1.
What is the burden of proof on someone who is owed money (for a few year, but hasnt given up on getting it) to bring to beis din (is it still shayach if the paper trail has been lost?

2.
If it is one persons word again another - what are the halachik ramifications? Meaning, what is the halachah if one doesnt pay a person what they are owed as opposed to not paying a person, and lying in the beis din?

3.
Is there a concept of "excepting you wont get paid" and the defaulted borrower not having to pay the money back?

Thanks!

The burden of proof is always on the person who is claiming the money. In the absence of proof by either side, the defendant does not pay.

I'm not sure what you are asking in point 3, but the only way the debtor is off the hook is if the creditor is willing to forgive the debt.

Quote "is it still shayach if the paper trail has been lost?"

How can you prove it if there is no proof? He can deny the whole thing. But still, there is a Shvuas Heses (a rabbinic swearing) that is given for someone denying the whole amount.

Quote "Is there a concept of "excepting you wont get paid" and the defaulted borrower not having to pay the money back?

There is no Yiyush on a loan. When it came to his hand he had a responsibility to pay, so even if the person is Miyaish (gives up) since it came to his hand B’Issurah (with a prohibition for not paying back) it always must be returned.

(This is based on just a general understanding of these Halachos, a real To’ein should be consulted what should be expected by bringing it to Bais Din.)v

quote:

Originally posted by Rav Chaim:
"... there is a Shvuas Heses (a rabbinic swearing) that is given for someone denying the whole amount."

Rav Chaim,
In ordinary cases, a man cannot be brought to swear in a court of Jewish law unless he agrees in part to what the claimant says in a law suit brought against him. And even with that, there must be at least the face-value of a perutah's worth to that which the defendant admits of, or more, for there to be any swearing in the court, as it is written, "Ki Hu Zeh." (Heb. כי הוא זה) - Shemos, Parashos Mishpatim.

As for "Burden of proof," there are many teachings about this matter. The principle with us is this: המוציא מחברו עליו הראיה.
"He who would exact a thing from another, the burden of proof rests with him."

Normally, the owner who despairs over a lost object relinquishes his rightful ownership over that object, and from that moment, it becomes the ownership of he who finds the object. Still, as for "Yioush" (Despairing), you correctly pointed out, "There is no Yioush on a loan." Although, a loan is given out with the intent of it being expendable (מִלְוָה להוצאה ניתנה), a creditor still demands the equivalent of the coins in specie which were lent out to be paid back unto him.

In one of the fine ponts arising from the teaching about despair, we find the following teaching: יאוש שלא מדעת לא הוי יאוש (Baba Metzia 21b) Meaning, "Despairing [over a lost object]without knowing [the thing had been lost], is not considered an act of despair."
So long as the owner is not cognizant of there having been a loss of what belonged to him, it remains the sole possession of its owner. This is especially true when that object has distinct, recognizable features.

Sincerely,
David Ben-Abraham

quote:

Rav Chaim,
In ordinary cases, a man cannot be brought to swear in a court of Jewish law unless he agrees in part to what the claimant says in a law suit brought against him. And even with that, there must be at least the face-value of a perutah's worth to that which the defendant admits of, or more, for there to be any swearing in the court, as it is written, "Ki Hu Zeh." (Heb. כי הוא זה) - Shemos, Parashos Mishpatim.

This is only from the Torah. the Rabanan enacted a rabinic swearing even if he denys the whole thing. See BM 5a that if one claims the other owes him a MAnah and the other says he owes nothing R' Nachman says he swears "Heses"

B"H
Nachama,
If you have lost the "paper trail" of an outstanding debt owed to you, my suggestion to you is buy a miniature tape recorder, and to go to the debtor who has yet to pay you the money, and somehow get him to admit that he received from you such-and-such a sum of money, and that he has yet to pay you. Perhaps this can serve as valid proof in a Court of law when you come to demand reimbursement of that loan.
Sincerely,
David

A situation that occurred to me

A few months back I was seeking an inexpencive used car. I found one that seemed decent for the price. The owner claimed that he wouldn't allow me to drive it because it had no insurance. Instead he took me for a brief ride around the neighborhood, driving gently and the car seemed O.K. I told him that I wanted the car, dependant on having a mechanic do a proper inspection. When I finally had a friend/ mechanic come- he took the car for a drive, leaving me to watch his car while it was double parked. The mechanic, apparently, stepped on the gas while going uphill one time and the engine over-heated and blew a head gasket. Around 1,500 N.I.S in damage. Later that week I got a phone call from the car's owner telling me I owe him the repair money. I told him no-way because had I bought the car the first time a drove it uphill on the highway the engine would have died on me. He asked me to take the issue to a Rav and I agreed I would. I either keep forgetting to ask my Rav, or when I call he isn't available. The other people with knowledge in the subject I have spoken with agree with me, however, none are actually Rav's. Any input would be apprecaited.

