Malveh veLoveh - Chapter 15

Based on the commentary of the Ra’avad, Sefer Me’irat Einayim 70:11 states that this stipulation must be made in the presence of witnesses. Otherwise, the borrower’s claim that he repaid the loan outside the presence of witnesses would be accepted because of the principle of miggo. For had he desired to lie, he could have denied that such a stipulation was ever made.

I.e., any witnesses, not necessarily the ones in whose presence the loan was given.

If, however, the lender does not make such a stipulation, the borrower need not repay him in the presence of witnesses, even if the loan was given in the presence of witnesses, as stated in Chapter 11, Halachah 1.

The commentaries debate whether this ruling applies in instances when the borrower did not agree to this stipulation. The Maggid Mishneh states that the Rambam maintains that the stipulation is binding upon the lender even if he does not explicitly accept it, because “the borrower is the servant of the lender.” The Ramban, by contrast, claims that if the lender makes such a stipulation after the loan was given, and the borrower protests, this stipulation is not binding upon him. (If, however, he remains silent, it is.) Sefer Me’irat Einayim 70:12 quotes this understanding, but follows the Rambam’s ruling.
The Siftei Cohen 70:9, however, states that it is not necessary to explain the Rambam’s words in this manner. On the contrary, in general, when the Rambam speaks of a stipulation, he refers to a condition agreed upon by both principals. Rabbenu Asher, the Tur and others also rule that the borrower must accept the stipulation.

I.e., he gives the names of two acceptable witnesses. The Rashba (Vol. IV, Responsum 128) states that if the borrower does not mention the names of the witnesses in whose presence he claims to have repaid the debt, his word is not accepted.

The Maggid Mishneh quotes the Rashba, who mentions the possibility of the witnesses’ journeying overseas, but not of their dying. The Rambam’s ruling is, however, quoted by the Shulchan Aruch (Choshen Mishpat 70:3).

If, however, the borrower claimed that he paid the lender in private, his word is not accepted [Shulchan Aruch (Choshen Mishpat 70:3)]. The commentaries explain why this claim is not accepted on the principle of miggo - i.e., had he desired to lie, he could have said that he had repaid the loan in the presence of witnesses who died. The Maggid Mishneh explains that since the borrower admits accepting the lender’s condition, by saying that he paid him in private, he acknowledges that he did not keep to the terms of the loan. Hence, his statement is not binding.
Sefer Me’irat Einayim 70:13 offers a different rationale: Since the lender specified that the borrower must repay him in the presence of witnesses, we assume the borrower would do so to remove any possibility of doubt.

I.e., two witnesses who are specified explicitly.

The Rambam’s rulings are based on a passage from Sh’vuot 41a, b. The standard printed text of the Talmud reads as follows:
Rav Yosef would teach as follows: Rav Yehudah related: “Rav Assi said: When a person lends money to a colleague in the presence of witnesses, he does not need to repay him in the presence of witnesses. If he told him: ‘Do not repay me except in the presence of witnesses,’ he must repay him in the presence of witnesses. When I recited [this teaching] in the presence of Shmuel, he told me: ‘He could say: I paid you in the presence of so-and-so and so-and-so, and they journeyed overseas.’” A question arises based on the Mishnah, which states: [The lender claims:] “You owe me a maneh.” [The borrower] agrees. The lender tells him: “Do not repay me except in the presence of witnesses.” On the morrow, if the lender says: “Give me [the money you owe me],” and the borrower says: “I gave it to you,” he is liable, because he must repay him in the presence of witnesses. This appears to raise a contradiction to the teaching of Shmuel. Shmuel would answer. The matter is the subject of a difference of opinion among the Sages.... Rabbi Yehudah ben Beteira states: “He can say I repaid you in the presence of so-and-so and so-and-so, and they journeyed overseas....”
Rav Pappi states in the name of Ravva: “The halachah is that when a person lends money to a colleague in the presence of witnesses, he does not need to repay him in the presence of witnesses. If he told him: ‘Do not repay me except in the presence of witnesses,’ he must repay him in the presence of witnesses. If he said: ‘I paid you in the presence of so-and-so and so-and-so and they journeyed overseas,’ his word is accepted.”
[A lender] told [a borrower]: “When you repay me, repay me in the presence of Reuven and Shimon.” He went and repaid in the presence of two other witnesses. Abbaye says: “He told him to pay him in the presence of two witnesses and he paid him in the presence of two witnesses.
Ravva told him: “This is the reason he told him to pay him in the presence of Reuven and Shimon, so that he would not be rebuffed.” [A lender] told [a borrower]: “When you repay me, repay me in the presence of two [witnesses] who study Torah Jaw.” He went and repaid him in private.
This is the version of the text that the Rambam followed. Rabbenu Yitzchak Alfasi and Rav Yosef MiGash, the Rambam’s teachers, had a different version of the text. As can be seen in the Halachot of Rabbenu Yitzchak Alfasi, with regard to Ravva’s ruling concerning the teaching of Shmuel, their version of the text read: “His word is not accepted.” On the basis of that version, they conclude that Ravva’s statement: “This is the reason he told him to pay him in the presence of Reuven and Shimon... “applies even if the other witnesses testify, because if not, it would be redundant. For it would not contribute any further understanding than his previous ruling. Similarly, in the final teaching quoted above, instead of “he paid him in private,” their version of the text reads: “He paid him in the presence of witnesses (i.e., ordinary witnesses, who are not scholars),” implying that even if such witnesses testified that payment was made, there would be room for argument.
The later authorities acknowledge the existence of the different versions of the text. The Rambam’s version is accepted by the Shulchan Aruch (Choshen Mishpat 70:3). The argument regarding the validity of the two positions is carried on by the later authorities.

