Shevuot 41b — the Talmud in English

A refutation of Rav Asi!

Rav Asi could say to you: When I said

that one who lends to his fellow in the presence of witnesses is obligated to repay him in the presence of witnesses, it was only

where initially

at the time of the loan

he lent him

the lender lent to the borrower

in the presence of witnesses,

and thereby demonstrated

that the lender did not trust him

the borrower

he trusted him

with regard to this loan, but trusted only the witnesses. And only then is he obligated to repay him in the presence of witnesses.

But

here,

in the Mishna, initially, at the time of the loan,

he did trust him

the borrower, to lend to him privately, between the two of them.

And therefore, even if afterward he claims against him in the presence of witnesses, the trust that he extended to him at the time of the loan is not impaired, and the claim in the presence of witnesses does not obligate the borrower to repay specifically in the presence of witnesses. And for that reason, if he said to him, “I gave it to you,” he is exempt.

Rav Yosef taught

this statement

in this manner:

Rav Yehuda said in the name of Rav Asi: One who lends to his fellow in the presence of witnesses

and did not stipulate with him that the repayment would be in the presence of witnesses,

does not need to repay him in the presence of witnesses,

since the mere bringing of witnesses, without explicitly stipulating that the repayment too would be in the presence of witnesses, does not yet obligate the borrower to repay specifically in the presence of witnesses.

And if he said

the lender explicitly

“Do not repay me except in the presence of witnesses,”

he must repay him in the presence of witnesses!

And Rav Yehuda continued in the name of Rav Asi, according to Rav Yosef’s version of the statement:

When I stated it

this ruling

before Shmuel, he said to me: He can

the borrower

say to him: “I repaid you in the presence of so-and-so and so-and-so, and they went overseas!”

Since Shmuel maintains that even though the lender stipulated that the repayment would be in the presence of witnesses, his intention was only to stipulate that he should repay in the presence of witnesses, so that the matter could be clarified if he spoke truthfully. But he need not bring the witnesses to the court so that they testify about the repayment in order to exempt him, and even if the defendant says that the witnesses went overseas, he is to be believed. For it is still possible to clarify the truth when they return.

And concerning this the Gemara raises an objection:

We learned: “I have a maneh belonging to me in your possession.” He said to him, “Yes.” He said to him, “Do not give it to me except in the presence of witnesses.” The next day he said to him, “Give it to me.” He replied, “I gave it to you”—

he is liable! Because he must give it to him in the presence of witnesses!

A refutation of Shmuel!

For Shmuel said that the borrower can say to the lender, “I gave it to you in the presence of so-and-so and so-and-so, and they went overseas.” But the wording of the Mishna, “Because he must give it to him in the presence of witnesses,” implies that he must bring the witnesses themselves to the court.

And he answers:

Shmuel could say to you: It is a dispute among the tannaim,

a dispute among the tannaim

it is—

whether one who says to his fellow, “Do not repay me except in the presence of witnesses,” must repay him in the presence of witnesses.

For it was taught:

A lender who said to a borrower at the time of the loan [this is how the Gemara understands it at this stage]:

“I lent you the money in the presence of witnesses;

repay me in the presence of witnesses!”

When the time for repayment arrives,

either he shall give

the borrower the money of the debt

or he shall bring proof

[witnesses] that he gave it, as he stipulated with the lender.

Rabbi Yehuda ben Beteira says: He can

the borrower

say to him: “I repaid you in the presence of so-and-so and so-and-so,”

“and they went overseas!”

And Shmuel holds in accordance with Rabbi Yehuda ben Beteira, whereas the tanna of the Mishna holds in accordance with the first tanna in the beraita. [And Rav Asi as well, who obligates him to repay in the presence of witnesses, follows the first tanna of the Mishna. For according to Rabbi Yehuda ben Beteira, he can claim that the repayment was in the presence of witnesses who went overseas, and he need not bring them.]

Rav Aha challenged

[refuted]

Rav Aha

Rav Aha refuted Shmuel’s explanation [that the tannaim in this beraita were disputing the question of whether one who lends to his fellow and says to him at the time of the loan, “Do not repay me except in the presence of witnesses,” must indeed repay him in the presence of witnesses].

And this is what he asked:

From where

is it known that when the claimant said, “I lent you the money in the presence of witnesses; repay me in the presence of witnesses,”

he is referring to the time of the loan,

and that in this the first tanna and Rabbi Yehuda ben Beteira dispute whether he can say to him, “I repaid you, and the witnesses went overseas”?

Perhaps

their dispute is only when the matter

refers to the time of the claim,

when he claimed against him.

