PLEAS

Nature of Pleas

Talmudic law developed certain well-defined forms of pleading in civil cases (not unlike the actio, formula, and exceptio in Roman law). These forms of pleading constitute a catalog of causes of actions and defenses which could be applied in, and adapted to, all kinds of civil litigations. Unlike Roman law, pleas were not reduced to abstract terms, but expressed in direct language: for instance, the action of debt is rendered as the plea of "I have money in your hands"; the defense of payment is rendered as the plea of "I have paid." The law of pleas thus comprises the catalog of the various pleas and the provisions governing the applicability and effect of each particular one. However, in the sources there is no systematic differentiation between the two, and they will be considered together below. It often happens that not only the burden of proof (see *Evidence) or of taking the *oath will depend on the pleas chosen by the party but also the immediate outcome of the action, where in the circumstances a given plea is considered conclusive.

Pleas of the Plaintiff

Plaintiff 's pleas, or causes of action, can be roughly divided into three classes: debt – "I have money in your hands"; or "I have a loan in your hands": or "I have wages with you"; chattels – "I have a deposit in your hands"; or "I have deposited this or that chattel with you"; or "you have stolen this chattel from me"; and oath – where the cause of action depends on accounts to be rendered and the defendant (e.g., an agent, executor, or guardian) is sued to verify his accounts on oath.

In order to be valid and to require a plea (or an oath) in reply, the plaintiff 's plea must be such as to disclose a legally valid cause of action. Where a plaintiff would not be entitled to judgment, even though his plea be proved or admitted, no defense is called for. Thus, the plea "you promised to lend me money" – which is a promise unenforceable in law – or the plea "you insulted me" – which, if proved or admitted, could not bear weight in a case of damages – would be rejected as irrelevant from the outset.

Pleas of the Defendant

Whenever a cause of action has been pleaded by the plaintiff, "it is not a proper reply for the defendant to say, I owe you nothing, or you have nothing in my hands, or you are lying; but the court will tell the defendant to reply specifically to the plaintiff 's plea and be as explicit in his defense as the plaintiff was in his claim: have you or have you not taken a loan from him?; has he or has he not made this deposit with you?; have you or have you not stolen his chattel?; have you or have you not hired him?; and in the same way with all other pleas. The reason is that a defendant may err [in law]… and believe that he is not liable to the plaintiff; therefore he is told: how can you say 'I owe him nothing'? maybe the law renders you liable to him and you do not know; you must submit to the judges explicit statements of fact, and they will advise you whether you are or are not liable. Even a great scholar is told: you do not lose anything by replying to his plea and explaining to us how it is that you are not liable to him; is it because 'the thing has never happened' or although 'it happened, it is because you already made restitution to him'" (Yad, To'en 6:1).

Defendant's pleas may roughly be divided into admissions and denials.

*Admissions are of three kinds:

(1) full and express admission of the whole claim – such an admission establishes the claim "like a hundred witnesses";

(2) partial admission and partial denial, with the result that the oath will be administered to the defendant;

(3) implied admission – plea of "I have not borrowed" is, on proof of the loan, taken as an admission that the defendant has not repaid the loan; or, a plea of "I have repaid" is, on proof of non-repayment, taken as an admission that a loan had been made (bb 6a; Shevu. 41b; Yad, To'en 6:3). For pleas of "feigning" or "satiation" to revoke out-of-court admissions, and for the effect of admissions in general, see *Admission.

Denials are also of three kinds: "no such thing has ever happened" – i.e., a total denial of the fact (the loan, the contract, the tort) underlying the cause of action; "I have paid" – i.e., an assertion that any liability which may have existed has already been fully satisfied; and "you have renounced the debt," or "the money you gave me was in repayment of a debt which you owed me, or was a gift" (Yad, To'en 6:2) – i.e., in the nature of a plea of confession and avoidance.

The general rules that the burden of proving his case rests upon the plaintiff (see *Evidence) and that, in the absence of such proof, the defendant has to take the oath to verify his denial, apply to all these pleas of denial. The presumption that a debtor will not lie in the face of his creditor was in the course of time superseded by the presumption that the plaintiff will not lodge a claim unless he has a cause of action. While by virtue of the former presumption the defendant would be believed on his oath, by virtue of the latter he was required to take the oath to disprove the plaintiff 's claim (Shevu. 40b).

