Translate

Powered By Blogger

14.5.26

I am having some trouble in understanding the opinion of the Rambam concerning a document of confidence where there was a verbal agreement that it would not be enforced, and there was no loan. Rav Nachman said witnesses that say they signed on a document of confidence or protest that they are not believed. Mar bar Rav Ashi said on a doc of protest they are believed, but not a document of confidence. The Rif decided the law like Mar bar Rav Ashi. But the Rambam wrote in Laws of Testimony Ch. 3 law 7 if witnesses say the signature on the document is theirs, but it was a document of confidence [i.e., there was never any loan] they are not believed because one who signs on a document of confidence is as if he said false testimony. But in Laws of Loans Ch. 14 law 5 if a witness says he signed on a document of confidence is believed because he could have denied that it is his signature.----------------------I am having some trouble in understanding the opinion of the רמב’’ם concerning a שטר of faith-there was a verbal agreement that it would not be enforced. רב נחמן said witnesses that say they signed on a שטר of אמנה or protest מודעה that they are not believed. מר בר רב אשי said on a שטר of protest they are believed, but not a שטר of faith. The רי''ף decided the law like מר בר רב אשי. But the רמב’’ם wrote in ה' עדות פרק ג' ה' ז' if witnesses say the signature on the שטר is theirs, but it was a שטר of אמנה [i.e., there was never any loan] they are not believed because one who signs on a שטר of אמנה is as if he said false testimony. But in ה' מלווה ולווה י''ד הלכה ה' if a witness says he signed on a שטר of אמנה is believed because he could have denied that it is his signature.I saw the ספר מאירת עיניים asks and answers this in חושן משפט סימן מ''ו הלכה א'. the problem is the answer seem to be ad hoc, and not what the רמב''ם intended/The answer I think is this. the Rambam says clearly that both in laws of loans and laws of witnesses that the document has not yet been established. However, the case in laws of testimony is when the witnesses are saying they signed on a doc of confidence, and they are not believed because a person that signs on such a doc when there is no loan is as if he gave false testimony. But on the other hand, the case in laws of loans the case is when the borrower says it was a doc of confidence, and there was no loan, but there was an agreement to make a loan, and thus he could have said that there never was any agreement, i.e., not just that there never was a loan, but also there never was any agreement in the first place, and he would be believed because the doc has not been validated and thus cannot be acted on. The main point is it is not his fault if the lender never gave him a loan after there had been a agreement. The reason this answer makes sense to be because it is clearly spelled out in the words of the Rambam himself, i.e., one case is witnesses and the other is the borrower.-------The answer I think is this. the רמב''ם says clearly that both in laws of loans and laws of witnesses that the שטר has not yet been established. However, the case in laws of testimony is when the witnesses are saying they signed on a שטר of confidence אמנה , and they are not believed because a person that signs on such a שטר when there is no loan is as if he gave false testimony. But on the other hand, the case in laws of loans the case is when the borrower says it was a שטר of confidence, and there was no loan, but there was an agreement to make a loan, and thus he could have said that there never was any agreement, i.e., not just that there never was a loan, but also there never was any agreement in the first place, and he would be believed because the שטר has not been validated and thus cannot be acted on. The main point is it is not his fault if the lender never gave him a loan after there had been a agreement. The reason this answer makes sense to be because it is clearly spelled out in the words of the רמב''ם himself, i.e., one case is witnesses and the other is the borrower.