Difference between revisions of "Shas:Witnesses for Repayment of Debt/2"
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The Creditor Can Change the Rules of Believability for the Loan | The Creditor Can Change the Rules of Believability for the Loan | ||
<p>Under certain circumstances, the agreement between the creditor and debtor allows the creditor to change who the court can believe, causing the court to ignore the claims of the debtor, and possibly even ignore witnesses.</p> | <p>Under certain circumstances, the agreement between the creditor and debtor allows the creditor to change who the court can believe, causing the court to ignore the claims of the debtor, and possibly even ignore witnesses.</p> | ||
| + | <mekorot><multilink><a href="RashbaShevuot41a-b" data-aht="source">Rashba</a><a href="RashbaShevuot41a-b" data-aht="source">Shevuot 41a-b</a><a href="R. Shelomo b. Aderet (Rashba)" data-aht="parshan">About R. Shelomo b. Aderet</a></multilink>, <multilink><a href="RitvaBavliShevuot41a-b" data-aht="source">Ritva</a><a href="RitvaBavliShevuot41a-b" data-aht="source">Bavli Shevuot 41a-b</a><a href="RitvaBavliShevuot42a" data-aht="source">Bavli Shevuot 42a</a><a href="R. Yom Tov b. Ashbel (Ritva)" data-aht="parshan">About R. Yom Tov b. Ashbel</a></multilink></mekorot> | ||
| + | <point><b>Why Are Witnesses Necessary?</b> According to this approach, since a loan is a monetary agreement between the creditor and debtor, they have the right to change the terms under which conflicts between them are adjudicated. While generally the judicial rules state that the debtor is believed when he claims to have repaid the loan, the two sides can change these rules, so that the judges will not believe the debtor unless he brings witnesses.</point> | ||
| + | <point><b>Unilateral Changes</b> – According to this approach, as an implicit part of the loan agreement, the debtor agrees to a subservient status to the creditor, which is learned from the verse "עֶבֶד לֹוֶה לְאִישׁ מַלְוֶה" (Mishlei 22:7). This gives the creditor the right to unilaterally change the terms of the agreement at any time.</point> | ||
</opinion> | </opinion> | ||
<opinion name="Change Repayment"> | <opinion name="Change Repayment"> | ||
The Creditor Can Change the Rules of Repayment for the Loan | The Creditor Can Change the Rules of Repayment for the Loan | ||
<p>Under certain circumstances, the agreement between the creditor and debtor allows the creditor to change how the loan may be repaid, requiring the debtor to repay the loan before witnesses. If the debtor claims he failed to abide the repayment requirements, his claim is flawed and not believed.</p> | <p>Under certain circumstances, the agreement between the creditor and debtor allows the creditor to change how the loan may be repaid, requiring the debtor to repay the loan before witnesses. If the debtor claims he failed to abide the repayment requirements, his claim is flawed and not believed.</p> | ||
| + | <mekorot><multilink><a href="RambamHilkhotMalvehveLoveh15" data-aht="source">Rambam</a><a href="RambamHilkhotMalvehveLoveh15" data-aht="source">Hilkhot Malveh veLoveh 15</a><a href="R. Moshe b. Maimon (Rambam, Maimonides)" data-aht="parshan">About R. Moshe b. Maimon</a></multilink></mekorot> | ||
| + | <point><b>Why Are Witnesses Necessary?</b> According to this approach, since a loan is a monetary agreement between the creditor and debtor, they have the right to change the terms under which the loan is repaid. While generally a loan can be repaid without witnesses, the two sides can change the rules, and require the debtor to repay before witnesses. Thus, if the debtor claims to have repaid without witnesses, he is in violation of the terms of the loan, and must repay the loan again.</point> | ||
| + | <point><b>Unilateral Changes</b> – According to this approach, as an implicit part of the loan agreement, the debtor agrees to a subservient status to the creditor, which is learned from the verse "עֶבֶד לֹוֶה לְאִישׁ מַלְוֶה" (Mishlei 22:7). This gives the creditor the right to unilaterally change the terms of the agreement at any time.</point> | ||
</opinion> | </opinion> | ||
