Ketubot Chapter 2, Lesson 11

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[Rabbi Michael Abraham] Not to the borrower, but to the lender. Why? Because even though the money is with the borrower, we already know that this money belongs to the lender. That’s the state of affairs we know. Anything beyond that, we don’t know at all. We know there was a loan, right? And we know that the money really belongs to the lender even though it’s sitting with the borrower. Okay? Now the borrower claims, “I repaid him.” Fine? But that’s exactly what’s disputed. What was the known situation before the dispute? What was known with certainty, that everyone agreed on? That there was a loan, that the money is—no—it belongs to the lender even though it’s with the borrower. Meaning, the borrower borrowed from him, but it’s the lender’s money; that’s the last known state. Now the dispute begins. From the perspective of an original presumption, not from the perspective of monetary possession. In terms of monetary possession, I’m holding the money, I’m the borrower. Fine? In that simple sense, I’m the one in possession. But from the perspective of the original presumption, you can understand why in such a case the lender is considered the one in possession. The lender is considered the one in possession because the last known state was that he owned the money. And if you want to claim that you repaid him and no longer owe him, then bring proof. You want to depart from the state that had been established. Okay? Established in our eyes—not that someone is physically in possession of the money, but that the situation had been established as such, that we know this is the situation. Okay? So if we look at it that way, that’s apparently what the Talmud says. What the Talmud says is that when someone comes to me and sues me, says, “You have a maneh of mine in your possession,” and I say, “I never borrowed,” the burden of proof is on him. “One who seeks to extract from another bears the burden of proof”—there’s no dispute about that. No dispute. But if I claim, “I repaid,” as opposed to “I never borrowed,” before there’s any migo that I could have said “I never borrowed,” without the migo, what is the basic state? The basic state is that if I say, “I repaid,” the burden of proof is on me. Because he is known as the last owner of the money, the one we all agree about. From there on, what happened after that is already disputed. Okay? And that’s what in plain Hebrew is called: one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. Meaning, if you lent me money in front of witnesses, that means we know there was a loan, right? Now when I claim I repaid, if I don’t bring witnesses that I repaid, they won’t accept that from me. I’m not believed to say “I repaid.” Why not? Because if it’s clear to the religious court that there was a loan, then you are the one in possession—you, the lender. Okay? One who lends to another in the presence of witnesses must be repaid in the presence of witnesses. That’s what seems to come out of the Talmud here. Now look further. The Talmud continues. So I’ll remind you again what the question was. The question was: why in the Mishnah does Rabbi Yehoshua not bring this case as a case where he admits based on “the mouth that prohibited is the mouth that permits”? I asked: why do you need that principle at all? Seemingly he should be believed even without “the mouth that prohibited.” Answer: no, that’s not true; without “the mouth that prohibited” he would not be believed, because one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. But here there are no witnesses to the loan. All there is, is that I admitted there was a loan. Now, a litigant’s own admission is like a hundred witnesses, that’s true. But if I admitted there was a loan, well, I could have denied it; I have “the mouth that prohibited,” and therefore you wouldn’t have been able to sue me at all—or according to Rashi and Tosafot, doesn’t matter—and since that’s so, I’m also believed to say that I repaid. But only by virtue of “the mouth that prohibited.” Without that, I would not be believed. So the Talmud asks, quite rightly, why the Mishnah didn’t bring this case, where Rabbi Yehoshua agrees in this kind of case. Here you see the force of “the mouth that prohibited,” that Rabbi Yehoshua agrees to it. The Talmud says as follows: because it wanted to teach the latter clause: if there are witnesses that he borrowed from him and he says, “I repaid,” he is not believed. But we hold that one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. Now suddenly this rabbit gets pulled out of the hat. In our analysis of the earlier part of the passage, of the question, it was already clear to us that in the background stood the question whether one who lends to another in the presence of witnesses does or does not need to be repaid in the presence of witnesses. Right? That comes out of the analysis. In the Talmud it only appears in the answer. The Talmud is really saying: why didn’t they bring this case? Because in the Mishnah—I’m reminding you of the structure of the Mishnah—the middle clause of the Mishnah says: Rabbi Yehoshua admits that if one says, “This field belonged to your father, and I bought it from him,” he is believed because he has “the mouth that prohibited.” And if there are witnesses that it belonged to his father, he is not believed. Why not? Because he does not have “the mouth that prohibited.” The Talmud says: why couldn’t the Mishnah bring this case? The first half of the case it could have brought. No problem, you’re right. The first half it could have brought. But it couldn’t have written the latter clause. Why? Because what would you write? “And if he had witnesses that he borrowed from him”—meaning, the lender had witnesses to the loan—“then the borrower would not be believed”? Not true, because one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. Right? If he does not need to be repaid in the presence of witnesses, then even if you bring witnesses to the loan, I can still claim “paid” and I’ll be believed, because one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses, and that is the Jewish law. In other words, what the Talmud is really saying here is that your question is correct. In the first clause they could have brought this case. But we couldn’t have said the latter clause. Right, that’s what it says here. But that’s not what it says here.

