Ketubot 18: The Claim of "I Paid"

  • Rav Shmuel Shimoni

Background:

            The Rishonim in masekhet Shevu'ot propose various explanations of the position that someone who lends to his fellow before witnesses must be repaid before witnesses. But our passage in Ketubot seems to suggest a different understanding that relates to the essence of the difference between the claim that a loan was repaid and the claim that the loan was never made. Why didn't the Rishonim on Shevu'ot adopt this explanation? What remains of this explanation in the framework of the ruling that someone who lends to his fellow before witness need not be repaid before witnesses? Is there a difference between one who borrows before witnesses and one who steals before witnesses?

            In the next shiur we shall examine the continuation of the Gemara on p. 18a: "Ve-litni modeh… eino tzarikh le-far'o be-eidim." In order to understand the disagreement whether or not someone who lent to his fellow before witnesses must also be repaid before witnesses, see also Shevu'ot 41a, bottom, "maneh li be-yadkha" until 41b, "ve-halkhu lahem li-medinat ha-yam ne'eman."

1) See Chiddushei ha-Rashba and Chiddushei ha-Ran on Shevu'ot (see below). What are their assumptions and what is the explanation that they propose?

2) See Tosafot Yeshanim on our passage (printed in the Gemara's margin), and explain how this differs from the aforementioned Rishonim? Which approach is supported by our passage?

3) See Rashba on our passage and analyze the various positions that he cites.

4) [Complete the Gemara on your own until the mishna on p. 18b. We shall not deal with this Gemara in the shiur.]

Chiddushei ha-Rashba, Shevu'ot 41a:

המלוה את חבירו בעדים, שהעמיד עדים בהלואה, דהוה ליה כאילו אמר ליה: 'בעדים אני מלוה אותך, בעדים פרע לי', ולפיכך או יתן או יביא ראיה שנתן.

Chiddushei ha-Ran, Shevu'ot 41a:

שאין הענין מטעם שעבוד, אלא מפני שכל שהלוהו בעדים... אנו אומרין שודאי אין הלוה פורעו בלא עדים, ואי טעין ואמר 'בלא עדים פרעתיו', אמרינן דודאי שקורי משקר, דכיון שהמלוה יכול לברר הלוואתו על פי עדים... אין הלוה עשוי לפרוע לו אלא בעדים, כדי שלא יחזיקנו המלוה בין הבריות בלוה ואינו משלם... ששמו חכמים דעתן של בריות שכל הלוה בעדים אינו פורע אלא בעדים, שכיון שהוא רואה דאיהו לא מהימן ליה למלוה, שהרי אינו מלוהו אלא בעדים, מלוה נמי לא מהימן ליה שלא יתבענו פעם אחרת, ואע"פ שזה מן הדין יכול לומר פרעתי דהמוציא מחבירו עליו הראיה, אפ"ה אין עשוי לפורעו בלא עדים, שכיון שהמלוה יכול לברר הלוואתו בעדים אף הלוה חושש שלא יוציא לעז עליו, ואינו פורע אלא בעדים, הילכך כי אמר פרעתי בלא עדים אנן סהדי דמשקר.

Introduction

            In previous shiurim, mention was occasionally made of the fundamental principle of "ha-motzi me-chavero alav ha-ra'aya," which states that the burden of proof falls upon the plaintiff coming to remove money from the defendant. The simple application of this rule is in a case where one person claims that he lent a sum of money to his fellow, and that other person claims that he never received any money from him ("lo hayu devarim me-olam [lahadam]"). A slightly more complicated application is in a case where the defendant concedes that a loan had been extended to him, but claims that he already repaid the debt. It is interesting to note that according to the law in the State of Israel and other countries, this situation – where the defendant admits that an obligation had existed, but raises a factual claim that cancels out its significance, i.e., the claim of repayment – shifts the burden of proof from the plaintiff to the defendant. This approach is not new, for a famous responsum of the Rashba (Responsa ha-Rashba, VI, no. 254) regarding dina de-malkhuta with respect to monetary laws implies that this was the law in non-Jewish courts. The Rashba brings this as a clear example of theft according to Torah law: "Someone who lends to his fellow not in the presence of witnesses, is [the borrower] not believed to say 'I repaid [the loan]'? Anyone who collects [payment in such a case] by turning to a non-Jewish court is certainly a thief!" And, indeed, it is clear from the mishna in Shevu'ot 38b that even when the borrower claims that he repaid the loan, the burden of proof falls upon the lender.