</category> | </category> | ||
| Line 22: | Line 28: | ||
The Parties Can Add An Additional Obligation | The Parties Can Add An Additional Obligation | ||
<p>Under certain circumstances, the parties may come to an mutual agreement, not part of the original loan, which will impose certain costs on the parties. This agreement would require the debtor to pay the sum of the loan should he fail to abide by certain terms (such as proving his repayment in court via witnesses), despite the court absolving him of his debt.</p> | <p>Under certain circumstances, the parties may come to an mutual agreement, not part of the original loan, which will impose certain costs on the parties. This agreement would require the debtor to pay the sum of the loan should he fail to abide by certain terms (such as proving his repayment in court via witnesses), despite the court absolving him of his debt.</p> | ||
| + | <mekorot><multilink><a href="RifShevuot20b-21a" data-aht="source">Rif</a><a href="RifShevuot20b-21a" data-aht="source">Shevuot 20b-21a</a><a href="R. Yitzchak Alfasi (Rif)" data-aht="parshan">About R. Yitzchak Alfasi</a></multilink></mekorot> | ||
| + | <point><b>Why Are Witnesses Necessary?</b> According to this approach, by agreeing to only repay before witnesses, the creditor and debtor reached an additional agreement, unrelated to the loan itself, under which the debtor must pay the amount of the loan if the creditor demands it, unless the debtor can bring witnesses that he already repaid the loan. Thus, if the debtor claims in court to have repaid without witnesses, he is not required to repay the loan itself, but must pay due to the additional agreement.</point> | ||
| + | <point><b>Unilateral Changes</b> – According to this approach, the witness requirement is an external obligation, caused by mutual agreement. The creditor cannot require it unilaterally after the time of the loan, and at the time of the loan the debtor’s agreement to the loan is considered an implicit consent to this obligation as well.</point> | ||
</category> | </category> | ||
<category name="Change Psychology"> | <category name="Change Psychology"> | ||
The Creditor Can Change the Psychology of the Debtor | The Creditor Can Change the Psychology of the Debtor | ||
<p>None of the creditor's actions have any legal significance beyond the original debt agreement. However, under certain circumstances, the creditor's actions may frighten the debtor, causing any claim of repayment without witnesses to be immediately suspect.</p> | <p>None of the creditor's actions have any legal significance beyond the original debt agreement. However, under certain circumstances, the creditor's actions may frighten the debtor, causing any claim of repayment without witnesses to be immediately suspect.</p> | ||
| + | <mekorot><multilink><a href="RanRifShevuot20b-21b" data-aht="source">Ran</a><a href="RanRifShevuot20b-21b" data-aht="source">Rif Shevuot 20b-21b</a><a href="R. Nissim Gerondi (Ran)" data-aht="parshan">About R. Nissim Gerondi</a></multilink></mekorot> | ||
| + | <point><b>Why Are Witnesses Necessary?</b> According to Ran, when the creditor warns the debtor to repay before witnesses, or (according to the first rendition of Rav Asi) even when the loan only occurred before witnesses (without an explicit warning), the debtor is afraid to repay without witnesses, since the creditor may claim that no such repayment happened. Since it is therefore extremely unlikely the debtor repaid alone, without witnesses, such a claim is not believed (even though legally such repayment, if proven, would be fine).</point> | ||
| + | <point><b>Unilateral Changes</b> – According to this approach, no deal is being made or changed, and therefore nothing is being forced upon the debtor without his consent.</point> | ||
</category> | </category> | ||
</approaches> | </approaches> | ||
</page> | </page> | ||
</aht-xml> | </aht-xml> | ||
Version as of 08:12, 2 December 2018
Witnesses for Repayment of Debt
Exegetical Approaches
The Creditor Can Change the Details of the Loan
Under certain circumstances, the agreement between the creditor and debtor allows the creditor to change certain details regarding the loan.
