Malveh veLoveh - Chapter 14

This refers to a situation where the lender has a promissory note for 1000 zuz. The borrower claims to have repaid the entire debt. The lender admits to receiving a partial payment (e.g., 500 zuz), but maintains that there is still money owed him. Ketubot 87b explains that we assume that a person who pays a debt is careful and knows how much he has paid, while a person who has been paid may not have been mindful of the sum he was given. Therefore, he is required to take an oath, so that he will focus his attention on the matter.

I.e., the borrower claims that he paid the debt entirely and he has one witness who supports his claim. The lender denies receiving any payment. He is not required to take an oath mandated by Scriptural Law to deny the testimony of the witness, for such an oath is taken only by a defendant, and we are speaking about a plaintiff. Nevertheless, in this situation, our Sages required the plaintiff to take an oath in order to placate the defendant.

As stated in Halachah 2, even if none of the factors mentioned in this halachah were involved, if the borrower demanded that the lender take an oath before collecting the debt, he would be required to do so. Hence, if the borrower is not present, we make this demand on his behalf.

I.e., the court; in the above instances, even if the defendant himself does not demand that the plaintiff take an oath, the court makes that demand on his behalf.

The court requires the lender to take an oath only when the borrower demands that he do so. This constitutes the difference between the case described in this halachah and those described in the previous halachah (Maggid Mishneh).

See Halachah 12, which states that the borrower is required to bring payment for the debt to court before the lender is required to take the oath.

The Maggid Mishneh [and the Shulchan Aruch (Choshen Mishpat 82:2)] emphasize that this law applies only when the borrower claims certainly (ta’anat beri) that he repaid the debt. If he is unsure of the matter, the lender is not required to take an oath.

The Rambam’s words imply that the lender had originally claimed that the borrower did not pay him at all, and only afterwards, when he was required to take the oath, did he admit receiving partial payment. (For otherwise, he would be considered to be one who “impairs his promissory note,” who, as mentioned in the previous halachah, is required to take an oath even when the borrower does not demand that he do so.) Nevertheless, the fact that he changes his claim does not cause us to doubt his honesty, and he is allowed to take the oath as long as his statements were not contradicted by witnesses. See Lechem Mishneh.

As a token of respect for his scholarship, the court does not require him to take an oath, for that would make it appear that they suspect that he is making a false claim in court. On the other hand, they do not expropriate the money from the borrower for him. If he desires to take an oath on his own initiative, he may, and then he is allowed to collect the money he claims. Alternatively, if he seizes the money, it is not expropriated from him [Shulchan Aruch (Choshen Mishpat 82:6)].

I.e., the court verified the authenticity of the signatures of the witnesses.

A promissory note that involves interest is not binding.

I.e., interest forbidden by Rabbinic law.

I.e., the borrower had the promissory note written and entrusted it to the lender, believing that he would not demand payment unless he actually gave him the loan.

The borrower continues, explaining: “I was carrying this promissory note and lost it, and it was discovered and given to the borrower” (Beit Yosef, Choshen Mishpat 82). This distinguishes this instance from the previous one.

As described in the previous halachah.

Rabbenu Yitzchak Alfasi and Rav Yosef MiGash.

Hence, there is a reasonable basis to suppose that the borrower is telling the truth.

Claiming that he took this money unjustly.

As is required of any defendant who denies entirely a claim lodged against him. A sh’vuat hesset is a far less severe oath than the oath that resembles a Scriptural oath.

This is also the opinion cited in the Shulchan Aruch (Choshen Mishpat 82:10). See also the Siftei Cohen 82:22, who writes that when the borrower claims that the promissory note is a forgery, the lender is not even required to take a sh’vuat hesset, because the note’s authenticity had already been established by the court.

Rashbam (Bava Batra 128b) explains that the witnesses gave their testimony after the borrower had admitted owing a portion of the money. If the borrower’s admission came after the witnesses testified, he is not required to take an oath (Sefer Me’irat Einayim 82:50; Siftei Cohen 82:37). Note the Bayit Chadash, who differs.

I.e., an oath of Scriptural origin that he repaid half the debt. The rationale is that the testimony of the witnesses nullifies the legal power of the promissory note. (That is significant, because a Scriptural oath is never taken with regard to a claim supported by a promissory note.) Hence, the situation is considered to be a loan supported by an oral commitment, in which the lender claims that no payment has been made, and the borrower admits claims that he has paid half.

Which he agrees is outstanding.

Hence, despite the testimony of the witnesses he is held liable, because we follow the principle: “The statement of a litigant is equivalent to that of 100 witnesses.”