[Speaker C] I’m going back again to the question I asked before, and then the Talmud says afterward: “I bought the field from you—the field was yours, not your father’s, yours—I bought it from you.” Same idea, exactly the same style. What’s the question? Do you want to study that passage now? Here you’re taking me away from page 18. I’m studying the passage now—

[Rabbi Michael Abraham] On page 18. We went back again to the question why I’m not studying—

[Speaker C] The earlier passages.

[Rabbi Michael Abraham] I said because there the issue of presumptive ownership of houses comes in, and there too it’s the same reasoning, the same answer. So no, there’s the whole issue of presumptive ownership of houses—

[Speaker C] I’m not—let’s not get into—

[Rabbi Michael Abraham] that. I’m not studying that part of the passage for that reason. There you have to get into presumptive ownership of houses. Never mind, we’re studying page 18—what difference does it make to you? That’s also a passage. “This teaching is good and that teaching isn’t good”—you know, this teaching is good too, right? Let’s learn it. But why move farther away if you can move forward? No, to move backward forward—I want to move forward, not backward. Fine, I’m studying the passage here, so let’s leave it, that’s not the discussion now. So the claim, in the end, what is written—seemingly what is written in the Talmud—I said, that’s not what’s written in the Talmud. Seemingly what is written in the Talmud is that they really could have brought this question. Right? This case, sorry. They could have said: “Rabbi Yehoshua admits in the case where one says to another: I borrowed a maneh from you and repaid it.” They could have said that. They just couldn’t have continued with the latter clause of the case. They couldn’t have said: “But if he has witnesses to the loan, then the borrower is not believed.” Not true—even if he has witnesses to the loan, he will be believed. Why? Because one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses.

[Speaker B] So that’s the question: why do we need “the mouth that prohibited” here?

[Rabbi Michael Abraham] Exactly. That’s why I think that’s not what the Talmud says. Do you understand the question? Rafael, right? Rafael’s question is an unavoidable one. According to the way I just presented it, it’s not correct. They couldn’t have brought even the case itself, not just because of the latter clause. Because in the case itself, what are you telling me? That one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses? So you’re telling me that even without “the mouth that prohibited” he’s believed? Then how can you bring this case as an example that Rabbi Yehoshua agrees because there is “the mouth that prohibited”? Therefore it’s not correct to read the Talmud that way. I got tangled up in this. That’s not the right reading. The Talmud means to say this: why can’t we bring this case? Because one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses, and therefore his credibility does not depend on “the mouth that prohibited.” Therefore you can’t bring it. The indication of this is: let’s look at the latter clause. In the latter clause, where there are witnesses and there is no “mouth that prohibited,” we would want to say he won’t be believed. But that’s not true: one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses, so he would be believed even in the latter clause. But because of that, this example is no good from the outset as well. It’s not that we could have brought the example for the first clause and only had a problem with the latter clause and couldn’t say it. No. Even in the first clause it’s not a successful example. Because true, he is believed in the first clause, but he’s not believed because of “the mouth that prohibited”; proof is that he’s also believed in the latter clause. He’s simply believed because one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. So in fact the question I asked at the initial stage—that is the Talmud’s answer. What I answered to the question before: I said the Talmud initially assumes that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. That’s the basis of the question; otherwise you don’t need “the mouth that prohibited” in order for the person to be believed.

[Speaker F] Because it wants to teach the latter clause—you’re saying that because we have a rule that one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses, therefore we don’t need—and therefore—