And in this manner the tannaim dispute. But at the time of the loan he did not explicitly stipulate with him concerning the repayment; rather, he lent to him in the presence of witnesses, and now, after he lent to him, he claims, “I repaid you.”

And this is what he says to him

the lender to the borrower:

“Did I not lend you the money in the presence of witnesses?”

And therefore,

“You should have repaid me in the presence of witnesses,”

and although I did not explicitly say to you, “Do not repay me except in the presence of witnesses,” you should have acted as I did and repaid me only in the presence of witnesses. And only concerning such a case did the first tanna and Rabbi Yehuda ben Beteira dispute whether the lender’s claim is justified or not, because at the time of the loan he did not explicitly stipulate with him.

But,

if

at the time of the loan

he explicitly stipulated with him that he should not repay except in the presence of witnesses,

everyone agrees that he is liable

to pay if he did not repay him in the presence of witnesses,

and if so, from where did Shmuel derive that their dispute extends even to a case in which at the time of the loan he said to him, “Do not repay me except in the presence of witnesses,” and that despite explicitly stipulating with him that he should not repay him except in the presence of witnesses, he is believed to repay him without witnesses, notwithstanding the explicit stipulation at the time of the loan?

For it is possible to establish their dispute as referring to a time other than the time of the loan, whereas if he said this to him at the time of the loan, everyone agrees that he is liable.

And following this question against Shmuel, the conclusion is:

Rav Pappi said in the name of Rava: The halakha is—

one who lends to his fellow in the presence of witnesses,

when he did not explicitly say to him, “Do not repay me except in the presence of witnesses,”

must repay him in the presence of witnesses! [

And this is the halakha according to the first formulation and in accordance with Rav Asi, and the first tanna in the beraita also holds this way, according to Rav Aha.]

And Rav Pappa said in the name of Rava: One who lends to his fellow in the presence of witnesses does not need to repay him in the presence of witnesses. [

According to the first formulation, in accordance with Shmuel; and according to the second formulation, both Rav Asi and Shmuel.]

And if he said, “Do not repay me except in the presence of witnesses,”—

he must repay him in the presence of witnesses!

But there is no need to bring them to the court. -

And if he said to him, “I repaid you in the presence of so-and-so and so-and-so, and they went overseas,”—

he is believed! [

And this is that Rava ruled in accordance with Shmuel and in accordance with Rabbi Yehuda ben Beteira, despite Rav Aha’s challenge! For Shmuel’s words were not completely refuted. For he could have interpreted Rabbi Yehuda ben Beteira’s words and ruled in accordance with him.] [

Mnemonic: Reuven and Shimon; “who taught halakhot”; borrowed and repaid; so-and-so and so-and-so; chips; aside;

with trust; like two witnesses,]

A certain

man who lent a loan to his fellow. And at the time of the loan

he said to his fellow

the borrower:

“When you repay me,

when you repay me the loan that I am now lending you,

repay me in the presence of [

repay me before]

Reuven and Shimon.”

The borrower went and repaid him

his loan

in the presence of two people from the world

who were not the ones whom the lender had designated, and he brought the witnesses of the repayment to testify in court that he had indeed repaid his loan,

and the lender claimed that they were false witnesses, saying: “I am the lender, and I stipulated with you that you should repay me only before Reuven and Shimon, and only they would be trusted to testify about the repayment. And you agreed and accepted this!”

Abaye said:

Since he repaid his debt in the presence of witnesses, and their testimony is present before us, there is no significance to his statement at the time of the loan that the repayment would be specifically before Reuven and Shimon. For his primary intention was to say that there should be two witnesses to the repayment, and that is indeed what occurred,

he said to him, “In the presence of two witnesses,”

that he should repay him, and indeed

“he repaid him in the presence of two witnesses!”

Rava said to him:

Not so, but

for this reason he said to him

the lender said to the borrower that he should repay him

“in the presence of Reuven and Shimon, so that he would not put me off”

with regard to the repayment.

Since we are concerned that perhaps the borrower will lie and say, when he is summoned to judgment, that he repaid in the presence of two other witnesses who are not presently found in that place, and he will seek to defer the repayment for a long time until those witnesses return and confirm his words,

the lender therefore stipulated that only the two witnesses, Reuven and Shimon, who are easily available to him to come and testify, would be trusted. It follows that he specifically stipulated concerning Reuven and Shimon, and the borrower cannot produce other witnesses for him; rather, it is as though the borrower agreed to disqualify all witnesses except Reuven and Shimon.

A certain

man

who said to his fellow: “When you repay me,

when you repay me”—

“repay me in the presence of two witnesses”

witnesses

“who taught halakhot” [

Torah scholars who studied halakhot].