Who is not required to take an oath, because he is essentially doing a favor to the owner of the article. Had the person not returned the article, its owner would have no possible way to recover it. Similarly, in this case it might be argued that since the witnesses testify that the debt has been paid, the owner would have no way of receiving payment. Hence, the borrower's admission is essentially a favor, and he should not be required to take an oath. (See Gittin 51b.) This comparison is not accepted for the reason the Rambam continues to explain.

I.e., he had no knowledge that the witnesses would testify that the debt was paid entirely.
The Siftei Cohen 82:39 [based on the Maggid Mishneh (Hilchot To’ en V’Nit’an 7:5)] states that if - after hearing the testimony of the witnesses - the borrower states: “I remember paying the entire debt,” his word is accepted.

By testifying that it has been paid. With regard to the purchasers, we assume that the borrower repaid the debt in two installments, which the witnesses observed. Although the borrower remembered giving only one payment, the witnesses recalled them both (Sefer Me’irat Einayim 82:51).

I.e., he cannot find witnesses to testify to the authenticity of the signatures of the witnesses.

I.e., any other claim, which if accepted, would free him all obligations - e.g., the loan was given with the stipulation that repayment was dependent on the fulfillment of a condition, and the condition was not met [Shulchan Aruch (Choshen Mishpat 82:1)].

I.e., the promissory note is a forgery.

As Ketubot 19a states: “Although [the borrower] admits [that he wrote] a promissory note, [the lender] must verify its authenticity.” Otherwise, based on the principle of miggo, the borrower can claim that he repaid the debt [Tur (Choshen Mishpat 82)]. And extending the principle of miggo further, the other claims are also acceptable.

And he can use it to expropriate property from the borrower or people who purchased his property.
From this ruling, the commentaries derive that even after the borrower takes an oath, the lender is allowed to maintain possession of the promissory note. We are not concerned with the fact that afterwards, it may be demonstrated that the oath that he took was false (Siftei Cohen 82:4).

And he produced the forgery so that the borrower would admit his obligation.

Neither property in the borrower’s possession, nor property that had been sold to others.
This halachah provides us with a fundamental principle: A plaintiff cannot expropriate property on the basis of the principle of miggo. To explain: Had the plaintiff desired to lie, he could have claimed that the promissory note was genuine. Nevertheless, we do not use this is an indication of the truth of his statements and disqualify the promissory note [Rambam’s Commentary on the Mishnah (Sh’vi’it 10:5)].
The Maggid Mishneh quotes the Ramban and the Rashba, who accept the principle of miggo even in this instance. The Shulchan Aruch (Choshen Mishpat 83:4) follows the Rambam’s ruling. See also the comments of Sefer Me’irat Einayim 83:10 and the Siftei Cohen 83:7-9.
Significantly, Bava Batra 32a, the source for this halachah, states that if a similar situation occurred with regard to landed property - that a person would desire to remove a squatter from property that is known to have been his, the squatter would produce a deed of sale, the former owner would claim that the deed is a forgery, and the squatter would agree, but explain that he had once had a valid deed of sale - the squatter’s claim would be accepted. For in this instance, the principle of miggo is being used to enable the continued possession of the land.

I.e., an object of no value.

This applies even if the first loan was paid back on the day that it was given, and the second loan was given on that same day (Maggid Mishneh). Although in such a situation, there is no difficulty with the date of the promissory note, it is unacceptable for the reason the Rambam proceeds to state.

The implication is that the promissory note is not just proof that a debt exists, but that it creates a lien on the debtor's property to enable that debt to be repaid. Hence, if a promissory note is repaid, that lien is nullified and a new promissory note has to be written to create a lien for the second debt.

Not only can it not be used to expropriate property from people who purchased property from the borrower, it may not be used to expropriate property from the borrower himself (Rivash, Responsum 382). Sefer Me’irat Einayim 48:1 differs with this deduction and maintains that the lender can collect his due from the property in the borrower’s possession on the basis of such a promissory note. On this basis, a conceptual sequence can be seen to the laws mentioned in the previous halachah. In those instances, a document that looks like an acceptable promissory note is disqualified, because of the lender’s statements. In this instance, a promissory note that was in fact acceptable is nullified, because it was already repaid once. The Siftei Cohen 48:2 differs with Sefer Me’irat Einayim and substantiates the ruling of the Rivash.

As explained in the previous halachah. Hence, the borrower is required to take only a sh’vuat hesset and then he is freed of all obligations.
The Siftei Cohen 57:8 explains that we do not believe the lender’s statements, because of the principle of miggo - i.e., had he desired to lie, he would have denied receiving payment. The rationale is - as stated in the notes on Halachah 6 - we do not use the principle of miggo as a basis on which to expropriate property.