[Rabbi Michael Abraham] What, so then we don’t need “the mouth that prohibited.” Ah, that’s what it says. So we don’t need it. So we don’t need “the mouth that prohibited”? Therefore even if there are witnesses he would still be believed, where there is no “mouth that prohibited”—that’s what they’re saying. Because it wants to teach the latter clause, where if there are witnesses he is not believed. Not true—why, even when there are witnesses and he has no “mouth that prohibited,” he would be believed. Meaning, his credibility is not because of “the mouth that prohibited.” That’s exactly what they said here, they just said it by way of: look at the latter clause and understand why it also doesn’t fit in the first clause. Because the whole novelty of the first clause is that the underlying law is that of the latter clause—that the person is not believed—except that in the first clause he has “the mouth that prohibited,” by virtue of which he is believed. Now the Talmud says: but the underlying law of the latter clause is not correct, so in the first clause too, the fact that he is believed is not because of “the mouth that prohibited.” Okay? So basically what the Talmud answers is what I asked about the question at the beginning. It saw with divine inspiration what I was going to ask and answered it. Now then, what comes out is this: the Talmud at first assumed that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. It doesn’t say that, but that’s what it assumed, because without that this case doesn’t require “the mouth that prohibited” for the person to be believed. Right? And the assumption is that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. The answer is: we hold that he does not need to be repaid in the presence of witnesses. Basically—leave the latter clause and the first clause aside now, neither the latter clause nor the first clause, it changes nothing—you think in the question that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses; the answer is: not true. According to Jewish law, one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. Or in other words, the explanation I gave before—the explanation that says that the monetary presumption is a kind of original presumption—is not correct. “One who seeks to extract from another bears the burden of proof.” Even in a case where I claim “I repaid,” not “I never borrowed,” there too the burden of proof is on the claimant, because he is trying to extract from another. In other words, there was some initial assumption here—or there is an opinion—there is a dispute in the Talmud whether one who lends to another in the presence of witnesses must or need not be repaid in the presence of witnesses. According to the opinion that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, the earlier explanation I gave is the correct one. What does that mean? That you are physically in possession of the money, but the one in possession of the debt is the lender. The last known state was that the money was his; that is an original presumption. Therefore, according to the view that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, the assumption is that monetary possession is really an original presumption. And the answer says: not true. According to Jewish law we hold that one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. In other words, even if the original presumption is with you, the burden of proof is still on you, because I am holding the money. I am holding the money, and what determines possession is who is physically holding the money; it is not an original presumption. Possession is something else. Okay? That is the Talmud’s answer.

[Speaker F] So that’s the meaning of the borrower’s monetary possession? What exactly is its significance if you’re in the category of a borrower who repaid or didn’t repay? But the possession itself is baseless. You’re holding the money. But if the possibility is that you borrowed and didn’t repay, then the money isn’t yours. I don’t understand. You’re holding the money. So? But if the possibility is that you borrowed and didn’t repay, then the money isn’t yours.

[Rabbi Michael Abraham] It’s always like that with possession. You’re holding the money, but what if the possibility is that you stole it—so what good is your possession? I claim you stole it, and you claim you didn’t steal it. If the possibility is that you stole it, what help is it that you’re holding the money? Possession is always that way. Possession tilts the law in favor of one side and against the other. But possession never fits both sides equally.

[Speaker F] But here the borrower admits that I lent it to him.

[Rabbi Michael Abraham] That’s an original presumption!

[Speaker F] That’s exactly the point.

[Rabbi Michael Abraham] Possession is not an original presumption.

[Speaker F] But if I admit that I borrowed, we both agree on that.

[Rabbi Michael Abraham] So I said—that’s an original presumption! Possession is not an original presumption. Fine. But if I admit that I borrowed, we both agree on that. So I said—that’s an original presumption! But according to Jewish law we—so that’s what I’m saying: the conclusion of the passage is that monetary possession is not an original presumption. Yes, it is not an original presumption; it’s something else. What determines the advantage in monetary law is physical control of the money, not the last known state as in an original presumption. It’s something else. And therefore what I told you in the name of Kuntres Ha-Sfeikot: Kuntres Ha-Sfeikot actually hesitates regarding the presumption of the original owner—whether that is possession or an original presumption. But regarding actual possession itself, it is obvious to him that it is not an original presumption, and he is right, because that is the conclusion of the passage here. In the initial assumption, when they thought that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, there the possibility arose that maybe possession really is an original presumption. And as we’ll see later, most of the medieval authorities don’t accept even that. But we’ll see that in a moment.

[Speaker C] But look, we still need to clarify this issue—why really does he not need to be repaid in the presence of witnesses? This issue, that this is the Jewish law?

[Rabbi Michael Abraham] “One who seeks to extract from another bears the burden of proof.” You want to extract from me? Bring proof. I say I repaid—what do you want? I don’t owe you.

[Speaker C] Right, possession—that’s what you said before, possession.

[Rabbi Michael Abraham] But not an original presumption. That’s why I said the conclusion is that possession is not an original presumption. It’s a different principle. Whoever is holding the money has the advantage.

[Speaker B] But that’s only with movable property, not with land.

[Rabbi Michael Abraham] Right. With land it’s the presumption of the original owner, and there I said—that’s Kuntres Ha-Sfeikot—the question is whether that is possession or an original presumption; there he hesitates. But what I brought from there is that regarding possession he certainly doesn’t hesitate. Why not? Because as we saw from the conclusion of the passage here, possession is not an original presumption, it’s something else. The presumption of the original owner is some sort of middle category, and one can hesitate whether it’s this or that. Okay? Now look at Tosafot Yeshanim, printed on the page. It’s that little letter aleph on the side in small print. Yes? “Now, since the initial assumption was that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, and he is not believed to say ‘I repaid’ since he has no migo”—and of course here migo means “the mouth that prohibited,” yes?—“and it concludes that we hold that he does not need to be repaid in the presence of witnesses, and he is believed to say ‘I repaid’ even without a migo.” Exactly what I said, right? Just in a few words—all that I said is basically written here. He says: in the initial assumption we thought that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, and therefore he is not believed without the migo. Only by virtue of “the mouth that prohibited” is he believed. And that is what the Talmud asked: why did Rabbi Yehoshua not bring this case to show the power of “the mouth that prohibited” according to Rabbi Yehoshua. The Talmud’s answer is that according to Jewish law we rule like the one who says that one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. If so, his credibility does not depend on “the mouth that prohibited,” and therefore they did not bring this case. And the practical difference is that in the latter clause, where he has no “mouth that prohibited,” he would still be believed, even where there are witnesses.