In the introduction to the Mishneh Torah, the Rambam states that he composed the text in the year 4937 (1177 CE). In that same text, he mentions the approximate date of the composition of the Babylonian Talmud as 4125 (465 CE). (Other sages explain that its composition was a lengthy process and the final compilation of the text was almost a century later.) Thus, while the ancient manuscripts of the Talmud the Rambam obtained were by no means the original text, they were written not long after its compilation.

In support of the position of Rav Yitzchak Alfasi, it can be explained that by stipulating that the payment must be made in the presence of two particular witnesses, it is as if the lender stipulated that all other witnesses would be disqualified from testifying. The Ra’avad reinforces this position, citing the concept of ne’amanut. (See Halachah 3.) In such instances, since the borrower accepts the word of the lender, the lender’s word is binding even if there are several witnesses who testify otherwise.
Rabbenu Asher rejects this logic, explaining that the reason that the lender singled out witnesses was not to nullify all other witnesses, but to prevent the borrower from lying and claiming that he repaid the debt in the presence of witnesses who are not present.

They were just not able to testify in court.

I.e., how could he be compelled to bring those witnesses to court.

I.e., were this perspective to be followed.

I.e., the testimony that the loan was given on the condition that the lender be repaid in the presence of witnesses.

The Ra’avad and the Mordechai state that in such a situation, the lender may state: “I accepted the money as payment for another loan that you owed me.” (See Chapter 14, Halachah 9.) Since the lender did not accept the testimony of other witnesses with regard to this loan, their testimony does not have full legal power. The Ramah (Choshen Mishpat 70:4) quotes this view.
Our understanding follows that of the Siftei Cohen 70:19. There are, however, authorities who maintain that the Ramah does not differ with the Rambam, and even the Rambam would accept his view.

The Maggid Mishneh states that the Rambam is describing a stipulation made at the time the loan was given. Nevertheless, the same principles would apply afterwards if the agreement was affirmed by a kinyan.

This concept is referred to as ne’amanut. Unless it is stated otherwise, when such a stipulation is made we assume that the lender is requesting that his word. be accepted without an oath, for generally a person seeks to avoid taking an oath that is not required. This refers both to a debt supported by a promissory note and one supported by a verbal commitment alone.
The Shulchan Aruch (Choshen Mishpat 71:1) quotes this understanding. The Ramah states that this applies only when there are witnesses to the fact that this stipulation was made. Otherwise, we accept the borrower’s word because of the principle of miggo - i.e., had he desired to lie, he could have denied accepting the loan entirely.

For unless an explicit stipulation is made otherwise (see the following halachah), we assume that the borrower would not grant the lender such extensive power.

The Sefer HaTerumot (Shaar 26, quoted by the Siftei Cohen 71:2) asks: Although the borrower accepted the lender’s word as that of two witnesses, he did not give it any greater legal power than that. Now, when there is a case where the testimony of two pairs of witnesses contradicts that of each other and the money in question is in the hands of one of the parties, we allow that person to maintain position. Hence, in the situation at hand, it would appear that the borrower should be allowed to maintain possession of the money.
The Sefer HaTerumot explains that in such a situation, when the debt is supported by a promissory note, we say that since the testimony of the witnesses and the lender contradict each other, we do not pay attention to either. Instead, we follow the assumption that if the lender has a valid promissory note in his possession, it has not been paid, and on that basis we allow the lender to collect the debt.
Moreover, even in the case of a loan supported by a verbal commitment alone, the lender’s word is accepted. We consider it as if the borrower agreed to reject any testimony other than that of the lender. It is as if he told him: “As far as I am concerned, everything depends on your word.” Since he made - or accepted - such a stipulation, it is binding even if witnesses later testify on his behalf.

