A Borrower who Admits He Wrote a Note

 

1. Introduction

Rabbi Meir's reason is in accordance with what Rav Huna said in the name of Rav: For Rav Huna said in the name of Rav: [If a borrower] admits that he wrote a note, he [the lender] does not have to authenticate it.

Concerning the previous statement: Rav Huna said in the name of Rav: [If a borrower] admits that he wrote a note, he [the lender] does not have to authenticate it. Rav Nachman said to him: Why do you need to behave like a thief? If you maintain in accordance with Rabbi Meir, say: The halakha is in accordance with Rabbi Meir. He said to him: And you, sir, how do you maintain? He said to him: Whey they come before us for judgment, we say to them: "Go [and] authenticate your documents, and [then] come down to judgment." (19a)

          The disagreement brought in several places in the Talmud regarding a borrower who admits that he wrote a shtar halva’a, whether or not the lender must authenticate the witnesses' signatures, is in fact a disagreement whether the borrower is believed when he claims that he already repaid a debt attested to by a shtar halva’a that has not been authenticated, i.e., where there are no witnesses that the note is genuine.

          To clarify this disagreement, we must first examine the very need to authenticate a shtar halva’a, and the note's power to bar the borrower from claiming that he already repaid the debt.

2. THe authentication of shtar halva’as and the claim of forgery

What is the status of a note bearing the signatures of witnesses where there are no witnesses who can testify that the signatures are not forgeries? Theoretically, four different possibilities may be proposed:

1.  Such a note is presumed to be genuine, as long as there are no witnesses testifying that it was forged.
2.  The default is that note is genuine, only that the borrower[1] (he whom the note makes liable) may claim that the note is a forgery, and thus force the lender to authenticate the note by way of witnesses.
3.  Not only can the borrower claim that the note was forged, but even if for one reason or another he cannot make such a claim, e.g., he is dead and the lender brings a claim against his heirs, we on our own, i.e., the court, can raise this claim – "we claim (ta'aninan) it was forged."
4.  Such a note has no legal validity, as long as witnesses have not come and testified to its genuineness.

The Gemara at the beginning of Gittin (3a) says:

By strict law we should not require authentication of notes, like Resh Lakish. For Resh Lakish said: [If] witnesses are signed on a document, it is considered as if their testimony has been examined in court. And it was the Rabbis who required [authentication].

          According to the generally accepted understanding, this talmudic passage states that by Torah law the first possibility that was suggested above is correct, that is to say, the defendant's claim of forgery is not accepted, and the entire need for authentication is only by rabbinic decree. This is the Rashbam's understanding in Bava Batra:

Even if a person challenges [a document] and claims, "I did not write it," we should not have suspected the buyer, for [the people of] Israel are not suspected of forging documents. Only that the Sages were stringent and required authentication where there are challengers. (170a)

          See also the words of the Radbaz in Hilkhot Edut:

…By Torah law authentication is unnecessary. This is puzzling, for if so, anyone who wants can forge signatures as he pleases, and collect [with the document], for it is not necessary that the witnesses recognize their signatures. It seems to me that the Torah relied on [the fact that] "the remnant of Israel shall not do iniquity, nor speak lies" (Tzefanya 3:13). But afterwards the Sages saw that they had intermingled among the nations and learned from their behavior, and [therefore] they instituted the authentication of documents.[2] (Hilkhot Edut 7:1)

          In any event, the Sages changed the law and required authentication, and now we must decide between the other three understandings with respect to the situation after the enactment.

          The Ri in the Tosafot later in our chapter (28a) took a different approach:

The authentication of documents is by rabbinic decree. It may be asked: Since by Torah law a shtar halva’a is valid even if the witnesses do not recognize their signatures – anyone who wishes can forge, and write, and sign as he pleases, and collect [with the document]! Here the Ri says: You can say [that this applies] where the borrower admits that he wrote the note, but claims that he had already repaid [the debt]…

          According to the Ri, the Torah law stating that there is no need to authenticate a shtar halva’a applies in a case where the borrower himself admits that the document is genuine. But when the borrower claims that it was forged, the document is invalid even by Torah law and must be authenticated. This approach is rejected later in the Tosafot, but it appears in expanded form in Hagahot Mordekhai on tractate Kiddushin (no. 569) in the name of Rabbenu Avigdor:

