Shevuot 41b (מא:) — the Talmud in English

An objection to Rav Asi!

Rav Asi could say to you: When I said

that one who lends money to another in the presence of witnesses is required to collect repayment in the presence of witnesses, this applies only

where initially

at the time of the loan

he lent him

the lender lent the borrower

in the presence of witnesses,

thereby demonstrating that

the lender did not trust him personally

the borrower,

but trusted him

with regard to this loan only on the basis of the witnesses. Only in that case is he required to collect repayment in the presence of witnesses.

But

here,

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

he trusted him

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

Therefore, even if he subsequently brings witnesses when making his claim against him, the trust that he placed in him at the time of the loan is not undermined, and the fact that he makes his claim in the presence of witnesses does not require the borrower to repay specifically in the presence of witnesses. Therefore, if he says to him, “I gave it to you,” he is exempt.

Rav Yosef taught

this statement

as follows:

Rav Yehuda said that Rav Asi said: One who lends money to another in the presence of witnesses,

without stipulating with him that repayment must take place in the presence of witnesses,

need not collect repayment in the presence of witnesses,

since the mere fact that witnesses were present, without his explicitly stipulating that repayment must likewise take place in the presence of witnesses, still does not require 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 collect repayment in the presence of witnesses!

And Rav Yehuda continues in the name of Rav Asi, according to the version of the statement taught by Rav Yosef:

When I stated

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!”

Shmuel maintains that even though the lender stipulated that repayment must be made in the presence of witnesses, his intention was only to stipulate that the borrower repay in the presence of witnesses, so that the matter could be clarified if he was telling the truth. However, the borrower need not bring the witnesses to the court to testify about the repayment in order to be exempt. Even if the defendant says that the witnesses went overseas, he is to be believed, since it remains possible to ascertain the truth when they return.

And concerning this, the Gemara raises an objection:

We learned in the Mishna: “I have one hundred dinars 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!

An objection to 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.” Yet 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 court.

The Gemara answers:

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

a dispute between tannaim

it is—

whether one who says to another, “Do not repay me except in the presence of witnesses,” must collect repayment in the presence of witnesses.

As it is taught:

A lender who said to a borrower at the time of the loan [as the Gemara assumes 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

of witnesses that he gave it, in accordance with what 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!”

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

Rav Aḥa refuted

[contradicted]

Rav Aḥa

Rav Aḥa’s interpretation of Shmuel [who understood that the tannaim in this beraita were disputing whether, when one lends money to another and says to him at the time of the loan, “Do not repay me except in the presence of witnesses,” he is indeed required to collect repayment in the presence of witnesses].

And this is what he asked:

From where

do we know that when the claimant says, “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 this is the subject of the dispute between the first tanna and Rabbi Yehuda ben Beteira—whether he can say to him, “I repaid you, and the witnesses went overseas”?

Perhaps

their dispute applies only when the matter

refers to the time of the claim,

when he brought his claim against him.

In this case the tannaim disputed the matter. But at the time of the loan, he did not explicitly stipulate with him concerning repayment; he merely lent to him in the presence of witnesses. Now, after the loan, the borrower claims, “I repaid you,”

and this is what he is saying 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. It is only in such a case that the first tanna and Rabbi Yehuda ben Beteira disputed whether the lender’s claim is justified. For 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 must not repay except in the presence of witnesses,

everyone agrees that he is liable

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

If so, there is a difficulty: From where did Shmuel derive that their dispute extends even to a case where, 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 at the time of the loan that he must repay only in the presence of witnesses, he is nevertheless believed to have repaid without witnesses?

For one could establish the 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 would agree that he is liable.

And after this objection to Shmuel, the conclusion is:

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

one who lends money to another in the presence of witnesses,

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

must collect repayment in the presence of witnesses! [This is the halakha according to the first formulation and in accordance with Rav Asi; the first tanna in the beraita, according to Rav Aḥa, likewise maintains this.]

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 money to another in the presence of witnesses need not collect repayment in the presence of witnesses. [According to the first formulation, this is in accordance with Shmuel; according to the latter formulation, it applies according to both Rav Asi and Shmuel.]

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 collect repayment in the presence of witnesses!

However, he need not bring them to 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! [This means that Rava ruled in accordance with Shmuel and Rabbi Yehuda ben Beteira, despite Rav Aḥa’s objection. For Shmuel’s words were not completely refuted: He could have interpreted Rabbi Yehuda ben Beteira’s statement and ruled in accordance with him.] [

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; another side;

with trust; like two witnesses]

There was a certain

man who lent money to another. At the time of the loan,

he said to his fellow

the borrower:

“When you repay me,

when you repay 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

the loan

in the presence of two other people,

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

The lender claimed that they were false witnesses: “I, the lender, stipulated with you that you must not repay me except in the presence of Reuven and Shimon, and that only they would be trusted to testify concerning the repayment. You agreed and accepted this!”