Once two witnesses testify regarding a matter, we accept it as true. There is no necessity - and no difference in law - if other witnesses also affirm the same facts.

If, however, the stipulation is made: “Your word is accepted as the statements of a court of three judges,” the lender’s word is accepted despite the testimony of witnesses (Siftei Cohen 71:6).

Since he mentioned a number of witnesses, we assume that they agreed that if there were more witnesses who testified to the payment of the debt, their word would be accepted.

How can he prevent himself from being forced to pay the debt a second time?

And thus the lender’s claim is no longer based on a valid promissory note.

The Shulchan Aruch (Choshen Mishpat 71:4) states that the borrower should have the lender write a receipt on the legal document that states that the lender’s word would be accepted as that of two witnesses.
Mishneh LaMelech question why the acknowledgment must be made outside the presence of the borrower. [Significantly, when quoting this law, the Shulchan Aruch (Choshen Mishpat 71:3) does not mention the need for the acknowledgment to be made outside the presence of the borrower.]
Mishneh LaMelech explains if the situation had been reversed and a borrower acknowledged a loan when the lender is not present, his acknowledgment is not binding, because there is the possibility that he made this statement so that he does not appear wealthy. (See Hilchot To’en V’Nit’an 7:1.) The Rambam is teaching that when a lender makes an acknowledgment, such an argument cannot be offered. See also the following note.

The Rambam makes a distinction between the testimony of witnesses with regard to payment of a debt and their testimony with regard to the acknowledgement of payment, maintaining that the stipulation agreed to by the borrower includes the former instance, but not the latter. Other Rishonim (including the Ramban and Rav Zerachiyah HaLevi) do not accept this distinction and maintain that the testimony of witnesses is never effective in nullifying such a debt.
The Tur explains the Rambam’s position, stating that the borrower accepted the lender’s word against his own - e.g., against any claim dependent on the borrower’s acts. The lender’s acknowledgment, by contrast, is an independent matter that does not stem from the borrower’s initiative. Perhaps this is the reason why the Rambam requires that the admission be made outside the presence of the borrower.
The Shulchan Aruch (loc. cit.) and the Ramah quote the Rambam’s position. The Siftei Cohen 71:8, however, argues in favor of the other view.

When the lender collects the debt, he is not required to take an oath, as stated in Halachah 3. For by making the stipulation, the borrower waived the potential to require the lender to take a severe Rabbinic oath. He did not, however, waive his right to require him to take a sh’vuat hesset afterwards, as the Rambam states here. The Shulchan Aruch (Choshen Mishpat 7I:5) writes that the lender can, however, have the stipulation worded in a manner that will prevent him from having to take a sh’vuat hesset afterwards.

The Ramah (Choshen Mishpat 7I:5) quotes the opinion of Rabbenu Asher, Rav Yosef MiGash and others, who explain that this ruling applies even in a situation when witnesses testify that the borrower paid the lender. For otherwise, of what value would the original stipulation be?
The Siftei Cohen 71:3 states that at the outset, the lender’s word is accepted only when he claims to have taken the money from the borrower as payment for another debt (sitrei). If he claims never to have received the money, we accept the testimony of the witnesses. His rationale is that afterwards, the borrower will be able to sue the lender, claiming that he paid him twice, and he will bring these witnesses to support his claim. On the basis of their testimony, the court will accept the fact that the lender received money from the borrower, and the lender will be required to explain why he received the money or to return it. If the lender claims that he accepted it as payment for another debt, his word will be accepted. Otherwise, he will have to return it.
Since ultimately this scenario will be played out, the Siftei Cohen argues that to prevent the legal process from being prolonged, we render this judgment at the outset. This view, however, is not accepted by all authorities.

We are speaking about a loan supported by a promissory note. If the loan is supported by a verbal commitment alone, the borrower’s word is accepted even if the lender does not agree to such a stipulation. See Chapter 11, Halachah 1.

