Forcing a Borrower to Pay a Debt in the Presence of Witnesses

  • Rav Moshe Taragin

Typically, loans can be repaid in private, without attending witnesses. Nevertheless, it is always good policy to secure witnesses to observe payment so that they can testify in future litigations and disputes. If a payment is subsequently disputed and no witnesses are available, however, the defendant will still triumph based on the general rule of ha-motzi mei-chaveiro alav ha-ra’aya, which awards the benefit of the doubt to the defendant, forcing the plaintiff (tovei'a) to muster evidence


There is an interesting scenario in which payment MUST be proffered in the presence of eidim or witnesses. The gemara in Shavuot (41a) asserts that if at the time of the loan the malveh (lender) stipulated that the payment should only be executed in the presence of witnesses, the payment must be rendered accordingly. If the loveh (borrower) subsequently claims that he in fact paid but didn’t pay in the presence of witnesses, he is not believed and must surrender a [second] payment. At first glance, this halakha seems odd. Why shouldn’t we believe the defendant, who claims that he paid, just as we believe any defendant in possession of disputed funds or value? How does an initial "loan-time stipulation" alter the standard rule, ha-motzi mei-chaveiro which favors the defendant?


The simplest manner of understanding this exception is to view it as an EXTERNAL stipulation. Fundamentally, the borrower remains the default "believed" person since he is the defendant. However, he OBLIGATED himself not only to render compensation, but to arrange for attending witnesses (to obviate any further litigation). Although he is trusted to claim that he rendered payment, (since he is the possessor and the default “favorite),” he did not fulfill his COMPLETE obligation because he paid in private and without witnesses. By stipulating that the payment must be performed in the presence of eidim, the lender “augmented” the obligation of the loveh. This is how the Ramban (Shavuot 41) explains this phenomenon.


Alternatively, this stipulation may not generate any extrinsic or added responsibility on the part of the borrower, but rather alters the rules of default believability. When the Torah favors the defendant through the principle of ha-motzi mei-chaveiro alav ha-ra'ayah, it is not establishing a fixed and inflexible policy, but rather setting a DEFAULT standard that MOST cases adhere to. In the absence of any stipulation, the defendant receives the benefit of the doubt and triumphs. However, the two parties can engineer their relationship and upgrade the lender’s credibility at the expense of the borrower’s. They can adjust the case so that in the absence of evidence, the lender will be believed and not the borrower. If the loveh claims that he paid but can’t verify with eidim he isn’t trusted about the payment.


The most obvious difference between these views would evolve from a situation in which the loveh asserts that he DID compensate the malveh in the presence of witnesses but they are no longer available to verify this fact.  According to the Ramban’s view, the loveh should be believed, and thus exonerated. The stipulation to pay in the presence of witnesses never diminished his default believability. If he claims that he fulfilled ALL his obligations, including the obligation to compensate in the presence of witnesses, he is trusted even without supporting his claim. By contrast, if the loan time stipulation adjusted the parties’ respective levels of believability, the defendant no longer enjoys favored status and must forensically verify his claims. Failure to summon evidence that he paid in the presence of eidim would lead to the lender’s victory and the borrower’s responsibility to make new payment. In fact, the gemara in Shavuot (41b) cites this scenario as a debate between Shmuel (who claims that the loveh is trusted) and R. Asi (who claims the he is not). Presumably, they are debating the nature of this halakhic principle by questioning its application to this unique permutation.


A second interesting application is a situation in which no explicit stipulation is asserted but the EXPECTATION of witnesses attending the payment of the loan is IMPLIED. If the malveh delivers the loan in the presence of witnesses, it implies that the loan must similarly be reimbursed by the loveh in the presence of witnesses. If a STIPULATION to pay in the presence of eidim obligates the loveh to EXTRA responsibility, IMPLYING these expectations would be insufficient. A loveh can only incur added obligation through explicit stipulation. If, however, the stipulation adjusts the standard levels of believability, perhaps an overt stipulation is unnecessary. By simply stationing witnesses during the loan, the malveh has ESTABLISHED adjusted expectations and adjusted levels of believability. By positioning eidim (even though he is not required to do so), he may be legally upgrading the legal parameters of this loan. Typically, unsubstantiated claims of the loveh are believed, but in this situation, ANY statement without witnesses will be rejected.


