Shas:Witnesses for Repayment of Debt/2

Witnesses for Repayment of Debt

Exegetical Approaches

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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.

Sources:RashbaShevuot 41a-bAbout R. Shelomo b. Aderet, RitvaBavli Shevuot 41a-bBavli Shevuot 42aAbout R. Yom Tov b. Ashbel

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:RambamHilkhot Malveh veLoveh 15About R. Moshe b. Maimon

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:RifShevuot 20b-21aAbout R. Yitzchak Alfasi

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.

Textual Issues

• Rav Papa's Psak – According to Rif, the debtor is not believed (אינו נאמן) if he claims the witnesses are overseas.

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:RanRif Shevuot 20b-21bAbout R. Nissim Gerondi

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.

The First Rendition

• Rav Asi – According to Ran, Rav Asi's original statement did not refer to a legal obligation to repay the loan before witnesses, but rather a psychological need to do so (caused by fear that the creditor may deny receiving the payment). If the loan occurred before witnesses, and the debtor claims to have repaid without witnesses, this unlikely claim is not believed.
• Shemuel – According to Ran, Shemuel agrees that this claim is unlikely by itself, but states that if the debtor claims he repaid the loan before witnesses, but that those witnesses are unavailable, he is believed. Thus, even when claiming that he repaid without witnesses, the debtor is believed, since he could have stated (מיגו) that he had witnesses, but they are unavailable.
• Rav Asi's Answer to the Mishna – According to this approach, Rav Asi differentiates between a loan before witnesses (where the creditor shows his distrust and the debtor becomes afraid) and a simple statement of liability (which will not cause the debtor to become afraid).

The Second Rendition

• Rav Asi – According to Ran, while Rav Asi admits that the simple existence of witnesses during the loan is not enough to frighten the debtor into repaying with witnesses, an explicit warning from the creditor would frighten the debtor. Therefore, if the debtor was warned to repay before witnesses, chances are he would not have repaid alone, and is not believed when making such a claim.
• Shemuel – According to Ran, Shemuel makes the same argument as he made in the first rendition. If the debtor claims he repaid before witnesses who are currently unavailable, he is believed, and therefore he is believed even when claiming there were no witnesses, due to מיגו.
• Question on Shemuel – According to the Ran, since Shemuel believes the debtor even when he claims there were no witnesses, he is in direct contradiction to the Baraita which states that the debtor is not believed without witnesses.

Relationship Between Rav Asi and Shemuel – According to Ran, in both renditions, Rav Asi and Shemuel, while agreeing in principle, disagree on the details. Rav Asi even agrees with Shemuel that if the debtor claims he repaid in front of witnesses, but they are unavailable, he is believed. The sole difference is with regards to the מיגו: Shemuel views the מיגו as a valid מיגו, while Rav Asi understands the fear of repayment without witnesses to be so strong it is almost as if witnesses tell us he did not do so, and a מיגו is not enough to overcome this.

Rav Papa's Halakhic Conclusion – According to Ran, Rav Papa's conclusion is that the debtor must bring witnesses, but if the he claims to have witnesses overseas, he is believed. This conclusion matches Rav Asi, since according to Shemuel there is no need whatsoever for witnesses. Additionally, the Ran finds the Gemara's explanations of Shemuel's position unsatisfactory, further contributing to his view that the halakha follows Rav Asi.

Rava and Abayei's Dispute – According to Ran, both Rava and Abayei agree that the demands of the creditor have no legal validity, and thus should the debtor actually bring these other witnesses, not named by the creditor, before the court, the court would believe the witnesses. The dispute between Rava and Abayei is only with regards to cases where the debtor claims to have witnesses but they are unavailable. According to Abayei, the debtor does not view the creditor's demands as exclusive, and it is believable that he may find alternative witnesses. In contrast, Rava states that the debtor will understand the creditor's demands to specifically contraindicate any witnesses besides those named, and he is not believed if he does not claim to have repaid before those specific witnesses.

Rav Nachman's Ruling

Types of Unavailable Witnesses – According to Ran, as long as the debtor claims he paid before witnesses, he is believed, no matter why the witnesses are unavailable: them being dead or his not knowing their names are just likely to have happened as them being in a foreign country (and thus are just as believable, despite the inability to check the debtor's claims in the future).

Textual Issues

• Question on Shemuel – The Ran had the version printed in our Gemara, although he was familiar with the alternative version. Thus, he has no reason to say that Shemuel must agree that if the debtor does not claim the existence of witnesses, he is not believed.
• Rav Papa's Psak – The Ran states that the version before him (and before the Rambam) was that if the debtor claims to have witnesses overseas, he is believed.

Halakhic Conclusion – According to this approach, the creditor may warn the debtor to repay him before witnesses, or even before specific witnesses, but this warning is not binding on the debtor, and he may repay without witnesses. The warning is only relevant if the creditor disputes receiving his payment, in which case, if the debtor claims he did not follow the debtor's instructions, his claim (alone) is not believed. If he brings witnesses that he repaid, or claims he followed instructions (even without witnesses he did so), he is believed.