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The Exemption of Helakh

Rav Moshe Taragin
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Although many litigations yield an obligation of shevua (the taking of an oath), only three situations warrant a shevua on a de-oraita level. One of these scenarios is the well-documented case of modeh be-miktzat, in which a sum of money is claimed by the tovei'a and the nitva (defendant) admits to partial debt. Had the nitva completely rejected the claim, he would have triumphed based on the principle of “ha-motzi mei-chaveiro alav ha-ra'aya,” which awards default victory to the muchzak (possessor) of contested monies. However, since the nitva admitted to owing part of the claim, he must swear that he does not owe the rest of the disputed money.

            This form of shevua is not required in an interesting situation known as helakh. In a case of modeh be-miktzat, in which a defendant admits to owing part of a claim but not all of it, the defendant is required to take a shevua that he does not owe the denied part of the claim. However, if he immediately renders payment of the confessed to monies before beit din, he is no longer obligated to take a shevua. This exception is called "helakh." What is the reasoning behind this exemption?

Perhaps the best way to analyze the basis of this exemption is to study its scope. How broadly can the helakh exemption be applied? The gemara's test case involves actual and immediate payment of a confessed debt in beit din. This rapid payment essentially deconstructs the typical modeh be-miktzat model. By rendering immediate payment, the defendant effectively splits the two monies into two separate litigations; Halakha then considers the confessed and paid money to be a different litigation from the denied money. Since the defendant has COMPLETELY CONFESSED to one litigation and ENTIRELY DENIED the second, he is no longer considered a modeh be-miktzat, and he therefore is not obligated to deliver a shevua regarding the denied money.

Alternatively, the modeh be-miktzat structure may be dismantled because the confessed to and paid money is considered to be "in the possession" of the claimant even before the litigation began. Since he received immediate payment, his demand of that money was rendered meaningless. Only ONE litigation has really been launched – regarding the disputed money - about which the defendant renders a complete denial.

According to either logic, the immediate helakh payment of the defendant transforms the modeh be-miktzat situation into a case of kofer ba-kol (comprehensive denial), which does not entail any shevua.

The Ba'al Ha-Ma'or raises an option (already discussed by the Geonim and supported by many other Rishonim) that greatly expands the scope of the helakh exemption. (His position can be found both in his comments to the Rif as well as in a famous exchange of letters between him and the Ra'avad known as Divrei Rivot, "Words of Dispute.") The Ba'al Ha-Ma'or claims that ANY pikadon (deposited item) is automatically considered helakh since a pikadon is legally in the full possession of the owner who deposited the item. Unlike the payment of loans, which entails legal transfer of monies, the reparation of a pikadon involves no legal exchange. Thus, if a shomer (watchman) admits to watching one pikadon claimed by the tovei’a but not another, even though the confessed to pikadon was not delivered immediately in beit din, the absence of any legal transfer renders the case helakh and the shomer does not take a shevua, on the denied pikadon.

The Ba'al Ha-Ma'or explains this expansion by analyzing the dynamics of payment, not the impact of helakh. Since the pikadon is legally owned by the tovei'a and the defendant has offered and confessed, Halakha views the confessed-to pikadon as already delivered into the possession of the plaintiff, thereby mimicking classic helakh.

This relates a general question in Shas: Can future events which are pending be considered as having already occurred? R. Shimon extends this "kol ha-omed' principle to many areas, whereas most of the Chakhamim severely limit this concept. However, regarding collection of debts, the future pending collection may be more easily envisioned as having already occurred (see Beit Shammai, Sota 25a). Even if, in general, future collection of debts is not envisioned as having occurred, perhaps collection of a pikadon (which is already legally owned) may be. According to this logic, helakh has not been expanded and its logic does not have to be re-examined. The pikadon is considered to have been returned even before it actually has been, and it is therefore treated in the same way as an immediately reimbursed debt.