That which [we said that] the authentication of documents is [only] by rabbinic decree – that is where there is no denial. And that which it says at the beginning of Gittin, this is what it means: By strict law we should not require two [witnesses] where there is no denial. For Resh Lakish said: [If] witnesses are signed on a document, etc. And it was the Rabbis who instituted authentication with respect to other documents by way of two [witnesses], even where there is no denial. For example, where he comes to collect not in his presence, or from orphans or buyers – he cannot collect unless he authenticates the note through two [witnesses]… But where the other party stands before us and claims that it is forged, authentication is necessary even by Torah law….[3]

          According to this view, we are left with only two possibilities as to the situation after the enactment: either the Rabbis instituted that even when the claim of forgery is not raised, we raise it on our own; or else they enacted that an unauthenticated document has no legal validity until witnesses come forward and attest to its genuineness.

3. The Claim of "I already repaid" against a shtar halva’a

In one of the previous shiurim we dealt at length with the law that we believe a borrower who admits to a debt, but claims that it was already repaid. This law does not apply in the case where the loan was committed to writing. The reason brought in the Gemara (Bava Batra 70a) is that the lender can say: "Why is your note in my hand?" At first glance we are dealing with an assessment of reality that says that had the borrower repaid his debt, he would not have left the shtar halva’a in the lender's hands.[4] There is, however, a certain degree of circular reasoning in this argument, for it rests on the assumption that a borrower is not believed in his claim that he repaid his debt if the lender is still holding on to the shtar halva’a. For then indeed "we are witnesses" to the fact that had he repaid the loan, he would not have left the shtar halva’a in the lender's hands. There are two ways to get around this circular reasoning:

1.  It is possible that the Sages arbitrarily enacted that the borrower is not believed when he claims the he repaid the loan if the lender is still holding on to the shtar halva’a. But it will never be necessary to make use of this enactment, for from the very moment that this enactment came into being, we have an evidentiary tool that is valid by Torah law – "we are witnesses" to the fact that in such circumstances the borrower would not have left his shtar halva’a in the hands of the lender.
2.  The Ramban in his Milchamot (Bava Batra, 82b in Alfasi) explains that the reason that the borrower does not leave his shtar halva’a in the lender's hands is that this would lead to talk that his assets are subject to a lien, and his property would go down in value. According to this, there is no circular reasoning, for the initial foundation for our assessment of the situation is not the borrower's inability to claim that he repaid the loan.

Either way, the proof that prevents the borrower from claiming that he repaid the loan is not the testimony of the witnesses whose signatures are attached to the note, but rather an external assessment created in the wake of the fact that the shtar halva’a is still in the lender's hands. This is explicitly stated by the Rashba in one of his responsa:

If a note signed by two witnesses was brought out against a person, and he says that he repaid it, he is not obligated to pay because of the testimony of the witnesses, for they do not testify the he did not repay the loan, and after they completed their testimony, they do not know whether [the borrower] repaid the loan or not. And it is not because of their testimony that we obligate him to pay now, but rather because of the presumption of "why is your note in my hand." Know [that this is true], for in the case of an oral loan, even if the loan was made in the presence of witnesses, if [the borrower] claims that he repaid the loan, he is believed. For if someone lends money to his fellow before witnesses, [the borrower] need not repay him before witnesses… From here you learn regarding a loan with a shtar halva’a, where he cannot say that he repaid the loan, that it is not because of the testimony of the two witnesses, but because of the presumption (chazaka). For we say: There is a presumption that he did not repay, for had he repaid, he would not have left his shtar halva’a in the lender's hands. (Responsa ha-Rashba ha-Meyuchasot le-Ramban, no. 90)

          The Ra'avad, however, seems to disagree with this assumption. The Rambam rules:

[In the case of] a shtar halva’a containing [the signature of] one witness, and he claims that he repaid [the loan]… he is obligated to take an oath, but he cannot take an oath, and so he pays. (Hilkhot To'en ve-Nit'an 4:8)

          According to the Rambam, the testimony of a single witness in a shtar halva’a obligates the borrower to take an oath, but his oath stating "I repaid the loan" does not help, for it does not deny the witness's testimony (as opposed to an oath supporting the defendant's claim that he had never borrowed the money). The Ra'avad objects to this last point:

Why does he not contradict the witness entirely with his oath that he had repaid the loan?