[Speaker C] So that explains Rabbi Yehoshua—why he dealt with land.

[Rabbi Michael Abraham] Right, that’s the answer, that’s the explanation why he brought land and didn’t bring this case. Okay? So in Tosafot Yeshanim, that’s what it says here.

[Speaker B] Yes, but they also talk about migo and not about “the mouth that prohibited.”

[Rabbi Michael Abraham] No, no—migo is “the mouth that prohibited.” In the Tosafot approach generally—and I said this about standard Tosafot too, not only Tosafot Yeshanim—their usual approach is that “the mouth that prohibited” is migo. You’ll also see this in the next passage, in the Mishnah on page 18b; in Tosafot all the way through they assume that “the mouth that prohibited” is migo. Yes. Just a stronger migo. We discussed this: explanations one and two for “the mouth that prohibited,” and not explanations three and four, what we discussed in the lesson on that principle. Actually, there would have been some room here to raise a difficulty from the law of partial admission.

[Speaker B] After all, the Torah has a law, there is—

[Rabbi Michael Abraham] There is a Torah law of partial admission. Someone claims that I owe him a maneh, and I admit to half, then I have to swear about the rest. If I deny everything, I’m exempt. Exempt.

[Speaker C] So then one who lends to another—

[Rabbi Michael Abraham] in the presence of witnesses does not need to be repaid in the presence of witnesses. It’s explicit in the Torah. What is there to argue about? It’s explicit in the Torah. Why does the Torah say that the whole matter of the oath exists only in partial admission? Because in total denial you are exempt even without swearing. You are totally exempt. Even in partial admission you are exempt regarding the part you deny, you just need to swear in order to be exempt—but it’s still clear that you are exempt. But when you deny everything, you don’t even need to swear. You are simply exempt. So there you have proof that one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. Right. So what room is there? We’ll see in a moment: this is a dispute among Amoraim in tractate Shevuot, and here it’s an initial assumption in the Talmud and afterward an answer. How can one say that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses? That goes against explicit verses. What, do they disagree with the law of partial admission? Do they claim that even in total denial there is an obligation to swear? Actually it’s not so simple. There is a view of Rashi in Bava Kamma 107 that maybe in the case of a deposit, for example, even in total denial he would have to swear. But in the simple understanding, that’s not so. I think the answer we need to give here is that in total denial, when he says “it never happened,” he is exempt and the burden of proof is on the claimant. But in total denial where he claims “I repaid,” the burden of proof is on him. I’m speaking according to the one who says that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. According to Jewish law we rule that he does not need to be repaid in the presence of witnesses. Meaning, according to Jewish law, even if he claims “I repaid,” he is the one in possession and the burden of proof is on the claimant. I was only asking: according to the one who says that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses—the initial assumption in our Talmud passage—how does he explain total denial, where one is exempt? The answer: total denial is exempt only where he says “it never happened,” where he totally denies. But if he says “I repaid,” meaning he admits that there was a loan and only says “I repaid,” according to that view—that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses—he really would not be exempt.

[Speaker C] So the original presumption comes back.

[Rabbi Michael Abraham] Right. Okay? That’s the remark. Fine, it’s a side remark, less important for our purposes. Now look at Tosafot, s.v. “does not.” “Does not need to be repaid in the presence of witnesses.” See that? “And if you say: according to the one who says he must be repaid in the presence of witnesses, let him be challenged from our Mishnah here, for it should have taught: ‘You have a maneh of mine in your possession.’” What is Tosafot asking? You’re answering me—what was your final answer to the difficulty? That according to Jewish law one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. But according to the one who says that one who lends to another in the presence of witnesses does need to be repaid in the presence of witnesses, you have no answer to the difficulty. So according to that opinion, why doesn’t Rabbi Yehoshua bring this case? You’re giving me an answer according to one view. True, we also rule according to it in practice, but there is still an Amora who thinks otherwise. That Amora has no explanation for the Mishnah. How does he explain the Mishnah? Or in any case, he can’t explain why Rabbi Yehoshua didn’t bring a more—yes, simpler—case. So Tosafot says—first of all one more point, what I’m saying—

