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Bava Metzia, 17

1) WHEN A BORROWER IS BELIEVED TO SAY HE PAID

QUESTION: Rav Zevid in the name of Rav Nachman rules that there is no difference between a case in which Beis Din formally passed a verdict requiring a borrower to pay his debt ("Tzei Ten Lo"), and a case in which Beis Din merely told the borrower to pay ("Chayav Atah Liten Lo"), but did not actually pass a verdict. In both cases, if the debtor later claims that he paid, he is believed, since the loan was made verbally and no Shtar was written.

The Gemara earlier (15a), though, seems to contradict this. The Gemara there says that once the claim against the borrower has been brought to court ("k'she'Amad ba'Din"), it is as if the loan was written in a Shtar, because the matter of the loan becomes publicized. Hence, if someone bought property from the borrower after the claim was brought to court, the lender may take that property from the buyer, just like he may take the property from the buyer when the loan was written in a Shtar.

Why, then, in the case of our Gemara, is the borrower believed to say that he paid back the debt? Since the claim was brought to court, it should be like a loan that is written in a Shtar, and a borrower is not believed to say that he paid in the case of a loan written in a Shtar (rather, he must bring witnesses, or show a receipt from the lender)!

ANSWERS:

(a) The RIF answers that the Gemara earlier was referring to a case in which the borrower does not agree to obey the words of Beis Din, and he refuses to pay. The loan in such a case then becomes like a loan written in a Shtar. In the case of our Gemara, though, the borrower left Beis Din with the intent to comply and pay his debt. In such a case, when he later claims that he paid, he is believed.

(b) RABEINU CHANANEL and RABEINU EFRAIM answer that the fact that the case is brought to Beis Din does not automatically make the loan to be like a loan written in a Shtar, and thus the borrower is believed to say that he paid. When the Gemara earlier says that coming to Beis Din makes the loan like a loan written in a Shtar, it means that the Beis Din actually wrote a Shtar stating that the borrower owes money to the lender. The Gemara there is teaching that even though the Shtar was not written at the behest of the borrower, it is still considered a fully-valid Shtar Chov, and it enables the lender to collect from the Lekuchos.

(c) The RAMBAN, RASHBA, RAN, and RITVA answer that when the Gemara earlier says that the loan becomes like a loan written in a Shtar by virtue of the case having been brought to Beis Din, it means that it is like a loan written in a Shtar *only* with regard to collecting from Lekuchos. This is because the loan becomes public knowledge when the case is brought to court, and thus it was the buyers who caused themselves a loss by buying land from someone who was known to be in debt. In the case of our Gemara, though, the borrower is believed ot say that he paid back the loan, because even when the loan is written in a Shtar he can claim that he paid; it is just that the lender has a counter-claim -- if the borrower paid back the loan, then why is the lender still holding a Shtar Chov? This counter-claim applies, though, only when the lender actually has a Shtar. When he has no Shtar, even though the case appeared before Beis Din, there is no counter-claim to the borrower's claim that he paid.

QUESTION: Rav Zevid in the name of Rav Nachman rules that with regard to believing the borrower when he claims that he paid back the debt, there is no difference between a case in which he claims that he paid after Beis Din formally passed a verdict requiring him to pay his debt ("Tzei Ten Lo"), and a case in which he claims that he paid after Beis Din merely told the borrower to pay ("Chayav Atah Liten Lo"), but did not actually pass a verdict. The difference between those two statements of Beis Din arises when the borrower claims that he paid and witnesses testify that he did not pay. When Beis Din passed a verdict requiring him to pay, and he then claimed that he paid and witnesses contradicted him, he is "Huchzak Kafran" and when he claims later that he paid, he is not believed without proof. In contrast, when Beis Din merely told him to pay without passing a verdict, and he then claimed that he paid and witnesses contradicted him, he is not "Huchzak Kafran" and is believed later when he claims that he paid (even without bringing proof), because we assume that when he contradicted the witnesses, he was merely trying to get more time to pay back, rationalizing that he would wait until Beis Din looked further into the case.

How can the witnesses contradict the borrower who says that he paid, making him "Huchzak Kafran?" How can the witnesses testify that an even *did not* happen, and that the borrower *did not* pay?

ANSWERS:

(a) Most Rishonim (RASHBA, RITVA, RAN, ROSH) explain that the case in which the borrower is "Huchzak Kafran" is where he claims that he paid back the loan on a certain day at a certain time, and then the witnesses testify that he was with them at that time, showing that he is not telling the truth. (When Beis Din merely told him to pay but did not yet pass a verdict, he is not considered to be "Huchzak Kafran," since we assume that he was merely trying to delay paying until Beis Din looks into the case, and he did not have intention to steal.)