The Creditor Can Change the Rules of Believability for the Loan
Under certain circumstances, the agreement between the creditor and debtor allows the creditor to change who the court can believe, causing the court to ignore the claims of the debtor, and possibly even ignore witnesses.
Why Are Witnesses Necessary? According to this approach, since a loan is a monetary agreement between the creditor and debtor, they have the right to change the terms under which conflicts between them are adjudicated. While generally the judicial rules state that the debtor is believed when he claims to have repaid the loan, the two sides can change these rules, so that the judges will not believe the debtor unless he brings witnesses.
Unilateral Changes – According to this approach, as an implicit part of the loan agreement, the debtor agrees to a subservient status to the creditor, which is learned from the verse "עֶבֶד לֹוֶה לְאִישׁ מַלְוֶה" (Mishlei 22:7). This gives the creditor the right to unilaterally change the terms of the agreement at any time.
The Creditor Can Change the Rules of Repayment for the Loan
Under certain circumstances, the agreement between the creditor and debtor allows the creditor to change how the loan may be repaid, requiring the debtor to repay the loan before witnesses. If the debtor claims he failed to abide the repayment requirements, his claim is flawed and not believed.
Sources:Rambam
Why Are Witnesses Necessary? According to this approach, since a loan is a monetary agreement between the creditor and debtor, they have the right to change the terms under which the loan is repaid. While generally a loan can be repaid without witnesses, the two sides can change the rules, and require the debtor to repay before witnesses. Thus, if the debtor claims to have repaid without witnesses, he is in violation of the terms of the loan, and must repay the loan again.
Unilateral Changes – According to this approach, as an implicit part of the loan agreement, the debtor agrees to a subservient status to the creditor, which is learned from the verse "עֶבֶד לֹוֶה לְאִישׁ מַלְוֶה" (Mishlei 22:7). This gives the creditor the right to unilaterally change the terms of the agreement at any time.
The Parties Can Add An Additional Obligation
Under certain circumstances, the parties may come to an mutual agreement, not part of the original loan, which will impose certain costs on the parties. This agreement would require the debtor to pay the sum of the loan should he fail to abide by certain terms (such as proving his repayment in court via witnesses), despite the court absolving him of his debt.
Sources:Rif
Why Are Witnesses Necessary? According to this approach, by agreeing to only repay before witnesses, the creditor and debtor reached an additional agreement, unrelated to the loan itself, under which the debtor must pay the amount of the loan if the creditor demands it, unless the debtor can bring witnesses that he already repaid the loan. Thus, if the debtor claims in court to have repaid without witnesses, he is not required to repay the loan itself, but must pay due to the additional agreement.
Unilateral Changes – According to this approach, the witness requirement is an external obligation, caused by mutual agreement. The creditor cannot require it unilaterally after the time of the loan, and at the time of the loan the debtor’s agreement to the loan is considered an implicit consent to this obligation as well.
The Creditor Can Change the Psychology of the Debtor
None of the creditor's actions have any legal significance beyond the original debt agreement. However, under certain circumstances, the creditor's actions may frighten the debtor, causing any claim of repayment without witnesses to be immediately suspect.
Sources:Ran
Why Are Witnesses Necessary? According to Ran, when the creditor warns the debtor to repay before witnesses, or (according to the first rendition of Rav Asi) even when the loan only occurred before witnesses (without an explicit warning), the debtor is afraid to repay without witnesses, since the creditor may claim that no such repayment happened. Since it is therefore extremely unlikely the debtor repaid alone, without witnesses, such a claim is not believed (even though legally such repayment, if proven, would be fine).
Unilateral Changes – According to this approach, no deal is being made or changed, and therefore nothing is being forced upon the debtor without his consent.