[Speaker F] Again, it’s very clear—

[Rabbi Michael Abraham] very clear from the passage, but I just want to sharpen it. Tosafot asks only according to the one who says that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. Meaning, Tosafot also understands that the initial question the Talmud brought here goes according to the one who says he must be repaid in the presence of witnesses. According to the one who says he need not be repaid in the presence of witnesses, the answer is not only that you can’t say the latter clause—even in the first clause it doesn’t belong. The whole question doesn’t exist. That’s what I said before; that’s clear in Tosafot too. Still, that’s the flow of the Talmud; that’s not Tosafot’s question. So Tosafot says: “And one can say that it is a dispute of Tannaim in the chapter ‘Shevuat Ha-Dayyanim,’ or alternatively that it is not considered such a strong challenge.” Meaning, first of all there is a dispute among Tannaim, and if it is a dispute among Tannaim, then fine. This Mishnah follows one of the Tannaim, and indeed the other Tanna doesn’t fit—it disagrees with them. “Or alternatively, it is not considered such a strong challenge, because it was preferable for it to teach us that one does not establish possession in the property of a minor.” Meaning, perhaps the other opinion can say: look, there’s no proof from the Mishnah against me. The rule written in the Mishnah is accepted by me. You’re only asking why they didn’t write a simpler rule. So I’ll explain why: because they wanted to teach you the novelty regarding the law of presumption in land, that one does not establish possession in a minor’s property.

[Speaker C] That’s what Rav Huna says there.

[Rabbi Michael Abraham] That’s what the other opinion would say—that this is the novelty of the Mishnah. That’s all. So it’s not such a powerful question why they didn’t bring another case. They didn’t bring another case because they wanted to teach that novelty. Fine. Okay, but that’s what Tosafot says. For our purposes, what Tosafot says is that this matter—whether one who lends to another in the presence of witnesses must or need not be repaid in the presence of witnesses—is indeed subject to a dispute among Tannaim. About the “dispute among Tannaim,” by the way, I’m not entirely sure; that’s what Tosafot says. In the Talmud itself, what is explicit is a dispute among Amoraim, not Tannaim. Whether there is also a dispute among Tannaim here is not such a simple question. But that’s what Tosafot says, that there is some sort of dispute here. In any event, in a moment we’ll get to that dispute and try to understand it better. Just one remark: take the sheets. I hope there are enough. How many pages? One? Yes, one double-sided.

[Speaker B] What do you mean double-sided? No, there’s only one side. Only one side.

[Rabbi Michael Abraham] No, one side. Right. Sorry, there was just—sorry, I just have some message I have to—sorry, just something urgent. Okay? Did you get it? Okay. Look, there’s just an interesting point here. What is the default in ordinary legal systems? Ordinary legal systems—how do they look at this, in a layman’s view? A person sues me for money. If I say “it never happened,” unquestionably the burden of proof is on him—no question, that’s obvious. What happens if I say “paid”? We said that אצלנו in the end the conclusion is: one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. I’m believed to claim “paid”; he is still the one seeking to extract from another. He needs to bring me proof. Okay? In ordinary legal systems, for example also in Israeli law, at least as far as I checked, one who claims that he borrowed and repaid—the burden of proof is on him. I’ll say more than that: even where there is “the mouth that prohibited,” the burden of proof is on him. Even if he himself says that he borrowed and also says that he repaid, even then the burden of proof is on him. Meaning, Israeli law accepts neither “the mouth that prohibited,” nor the rule that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. Rather: one who lends to another—even without witnesses—must be repaid with evidence. Even if there were no witnesses, even if it comes only from my own “mouth that prohibited.” Even then. Meaning, that is the straightforward conception. In Jewish law we rule the opposite. One who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. Therefore here we don’t even need “the mouth that prohibited.” Except that even according to the opinion—meaning, Jewish law differs from Israeli law in two ways. First of all, it rules that one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. Meaning, the burden of proof is still… on you, even though I only claim “paid.” More than that, even according to the opinion that agrees with Israeli law and places the burden of proof on me when I say “paid,” in a place where I have “the mouth that prohibited,” I am believed. Yes? According to the one who says there that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, if I have “the mouth that prohibited,” I am believed. Israeli law does not accept that either. Okay? So there’s a double dispute here, to the point that I just want you to notice that there is a novelty here. Meaning, it isn’t something simple, because the straightforward intuition is probably that possession is some kind of original presumption. Meaning, if we know there was a loan, then when you claim you repaid, the burden of proof is on you. Because we know there was a loan. This isn’t some new game where suddenly someone invents stories and you can just throw him down the stairs. Okay?

[Speaker C] That’s Israeli law.