Plea of Repayment

In the case of the plea of repayment, the following special provisions should be noted:

Where the defendant pleaded repayment, it was not sufficient for the plaintiff to prove that he had given the defendant a loan, because a loan given before witnesses need not necessarily be repaid before witnesses (Shevu. 41b), and the claim would be dismissed on the defendant's oath verifying his plea. The same rule applied to claims on bills: where the signature of the defendant on the bill was proved or admitted, his defense of repayment would be accepted on his taking the oath (bb 176a; Yad, Malveh 11:3; Sh. Ar., ḤM 69:2); but some later jurists held that the plea of repayment was not available against a bill which was in the hands of the plaintiff, as it would normally have been returned or destroyed on payment (Rema, ḤM 69:2 and the references given there). The matter appears to be left to the discretion of the court in each particular case (Resp. Ribash, no. 454; Siftei Kohen, ḤM 69, n.14). Where the plea of repayment is inadmissible in law, e.g., where the loan or bill was made with formal kinyan (see *Acquisition, Modes of; ḤM 39, 3), the plaintiff will recover on the bill on taking the oath that it is still unpaid (Shevu. 41a; Yad, Malveh 14:2). Where a debt is repayable at a certain date, the defendant will not be heard to plead that he repaid it before that date because of the presumption that no debtor pays a debt before it matures (see *Evidence). The plaintiff will be entitled to recover without oath, on proof of the debt and of the time stipulated for repayment (bb 5a–b; ḤM 78:1).

In order to forestall pleas of repayment and their all too easy verification by oath, it became customary to stipulate beforehand either that repayment must be made in the presence of witnesses – in which case the plaintiff could recover without oath unless the defendant produced witnesses of repayment (Shevu. 6:2; Yad, Malveh 15:1; ḤM 70:3) – or that the plea of repayment should not be available to the defendant, and that the plaintiff should be entitled to recover on his assertion that he had not been paid (Yad, Malveh 15:3; ḤM 71:1).

Plea of Insolvency

Originally the law was that a debtor who pleaded that he was unable to pay was not required to take the oath, but the burden was on the creditor to discover property of the debtor on which execution could be levied (Yad, Malveh 2:1). However, when "defrauders increased and borrowers found lenders' doors closed," it was laid down that the debtor should take the oath that he possessed nothing and concealed nothing and that he would disclose any property coming into his hands (Yad, Malveh 2:2; ḤM 99:1). There are two noteworthy exceptions to this rule: a man reputed to be poor and honest will not be required to take the oath if the court suspects the creditor of desiring to annoy or embarrass him; and a man reputed to be a cheat and swindler will not be allowed to verify his plea on oath even though he volunteers to do so (Yad, Malveh 2:4; ḤM 99:4–5; see also *Execution, Civil).

Plea of Counterclaim

Where a plaintiff sues on a bill, it is no defense for the defendant to plead that the plaintiff is indebted to him on another bill: each sues and recovers on his own bill separately (Ket. 13:9; Yad, Malveh 24:10; Sh. Ar., ḤM 85:3). But where the defendant denies the bill sued upon by the plaintiff, his plea prevails that the plaintiff would not have made a later bill in favor of the defendant had he really been indebted to him (Sh. Ar. loc. cit.; but see Yad, loc. cit. and Siftei Kohen to Sh. Ar., ḤM 85, n. 7). Where the defendant pleads that the plaintiff already "has mine in his hands," the plaintiff is entitled to have his claim judged first, and the defendant's claim for restitution or to have one claim offset by the other will be adjudicated separately (bk 46b; Rashi and Tosef. thereto; Tur, ḤM 24:1; Rema, ḤM 24:1).

Identical Pleas

Where, in respect of a certain sum of money or of a chattel, both parties plead "this is mine," and both are in possession of it (i.e., each holds it with his hand), and none can prove previous or present title, both will have to take the oath that they are entitled to at least one-half of it, and then one-half will be judged to belong to each (bm 1:1; Yad, To'en 9:7; ḤM 138:1). Where the mutual "this is mine" is pleaded in respect of land, or in respect of a chattel not in the possession of either, the party who first succeeds in taking possession, even by force, cannot be ousted unless the other can prove that he has a better title to it (bb 34b–35a; Yad, To'en 15:4; ḤM 139:4). For this rule, which in effect legitimizes seizing by force, the Solomonic reason was given that it would only be the true owner who would go to the length of using force and facing the ensuing lawsuit (Resp. Rosh 77:1; Beit Yosef, ḤM 139, n.1; see also *Extraordinary Remedies).

