Responsa for Shevuot 80:22
מאן דמתני ארישא כל שכן אסיפא
- He is merely trying to slip away from him [for the moment], thinking, 'when I will have money, I will pay him.'<span class="x" onmousemove="('comment',' The denial is therefore not effrontery, but an excuse to gain time; hence, he may not be speaking the truth, and he must take an oath.');"><sup>22</sup></span> Know [that this is so], for R'Idi B'Abin said that R'Hisda said: He who denies a loan, is fit for testimony;<span class="x" onmousemove="('comment',' For, since it is a loan, he may have spent the money, and, in order to gain time, he denies it; but he is not really dishonest; and though witnesses testify that he owes he money (and he had denied it, but not on oath) , we still assume that he merely wishes to gain time, and will pay later, and he is therefore still qualified to be accepted as a witness in a case.');"><sup>23</sup></span> a deposit, is unfit for testimony.<span class="x" onmousemove="('comment',' For a deposit is not intended to be spent; and where witnesses testified that at the time of denial it was in his possession, he must be considered dishonest (v. B.M. 5b) .');"><sup>24</sup></span> R'Habiba taught [R'Nahman's law] as applicable to the later clause: 'A HUNDRED DENARII OF MINE YOU HAVE IN YOUR POSSESSION;' HE SAID TO HIM, 'YES'. ON THE MORROW HE SAID TO HIM: 'GIVE THEM TO ME'; [AND THE OTHER REPLIED,] 'I HAVE GIVEN THEM TO YOU;' HE IS EXEMPT. - And R'Nahman said: But they impose upon him the consuetudinary oath. - He who applies [R'Nahman's law] to the first clause<span class="x" onmousemove="('comment',' That even if he never admitted the claim at all he must take the consuetudinary oath.');"><sup>25</sup></span> will certainly apply it to the second clause;<span class="x" onmousemove="('comment',' For he has already admitted the claim, and therefore it is obvious at least that the claim is a valid one.');"><sup>26</sup></span>
Teshuvot Maharam
A. If the valuables B brought to A were undistinguishable and no one recognized them as having belonged to B's former husband, A is free from obligation for five reasons. a) Even if the valuables B brought to A were worth more than the value of her ketubah, such valuables may not all necessarily have come from the estate of her former husband, for she might have received some gifts or found a treasure. b) Were B still alive she would have been obliged to take an oath [to the effect that she did not take from her former husband more than the value of her ketubah], but now that she is dead, A is free from the obligation of taking an oath, since he is not supposed to know his wife's affairs. c) A is not even required to take the oath of an heir — that B never told him, and that he did not know that she had received from the estate of her former husband more than the value of her ketubah — since the heirs of B's former husband are not positive in their claim. The heirs, however, may pronounce the ban (herem) in the synagogue against anyone who does possess such knowledge and does not reveal it. Such ban would include A. d) Whatever a person would have retained, had he taken an oath, his heirs may retain without the necessity of taking an oath. e) Some authorities require A to take the oath of an heir; but since many great authorities absolve him from such oath, and since A is in possession of the aforesaid valuables, the burden of proof is upon the plaintiff. For similar reasons A would be free from the obligation of taking an oath, even if some of the valuables brought to him by B were distinguishable and were recognized as having belonged to B's former husband, if the valuables thus recognized were in themselves not worth more than the value of B's ketubah. But, if the distinguishable valuables are in themselves worth more than the value of B's ketubah, A must return the difference to the heirs of B's first husband.
Q. Witnesses have testified to the effect that B and her former husband, C, had made a binding agreement that in the event of the death of one party, the surviving party would share the property with the heirs. After C's death, B settled with all of C's heirs, except the youngest, D, who was born after the drawing up of the agreement. D, therefore, is now pressing his claim.
A. D was entitled to his share even though he was born after the agreement was made, for in it B did not bestow benefits on anybody; she merely relinquished her rights to C's property up to a certain extent, and D later became heir to the relinquished property. However, A may claim that B brought him nothing from C's estate, or he may contend that B had already settled with D, and be free from obligation for the reasons enumerated above.
SOURCES: Am II, 17; cf. Hayyim Or Zarua, Responsa 86; ibid. 165; ibid. 191.
Teshuvot Maharam
A. The fact that there is no actual loss of money to B does not, of itself, absolve A from taking an oath. A is not required to take the oath for another reason. B can not claim to be certain that A has cash, and no one is required to take an oath when his opponent is not certain of his claim.
This Responsum is addressed to Rabbi Asher b. Moses.
SOURCES: Cr. 7, 8; Pr. 109; L. 360. Cf. Am II, 224.
Teshuvot Maharam
A. Exchange is equivalent to buying, and is included in the above ban.
SOURCES: Mord. B. M. 395; Agudah B. M. 170.