah and is exempt from a Shevu'ah.
4. If their signatures were confirmed by another source, they are not believed to say that they were forced or that they were Ketanim or Pesulim when they signed.
Rabah asks, why does the Torah obligate a Modeh b'Miktzas to swear? Tosfos explains that his question is, why is one not believed with a Migu that he could have denied the entire debt? The answer is that it is not a Migu, because he does not have the audacity to deny the entire debt in front of his creditor. The Ritva says that the reason why a person does not have the audacity to deny the debt is that his creditor knows that he is lying. Rashi in Bava Metzia says that he does not have the audacity to deny the debt because his friend did him a favor by lending him the money, and denying the debt would be regarded as ingratitude.
LENDING MONEY WITHOUT WITNESSES
It is forbidden to lend money, even to a Talmid Chacham, without the presence of witnesses, unless a Mashkon was given. Lending money with a loan document is preferable to lending without one. Anyone who lends without the presence of witnesses transgresses the prohibition of placing a stumbling block in front of a blind man, and causes himself to be cursed. One who lends money to his friend in front of witnesses without a Kinyan or a document does not have to pay back in front of witnesses, but instead he is believed with a Shevu'as Heses that he paid it back. (Shulchan Aruch CM 70:1)
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