The borrower went

and

repaid him privately

privately, between himself and the lender. In the end,

those coins were lost,

the money of the loan’s repayment was lost through an unavoidable accident, while in the lender’s possession.

He came

the lender

before Rav Naḥman

to claim repayment of the loan.

He said to him

the lender said to Rav Naḥman:

“Yes!”

Indeed,

“I did accept them from him”

I accepted from the borrower these coins in the amount of the loan,

but this is not considered repayment of the loan, because the borrower did not fulfill the condition that I stipulated with him, that he repay me only before witnesses who taught halakhot, as above. And therefore I took the money

by way of [

as]

a deposit, and I said,

I said to myself—

let

these coins

be with me [

with me] as

a deposit, until there happen to be

found

two witnesses who taught halakhot, and he fulfills

the

condition

of the loan, through repayment of these coins before those Torah scholars.

And therefore now, since the money was lost, and it had been with me only as a deposit—and I was merely an unpaid bailee and am exempt in cases of unavoidable accident—and he, the borrower, has still not repaid me, I claim the debt from him.

He said to him

Rav Naḥman:

“Since you admit that you certainly took them from him,

you accepted from him the money of the loan”—

“it was a proper repayment!”

For the borrower gave them to you as repayment. And even if your intention was to accept them as a deposit, the matters that were in your heart are not matters!

and Rav Nahman continued [jokingly]:

If you say,

if in any event you insist that the borrower’s obligation is

to fulfill its stipulations

and repay in the presence of two witnesses who have learned halakha, then the following possibility now stands before you: -

Go, bring them

give the money to the borrower, and he will repay you in our presence and fulfill the condition of repaying in the presence of those who have learned halakha,

for I and Rav Sheshet have learned halakha, Sifra, Sifrei, Tosefta, and the entire Gemara...

There was a certain man who said to his fellow: “Give me one hundred zuz that I lent you!” [namely, that I lent you as an oral loan]

[that he had lent him as an oral loan]

The borrower denied it and

said to him: “There was never any such thing!”

He went

the lender,

brought

two

witnesses that he had lent him

one hundred zuz,

and

those witnesses also testified that the borrower

had repaid him

the loan.

Abaye said: What shall we do? —

They say that he lent him —

they say that he repaid him!

Rava said:

He must pay him, since

whoever says, “I did not borrow,” is considered as one who says, “I did not repay.”

For by saying, “There was never any such thing,” he indeed denied the loan; but, on the other hand, the borrower admitted that he had not repaid his debt to the lender. And since we have witnesses to the loan, and we have the litigant’s admission that he did not repay, we accept the witnesses’ statement that he borrowed, and, on the other hand, accept his statement that he did not repay. Since the admission of a litigant is stronger than witnesses, we obligate the borrower to repay the debt concerning which there are witnesses.

There was a certain man who said to his fellow: “Give me six hundred zuz that I have a claim against you for,”

that you owe me for a loan that I lent you orally and without witnesses.

He said to him:

But

“Did I not repay you in the presence of so-and-so and so-and-so?!”

They came

those people

so-and-so and so-and-so [about whom the borrower had said that they were the witnesses to the repayment], and

[about whom the borrower had said that they were the witnesses to the repayment], and

said

the witnesses:

“There was never any such thing!”

We never saw him repay this debt.

The borrower returned and claimed—whether in their presence or not in their presence, in any event: I am certain that I repaid you.

Rav Sheshet thought to say—

He has been established as a liar!

For according to his words, he repaid in their presence, and they deny him; therefore he is a liar. And anyone who has been established as a liar concerning a particular monetary matter cannot claim concerning that money, “I repaid without witnesses,” nor can he swear concerning it. And the claimant prevails in his claim, and the defendant is obligated to pay.

Rava said to Rav Sheshet

that he is not included in the category of “one who has been established as a liar.” For

every matter that is not imposed upon a person—

he does not pay attention to it! [a matter that is not imposed upon a person—he does not direct his attention to it]

[A matter that a person is not required to attend to is not kept in his mind.]

And since the lender did not stipulate with him at the time of the loan that he repay in the presence of witnesses, he may repay him even without witnesses. And since he was not obligated to repay in the presence of witnesses, the borrower does not remember precisely whether the repayment was in the presence of witnesses or not, for he is not obligated to pay attention to this. Therefore, it is possible that he erred in his assessment that he repaid in the presence of witnesses, and this is not because he is lying.

There was a certain man who said to his fellow: “Give me six hundred zuz that I have a claim against you for,”

as a loan!