Pleas of Law

As a general rule, pleas are assertions or denials of fact only; but there are some exceptions to the rule, two of which are noteworthy:

(1) the plea of "I do not want this legal privilege." Wherever the law confers a benefit on the class of persons to which the pleader belongs, he will be heard if he waives that benefit (Ket. 83a). Thus, the rule that a husband must maintain his wife in consideration of her handiwork for him was established in favor of his wife, and she may plead, "I will not claim *maintenance and I will not work" (Ket. 58b). Or, where a plaintiff is allowed by law to recover on taking the oath, he may plead, "I do not want the privilege of taking the oath," and have the oath shifted to the defendant (Yad, To'en 1:4; ḤM 87:12); and

(2) the plea of "I rely on the other view." Where the authorities are divided on a given question of law, the defendant is entitled to plead that the opinion most favorable to him should be adopted (Keneset ha-Gedolah, ḤM 25, Beit Yosef). This post-talmudic rule is based on the premise that the benefit of any possible doubt on what the law is must accrue to the defendant, the burden of establishing his case always being on the plaintiff (see also *Codification of the Law).

Weight of Pleas

Even where no evidence is available or forthcoming to substantiate a plea and even before such evidence is called for, the court will accept a plea as valid and conclusive in the following cases:

(1) Where the plea is fortified by a legal presumption (see *Evidence) or by generally recognized standards or patterns of conduct. For instance, the plea, "I have not been paid" is accepted as conclusive if fortified by the presumption that no debtor pays a debt before maturity (bb 5b).

(2) Where the plea is eminently reasonable (sevarah). The reasonableness cannot generally be determined from the particular circumstances of the case at issue, but rather from legal rules evolved for this purpose. Thus, a man's plea is not believed if by that plea he accuses himself of wrongdoing (Ket. 22a, 23b), unless he can adduce a good reason (amtala) for so doing. Where, by his own mouth, a man has taken upon himself a certain status or obligation which could not otherwise be proved against him, he is believed on his plea that that status has come to an end or that obligation has been performed, for "the mouth that obligated is the mouth that discharged" (Ket. 2:5). For instance, a woman who cannot otherwise be proved to have been married is believed on her plea that her marriage has been dissolved (Ket. 2:5; Yad, Gerushin 12:1; Sh. Ar., eh 152:6).

Witnesses whose attestation to a deed cannot be proved other than by their own testimony are believed on their plea that they were incompetent or coerced to attest (Ket. 2:3; Ket. 18b; Yad, Edut 3:6; ḤM 46:37), provided they did not plead that their incompetence was due to criminal conduct (Yad, Edut 3:7; ḤM 46:37). Opinions are divided on whether a defendant who admitted that a bill, which could not otherwise be proved, had been authorized by him, would be believed on his plea that he had paid the bill (bm 7a; Ket. 19a; bb 154b); the better opinion seems to be that, as long as the bill is in the hands of the plaintiff, it is presumed to be unpaid (Tur, ḤM 82:3), and the defendant's unsworn plea of repayment is not sufficient to discharge him (see above; and Rashi, Ket. 19a, s.v.Ein ha-Malveh). Similarly, a plea is believed if it was "in the hands" of the pleader to execute it by his own act (Sanh. 30a; ḤM 255:8).

(3) A particular brand of reasonableness is known as miggo, meaning something like "inasmuch": inasmuch as you could have succeeded by some other more far-reaching plea, the lesser plea, by which you likewise succeed, can be accepted as credible. "If A makes a certain statement which does not appear probable on the face of it, this fact will not tend to weaken his case, if he could have made another statement which would have appeared probable. If that other statementwould have been acceptable to the court, the one that he actually makes must also be accepted, for had he wished to tell an untruth he would have rather made that other statement" (Herzog, Instit, 1 (1936), 250ff.). In the much shorter and clearer words of *Shabbetai b. Meir ha-Kohen (Shakh) in his "Rules of Miggo" (appended to his commentary Siftei Kohen to ḤM 82, hereinafter referred to as Rules), "he is known to speak the truth, for if he had wanted to lie, a better plea would have been open to him" (Rule 26). Miggo is the amoraic version and elaboration of the mishnaic "the mouth that obligated is the mouth that discharged" (cf. Ket. 2:2, 16a; the different problems of miggo are dealt with in the Shakh at the end of ḤM 82).