Someone who lends Before witnesses

            As is stated in our passage (18a), and discussed at length in Shevu'ot 41a-41b, the Amoraim disagree about a loan made before witnesses, whether the borrower is believed to say that he repaid the loan, or perhaps in such a case the borrower must repay the loan before witnesses.

            How are we to understand the position that a loan granted before witnesses must also be repaid before witnesses? If the rule is that the burden of proof falls upon the plaintiff, and that the borrower is believed when he claims that he repaid the money that he had borrowed, why should the fact that he borrowed the money before witnesses make any difference?

The position of the Rashba

            The Rashba in his novellae to Shevu'ot relates to this question and says:

If a person lends money before witnesses, i.e., he has witnesses present at the time of the loan, it is as if he says to him [=the borrower]: "I am lending you money before witnesses; repay me before witnesses," and therefore he [=the borrower] must pay or bring proof that he repaid [the loan].

            The Rashba implies that by strict law it would be possible to accept the words of the defendant and say that it falls upon the plaintiff to prove that he was not repaid. However, the borrower's receiving of the loan before witnesses is interpreted as an acceptance on his part of an obligation to repay the loan before witnesses, for it is clear from the lender's actions that this is a condition for the loan. In effect, the borrower waives one of his rights in the framework of the laws of pleading, and accepts upon himself that only payment before witnesses will be recognized as payment.

The position of the Ran

            The Ran in his novellae proposes a different understanding:

It is not because of any acceptance of an obligation, but because whenever a person lends money before witnesses… we say that the borrower will certainly not repay the loan not before witnesses. And if he claims, "I repaid it not before witnesses," we say that he is certainly lying. For since the lender can prove the loan on the basis of witnesses… the borrower will only repay it before witnesses, so that the borrower not establish him in the eyes of people as one who borrows but fails to repay… For the Sages assessed people that anyone who borrows money before witnesses will only repay the loan before witnesses. For since [the borrower] sees that the lender does not trust him, for he only gives him the loan before witnesses, he too does not trust the lender that he won't claim the money a second time. And even though by strict law he can say, "I repaid [the loan]," for the burden of proof falls upon the plaintiff, nevertheless he is likely to pay only before witnesses. For since the lender can prove the loan on the basis of the witnesses, the borrower worries that he may slander him, and so he will only repay [the loan] before witnesses. Therefore, if he says, "I repaid it not before witnesses," we are witnesses ("anan sahadi") that he is lying.

            Like the Rashba, so too the Ran assumes that based on the rule that the burden of proof falls upon the plaintiff, it falls upon the lender to prove that the borrower did not repay the loan. But according to him, such a proof exists – "we are witnesses" to the fact that when the borrower sees that the lender does not trust him and only lends him the money before witnesses, he too will not repay him without witnesses. Thus, there is no need to talk about any acceptance of an obligation on the part of the borrower.

An alternative explanation in light of our Passage – the position of the Tosafot Yeshanim

            As we have emphasized, both the Rashba and the Ran assume that even the authority who says that someone who borrows money before witnesses must repay the loan before witnesses agrees that fundamentally the burden of proving non-payment of the loan falls upon the lender, only that for some side reason the claim that "I repaid the loan not before witnesses" is not accepted. But if we examine our passage in Ketubot, we can propose a different approach that was explicitly raised by the Tosafot Yeshanim ad loc. Let us examine the words of the Gemara:

But let [the mishna] teach: "Rabbi Yehoshua agrees that if someone says to his fellow: 'I borrowed a maneh from you but I repaid it to you,' that he is believed."

Because it wished to teach the last clause: "If there are witnesses that he borrowed from him, and he says, 'I repaid it,' he is not believed." But surely we maintain: Someone who lends to his fellow before witnesses – [the borrower] need not repay him before witnesses.

            The Gemara wanted to suggest a different case of miggo (or "ha-peh she-asar") regarding which Rabbi Yehoshua would agree with Rabban Gamliel, namely the case of a person who didn't have to admit that he had received a loan, but he decides to admit the loan and claim that he already repaid it. From here arises a revolutionary idea – even when a person borrows money not before witnesses, he can indeed claim that he repaid the loan, but only because he has a miggo that had he wanted to lie he could have denied the loan outright! That is to say, with respect to the basic law that the burden of proof falls upon the plaintiff, there is a difference between a person who claims that he never borrowed any money and a person who claims that he borrowed and repaid the loan. When a person denies the loan, the burden of proof regarding the loan falls on the plaintiff; but when he admits to the obligation – the loan – he is presumed to be obligated to pay, and it falls upon him to prove that the situation had changed and that he repaid the loan. The miggo, however, is a strong enough tool to exempt him.