[Rabbi Michael Abraham] Yes. Now, in Jewish law it’s not like that, and doubly so. Even according to the one who says that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, if he has “the mouth that prohibited,” he is believed—which wouldn’t work in the law, as far as I checked, again, I just read it. But according to Jewish law we rule altogether that one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses, so even without “the mouth that prohibited” he is believed. Just because I’m in possession, that’s all. Now actually, look at the Rashba in a responsum, the second source you have. I skipped Rav Dov Povarsky because it’s not so important for our purposes. The Rashba writes as follows: “And one who lends to another not in the presence of witnesses is not believed to say, ‘I repaid.’” What does that mean? One who lends to another in the presence of witnesses—what is the law? He is believed. One who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses.

[Speaker F] He does not need to be repaid in the presence of witnesses, so he is believed.

[Rabbi Michael Abraham] Right—so what does it mean, “one who lends to another not in the presence of witnesses is not believed to say, ‘I repaid’”? If it was not in the presence of witnesses, then of course he is believed. There’s a question mark here that got inserted. “And one who lends to another not in the presence of witnesses is not believed to say, ‘I repaid’?” Of course he is. Okay. “And one who collects by means of gentile courts is certainly a robber.” Meaning, with the Rashba too, the gentile courts really did not accept this Jewish law. Like with us. Meaning, the gentile courts in the Rashba’s time also didn’t accept it, and therefore he was concerned that someone who went to gentile courts—their law is different from ours—would take out money that according to Jewish law he is not entitled to.

[Speaker C] A robber, yes.

[Rabbi Michael Abraham] So that’s why he says that anyone who does that is a robber. But for me right now the statement itself is less important than the subtext. Meaning, the fact that he says it shows us that this difference between legal systems already existed then. In Spain in the—I don’t know—13th, 14th century. Okay. Fine, so that’s just an interesting note.

[Speaker F] The 16th century now, no?

[Rabbi Michael Abraham] No, Rashba—what are you talking about? Rashba is 13th–14th, something like that. A student of Nachmanides. A student of Nachmanides. Yes. In the Mishnah in tractate Shevuot, look at the next source you have; now I really want to enter the dispute itself: does one who lends to another in the presence of witnesses need or not need to be repaid in the presence of witnesses? I want to understand this dispute, and at the very end come back to our passage and see what it says about that dispute. Okay? So let’s begin first of all with the passage where this is the main discussion. This is a passage in tractate Shevuot. The Mishnah there on page 38 says as follows: “You have a maneh of mine in your possession.” He said to him, “Yes.” The next day he said to him, “Give it to me.” “I gave it to you”—exempt. “You have nothing of mine”—liable. Okay? “It never happened” or “I repaid.” Right? “I gave it to you” means “I repaid”; “you have nothing of mine” means “it never happened.” Okay. So again: a person comes and sues me and says, “You have a maneh of mine in your possession. I lent you a maneh.” I said to him, “Correct, you’re right,” I admitted it. He has no witnesses; I admitted it. Okay. The next day he comes and says, “Fine, give me the maneh I lent you yesterday.” Two possibilities: if I say, “I repaid you,” what is the law? Exempt.

[Speaker B] Why? “It never happened.” He doesn’t need witnesses that he repaid. What? He doesn’t need witnesses.

[Rabbi Michael Abraham] Yes, “exempt” means he doesn’t need witnesses that he repaid. “You have nothing of mine”—liable.

[Speaker B] Because he already admitted before that there was a loan. Earlier admission. Right.

[Rabbi Michael Abraham] Meaning, if he says “it never happened,” he is liable. Why is he liable? After all, “it never happened” is the stronger claim. Right, but after you already admitted there was a loan, you can’t say “it never happened.” But if you say “paid,” that you can. Why?

[Speaker B] Because he doesn’t need witnesses. Because he doesn’t need witnesses. Yes. Is that why?

[Rabbi Michael Abraham] That’s how it seems to me. Or because he has “the mouth that prohibited.” That’s possible. It’s an interesting question. If you remember, at the end of the lesson on “the mouth that prohibited” I discussed the question whether there is “the mouth that prohibited” retroactively. That was the practical implication brought by the Machaneh Ephraim and other later authorities regarding the difference between whether “the mouth that prohibited” is a kind of upgraded migo or whether “the mouth that prohibited” is something else. So we said: what’s the practical difference? What happens—and we saw two opinions in the Shulchan Arukh on this.