However, many Rishonim agree with the Ba'al Ha-Ma'or but do not offer the same rationale. Perhaps extending helakh to include any pikadon essentially alters the logic of the helakh exemption. Even if money is not actually and immediately paid in beit din, helakh eliminates the shevua obligation. Typically and in non-helakh situations partial confession to a claim launches a legal process of recovering the confessed-to monies. While collecting the money, beit din can impose a shevua on the denied part of the litigation. If the defendant readily cooperates – either by actually paying money of by freely offering monies which are already in the legal possession of the defendant (such as pikadon) – the modeh be-miktzat shevua is not generated. Since beit din is not forced to process the collection of the confessed-to money, they cannot impose a shevua upon the denied part of the litigation.

Of course, this is based on certain assumptions about how a shevua modeh be-miktzat is typically generated. This presumes that something about beit din collecting the confessed-to money generates a shevua obligation for the denied parts of the litigation. According to this view helakh does not deconstruct the structure of modeh be-miktzat. Beit din still faces a situation of ONE integrated claim, part of which was confessed to and part of which was rejected. However, since the payment is so swift and unopposed, beit din is not involved in appropriating the payment and cannot impose a shevua on the second denied-part of the claim.

Several additional applications of helakh imply this second approach. For example, the Rif claims that if the defendant not only confessed to part of the claim, but also delivered a mashkon (collateral) to assure collection of the confessed-to part of the claim, he is exempt from a shevua on the denied part. It is unclear how a mashkon creates helakh. Many who reject the Rif’s notion evidently understood that according to the Rif, the mashkon serves as actual and immediate payment, thereby mimicking the classic case of helakh. In rejecting this claim, the Ri Migash cites a gemara in Kiddushin, which argues that the recipient of a collateral does not achieve any real “rights” or kinyanim over that mashkon. Hence, the delivery of a mashkon cannot mimic classic helakh.

By contrast, when the Re'ah (cited by the Rivash 396) rejects the Rif, he does not focus on the level of kinyan achieved by the recipient of a mashkon. Instead, he questions how much a mashkon actually facilitates ultimate payment. He argues that even after receiving a mashkon, the malveh (lender) must still process the collection through beit din and assess the worth (either of the mashkon, or the appropriated items for payment, or both), and he sometimes may be forced to sell the mashkon (under the supervision of beit din). Essentially, while a mashkon eases the collection process, it does not eliminate it. Evidently, the Re’ah understood that the Rif grants helakh status to mashkon primarily because it expedites payment. Although the Re’ah disagrees with this assessment, he does agree that if the defendant delivers the mashkon and allows the malveh to independently sell the mashkon and collect the money, the helakh effect has been achieved. Evidently, then, the Re'ah agrees that expedited payment can create helakh; he simply believes that standard mashkon does not sufficiently enable payment to be classified as helakh. If the mashkon is delivered in a manner which completely expedites payment, helakh levels of cooperation have been achieved and no shevua can be imposed.

A second indication that helakh may extend to cases of “expedited payment” comes from an interesting statement of the Rambam. He coins a new phrase that many claim is his extended definition of helakh. In Hilkhot To'en Ve-Nitan (4:4), the Rambam discusses a litigation in which the confessed-to money is written in a shetar (see Bava Metzia 4b). Since the confessed-to money cannot be disputed, this is considered a hoda'ah about money that cannot be denied and no shevua applies. Many (Rashba and Nimukei Yossef in Bava Metzia and the Rosh in Ketuvot, perek 2) assume that the Rambam is referring to helakh. Even though no actual money has been transferred; since the confessed-to money will inevitably be collected, the situation is deemed as helakh and no shevua obligation develops.

This is a very liberal application of helakh. No actual payment has been rendered and the process has not even "begun," as it has begun in the case of pikadon (which is legally owned by the tovei'a) or mashkon (which can leverage the ultimate payment). Nevertheless, the very presence of a shetar assures that payment will be made and precludes beit din from "intensive" processing of the confessed-to debt, and this blocks the imposition of a shevua!



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