            At the stage when the Gemara rejects this suggestion, it asserts that the necessary conclusion would be that when our knowledge of the loan does not depend on the borrower – for instance when there are witnesses to the loan - we would no longer accept the borrower's claim that the loan was repaid. And this, argues the Gemara, is incorrect for the following reason: "But surely we maintain: Someone who lends to his fellow before witnesses – [the borrower] need not repay him before witnesses." That is to say, it is true that according to the authority who says that someone who borrows money before witnesses must also repay the loan before witnesses, the foundation for believing the borrower's claim that he repaid the loan when there are no witnesses is the miggo, and all that the witnesses to the loan do is undermine this miggo, and then the borrower's presumed obligation suffices to obligate him to pay. We, however, rule in accordance with the view that someone who borrows money before witnesses need not repay the loan before witnesses, and thus it is clear that we cannot base our acceptance of the borrower's claim that he repaid the loan exclusively on the miggo.

            As stated, this follows from the talmudic passage itself, and is stated explicitly by the Tosafot Yeshanim:

We first thought that someone who lends money before witnesses must be repaid before witnesses, and that [the borrower] is not believed to say "I repaid [the loan]," because he does not have a miggo. But we conclude that we maintain that [someone who lends money before witnesses] need not be repaid before witnesses, and that [the borrower] is believed to say "I repaid [the loan]," even without a miggo.

            This understanding of the position that someone who lends money before witnesses must be repaid before witnesses is entirely different than that of the Rashba and the Ran. We need not find an explanation as to how the lender stands up to the burden of bringing proof – e.g., the borrower accepts upon himself an obligation, or "we are witnesses." The basic burden of proof falls upon the borrower who is presumed to be obligated to pay, and all that the lender must do is ascertain that the borrower has no miggo.

            There appear to be important practical ramifications between the various approaches. One practical ramification relates to the witnesses to the loan. According to the Rashba and the Ran, it stands to reason that we require witnesses to the loan who were present with the knowledge and consent of the parties. In such a case it is possible to interpret the borrower's receipt of the money as an implicit acceptance of an obligation to repay the loan before witnesses, or to argue that it would be unreasonable for him to repay the loan not before witnesses. But according to the Tosafot Yeshanim, even witnesses who had been hiding in a different room and come now and testify to the loan will disqualify the borrower's claim that he had repaid the loan, for now he has no miggo.

            Another practical ramification relates to the claim of repayment. According to the Rashba and the Ran, it stands to reason that if the borrower claims that he repaid the loan before witnesses, only that those witnesses are not presently available and cannot come to testify, his claim will be accepted. Certainly according to the Ran, that "we are witnesses" that he would not have repaid the loan not before witnesses – in such a case there is no proof against him, for according to him he repaid the loan before witnesses. According to the Rashba, it is indeed possible to argue that the borrower waived his right to claim that he repaid the loan. But it is more reasonable to say that all he did was accept upon himself the obligation to repay the loan before witnesses, and therefore we should accept his claim that he repaid the loan before two specific witnesses who are presently unavailable.

            According to the Tosafot Yeshanim, however, the borrower is only believed to say that he repaid the loan when he has a miggo. But since there are witnesses to the loan, he has no miggo and in the absence of a miggo, he needs witnesses to prove that he is no longer presumed to be obligated to repay the loan. Accordingly, if his witnesses are presently unavailable, he would not be believed.

            This case is dealt with explicitly in the Gemara in Shevu'ot:

Rav Yehuda said in the name of Rav Asi: Someone who lends to his fellow before witnesses – [the borrower] must repay him before witnesses. When I said this before Shmuel, he said to me: He can say to you: I repaid [the loan] before Such-and-such and Such-and-such, but they went abroad… Rav Yosef taught as follows: Rav Yehuda said in the name of Rav Asi: Someone who lends to his fellow before witnesses – [the borrower] need not repay him before witnesses. But if he said: Repay me only before witnesses – he must repay him before witnesses. When I said this before Shmuel, he said to me: He can say to him: I repaid you before Such-and-such and Such-and-such, but they went abroad. (41a-41b)

            As was stated above, our talmudic passage strongly inclines in the direction of the Tosafot Yeshanim, and this creates a difficulty for the Ran and the Rashba. But we can now say that the matter is essentially the subject of an internal Amoraic disagreement in the framework of the position that someone who lends to his fellow before witnesses must be repaid before witnesses. The Rashba and the Ran understand that the passage in Shevu'ot was stated in accordance with Shmuel, whereas our passage was taught in accordance with Rav Asi, who does not accept the claim of repayment even when the borrower claims that he repaid the loan before specific witnesses who subsequently went abroad.