[Speaker B] A dispute whether there is—

[Rabbi Michael Abraham] “the mouth that prohibited” after some time. So if you say that “the mouth that prohibited” is not migo, because retroactive migo is not migo. If there is no “mouth that prohibited” after some time, then apparently “the mouth that prohibited” is migo. Why, if “the mouth that prohibited” is not migo, would it still apply after time has passed? According to the later explanations—the third and fourth explanations of “the mouth that prohibited,” what I said—if you received the force from me, you can’t use that force against me. And it doesn’t matter if you received it from me yesterday. It’s not that migo says: what could I have done today? I have an alternative available today. I can’t—it already happened yesterday, so we don’t say retroactive migo. But “the mouth that prohibited” isn’t migo according to that conception. “The mouth that prohibited” is not because I could have said something else, but because if you received your power from me, don’t turn it against me. So what difference does it make if you received it yesterday? You still can’t use it against me; you got it from me. Therefore, if “the mouth that prohibited” is not migo, it can work retroactively as well. If it is migo, then there is no retroactive migo. Now that opens up two possibilities for understanding the Mishnah here. If he says, “You have nothing of mine,” then of course that’s clear, because he’s contradicting his earlier litigant’s admission. There was an admission that he had borrowed. He didn’t say “there is no—” what? He didn’t say “there is no.”

[Speaker C] The lender said to him, “Yes.” Two options. The lender said “yes” and he was silent. No, he wasn’t silent.

[Rabbi Michael Abraham] He said “yes.” That was the case. Now the next day’s case: he comes to him and demands the maneh, and he says to him, “You have nothing of mine.” But yesterday you already admitted it; a litigant’s admission is like a hundred witnesses. So that’s obviously clear, no question. I’m talking about the earlier case. If he says, “I gave it to you.” “I gave it to you”—exempt. Why exempt? Two possibilities. One possibility is that this follows the view that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, and his credibility is because he did not lend him in the presence of witnesses; he has “the mouth that prohibited.” The loan is based on my admission, so I effectively have “the mouth that prohibited.” Therefore I’m believed. But if there actually had been witnesses, I would not be believed. And that follows the view that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. That’s one possible reading of the Mishnah. Another possible reading is: no. One who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses, and therefore I’m believed. I’m believed even without “the mouth that prohibited.” I’m believed even without it, because one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. That reading is a bit difficult in the Mishnah, because why do you need that he said “yes” to him? Even without his saying “yes,” let two witnesses come—that’s enough. Why do you need “the mouth that prohibited”? Even without it, he is believed, simply because one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. That’s all. What difference does this whole game make now—yesterday you said “yes,” and you said this, and that was yesterday? What for? Someone comes and sues me, I say “I repaid you,” and the burden of proof is on you. Therefore I say: the straightforward reading of the Mishnah is according to the one who says that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses.

[Speaker B] Maybe it’s because of the latter clause, because of “you have nothing of mine—liable,” that that’s the game?

[Rabbi Michael Abraham] Maybe. It could be. But I’m saying—that’s the remark. In any case there are two possible readings of the Mishnah here. From the Mishnah itself you can’t prove anything clear. What will it depend on? It will depend on the question whether “the mouth that prohibited” is migo or not. Here, suddenly, the question whether “the mouth that prohibited” is migo or not gets connected to the question whether one who lends to another in the presence of witnesses does or does not need to be repaid in the presence of witnesses. Why? Because if “the mouth that prohibited” is migo, then here he has no migo, because it’s retroactive migo. So why is he believed? Here it must be because one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses; he doesn’t need “the mouth that prohibited” in order to be believed. He’s believed simply because he is believed to say “paid.” If “the mouth that prohibited” is migo, then this Mishnah must be read according to the legal ruling that one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. If “the mouth that prohibited” is not migo, and then we can understand that there could be “the mouth that prohibited” even after time has passed, then it could be that what makes him believed here is that even though one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, he is believed because he has “the mouth that prohibited.” Even retroactively it works, because it isn’t migo. So you see, it all connects up here. Meaning, the dispute over whether “the mouth that prohibited” is migo or not—this is the dispute between Rashba and Tosafot that we saw—which of course connects to the question what exactly “the mouth that prohibited” is: a migo of “if he wished he could have remained silent,” or a migo of “if he wished he could have said, ‘it never happened’”? As a result of that comes a second dispute, whether there is “the mouth that prohibited” retroactively or not, a third dispute that depends on the same thing. And as a result of that, when we read the Mishnah here, a fourth dispute comes out: whether one who lends to another in the presence of witnesses must or need not be repaid in the presence of witnesses. Which of course is not inherently tied to the previous disputes, but in light of the previous disputes, another way of reading the Mishnah here opens up. It’s not that there is some intrinsic connection between the earlier disputes and the dispute whether one who lends to another in the presence of witnesses must or need not be repaid in the presence of witnesses. There is no such connection. But in light of the earlier disputes, we need to check what possibilities we have for reading the Mishnah here: is his credibility only because of “the mouth that prohibited,” or can his credibility be there even without it? And that will lead us to the question whether one who lends to another in the presence of witnesses must or need not be repaid in the presence of witnesses. Okay? Now in the Talmud there, on page 41a, look at the next source you have—Amoraim actually disagree on this matter. “‘You have a maneh of mine in your possession,’ etc. Rav Yehuda said in the name of Rav Asi: one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. When I said this before Shmuel, he said to me: he can say to him, ‘I repaid you before so-and-so and so-and-so, and they went overseas.’” In a moment we’ll see the meaning of this matter. Meaning, he doesn’t need to produce the witnesses to the repayment. If he claims that the repayment took place before witnesses, that’s fine. He doesn’t need to bring the witnesses, he just has to claim that there were witnesses at the time of repayment. Then: “We learned: ‘You have a maneh of mine in your possession,’ and he said to him, ‘Yes’; the next day he said, ‘Give it to me’; ‘I gave it to you’—exempt. And here, since he demanded it before witnesses, it is as though he lent it before witnesses, and yet it teaches ‘exempt.’ This is a refutation of Rav Asi.” Rav Asi would say to you: fine—in short, there are some discussions here; in the end, look—“Come and hear.” See the continuation? Shmuel said to him: “Come and hear, for it was taught: ‘I lent you before witnesses; repay me before witnesses’—either he must pay or bring proof that he paid.” What is that? That one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, right? Because you’re not believed without witnesses. Rabbi Yehuda ben Beteira says: he can say to him, “I repaid you before so-and-so and so-and-so, and they went overseas.” Still need—In other words, he doesn’t need to produce the witnesses, but there had to have been witnesses there. Okay? Rav Acha challenged: how do you know it’s speaking about the time of the loan, etc. Rav Pappi said in the name of Rava: the Jewish law is that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. And Rav Pappa said in the name of Rava: one who lends to another in the presence of witnesses does not need to be repaid in the presence of witnesses. And if he said, “Do not repay me except in the presence of witnesses,” then he must be repaid in the presence of witnesses. Meaning, if he made it a condition of the loan that you repay before witnesses, that’s something else. And if he said to him, “I repaid you before so-and-so and so-and-so and they went overseas,” he is believed. So again, there is a dispute here between Rav Pappi and Rav Pappa as to whether one who lends to another in the presence of witnesses must or need not be repaid in the presence of witnesses. Apparently there is also some dispute among Tannaim, between Rabbi Yehuda ben Beteira and the first Tanna—I don’t remember—the anonymous first Tanna, yes. So what Tosafot mentioned in our passage, that there is a dispute among Tannaim on this matter—that’s what we see here, a dispute in the Talmud. I said that the Mishnah itself can be read in both ways.