Thanks and Shavua Tov

B"H
Dear Jacob,
We have a very similar incident in the Torah Shemos 22:13-14 (Parashas Mishpatim) where it says that when the owner of a donkey, bull, sheep, or any animal, loans out his animal to another, and while the owner of that animal is still with the borrower, if the animal should break down and die (such as while ploughing a field), the loss is incurred by the owner and not by the borrower. No payment of indemnity is demanded from the borrower since the owner was with him when the loss occurred.

It is the same with the car. If the car was given out for a test-ride by its owner and the car broke down under ordinary conditions of use, it is as though he had been with your friend, the mechanic, at the time of the mishap, and the owner incurrs the loss.

Moreover, the prospective buyer could always claim that it was "mekach te'outh," (A Bad Deal),since the car was not fit from the start for ordinary usage.

This is my humble opinion.

Sincerely,
David

Thank you for your opinion, David

quote:

When I finally had a friend/ mechanic come

Shalom Jacob:

I was wondering, it could be a useful point, is your friend established in his community and known as a mechanic, and not one to abuse a car?

Does he have a shop which would be capable of doing the now-needed repair, that perhaps he could give an estimate of the retail cost of the repair, and might even be able to do the repair at a reduced cost for the seller under the circumstances, of course with no admission of any responsibility?

B"H
Nachama,
Does the man or woman who owes you money actually deny that he or she owes you money?

Sincerely,
David

Quote "If you have lost the "paper trail" of an outstanding debt owed to you, my suggestion to you is buy a miniature tape recorder, and to go to the debtor who has yet to pay you the money, and somehow get him to admit that he received from you such-and-such a sum of money, and that he has yet to pay you. Perhaps this can serve as valid proof in a Court of law when you come to demand reimbursement of that loan."

This might not help to much, as the Gemarah in Sanhedrin 29a says that in order to consider as proof to be considered as an admitting, the admiter must appoint witnesses to witness it. If not, the admitter could claim that he was just joking. So it doesn’t help hiding witnesses to hear the admittance, as the Gemarah there says, unless you get him to say that witnesses that hear this can testify against him.

Quote "It is the same with the car. If the car was given out for a test-ride by its owner and the car broke down under ordinary conditions of use, it is as though he had been with your friend, the mechanic, at the time of the mishap, and the owner incurrs the loss."

I don’t think this is applicable only if the lender is doing work for the borrower when the loan was made (a Gezaras Hakasov) and therefore as long as the owner wasn’t giving him a cup of water etc. At the time of the loan, the person is Chayiv.

I think that the exemption would be because of Misah Machmas Milachto. If the animal or object dies or brakes when doing the regular use that was lent out to do in the first place is exempt for payment even by a Shoel (borrower) and of course by this, which was lent not for a fovor, but in order that you should by it.

quote:

Originally posted by Rav Chaim:

"This (a tape-recorder) might not help to much, as the Gemarah in Sanhedrin 29a says that in order [for it to be] considered as proof [in one's] admitting, the admitter must appoint witnesses to witness it..."

My dear Rav Chaim,

Yes, you are absolutely right about what the Gemara says there. The question is if, in our day and age of technology, the Rabbis have judged whether or not the film of celluloid tape taken from a video machine or motion picture camera can act as valid proof in convicting a man who was captured (on film) while in the very act of burgulary, or whose voice was recorded on a tape recorder while admitting that he owes money to so-and-so. Or, perhaps, only compitent human witnesses can be taken into account and relied upon in such cases. I truly do not know, but I am sure that the Rabbis have discussed this issue.

As far as having the debtor come to court and swearing under "shavu'ath heseth,", Rav Nachman (Shavuoth 40b) is of the opinion that when a debtor denies his ever having been given a loan, he is to be made to swear over it in order for him to be cleared of all charges. The reason given for this is because, normally, a man does not file suit (as in the case of the claimant) except in cases where he had something coming to him.
Likewise, an ordinary defendant who owes money to a creditor (the appellant in a court case) does not normally deny having been loaned money. In the words of the Gemara: "It is generally established that a man does not embrazen his face against his creditor." (In the latter case, he was brought to swear because he had denied being given the loan!?? So what does it mean that 'it is generally established that a man does not embrazen his face, etc.' ? It means that if he swore to the effect that he was not given a loan, he is to be believed.

