Translation:Shulchan Aruch/Choshen Mishpat/92

Paragraph 1- We cannot make one who is suspect on oaths swear, whether it is a biblical oath or rabbinical oath. If the plaintiff says he will accept his counterparty’s oath, notwithstanding the fact that he is suspect, we would not listen to him.

Paragraph 2- One is considered suspect if he swears falsely, whether it’s a testimony-oath, deposit-oath, oath in vain or personal oath and even if he just violated a cherem placed by the public. There are those that say that this is only for an oath on a past event, such as an oath that he ate when he did not actually eat because at the time he made the oath he had lied. With respect to a future oath, however, such as an oath that he will not eat but he did eat, he would not become suspect.

Paragraph 3- The same is true with respect to someone who is disqualified from testifying due to sin, whether it is a biblical sin, such as lending with interest, eating non-kosher meat or something similar, or it is a rabbinical sin, such as pigeon-betting and dice-playing, and he is considered suspect. Anyone who is suspect to take another’s money illegally is suspect with respect to oaths. This is only where there are witnesses that he took another’s money. Without witnesses, however, he would not become suspect because he may have had an old loan against the counterparty, which is why he grabbed the money.

Paragraph 4- If one makes a claim against another for a loan that he lent him and the defendant denies it, the defendant would not be suspect, even if the plaintiff brought witnesses to contradict him, so long as the defendant did not swear. If, however, the defendant denies a deposit, he would be suspect, even if he did not swear, so long as there are witnesses that saw the item in his possession at the time of the denial. If the defendant wants to pay for the deposit, he would not be disqualified, even though he violates “lo sachmod.”

Paragraph 5- A person does not become suspect until witnesses are brought against him saying that he committed a sin that would disqualify him. If, however, he confessed on his own that he is suspect and committed a sin that would disqualify him, although we would be suspicious of him and he should not be made a witness in the first instance, if he was obligated an oath to exempt him from a claim made against him, we would have him swear. If, however, he is one who would swear and collect, he would not be able to swear and collect. There are those that say that in a case where he is required to swear to be exempt from paying, because he says he is suspect, the plaintiff can swear and collect if he prefers.

Paragraph 6- If one is obligated to swear to his counterparty and his counterparty asks that they place a cherem in shul on anyone who know that this party violated an oath, such a person that makes a request is fit to be excommunicated. If, however, the party says he is certain that he was witnesses that know his counterparty violated an oath and they don’t want to testify until they place a cherem in shul, the party has the ability to place such a cherem in shul. Those witnesses that know the testimony are required to testify just like with any other testimony where the pasuk of “im lo yagid” applies.

Paragraph 7- If one is obligated to swear a biblical oath but is suspect with respect to oaths, his counterparty would swear and collect if he is making a certain claim. If both parties are suspect, the oath would return to its original source, which is the defendant, and because he can’t swear he must pay. There are those that say the parties would split the claim and this seems to me to be the appropriate way to rule because the party taking away money has the burden of proof. There are those that say that this that a party that is suspect has his counterparty swear and collect is only where the plaintiff didn’t know at the time of the incident that the counterparty was suspect. Otherwise, this rule would not apply because otherwise everyone would do business with one who is suspect and swear and collect. There are those that disagree.

Paragraph 8- If the suspect party was a guardian and claimed that the deposit was misplaced or stolen, the counterparty would not be able to swear and collect because he is not making a certain claim that the guardian consumed his item. Therefore, if the owner of the deposit makes a claim that the guardian illegally used my deposit in my presence or was negligent with the item, the plaintiff would swear as the rabbis have instituted and would collect.

Paragraph 9- If the suspect party was obligated a rabbinical oath and it was a case where he would swear and collect, he cannot swear and collect. Rather, the defendant would take a heses oath and be exempt. The same applies where one impairs his document and any similar case where he was suspect and the borrower claims he paid him back and tells the lender to swear to him, and the defendant would swear a heses oath and be exempt from the paying back the document. There are those that say that since the lender has a verified document in his possession, he would collect without an oath.

Paragraph 10- If the suspect party was one who would swear on an uncertain claim, he would not swear and his counterparty would not swear because he is not required to swear since there was no certain claim.

Paragraph 11- If the suspect party was required to swear a heses oath, his counterparty would not swear and collect. Rather, the defendant would be exempt without an oath. We would nonetheless place a general cherem on anyone who denies his counterparty’s rightful money and does not pay. The defendant can, however, say swear and collect and would be exempt from accepting the cherem.

Paragraph 12- If one is suspect on oaths and produces a document on orphans, because he can only collect from orphans with oath and he cannot swear, he would lose the right to his money.

Paragraph 13- If one was obligated to take a heses oath and the plaintiff was suspect, the defendant cannot reverse the oath to the plaintiff because he cannot swear. Rather, the defendant must pay or take a heses oath. The same applies in the case of a minor and the defendant cannot reverse the oath to him. If one was required to swear either a biblical or rabbinical oath and he swears, and witnesses later come and say he is suspect on oaths, the oath that he took would be of no effect. If the party swore and collected, he must return that which he took to his counterparty. If he swore and was exempt, the counterparty would swear and collect from him.

Paragraph 14- This is how we would always judge one who is suspect until he receives lashes in court. If there are witnesses that he received lashes and repented, he would return to his valid state, whether it is for testimony or for oaths.