For the source text click/tap here: Bava Metzia 5
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As we have learned, when someone claims that another person owes him money and the defendant denies that he owes all of the money, but admits that he owes part of it, then he is a modeh be-miktzat who must pay the amount that he admits to and then take an oath that he does not owe any more. The Gemara (daf 3a) brings the opinion of Rabbi Hiyya who rules that the same law would apply if the defendant denied owing any money but witnesses come and testify that he owes part of the money that is claimed. Here, too, according to Rabbi Hiyya, the defendant will have to swear that he does not owe the full amount, since the witnesses are no less believable than his own admission.
In Jewish law, oaths are not taken in court by witnesses, but by the defendant who, under certain circumstances, is obligated to either pay or satisfy the plaintiff by swearing that he does not owe money. The halakha is that if the defendant “owes” the plaintiff an oath, but he cannot take it for some reason (e.g. he is known to be untrustworthy), then the plaintiff would be permitted to swear that his claim is true, and the defendant will have to pay.
We explore the performative speech act inJewish Law with the analysis of Amir Mashiach.