Interestingly, according to one opinion in the gemara (Shavuot 41), this constitutes a second debate between Shmuel and R. Asi. Shmuel, who trusted a loveh to claim that he compensated in the presence of "no longer available" eidim, does not require payment in the presence of eidim if the requirement was not verbally stipulated. Presumably, his logic is consistent. The mechanics of this general principle are based on the loveh’s accepted augmented responsibility to compensate in the presence of eidim. This augmentation requires explicit stipulation (rather than an implicit EXPECTATION by stationing eidim at the loan), and if the loveh claims that he fulfilled his responsibility, he is trusted. R. Asi's logic is similarly consistent. He views the principle as adjusting the levels of believability, and it can be adjusted implicitly by positioning eidim at the loan. The loveh is not trusted to claim that he paid in the presence of eidim because his believability has been adjusted and lowered and any claim he renders must be substantiated by eidim.


An interesting statement of the Rambam expands the scope of the principle, and thereby affects its nature. Typically, a thief is believed to claim that he returned a stolen item based upon the principle of ha-motzi mei-chaveiro alav ha-ra’aya. The Rambam (Hilkhot Gezeila 4:14) claims that if someone stole an item in the presence of eidim, he is responsible to reimburse the victim in the presence of eidim. Obviously, the thief has established no “agreement” with his victim about future legal dynamics. To claim that his theft in the presence of eidim augments his obligation and therefore requires payment in the presence of eidim makes little sense. However, if the presence of witnesses adjusts the standard rules of believability, perhaps their presence at the theft can similarly alter the standard norms of who is and who is not believed.


A second interesting statement of the Rambam suggests that by stipulating that the loan should be repaid in the presence of eidim, the levels of believability have not been altered, but rather an extrinsic obligation has been introduced. The Rambam (Hilkhot Malveh Ve-Loveh 15:1) addresses a situation in which the lender stipulates that payment should be rendered in the presence of SPECIFIC NAMED witnesses. He claims that the borrower is not believed to claim that he paid in the presence of different witnesses. Clearly, if the stipulation introduces augmented obligation to the borrower, ANY stipulation can be introduced. Just like the condition can mandate payment in the presence of eidim, it can mandate that payment in the presence of SPECIFIC eidim, justifying the Rambam's position. However, if the stipulation of payment in the presence of witnesses alters the levels of believability, it may be more difficult to obligate the loveh to pay in the presence of specific eidim. By demanding eidim, the malveh can upgrade the levels of verification necessary, but can he also demand specific eidim? If this statement of the Rambam is indeed premised upon viewing the halakha as an extrinsic stipulation, we would have to re-explore the previously considered statement of the Rambam about a theft witnessed by eidim, which implies that the rule is not based on a stipulation, but rather on adjusted levels of believability.


A final question pertains to a loveh who claims that he paid without eidim. Even though he would not normally succeed, he seeks vindication based on a “migu.” Since he could have claimed that he paid in the presence of witnesses who are no longer available to testify (at lease according to the aforementioned position of Shmuel), he should triumph based on the principle that if one can make a claim that would assure him of victory, any claim is accepted. The Rashba (Shavuot 41b) asserts that a migu would indeed yield the loveh’s victory in this case, while Tosafot claims that a migu would be ineffective. Perhaps this dispute reflects the two different strategies toward understanding the dynamics of this halakha. If the stipulation "to pay in the presence of eidim" diminishes the loveh's generic and built in believability, a migu would be able to “boost” his believability and grant the loveh a victory. However, if the stipulation introduces an augmented obligation, the debt is not considered paid until witnesses ACTUALLY attend the payment. While the migu certifies the claim of the loveh, even according to his claim, he has not fulfilled his obligations.