          The Ra'avad implies that part of the testimony of the witnesses whose signatures are attached to the shtar halva’a is that the loan has not yet been repaid, and therefore the borrower's claim that he repaid the loan contradicts the witness's testimony.

          Of course, this position requires explanation: How can the witnesses who signed the note be seen as testifying to the non-repayment of the loan, when at the time of the signing, they merely saw the loan being extended or heard the borrower admitting to the obligation?

          It may be possible to explain this position based on a different understanding of the argument "Why is your note in my hand," an understanding proposed by Rav Chayim in his novellae to the Gemara (no. 115). Rav Chayim notes a surprising formulation found in the Rambam:

If someone lends money to his fellow before witnesses… this is called an oral loan, and [the borrower] need not repay it before witnesses. Therefore, if he later claims "I repaid it," he takes a rabbinic oath and is exempt. But if someone lends money to his fellow with a shtar halva’a, [the borrower] must repay it before witnesses. Therefore, if he claims and says, "I repaid this note," he is not believed. (Hilkhot Malveh ve-Loveh 11:1)

          Rav Chayim argues that were the law of "why is your note in my hand?" based on proof against the borrower created by the fact that he did not bother to take the shtar halva’a from the lender, the Rambam should have formulated his ruling in the opposite manner: If someone lends money to his fellow with a shtar halva’a, he is not believed to say, "I repaid this note." Therefore, he must repay it before witnesses, or make sure to take the note. The Rambam's wording implies that there is a basic obligation to repay the loan before witnesses, the consequence of this obligation being that he is not believed to say that he repaid the loan. Rav Chayim writes as follows:

The explanation of the law: Just as in the case where [the lender] says to [the borrower], "Repay me only before witnesses"… as long as he does not bring witnesses, he is not believed to say "I repaid the loan," and we believe the lender who says, "I was not repaid." For credibility is a monetary right, and the lender stipulates that this monetary right will be his, that is to say, credibility regarding repayment of the loan. So too in the case of a shtar halva’a, the Rambam maintains that it is a monetary right of the lender, and it is the right of someone who lends with a shtar halva’a that he be repaid before witnesses, and the borrower is not believed. And this is what he writes: "And therefore he is not believed." And that which the Gemara says, "why is your note in my hand" – because he only enjoys this right while the note is in his hand.

          Using this approach, it may be possible to understand the Ra'avad. When a person borrows money with a shtar halva’a, he waives his right to claim that he repaid the loan, and therefore the witnesses whose signatures are attached to the note attest that the loan shall not be regarded as having been repaid unless there is proof regarding its repayment. This being the case, when the borrower takes an oath against the testimony of a single witness and says that he repaid the loan, he contradicts the witness, for he insists that the loan was in fact repaid.[5]

4. A miggo against the argument of "why is your note in my Hand?"

After all of these introductions, we can now go back to clarify the disagreement regarding a borrower who admits that he wrote a shtar halva’a, whether or not the lender must authenticate the witnesses' signatures. According to the Gemara's conclusion, Rabbi Meir's position is like that of Rav that he need not authenticate the note. That is to say, even if witnesses do not come to authenticate the signatures, the borrower who admits the genuineness of the note is not believed to say that he repaid it. This position requires explanation – why don't we exempt him from the obligation of payment with the miggo that had he wanted to lie, he could have claimed that the note is a forgery?

Rashi addresses this question, saying:

The borrower is not believed to say, "I repaid the loan." And we don't say in this case "the mouth that forbade is the mouth that permits, for once he said, "It was genuine," the note is presumed to be genuine, and when he says, "I repaid it," he is not believed, for it is in the hands of the lender.

