Rabbi Meir Orlean
I’d like to borrow $300,” Danny said to Asher. “Do you have it?”
Asher took out his wallet. “How long do you need it for?” he asked
“Three weeks,” replied Danny.
Asher took out $300. Danny put out his hand to receive the money.
“Not so fast,” said Asher. “Do you think that I’m going to lend money without evidence? Tomorrow you’ll say that you never borrowed!”
Asher called over two people. “Please be witnesses that I’m lending Danny $300 for three weeks,” he said. He then handed the money to Danny in their presence.
Some time later, Asher said to Danny. “I want to remind you that you owe me $300.”
“What do you mean?” asked Danny, startled. “I paid you back two days ago!”
“How did you pay?” asked Asher.
“I gave you $300 cash, just like you gave me,” replied Danny.
“Do you have any proof?” asked Asher.
“No,” answered Danny, “since I paid you cash.”
“Then how can you expect me to believe you?” said Asher.
“Well, it’s my word against your word,” replied Danny. “Why should you be believed more than I?”
“I made sure that witnesses saw the loan, so you should have realized that I didn’t consider you trustworthy,” argued Asher. “You received the money with witnesses; you should have repaid it with witnesses.”
“One thing has nothing to do with the other,” insisted Danny. “You chose to be extra careful when granting the loan. That doesn’t mean that I have to keep the same standard. There’s no reason that my word is worth less than yours, and I’m in possession of the money.”
“Then I’ll have to sue you in a din Torah,” said Asher.
The two came to Rabbi Dayan. “I lent Danny money before witnesses,” said Asher. “He claims that he repaid, but has no evidence of payment. I vehemently deny that he paid me! Is he believed?”
“The Gemara (B.B. 170a; Shavuos 41b-42b) teaches that the borrower is believed that he repaid the loan when the lender does not hold a loan document,” replied Rabbi Dayan. “He requires a light oath (shevuas heses), though, to counter the definitive claim of the lender. He is believed even if the lender was careful to lend before witnesses” (C.M. 70:1).
“Why is this?” asked Danny.
“This is because a loan is expected to be repaid,” replied Rabbi Dayan. “Therefore, the borrower’s claim that he repaid is a strong one. Furthermore, a borrower generally would not have the audacity to falsely claim that he repaid, especially since the creditor did him a favor by lending.
“However, the borrower is believed only when the loan becomes due,” continued Rabbi Dayan. “Before the due date, he is not believed without proof. The reality is that people don’t always pay on time, and certainly we don’t expect that they paid early!” (C.M. 39:5; Sma 70:5).
“If the borrower is believed, what recourse does the lender have?” asked Asher.
“The lender can insist on a loan document,” replied Rabbi Dayan. “The borrower is not believed without proof when the lender holds the document. Alternatively, the lender can stipulate when lending that he should be believed that he was not repaid (ne’emanus), or that the borrower should repay only before witnesses” (C.M.70:3; 71:1).
“What if the borrower claims, instead, that the lender forgave the loan (mechilah)?” asked Danny.
“Mechilah is a weaker claim, since the loan is not expected to be forgiven,” replied Rabbi Dayan. “Therefore, according to most authorities, this claim is not believed in its own right. Nonetheless, when the borrower can claim that he repaid, he is alternatively believed to say that the lender forgave the loan, based on the concept of migo” (Rema, C.M. 70:1; Gra 70:6; Pischei Choshen, Halvaah 2:35; Eidus 11:30).
“Thus,” concluded Rabbi Dayan, “before the due date Danny is not believed without proof that he repaid; afterward he is.”