Believing the Borrower's claim that he repaid the loan where there is no miggo

            It was noted at the beginning of this shiur that accepting the borrower's claim that he repaid the loan is less self-evident than accepting his claim that there had never been a loan, for by admitting to the loan the borrower puts himself into the category of presumed obligation. We later saw in the framework of the position that someone who lends before witnesses must be repaid before witnesses, there is an understanding that the borrower is only believed to say "I repaid the loan" if he enjoys a miggo that he could have denied the loan outright. But, as our passage notes, the law has been decided in accordance with the position that someone who lends to his fellow before witnesses need not be repaid before witnesses, and thus it is clear that our believing the borrower is not based on his miggo. This would seem to imply that when we say that the burden of proof falls upon the plaintiff this means that he must prove that the debt exists, i.e., he must prove that a loan was made and that it had not been repaid. An examination of the words of the Rashba on our passage may, however, suggest a different understanding.

            The Rashba cites a disagreement whether or not we say that just as someone who borrows from his fellow before witnesses need not repay him before witnesses, so too someone who steals from his fellow before witnesses need not repay him before witnesses:

But let [the mishna] teach: "Rabbi Yehoshua agrees that if someone says to his fellow: I borrowed a maneh from you but I repaid it to you, that he is believed." And we answered: Because it could not have taught the last clause: "If there are witnesses that he borrowed from him, he is not believed," for we maintain: Someone who lends to his fellow before witnesses, [the borrower] need not repay him before witnesses. One of our Rabbis inferred from here: From the fact that the objection is not raised: "But let [the mishna] teach: Rabbi Yehoshua agrees that if someone says to his fellow: I stole from you and returned it to you, that he is believed – the mouth that forbid it is the mouth that permits it. And if there are witnesses that he stole it, he is not believed" – that just as someone who lends to his fellow before witnesses need not be repaid before witnesses, so too someone who steals from his fellow before witnesses need not return [the stolen property] to him before witnesses.

It seems to me, however, that this is not proof. For it is possible to say that someone who steals before witnesses must return [the stolen property] before witnesses. For granted that a loan stands to be repaid, but one who steals does not steal having in mind to return [the stolen property]. And the fact that the Gemara does not raise the objection here: "But let [the mishna] teach: Rabbi Yehoshua agrees that if someone says to his fellow: I stole from you," because it did not want to discuss in the first clause a case involving [the violation of] a prohibition…, nevertheless the mishna only teaches a case involving a monetary obligation….

Alternatively, you can say that by strict law both someone who borrows before witnesses and someone who steals before witnesses – need not return to him before witnesses. But by rabbinic enactment he is not believed… And here the reason that the objection is not raised: But let it teach about a thief, because it is dealing with strict law, and not with a [rabbinic] enactment….

            The Rashba first cites "one of our Rabbis," which the Ramban in Bava Batra 34a identifies as the Rama, that someone who steals before witness need not return the stolen property to its owner before witnesses; and the Rashba himself is inclined to disagree. In his second answer he accepts that position by strict law, but proposes that the Sages enacted that a thief is not believed to say that he returned the stolen property. From his first answer, however, it follows that there is a fundamental distinction between the cases: "For it is possible to say that someone who steals before witnesses must return [the stolen property] before witnesses. For granted that a loan stands to be repaid, but one who steals does not steal having in mind to return [the stolen property]." This distinction had been proposed already earlier by Rabbenu Yona in his Aliyot on Bava Batra:

Since there are witnesses to the theft, he is not believed to say, "I returned it." For regarding a loan it says: "Someone who lends to his fellow before witnesses – [the borrower] need not repay him before witnesses." For since [the loan] stands to be repaid, [the borrower] is believed to say that he repaid it. But a thief does not steal in order to pay; therefore he is not believed to say, "I returned it," and he must pay before witnesses. (33b, s.v. ha-hu)

