ADMISSION


ADMISSION, legal concept applying both to debts and facts. Formal admission by a defendant is regarded as equal to "the evidence of a hundred witnesses" (BM 3b). This admission had to be a formal one, before duly appointed witnesses, or before the court, or in writing. When the denial of having received a loan is proved to be false, this is regarded as tantamount to an admission that it has not been repaid. Admissions were originally regarded as irrevocable, but in order to alleviate hardships caused by hasty admissions, the Talmud evolved two causes for their revocation; a plea that the person making the admission had not been serious, or that he had had a special reason for making the admission. When partial admission has been made, the admission is accepted and he is bound to take an oath with regard to the remainder. Admissions can also apply to procedural matters; e.g., on the part of a party to an action that he has no witnesses, in which case he cannot subsequently call one.

The formal admission of a debt, or of facts from which any liability may be inferred, is in civil cases the best evidence of such liability (Git. 40b, 64a; Kid. 65b). The requirements of formality may be met: (1) by making the admission before two competent witnesses, expressly requested to hear and witness the admission (Sanh. 29a); (2) by way of pleading before the court, whether as plaintiff or defendant (Sh. Ar., ḤM 81:22); (3) in writing (ibid., 17); (4) through any of the recognized modes of kinyan ("*acquisition" ibid.); (5) on oath or the "symbolic shaking of hands by the two parties… which is the equivalent of an oath" (ibid., 28; Herzog, Instit, 2 (1939), 103).

While generally the admission must be explicit, in an action for the recovery of a loan, the denial of the loan would amount to an admission of nonpayment which is implicit in the denial (BB 6a; Shevu. 38b); on proof of the loan, the defendant will then be bound by his admission that he has not repaid it. Conversely, where a plaintiff claims that the defendant owes him a certain species of goods without reserving his right to claim also some other species, he is deemed to have admitted that the defendant owes him only the species claimed and no other, and any admission by the defendant that he does owe another species than that claimed, will not avail the plaintiff (BK 35b). The general rule in a conflict between two contradictory admissions is that the explicit prevails over the implicit and the negative (e.g., "I have not acquired property"") over the positive (e.g., "I have transferred my property"; Tosef., BB 10:1; Git. 40b), but an admission presumed to stem from the knowledge of the relevant facts prevails over one possibly made in ignorance of those facts (cf. BB 149a).

As formal admissions were originally irrevocable, they were widely used as a means of creating new liabilities, as distinguished from the mere acknowledgment of already existing ones. Even though recognized as factually false admissions, they were held to bind the person making them (BB 149a), whether by way of gratuitously incurring a new and enforceable obligation (Ket. 101a–102b; Maim. Yad, Mekhirah, 11:15), or by way of transfer (kinyan). The property concerned thus passes from the owner to the person now admitted by him to have acquired it from him, the concurrence of the beneficiary not being required as he was only benefiting by the admission (Git. 40b; Maim. Yad, Zekhiyyah, 4:12). Admissions of this nonprocedural variety are also termed udita or odaita.