          What follows from Rashi is that since the borrower himself establishes the note as genuine, there stands against him the law of "why is your note in my hand," and therefore he is not believed. In other words, miggo does not overcome the argument of "why is your note in my hand."[6]

          Logically speaking, should miggo overcome the argument of "why is your note in my hand"? On the one hand, the answer to this question depends on how we understand a miggo argument and assess its force, while on the other hand, it depends on how we understand the argument of "why is your note in my hand." As for miggo, we already know from previous shiurim that there are various understandings in the Acharonim, but for our purposes, let us stick with the simplest understanding, that miggo is an umdena (an assessment about human behavior) that serves as a proof in favor of the party who could have put forward a winning claim, but instead put forward what he says is the truth. As for "why is your note in my hand," in the previous section we saw several understandings. Let us now examine the issue of miggo in the framework of each understanding:

1.  If the argument of "why is your note in my hands" serves as a proof, we are dealing with a clash between two proofs, and the stronger of the two should come out on top. Rabbi Meir apparently maintains that "why is your note in my hand" is a stronger proof than the miggo.
2.  If the starting point of "why is your note in my hand" is a rabbinic enactment that a person is not believed to say that he repaid the loan against a shtar halva’a, and only at a second (logical) stage does this turn into a "we are witness" proof – we must ask whether the Sages similarly enacted that all proofs apart from witnesses will have no validity against a shtar halva’a, or that other proofs, e.g., miggo, suffice.
3.  Based on Rav Chayim, that in the case of loan with a shtar halva’a the borrower waives his right to be believed in his claim that he repaid the loan, it stands to reason that if we understand miggo as an external umdena, and not as a factor that expresses the strength of the borrower's claim, the miggo should be strong enough to overcome the shtar halva’a, for the borrower only waived his personal trustworthiness, and here we are dealing with a proof.[7]
4.  We saw above that according to the Ra'avad, the witnesses on the shtar halva’a are understood as attesting to the non-repayment of the loan. According to this, it is very reasonable to say that a miggo should not work against them, for "where there are witnesses, we don't say 'why should he lie'" (below 27b).[8]

It should be noted that the question regarding a miggo against the argument of "why is your note in my hand" seems to be a matter that is explicitly in doubt in the Gemara in Bava Batra:

Rav Amram asked Rav Chisda: If someone deposited [an article] by his fellow with a document [of receipt], and he said to him, "I returned it to you" – what is the law? Do we say that since had he wanted [to lie], he could have said it became lost owing to circumstances beyond his control, and he would have been believed, now too he should be believed. Or perhaps he can say to him: Why is your document in my hand? (70a).

          We shall see below that the Rishonim raised an objection against the view that if the borrower admits that he wrote a shtar halva’a, the note must still be authenticated, from the possibility raised here that we don't invoke a miggo against the argument of "why is your note in my hand." For some reason, there is no discussion of the reverse question – how do we explain the possibility of saying such a miggo, according to the view that if the borrower admits that he wrote a shtar halva’a, the note need not be authenticated. The matter requires further study.[9]

5. A Miggo of forgery

Thus far we have followed in the footsteps of Rashi, who explained that according to the view that if the borrower admits that he wrote a shtar halva’a, the lender does not have to authenticate it, we do not invoke the argument of miggo against the argument of "why is your note in my hand," and we do not distinguish between the various kinds of miggo. The Tosafot (s.v. modeh) disagree with this approach, and start with the assumption that as a rule miggo is certainly effective against "why is your note in my hand." Only that there is a specific problem with respect to invoking a miggo based on the borrower's theoretical ability to claim that the shtar halva’a is a forgery. They explain this in two ways:

If a borrower admits that he wrote a note, the lender does not have to authenticate it – You may ask: Why is he not believed with a miggo that had he wanted [to lie] he could have said it was forged? You can say that perhaps the borrower is afraid to say it was forged, lest he be contradicted, and [thus] there is no miggo.

And Rashi explains elsewhere that the reason is that by Torah law authentication is not necessary, for when witnesses are signed on a document, it is considered as if their testimony has been examined in court. And it was the Rabbis who required authentication, when the borrower claims it was forged. But with other claims, e.g., [the loan] was repaid, they did not require authentication. And so it seems to the Ri.