            From here we seen an exceedingly novel understanding regarding the right to claim, "I repaid." As opposed to the explanation raised earlier, the burden of proof falling upon the plaintiff does not include proof that the debt exists, that is to say, that the loan was made and it was not repaid, or that the property was stolen and it was not returned. All that must be proven is that the debt had been created, that is to say, that there was a loan or a theft. From the moment that the creation of the debt is established, the borrower is presumed to be obligated to pay, and it falls upon him to prove that he is no longer obligated to pay. How then can we understand the borrower's right to claim "I paid"? Our acceptance of this claim is based on the fact that the loan "stands to be repaid." That is to say, the borrower's claim cannot clash with the presumption of obligation without bringing a proof, but the claim of "I paid" does not constitute such a clash. We are dealing with a natural continuation of such a presumption – the normal end of every loan is repayment. In the case of theft, a system that parallels that of a loan is created, which includes an obligation to return the stolen property and the presumption that the thief bears that obligation. Since return of the stolen property does not constitute the natural end of the story, the thief is not believed in his claim that he returned the property, even though there is no proof against him that in fact he did not return it.

            It stands to reason that the Rama disagrees with this approach, and that he understands that our acceptance of the borrower's claim that he repaid the loan does not depend on the fact that repayment is the natural end of the story of a loan, for it is very difficult to say that return of the stolen property is the natural end of theft. According to him, the burden of proof falling upon the plaintiff includes proof that the debt still exists. As for the Rishonim who disagree with the Rama, it is not necessary to say that they accept the fundamental position that we raised regarding the claim of repayment, for there are several considerations regarding a thief because of which we may not believe him when he claims that he returned the stolen property:

1) As proposed by the Rashba, it is possible that we are dealing with a rabbinic enactment.

2) The Ketzot ha-Choshen (79, no. 5) suggests that we are dealing here with something similar to "a person who is presumed to be a liar" ("huchzak kafran") with respect to the stolen property.

3) The Maharit in his responsa (vol. 2, Choshen Mishpat, no. 37) proposed a different approach, which is similar to the idea raised by the Ran in his explanation of the rejected position that someone who lends to his fellow before witnesses must be repaid before witnesses:

Those who say that someone who stole from his fellow before witnesses     and says, "I returned [the stolen property] to you," is not believed – it is not because he is presumed to be a liar that he is not believed, for a person may repent…. Rather this is the reason. For we say that there is a chazaka that a person who steals from his fellow before witnesses, and is established as a thief before the community, is not likely to restore [the stolen property] in secret, for the world will not believe him… And a practical ramification – that if he stole in secret thinking that nobody saw him, and there were witnesses behind a fence, but he did not notice them, [and he claims,] "I secretly returned [the stolen property]," he is believed… Since there are witnesses behind the fence he doesn't lose his credibility as a result.

            Rabbenu Yona's approach is then far from being simple and generally accepted. If we accept it, however, we can explain several points with it. We shall not exhaust the topic here, but content ourselves with two examples:[1]

1) In the case of a shtar, the borrower is not believed to say, "I repaid the loan," because the lender can say to him, "Why is your deed of indebtedness in my possession"? If we take this at face value, that we are dealing with a circumstantial proof that the borrower did not repay the loan, for had he done so he would have made sure to receive the deed of indebtedness, we must determine whether we are dealing with a proof that is strong enough to remove money from the defendant, and this despite the fact that we maintain that in monetary matters we do not follow the majority. But if we accept Rabbenu Yona's approach, the matter is simple - we do not need a proof that is strong enough to remove money from the defendant. All we need to do is to turn the claim of repayment into a claim that is not a clear, direct and reasonable continuation of the act of borrowing, and it certainly can be argued that the claim of repayment without taking the bill of indebtedness does not constitute such a continuation.

2) A similar idea may be used to explain a passage in Bava Batra: "Resh Lakish said: If someone sets a time [for repayment] for his fellow, and [the borrower] says to him: 'I repaid you before that time,' he is not believed… And the law is in accordance with Resh Lakish… There is a chazaka that a person is not likely to repay [a debt] before the time" (Bava Batra 5a-5b). Here too we must ask, whether or not we are dealing with removal of money from the defendant based on a chazaka that is similar to a rov. Rabbi Akiva Eiger deals with this issue in his responsa, and writes: "That which we remove [money] based on a chazaka – that is together with a presumption of obligation" (no. 197). This seems to mean that because of the presumption of obligation, it suffices to define the claim of repayment as a claim that is not a reasonable continuation of the act of borrowing. For even though Rabbenu Yona says, "A loan stands to be repaid," this does not apply to repayment during the time of the loan, and therefore such a claim clashes with the borrower's presumption of obligation.

 

(Translated by David Strauss)

 


[1] For a fuller discussion, see my article in Alon Shevut, 159, "Ne'emanut ha-Loveh be-Ta'anat Parati."