Sincerely,
David Ben-Abraham

B"H
CORRECTION:
I should have rather written: "burglary."

David

B"H
My dear Rav Chaim,

The question about using a secret tape-recorder in order to submit the confession of a debtor to a court of law, saying that he indeed owed money to so-and so was posed before a group of scholars here, in Israel. Their reply to me was this:
גדרי ההלכה בעֵדוּת לא השתנו. אבל, כלל גדול בדיני ממונות כתב הרמב"ם (בתחילת פרק כ"ד מהלכות סנהדרין) והשלחן ערוך (חשן משפט סימן ט"ו סעיף ד'):

יש לו לדיין לדון דיני ממונות על פי הדברים שדעתו נוטה להם שהם אמת, והדבר חזק בליבו שהוא כן

(Translated)
"The halachic definitions outlining testimony [in court] have not changed. Yet, there is a general principle in rules which govern monetary matters. Maimonides has written at the beginning of the 24th chapter of Hilkoth Sanhedrin, [as also] the Shulhan 'Arukh (Hoshen Mishpat, section # 15, item # 4): 'The judge should pass judgment in monetary cases in accordance with those things wherein his opinon inclines him [to believe] that they are true, and where the conviction is strong within his heart that it is so."

Here, then, we learn that a judge has more leverage than what he has in other cases - that is, when he comes to pass sentence about cases in debts &c., and can actually rely upon the testimony of a tape recorder.

Sincerely,
David Ben-Abraham

A big "Thank-you" to everyone that helped in my situation with the car. And in response to one question, yes he is a very well known mechanic in our tzibor, and in-fact was known by the prospective seller as an old friend (at least prior to this incident).

B"H
Dear Jacob,
I think Rav Chaim has addressed your situation very well. You should definitely be exempt by virtue of "Metah Michamath Melakha" (מתה מחמת מלאכה) which is decribed by Rambam in his Code of Jewish Law (Hilkoth She'ilah u'fikadon, 1:2). There are many parallels between your case and the things that Rambam writes about in the first and second chapters of Hilkoth She'ilah u'fikadon.
Sincerely,
David

This message has been edited. Last edited by: Yisroel Phillips,

thank you so much for all your imput. The person that owes me money does not deny to me that they owe me money. But from what I understand their financial situation is bleek.
I dont want them to think that I forgo the debt (i heard that if i feel that i will no longer get paid that it diminishes their obligation).
and since it has been going on for so many years that if i choose to take them to beis din, they might choose to lie. so far im just choosing to wait.
Thank you!

Quote " Yes, you are absolutely right about what the Gemara says there. The question is if, in our day and age of technology, the Rabbis have judged whether or not the film of celluloid tape taken from a video machine or motion picture camera can act as valid proof in convicting a man who was captured (on film) while in the very act of burgulary, or whose voice was recorded on a tape recorder while admitting that he owes money to so-and-so."

My point is, that even if we know for sure he admitted it, we don’t have proof that he meant it. He can say he was just joking (M’Shatah Ani Bach.)

Quote "
As far as having the debtor come to court and swearing under "shavu'ath heseth,", Rav Nachman (Shavuoth 40b) is of the opinion that when a debtor denies his ever having been given a loan, he is to be made to swear over it in order for him to be cleared of all charges. The reason given for this is because, normally, a man does not file suit (as in the case of the claimant) except in cases where he had something coming to him.
Likewise, an ordinary defendant who owes money to a creditor (the appellant in a court case) does not normally deny having been loaned money. In the words of the Gemara: "It is generally established that a man does not embrazen his face against his creditor." (In the latter case, he was brought to swear because he had denied being given the loan!?? So what does it mean that 'it is generally established that a man does not embrazen his face, etc.' ? "

Tosfos points out, that the reason one swears for a Modeh B’Mikzas is a Gezaros Hakosev, that the Torah requires you and that’s that. What is needed by "'it is generally established that a man does not embrazen his face" is that we shouldn’t say we should believe him that he only owed part with a Migo. If he wanted to lie he could of denied the whole loan and exempt himself from paying. This what he was so honest to agree to part shows he’s saying the truth. So we say that he’s not comfortable to deny the whole thing since It is generally established that a man does not embrazen his face against his creditor. So he’s forced to admit to part.