The Maggid Mishneh mentions that this law is not mentioned in the Talmud, but rather has its origins in the works of the Geonim, because it is extremely uncommon for a lender to accept the borrower’s word. Nevertheless, if he does agree to this stipulation, it - like any other stipulation involving financial law - is binding.
The Maggid Mishneh states that in this clause - as in the following clause of the halachah - the borrower is required to take a sh’vuat hesset. Rabbenu Yitzchak Alfasi explains the rationale for this ruling as follows: The stipulation that the borrower’s word would be accepted nullifies the power of the promissory note. Nevertheless, the lender still claims that he is owed a debt. To negate that claim, the borrower must take a sh’vuat hesset.

Since that property was in the borrower’s possession at the time of the loan, it is on lien to the debt. Nevertheless, we do not require the purchaser to surrender the property. The rationale is that the court advances all the arguments that the defendant himself could have advanced on behalf of his heirs or persons who purchased property from him (Maggid Mishneh).
Rabbenu Asher does not accept this rationale with regard to the borrower’s heirs, and maintains that unless the heirs bring witnesses who testify that, before his death, the owner of the estate stated that the debt was paid, it must be paid from the borrower’s estate. The Shulchan Aruch (Choshen Mishpat 71:22) quotes both opinions without stating which one is favored.

Ordinarily, the property would be expropriated from the purchaser. In this instance, however, an exception is made because of the rationale stated by the Rambam.

I.e., we suspect that even though the borrower repaid the lender, he will say he did not, so that the lender will be able to expropriate the property of the purchaser and then divide it between them.

From this we learn that the stipulation of ne’emanut applies even with regard to only a portion of the debt (Maggid Mishneh).
The Rambam’s ruling is, however, somewhat problematic, because in this instance, the borrower is not considered a modeh b’miktzat, a person who admits a portion of a claim, although seemingly, that is precisely his circumstance. Why, the commentaries ask, is he required to take only a sh’vuat hesset, and not a Scriptural oath?
The Bayit Chadash (Choshen Mishpat 71) resolves this difficulty, explaining that, as Bava Metzia 3a states, a modeh b’miktzat is required to take a Scriptural oath because we suspect that he borrowed the entire amount and is lying by denying having done so. Nevertheless, since the lender did him a favor and lent him the money, he could not be so brash as to deny the debt entirely. Therefore, he admits only a portion. By compelling him to take the oath, we force him to confront the truth. This rationale would not apply in the case at hand, because since the lender accepted the borrower’s word, there is nothing to stop him from being brash and denying the debt entirely. Since he does not do so, and instead accepts a portion of the obligation, our suspicion that he is lying is not strong enough to require a Scriptural oath.

The Kessef Mishneh emphasizes that we are speaking about heirs who have reached the age of majority. Until they reach that age, no claim may be lodged against them, as stated in Chapter 12, Halachah 1.

This refers to a Rabbinic oath resembling a Scriptural oath, as required of anyone who desires to expropriate property from the possession of heirs.
Sefer Me’irat Einayim 71:31 explains the rationale for this ruling. The borrower accepted this condition because he trusted that the lender would not brazenly ask for money that had already been paid. Nevertheless, the fact that he did not agree to this stipulation with regard to his heirs indicates that he did not trust the lender to that extent.

According to Rabbinic ordinance, a lender is given the opportunity to expropriate property of intermediate value from the borrower in repayment of the debt. (According to Scriptural Law, he may expropriate only the least valuable property.) In this instance, because of the stipulation, he is granted the opportunity to take possession of the more valuable property.

The Maggid Mishneh explains that this applies only when the borrower explicitly agrees that the stipulation will also affect his heirs. Otherwise, our Sages’ ordinance that the property of least value is always expropriated from the estate inherited by heirs applies.

I.e., collect a loan given with the above stipulation.

The purchaser of his property.

A person has the privilege of accepting a stipulation that will compromise his own rights, or those of the heirs of his estate. That money is his, and he can do with it whatever he desires. This does not apply with regard to property that he sold. Although the property he sells to a purchaser is on lien to his debts, he cannot compromise the purchaser’s position without his consent.
The Ra’avad differs with the Rambam’s ruling, explaining that when a person purchased the property after this stipulation was made, he is bound by it. For a promissory note is considered to be public knowledge, and we assume that before purchasing the property, the person considered the consequences. If he went on with the purchase, he must accept the stipulations agreed to by the borrower.
The Shulchan Aruch (Choshen Mishpat 71:19) follows the Rambam’s view, and indeed goes further, stating that even if the promissory note states that the lender’s word should be accepted against the interests of the purchasers, he is required to take an oath. The Siftei Cohen 71:42, however, argues that if the promissory note states explicitly that the lender’s word is to be accepted against the interests of the purchasers, that stipulation is binding.