(b) RASHI explains that the case in which the borrower becomes "Huchzak Kafran" (and loses his trustworthiness to say later that he paid) is where the witnesses were present when the lender demanded his money from the borrower, and the borrower refused to pay. Since he so brazenly and blatantly disobeyed the verdict of Beis Din in front of witnesses, he is "Huchzak Kafran" and is not believed later to claim that he paid (without bringing proof).

The Rishonim challenge Rashi's explanation. Even when the borrower refuses to pay in front of witnesses, he should *not* be "Huchzak Kafran," since there, too, perhaps he did not have money at the time and he was merely trying to delay for time!

The Achronim offer various approaches to explain the words of Rashi.

1. The GIDULEI TERUMAH (II:12:3) answers that Rashi maintains that if the intention of the borrower in denying that he paid was merely to gain more time, then he would not have done it in such a way that was so brazen. Instead of blatantly refusing to obey the ruling of Beis Din, he would have found some other way to gain more time. Since he was so brazen, it must be that he was outright lying and attempting to steal, and he had no intention to pay later.

2. The LECHEM ABIRIM answers that when Rashi writes that the borrower "did not pay" when the lender demanded repayment from him in front of witnesses, he means that the borrower said, "I do not *want* to pay," revealing that he had no intention of paying at all, even later. Had his intention been merely to delay and gain more time, then he would not have said that he does not *want* to pay, but he would have simply evaded paying at that moment.

Some Rishonim, however, add additional proof to their question on Rashi's explanation. They ask that even if the borrower said that he does not *want* to pay, we should still assume that he is attempting to gain more time, and not that he is showing that he has no intention of ever paying. The ROSH (1:42) asserts that whenever it is possible to find some merit in the borrower's claim -- and not declare him to be a liar and a thief -- we give him the benefit of the doubt. The Rosh proves this from the Gemara earlier, where, in the case of a Shomer who denied owing a Pikadon, the Shomer is not deemed to be "Huchzak Kafran" as long as witnesses do not testify that they saw the Pikadon in his possession at the time that he denied having it. As long as witnesses have not testified to that effect, we give him the benefit of the doubt and assume that he lost the Pikadon and he is merely trying to gain more time to find it. Similarly, in the case of our Gemara, too, we should give the borrower the benefit of the doubt and assume that he is saying that he does not want to pay merely in order to gain more time. How, then, can Rashi say that the borrower is "Huchzak Kafran" when he disobeys the ruling of Beis Din and refuses to pay, in front of witnesses? Perhaps he is merely stalling for more time!

3. The MILCHEMES MITZVAH and IMREI MAHARSHACH (cited in Otzer ha'Mefarshim) answer that the proof of the Rosh from the case of the Pikadon does not apply to our case. Only in the case of one who denies owing a Pikadon do we give him the benefit of the doubt and assume that he is trying to stall for time, because we assume that he is afraid to say the truth and admit that he owes the Pikadon, lest the claimant force him to pay immediately. In contrast, when the defendant does not owe a Pikadon but he merely owes money from a loan, he could say the truth (that he does not yet have money to pay back) and he would not be forced to pay right away; he does not have to be so brazen as to say that he does not want to pay.

4. The Milchemes Mitzvah answers further that in the case of the Pikadon, when the Gemara says that the Shomer is not a proven liar and thief when he denies owing the Pikadon (until witnesses testify that they saw the Pikadon in his possession at the time that he denied having it), the Gemara is referring to the Shomer's status with regard to his trustworthiness in all other matters. Once he is proven to have been lying beyond any doubt (i.e. when witnesses testify that they saw the Pikadon in his possession at the time that he denied having it), he becomes invalid for all matters of monetary testimony and trustworthiness. In contrast, in the case of our Gemara, the borrower who refuses, in front of witnesses, to obey Beis Din merely becomes "Huchzak Kafran" for *this* loan; he will not be believed later to claim that he paid back the loan without bringing proof (such as witnesses) that he paid it. However, he remains trusted with regard to all other monetary matters. Thus, it takes less to prove him to be a liar in this case, and that is why he becomes "Huchzak Kafran" -- and we do not assume that he is trying to gain more time -- when he disobeys Beis Din in front of two witnesses. (I. Alsheich)

17b