Abaye said:

Since he repaid his debt in the presence of witnesses, and their testimony is available before us, his statement at the time of the loan that repayment must take place specifically in the presence of Reuven and Shimon has no significance. His primary intention was that there be two witnesses to the repayment, and that is in fact what occurred:

He told him to repay him in the presence of two witnesses,

and indeed

he repaid him in the presence of two witnesses!

Rava said to him:

No, rather,

this is why he said to him

the lender told the borrower to repay him

“in the presence of Reuven and Shimon, so that he would not be able to dismiss him”

from the repayment.

This is because we are concerned that perhaps the borrower will lie and say, when the lender brings him to court, that he repaid in the presence of two other witnesses who are not currently available in that place, and he will seek to defer the repayment for a long period until those witnesses return and confirm his words.

Therefore, the lender stipulated that only the two witnesses, Reuven and Shimon, who could readily come and testify for him, would be trusted. It follows that he stipulated specifically 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.

There was 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 teach halakhot

[Torah scholars who have studied halakhot].

The borrower went

and

repaid him privately

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

those coins were lost,

the money given in repayment of the loan was lost through circumstances beyond the lender’s control.

The lender came

the lender

before Rav Naḥman

to demand repayment of the loan.

He said to him

the lender said to Rav Naḥman:

“Yes!”

Indeed,

I accepted them from him

I received these coins from the borrower 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 in the presence of scholars who teach halakhot, as stated above. Therefore, I accepted the money

by way of [

as a]

deposit, and I said

to myself:

“Let

this money

be with me” [

with me]

as a deposit, until there happen to be

found

two scholars who teach halakhot, and he fulfills

the

condition

of the loan by repaying these coins in the presence of those Torah scholars.

Therefore, now that the money has been lost, since it was with me only as a deposit, and I was merely an unpaid bailee and am exempt in cases beyond my control, while the borrower has still not repaid me, I demand payment of his debt.

He said to him

Rav Naḥman:

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

you received the loan money from him—

“it was valid repayment!”

For the borrower gave it to you as repayment. Even if your intention was to accept it as a deposit, what was in your heart is not legally consequential!

And Rav Nahman continued [jokingly]:

If you say

that in any event you insist that the borrower is obligated

to fulfill its condition

and repay in the presence of two witnesses who teach halakha, the following possibility is now available to you: \-

Go and bring them

Give the money to the borrower, and let him repay you in our presence and fulfill the condition to repay in the presence of those who teach halakha,

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

There was a certain man who said to another: Give me one hundred dinars that I lent you! [

having lent them to you as an oral loan]

The borrower denied it and

said to him: That never happened!

The lender went

and

brought

two

witnesses that he had lent

one hundred dinars to the other man,

and

those witnesses also testified that the borrower

had repaid him

the loan.

Abaye said: What should we do? -

They say that he lent it -

they say that he repaid it!

Rava said:

He is obligated to pay him, since

anyone who says, “I did not borrow,” is considered as though he said, “I did not repay.”

For when he says that the matter never happened, he indeed denied the loan; yet, on the other hand, the borrower admitted that he had not repaid his debt to the lender. Since we have witnesses to the loan, and we have the litigant’s admission that he did not repay, we accept the witnesses’ testimony that he borrowed, while at the same time we accept his statement that he did not repay. Since a litigant’s admission is stronger than the testimony of witnesses, we obligate the borrower to repay the debt concerning which there are witnesses.

There was a certain man who said to another: Give me six hundred dinars that I am owed by you,

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

He said to him:

And

did I not repay you in the presence of so-and-so and so-and-so?!

They came,

those men,

so-and-so and so-and-so [

whom the borrower had identified as the witnesses to the repayment], and

said,

the witnesses:

That never happened!

We never saw him repay this debt.

The borrower then repeated his claim—whether in their presence or not, in any event, he was certain that he had repaid him.

Rav Sheshet thought to say -

He has been established as a liar!

For according to his own statement, he repaid in their presence, and they denied this; thus he is a liar. And anyone who has been established as a liar with regard to a particular monetary matter cannot claim with regard to that same matter that he repaid without witnesses, nor can he swear concerning it. 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

anything that is not incumbent upon a person

is not on his mind! [

A matter that is not incumbent upon a person is not something to which he directs his attention.]

And since the lender had not stipulated with him at the time of the loan that he repay in the presence of witnesses, he could 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 took place in the presence of witnesses or not, since he was not obligated to pay attention to that. Therefore, it is possible that he erred in his assessment that he had repaid in the presence of witnesses, and this does not mean that he is lying.

There was a certain man who said to another: Give me six hundred dinars that I am owed by you

as a loan!