The Maggid Mishneh states that this ruling applies even if the coins would be accepted as legal tender, albeit with difficulty. Since the lender did not realize the problem when he accepted the coins, and had he realized it he would not have accepted them, the lien is not nullified.

Since the witnesses mention that the money was given as repayment for a debt, their testimony is sufficient to negate the legal power of the promissory note.

The Rambam’s wording implies that the promissory note is nullified and it is no longer of any legal value. The Tur and the Ramah (Choshen Mishpat 58:2) maintain that although the lender is not given the right to expropriate property on the basis of this promissory note, it is still significant. If the lender seizes property belonging to the borrower, he can defend his possession on the basis of this promissory note.

Moreover, if there were no witnesses who observed the payment, the lender’s claim is accepted [Maggid Mishneh; Shulchan Aruch (Choshen Mishpat 58:1)].

Since his statements contradict the testimony of two acceptable witnesses, we assume that he is lying. Note the parallel to Hilchot To’en V’Nit’an 6:2.

For we assume that the money he received was given as payment for the debt.

For he is not contradicting the testimony of the witnesses, but rather focusing on a particular that was not specifically dealt with in their testimony.

I.e., since the witnesses were not told that the money was given as payment for the debt, it is not considered as if the debt were paid in their presence.

Kin’at Eliyahu notes that this instance, the lender’s word is accepted based on the principle of miggo - i.e., had he desired to lie, he would have said that the money was given to him as a present. On the basis of this miggo, the lender is given the option of expropriating property from the borrower. Seemingly, this contradicts the principle stated in the notes on Halachah 6, that we never use the principle of miggo to expropriate property. Kin’at Eliyahu explains that in the instance described in this halachah, the basis for the lender’s claim is the promissory note. Since there is some reason - the testimony of the witnesses - to suspect whether the promissory note is still valid, the lender needs the miggo to support his claim. Nevertheless, his primary support is not the miggo, but the promissory note. In Halachah 6, by contrast, the promissory note has been invalidated, and the lender’s entire rationale for the expropriation of the property is the miggo.
The Ramban maintains that even when the witnesses do not know the reason why the borrower paid the lender, the legal power of the promissory note is nullified. Sefer Me’irat Einayim 58:15 explains that his rationale is that it is uncommon for a person to give a present of money. In particular, this is true when he owes a debt to the lender. The Ramah (loc. cit.) quotes this view.

In his commentary on Sh’vuot 42a, Rav Yosef MiGash (the Rambam’s teacher) writes: “You sat in my butcher store and collected the money for that meat (from my customers).”

Hence, the lien of the debt that is mentioned in the promissory note is nullified, and any other claim the lender makes is considered an independent matter.

It is considered as if the lender admitted that the debt mentioned in the promissory note was nullified. This admission is sufficient to nullify the lien. Rabbenu Asher differs and maintains that it is necessary for witnesses to have observed the repayment of the debt. Although the Shulchan Aruch (Choshen Mishpat 58:3) quotes both views, it appears to favor that of Rabbenu Asher. The Ramah explicitly states that Rabbenu Asher’s view should be followed.

There is a general principle (see Hilchot To’en V’Nit’an 1:1) that whenever, because of the testimony of two witnesses, a person would be required to make financial restitution, testimony from only one witness would necessitate that he take an oath. Accordingly, the Rambam maintains that although a promissory note signed by one witness does not have the legal power to require the borrower to make financial restitution, it does have the legal power to require him to take an oath. As mentioned by the Maggid Mishneh, there are authorities who do not accept the Rambam’s perspective and maintain that the signature of one witness alone does not endow a promissory note with such legal power. Both opinions are quoted by the Shulchan Aruch (Choshen Mishpat 51:2).

In Hilchot To'en V'Nit'an 4:8, the Rambam states that when a defendant is required to take an oath because of the testimony of one witness, the oath he takes must contradict the testimony of the witness. In this instance, he cannot take such an oath, because he admits - as the signature of the witness implies - that the promissory note was valid. Although he claims that he repaid the debt, that information cannot be included in the oath the borrower takes. Hence, he is required to make financial restitution.
Note the Ra’avad in his gloss on Hilchot To’en V’Nit’an 4:8, where he explains that this refers to a situation where the defendant originally denied the existence of the debt. See also the gloss of the Kessef Mishneh in that source, which explains that this does not appear to be the Rambam’s intent.

For as long as the defendant does not take an oath to nullify the promissory note, its legal power is still intact.

In Halachah 2.

If, however, he makes the denial outside a court, it is not significant.

The rationale is that whenever a person says: “I did not take a loan,” it is an accepted presumption that he did not repay it. Hence, if we accept the testimony of the witness, we must assume that the debt was never repaid. Thus, to avoid being required to pay, the defendant must take an oath to contradict the testimony of the witness.