Miggo is, generally speaking, available in respect of pleas of defendants only (Rules 1, 14, 15); miggo is of no use against witnesses (Rules 5, 12); miggo is of use against a written deed (Rule 11); where the taking of an oath is prescribed (other than the post-mishnaic oath), miggo is not available in lieu of it, nor will it be allowed where the more far-reaching plea could have resulted in a Pentateuchal or mishnaic oath being imposed, for the actual plea may have been put forward only for the purpose of evading the oath (Rules 25, 28); miggo does not apply where it would contradict local custom in matters of commerce (Rule 2); both the more far-reaching and the actual plea must relate to the same subject matter (Rule 13); miggo does not operate retroactively (Rule 8); where the more far-reaching plea would obviously have been a lie, it cannot operate as miggo on the actual plea; nor will miggo be of any avail to strengthen a plea which is manifestly false (Rule 9); whether the miggo is of avail against presumptions of fact is discussed (Rules 10, 16); miggo is of no avail against any possessory title (ibid.); miggo is not allowed where the more far-reaching plea would have been "I do not know" (Rule 3); miggo is allowed only in respect of pleas which are outspoken and unambiguous (Rule 7); there are differences of opinion on whether miggo would be allowed where the pleader could have remained silent instead of pleading, and by remaining silent would have attained the same or a better result (Rules 19, 21); whether miggo is available where the more far-reaching plea would have been unreasonable or unusual, or would have been an affront or an impertinenceto the creditor, is discussed (Rules 6, 22); miggo is not available where the more far-reaching plea would have incriminated the pleader (Rule 24); miggo is applied only to the plea of a single pleader: where the same plea is put forward by more than one, none can avail himself of miggo (Rule 4); miggo is allowed in respect of pleas of fact only, and not in respect of pleas of law (Rule 31); and where there recommends itself to the court a reasoning (sevarah) which appears (however slightly) better than miggo in the particular case before it, miggo may be discarded at the discretion of the court (Rule 32).

Rejection of Pleas

untrustworthiness

Once a defendant has denied having taken a loan and the fact that he has is proved by witnesses, he will not be allowed to plead that he has repaid the loan (bm 17a; Yad, To'en 6:1; ḤM 79:5), provided the denial has been made in court (Yad, To'en 6:2; ḤM 79:9). The denial which proved untrue renders the pleader, insofar as the same subject matter is concerned, a "potential denier," huḥzak, whose pleas will no longer be accepted as trustworthy. The same ruleapplies where a debtor had admitted the debt and, when sued in court, denied it (ḤM 79, 10), provided the previous admission could not be explained away as unintentional (Sanh. 29b; Yad, To'en 6:6).

inconsistency

No alternative or inconsistent pleas are allowed (bb 31a; ḤM 80:1). While pleading in court, however, the pleader may rectify his plea and explain it or even substitute another plea for it, as long as his original plea has not been proved or disproved by evidence (Yad, To'en 7:7–8; Tur, ḤM 80:4). Statements made out of court are not regarded as "pleas" and may freely be contradicted by pleas in court (ḤM 79:9, 80:1).

public policy

Pleas which may otherwise be perfectly legitimate may sometimes be rejected because their acceptance might lead to undesirable results from a moral, humanitarian, or economic point of view. Examples of purposes for which pleas might be rejected are: that a wrongdoer should not reap a reward (Ket. 11a, 39b; et al.); that the lenders' doors not be closed in the face of borrowers (Ket. 88a; Git. 49b–50a; bk 7b–8a; et al.); for the protection of open markets (bk 115a); that it be not too easy for a husband to divorce his wife (Ket. 39b); and that equity and generosity may prevail over strict law (bm 51b–52a; 83a; 108a; Ket. 97a; et al.).

Suggestion of Pleas

Where the defendant (or, in exceptional cases such as widows and orphans, the plaintiff) appears unable or unfit to formulate the plea which is open to him in the circumstances, the court will "open the mouth of the dumb for him" (Prov. 31:8) and enter the plea for the defendant of its own accord (Ket. 36a; Git. 37b; BB 41a; Piskei ha-Rosh; bk 1:3). The court will not, however, of its own accord enter for the defendant a plea to the effect that any admission made by him out of court was false or unintended (Yad, To'en 6:8; ḤM 81:21; but see Rema, ḤM 81:14).

bibliography:

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[Haim Hermann Cohn]