The Tosafot's first answer is simple – the miggo argument of forgery is based on the notion that had the person wanted to lie, he could have claimed that the shtar halva’a was forged. But this is not true, because the borrower would be afraid to claim that the note was forged because such a claim may be proven false, and therefore he prefers to claim that the note is genuine, but the debt had been repaid.[10]

The Tosafot's second answer is more surprising. According to this answer, the factor preventing the borrower from claiming that the note was forged is not psychological but halakhic. The Sages allowed the defendant to claim that the shtar halva’a is a forgery and obligated the other party to authenticate it. However, they only required authentication in a case where the defendant actually claims that the note was forged, but they didn't grant him credibility by virtue of the miggo that he could have put forward such a claim. To understand this argument, let us examine the Rashbam in Bava Batra, who formulates it in sharper fashion:

It is not the same as the other laws of "the mouth that forbade is the mouth that permits," for even if [the defendant] would object and say, "I did not write it," we would not have suspected the buyer of [forgery], for [the people of [Israel] are not suspected of forging documents. Only that the Sages were stringent and required authentication, when objections arise. (170a, s.v. ein)

          The Rashbam explains that the assumption that "[the people of [Israel] are not suspected of forging documents," which underlies the Torah law that documents need not be authenticated, remains intact even in the framework of the rabbinic law. The Sages did not decide that now we suspect the plaintiff that the document in his hand is forged. Rather, they said that when the defendant claims that an attempt is being made to remove money from him with the help of a forged document, it would not be right to ignore him, and therefore in this situation authentication is necessary, despite the fact that we don't believe his claim. What this means is that they did not give the defendant a new claim regarding which he is believed, but rather they granted him the right to freeze the legal proceedings against him until the document is authenticated. This being the case, as long as they do not make use of this right, but rather admit that the note is genuine, the proceedings continue.[11]

6. If a borrower admits that he wrote a note, the lender must authenticate it

Let us now move to the dissenting view that says that even if the borrower admits that he wrote a note, the lender must still authenticate it. It would seem that this position holds that a miggo works even against the argument of "why is your note in my hand," and there is no room to raise specific problems with the miggo that the borrower could have claimed that the note was forged.

As was already mentioned, the Rishonim raised an objection against this position from the Gemara in Bava Batra 70a, which is in doubt about the case where someone deposited an article by his fellow with a document of receipt, whether the bailee is believed if he says, "I returned it to you," by virtue of the miggo that he could have argued that the article became lost owing to circumstances beyond his control – why is it not obvious that a miggo works against the argument of "why is your note in my hand"?[12]

The Tosafot (ad loc., s.v. o) maintain that the difference between the two passages stems from the strength of the proof provided by the argument of "why is your note in my hand." A miggo can stand up to this argument in the case of a borrower and a lender, but in the case of a depositor and a bailee, this argument is much stronger for three reasons:

Even according to the opinion that if a borrower admits that he wrote a note, the lender must authenticate it, and that the lender is believed to say that the note was repaid, and we do not say, if so why is your note in my hand – there it is because sometimes he keeps the document until the writer's fee is paid. For the borrower must pay the cost of writing the note, and sometimes when the borrower has no money, the lender pays on his behalf. But here the bailee does not have to pay the cost. And furthermore, there the borrower trusts the lender to leave his note with him, for it is written about him: "The integrity of the upright shall guide them" (Mishlei 11:3), as we said in Ha-Mafkid. But the bailee does not trust the depositor, and would never return the deposit unless he returns the note. And furthermore, the borrower is not so exacting with the lender, because he did him a favor.

          The Ramban and the Rashba take a different direction, using two slightly different formulations. According to them, the difference does not stem from an assessment of the strength of the argument of "why is your note in my hand," but from the strength of the miggo. And here once again we come to the distinction between an ordinary miggo and a miggo of forgery, only that now the argument is reversed, and the miggo of forgery is regarded as much stronger than an ordinary miggo, and effectively, the designation "miggo" is inappropriate for it. Let us first examine the words of the Ramban:

There it is different, for as long as it is not authenticated it is not a note at all, and the mouth that forbade is the mouth that permits. But here it is perforce a note, and perhaps a miggo does not cancel it, for he can say, "why is your note in my hand."