To contradict the testimony of the witness and state that he never took the loan.

For he now agrees with the witness that he took the loan. Had he originally admitted taking the loan, he could have offered any of these arguments. For even if there had been two witnesses who testified that he took the loan, his word would have been accepted if he claimed that he repaid the loan. And since he could claim that he repaid the loan, he could also have offered any of the other claims. Moreover, had his original testimony not been contradicted by that of a witness, he would have been able to change his claim. Once his testimony has been contradicted, he is no longer able to offer any of these claims, because he cannot withdraw his original statement (Ra'avad).
In his Kessef Mishneh, Rav Yosef Karo quotes a responsum of the Rashba, which maintains that the defendant is able to change his claim despite the testimony of the witness brought by the plaintiff. Nevertheless, in his Shulchan Aruch (Choshen Mishpat 75:13), he quotes only the Rambam’s view.

But left it in the lender’s domain.

The Rambam’s wording appears to imply that the court orders the defendant to bring his money to court whether or not the plaintiff makes such a request. The Tur (Choshen Mishpat 82) states that the defendant is required to bring his money to court only when the lender makes such a request. Sefer Me’irat Einayim 82:17 states that it is possible to explain that there is not a difference of opinion between the two, and the Rambam is speaking about an instance where the defendant demands the return of the promissory note if the lender does not take the oath.

For there is no point in administering an oath to the lender if the borrower will not be able to pay (Maggid Mishneh).

See Chapter 2, Halachah 2. I.e., we do not say that the defendant should not be required to take the oath, because perhaps the lender will never take his oath and thus the defendant will have taken an oath for no reason (see Tur, loc. cit.).

As stated in Chapter 11, Halachah 1, when a debt is affirmed by a kinyan, a promissory note can be composed without the borrower’s consent. Nevertheless, as the Rambam states in Chapter 23, Halachah 11, when a lender states that a promissory note is no longer in his possession, we assume that the debt was repaid or the lender waived the borrower’s obligation.

And then he is freed of responsibility entirely. Despite the fact that a promissory note had been written, no attention is paid to it or to the witnesses, because of the rationale to be stated by the Rambam.
The Ra’avad takes issue with the Rambam, maintaining that the lender should be given the option of collecting the debt after taking an oath. The Rambam’s perspective is, however, followed by the Maggid Mishneh, the ShuZchan Aruch (Choshen Mishpat 41:4) and the other authorities.

We ordinarily act on the assumption that a person will not pay a debt until it falls due (Chapter 11, Halachah 6).

And it was not entrusted to him by the lender. See ShuZchan Aruch, loc. cit.

The promissory note itself, however, is given neither to the borrower nor to the lender (Bava Metzia 13a, b).

For on the contrary, the very fact that he was careless with the promissory note and allowed it to fall indicates that the debt has been paid. For people are not careless with articles worth money. The Ra’avad also contests this ruling, but again it is the Rambam’s decision that is accepted by Shulchan Aruch, loc. cit. and the later authorities.

As the Rambam states in his Commentary on the Mishnah (Bava Metzia 1:1), the oath is worded in a manner that will conform to the court’s ultimate ruling. Even though the claimant might be willing to take an oath that the entire amount is due him, he is not asked to take an oath for more than he will receive.

This law results from the discussion of the opening Mishnah in Bava Metzia. Since the ownership of the promissory note is a matter of question, and neither has full possession, it is divided between the two claimants. As the Rambam explains in Hilchot To’en V’Nit’an 9:7, the oath is a Rabbinic safeguard instituted to prevent people from seizing property belonging to their colleagues and claiming it as their own.
The Maggid Mishneh quotes the opinion of the Rashba, who states that the ruling depends on which portion of the promissory note the person is holding. If the portion of the note that the borrower holds contains all the relevant information regarding the debt (hatorej) and the portion the lender holds contains merely legal formalities (hatofess), the lender is not allowed to collect anything. The Shulchan Aruch (Choshen Mishpat 65:15) quotes this view and the Rambam’s view, without stating which perspective should be followed.

As stated in Halachah 5.

As required by a person who denies an obligation entirely.

The defendant is not changing his initial claim, for he did not say that he never borrowed any money from the lender. Even “I do not owe you anything” can be interpreted as meaning “I have already paid you.”

Note the parallel to Chapter 13, Halachah 4. Since the lender would be allowed to collect the loan if he produced the promissory note, the borrower's oath would be in vain. Hence, we take the precautions explained by the Rambam.

And thus my claim does not have any more legal power than a loan supported by an oral commitment alone.

So that it can no longer be used to expropriate money.

If you do not want to nullify the legal power of the promissory note.

A protective measure instituted by the Geonim.