With a view to alleviating hardships caused by precipitate admissions, talmudic jurists evolved two *pleas for having them revoked: the plea of feigning (hashta'ah) and the plea of satiation (hasba'ah). Where a man, not of his own accord but in reply to a question or demand, made an admission, and on being sued maintained that he had not been serious about it and that the admission was not true, an oath would be administered to him to the effect that he had not intended to admit the debt and that he did not in fact owe it (Sanh. 29b). Similarly, a statement of a person that he had admitted debts owed by him, only for the purpose of ostensibly reducing his assets so as not to appear rich was accepted (Sanh. 29b). Neither plea is valid against admissions made in court, or in writing, or by kinyan, or on oath (Sh. Ar., ḤM 81). As to admissions made in writing, some scholars hold that so long as the deed has not been delivered to the creditor, the admittor may plead that he was not serious or that he wrote it in order to appear poor (Sh. Ar., ḤM 65:22 and Isserles to Sh. Ar., ḤM 81:17). A dying man is presumed not to be frivolous on his deathbed, and his admissions are irrevocable (Sanh. 29b), so are admissions made by his debtors in his favor and presence while he is dying (Isserles ibid., 81:2). The public (the community) must be presumed neither to make rash admissions nor to be interested in appearing without means, hence none of the pleas is available against admissions made by or on behalf of the public (lsserles ibid., 81:1). Where only part of a claim is admitted, the admittor will be adjudged to the extent of his admission and be required to take the oath that he does not owe the remainder (Shevu. 7:1). This rule is based on the presumption that no debtor has the temerity to deny his debt falsely in the face of his creditor (Shev. 42b; BM 3a), a presumption which, curiously enough, does not necessarily apply to a debtor denying the whole (as distinguished from a part) of the debt. Where the whole is denied, the oath is administered to the defendant upon the presumption that a plaintiff will not normally abuse the process of the court (Shev. 40b). Where the defendant satisfies the admitted portion of the claim without adjudication, the claim is deemed to be for the nonadmitted portion only and to be denied in whole (BM 4a, 4b). While a part admission must fit the subject matter of the claim (Shev. 38b), it need not necessarily fit the cause of action; thus, the admission of a deposit might fit the claim on a loan (Sh. Ar., Ḥ.M. 88:19). The claim of the whole must precede the admission of the part, the admittor who is not yet a defendant being regarded as a volunteer returning a lost object (Sh. Ar., ḤM 75:3). An admission is not allowed to prejudice the admittor's creditors: the holder of a bill may not be heard to admit that he has no claim on it, or the possessor of chattel that they belong to somebody else, so as to deprive his creditors of an attachable asset (Kid. 65b; Ket. 19a). Admissions need not relate to substantive liabilities, but may be procedural in nature: thus a party may admit that he has no witnesses to prove a particular fact, and he will not then be allowed to call a witness to prove it, lest the witness be suborned (Sanh. 31a); or, having once admitted a particular witness to be untrustworthy, he will not later be able to rely on his testimony (Ket. 44a). Admissions could be accepted for one purpose and rejected for another, e.g., the admission of a wrongful act would be inadmissible as a *confession in criminal or quasi-criminal proceedings, but could afford the basis for awarding damages in a civil suit. This rule is found to have been applied to larceny (BM 37a; see *Theft and Robbery), to the seduction of women (Ket. 41a; see *Rape), to arson (Solomon b. Abraham Adret, resp. 2:231), to *usury (ibid.), to embezzlement (see *Theft and Robbery), and to breach of trust (Isserles to Sh. Ar., ḤM 388:8; Yom Tov b. Abraham Ishbili, Ket. 72a); a wife admitting her adultery was held to lose, on the strength of her admission, any claim to maintenance or other monetary benefits, but not her status as a married woman, thus incurring no liability to be divorced or punished (Maim. Yad, Ishut, 24:18). An early authority posed the question whether the injunction, "you shall have one standard of law" (Lev. 24:22), should not be read to prohibit any distinction between civil and criminal law with regard to admissions; the answer is in the negative, because in civil causes it is said: "He shall pay"; but in criminal cases it is said: "He shall die" (Tosef. Shevu. 3:8).

BIBLIOGRAPHY:

Z. Frankel, Der gerichtliche Beweis nach mosaisch-talmudischem Rechte (1846), 127–30, 336–58; M. Bloch, Die Civilprocess-Ordnung nach mosaisch-rabbinischem Rechte (1882), 41–43; Gulak, Yesodei, 2 (1922), 44–47; 4 (1922), 78–84; Gulak, Oẓar, 211–3; Karl, in: Ha-Mishpat ha-Ivri, 3 (1927/28), 95–98; Herzog, Instit, 1 (1936), 196–200, 268; 2 (1939), 42, 44, 94–97; ET, 1 (19513), 116–7, 253–4, 267–8; 8 (1957), 404–31; J.J. Rabinowitz, Jewish Law (1956), 257–63. ADD. BIBLIOGRAPHY: B. Lifshitz, Obligation and Acquisition in Jewish Law (1988).

[Haim Hermann Cohn]


Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.