          The Ramban emphasizes that owing to the fact that without the borrower's admission it is not a shtar halva’a, this is not a miggo, but rather a case of "the mouth that forbade is the mouth that permits." Miggo falls before the argument of "why is your note in my hand," but the argument of "the mouth that forbade is the mouth that permits" does not.

          The Rashba goes in a similar direction, but even further, omitting the concept of "the mouth that forbade":

There it is a different, for who makes it into a note? This one, and he says it was repaid.

          It seems that here we have altogether left the conceptual world of miggo and "the mouth that forbade," and that we have moved to a different argument, which is the radical possibility that we suggested at the beginning of this shiur regarding the status of an unauthenticated shtar halva’a. Such a note is void of all legal authority until witnesses come and attest to its genuineness. Accordingly, when it is the borrower who turns this note into a valid note, he is believed to say that this note was already repaid.

          The Rashba's reasoning is taken from the wording of the Gemara in Bava Metzia (7a):

Rabbi [Yehuda HaNasi] maintains: If a borrower admits that he wrote a note, the lender must authenticate it… What is his reasoning? It is merely a potsherd. Who turns it into a shtar halva’a – the borrower, and he says it was repaid.

          We can further explain this position with the words of Rashi on the parallel passage in Shabbat (78b):

If he admits that he wrote the note – if the borrower admits that he wrote the note, he must authenticate it and say that he did not repay it. As long as he does not say this, it is not a shtar halva’a, unless there are witnesses who recognize the signatures. For who turns it into a [valid] note – the borrower, who said, "I wrote it." The borrower also says "I repaid it" – the mouth that forbade is the mouth that permits. Therefore, as soon as he repays it, that is to say, as soon as he says "I repaid it," he is exempt.

          While it is true that Rashi uses the words, "the mouth that forbade is the mouth that permits," it seems that he is not using them in their usual sense. What he seems to be saying here, as Rashi writes at the beginning of his comment, is that the borrower's admission of the authenticity of the note together with his claim of repayment is not an authentication, for there is no confirmation here of a valid shtar halva’a attesting to his obligation: "He must authenticate it and say that he did not repay it. As long as he does not say this, it is not a shtar halva’a."[13]

          Accordingly, there are strong grounds to say that the disagreement regarding a borrower who admits that he wrote a shtar halva’a, whether or not the lender must authenticate it, is not about the claim of "I repaid it" against a shtar halva’a, and not about a miggo against the argument of "why is your note in my hand." But rather it reflects in extreme manner the various possibilities regarding the status of an unauthenticated note after the enactment requiring authentication. The authority who says that the lender must authenticate the note maintains that such a note has no legal status, and even though nobody disagrees about its genuineness, the borrower who validates it also claims that it was repaid (following the Rashba). It might also be added that this "authentication" on the part of the borrower is not considered authentication (Rashi). In contrast, the authority who says that the lender need not authenticate the note maintains that the note is a valid note, and we don't believe the borrower who claims it is a forgery. Only that when such a claim is raised, we freeze the process and make no practical use of the note (following the Rashbam and the Tosafot in our passage in the name of Rashi).

7. Preparing for the next Shiur

The next shiur will deal with outside witnesses who wish to disqualify the witnesses whose signatures are attached to a document.

Learn the Gemara on p. 19b: "Tanu Rabbanan: Shenayim hatumin… ve-oki mamona be-chezkat mareh." In addition, see the following sources:

1. Rosh, no. 13, until p. 20a. What is his difficulty? What are the difficulties in the solution that he proposes?
2. Tosafot 19b, s.v. ve-im until "she-hem kesherim"; Tosafot Rid 20a (in the right column, third wide line) "Tanu Rabbanan" until 20b (right column, top) "lo mehemninan le-batra'i"; Ramban, s.v. pesulei edut. What is the basis of the various distinctions?
3. The rest of the aforementioned Tosafot and Tosafot Yeshanim (printed at the bottom).

(Translated by David Strauss)