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Shabbat Parashat Mishpatim 5772

P'ninat Mishpat: A Workers Commitment to a Third Party part II

(condensed from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)

Case:   The defendant (=def) worked for a business that marketed and distributed clothing. She asked a printing company (=pl) to design and print 5,000 advertisements. The clothing company closed abruptly and the owner disappeared, and it is not likely that he will pay off his commitments. Pl is suing def personally for the work it performed at her request. Pl claims that def introduced herself as the owner of the company. Def says that she said, from the outset, that she was a worker. A worker at pl said that def did not state explicitly her position but gave the impression that she ran the business.

[Last time, we substantiated why, according to pl’s story, def would be obligated. Now, we will discuss how to determine to what extent to accept one version of the story over the other.]


Ruling:  When there is an outright contradiction between the stories told by the litigants, there is sometimes a rabbinic oath (shvu’at heset) upon the defendant. However, this is only when the plaintiff’s claim is one that he is certain (bari) about the claim (Shulchan Aruch, Choshen Mishpat 75:17). In our case, the owner of pl, does not personally know how def presented her request but was only told by one of his workers. Does that make pl’s claim bari and create an oath?

Testimony in court from a kosher witness creates an oath obligation on the defendant even without a bari claim from the plaintiff. In this case, the witness’ interest in the case disqualifies her. However, the Shach (CM 75:83) says that when someone sent a family member to represent him in a matter about which a dispute erupted, his story enables the plaintiff to make a claim of bari. Therefore, there is basis for a shvu’at heset.

When neither side has proof, the money stays in the hands of the one with possession. However, one exception is when Reuven obligated himself if Shimon does not do something, and there is a dispute over whether he did; Reuven pays unless he can prove that Shimon did it. (Shulchan Aruch, CM 241:10). The K’tzot Hachoshen cites two explanations. 1) When it is unfeasible for Shimon to prove he did not do something, Reuven has to prove he did it. 2) We leave unproven matters at their status quo. If the obligation exists but can be undone by certain conditions, the defendant who wants to undo the conditions has to prove that.

In our case, from one perspective, we know that pl made an order and perhaps there is a status quo of obligation unless she proves that she made it clear that someone else would be paying. On the other hand, there is little reason for def to want to create an impression that she was the owner. It is also difficult for either side to prove whether a stipulation was made. Therefore, the doubt still remains, and an oath is in place.

In the case of a potential oath, since we no longer administer them, the minhag of the courts is to ‘redeem’ them with partial payment. This is a demonstration both of the value of not having to swear and of the fact that the existence of an oath obligation is a sign of strength to the plaintiff’s claim. Beit din, therefore, invoked a compromise and also pointed out that def is free to try to recoup the money she owes pl by suing the owner of the defunct company.

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