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There is a sum of money (10,400 NIS) which def claims he paid to someone according to pl’s request, and pl denies that any such payment was related to him. Also, def claims that pl cannot get payment based on the first contract because it was due several years ago.
Ruling: Disputed repayment: This dispute needs to be decided by the halachic rules of conflicting claims. When one denies owing money, including due to repayment, but admits to part of the claim, he needs a Torah-level oath to be exempt. The gemara (Bava Metzia 4a) extends this denial to where witnesses attest to his owing part of the money. The Terumot (VII:3:2), accepted by the Shulchan Aruch/Rama (Choshen Mishpat 75:5), extends this to cases where the defendant claims his payments add up to an exemption, but beit din discovers a miscalculation, so that he is actually partially obligated.
Def claims that he owes no money to pl based on payment and counterclaims. However, he never demonstrated how the payments indicate full exemption. Although his counterclaims of damage payments cover the full amount, these claims are rejected by beit din (to be discussed), and since these counterclaims are unrelated to pl’s claims, if they are not accepted, it follows that part of pl’s claim remains owed and creates an oath obligation (see Shach, CM 75:19).
In our days, when beit din does not allow oaths, exemption with an oath is replaced by partial payment. Some speak of a set rate, whereby payment of half the claim replaces a Torah-level oath, but most poskim adjust the rate based on circumstantial evidence that makes one claim more believable than the other. Def was able to be very exact on the particulars of the payment. On the other hand, the obligation to swear would make oaths necessary on other parts of the claims. Therefore, we will assume payment of only 3,500 NIS out of 10,400 NIS regarding this payment.
P'ninat Mishpat (824)
Beit Din Eretz Hemda - Gazit
843 - P'NINAT MISHPAT: A MESS OF LOANS, REPAYMENTS AND GRIEVANCES – PART I
844 - P'NINAT MISHPAT: A Mess of Loans, Repayments and Grievances – part II
845 - P'NINAT MISHPAT: A MESS OF LOANS, REPAYMENTS AND GRIEVANCES – PART III
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