[Speaker F] But since in the Talmud one who lends to another in the presence of witnesses must be repaid in the presence of witnesses, still he can—

[Rabbi Michael Abraham] say that they went overseas—that’s what we’ll get to in a second, just a moment. That’s another chapter that will complicate things for us, but for now I’m still setting it aside. So there’s a dispute among Amoraim between Rav Pappi and Rav Pappa whether one who lends to another in the presence of witnesses must or need not be repaid in the presence of witnesses. That dispute depends on a dispute among Tannaim, Rabbi Yehuda ben Beteira and the first Tanna. Essentially I said this is also two ways of reading the Mishnah in Shevuot. But since we have a dispute among Tannaim on this matter, then even if we can’t read the Mishnah in Shevuot one of those ways, it’s not terrible. Because the Amora whose view doesn’t fit the Mishnah in Shevuot can say: “Fine, I go like Rabbi Yehuda ben Beteira, I go like the Tanna for whom there is a dispute here—if there’s a dispute among Tannaim, I’m allowed to rule like either one of them.” Seemingly, there’s basically a dispute here between the two approaches we saw in our passage, between the initial assumption and the conclusion. Right? So now let’s see in the medieval authorities—I’ll start with the view of Rav Pappi, which is the initial assumption in our passage: that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses. Okay? Why indeed must he be repaid in the presence of witnesses? I explained that in our passage. Let’s see how the medieval authorities explain it. Look at the Rashba. The Rashba in Shevuot: “One who lends to another in the presence of witnesses, having established witnesses at the time of the loan, it is as though he said to him: ‘I lend to you before witnesses; repay me before witnesses,’ and therefore either he must pay or bring proof that he paid.” And it follows from this—So what is the Rashba really saying? That Rav Pappi’s view—that one who lends to another in the presence of witnesses must be repaid in the presence of witnesses—is based on the fact that he—

[Speaker B] under the assumption that there is some implied condition here. Exactly. When I—

[Rabbi Michael Abraham] By setting up witnesses for the loan, I was essentially showing that I don’t completely trust you. The fact is, I put witnesses there to be sure. If I don’t trust you… it’s as if I was implicitly stipulating that when you repay me, I want you to bring witnesses as proof. I’m not prepared to accept your mere statement. Your statement is not automatically credible to me. I have the right to demand witnesses from you for the repayment. Please repay me in the presence of witnesses.

[Speaker C] That doesn’t fit, because every loan, in some sense, comes… No, that’s not true. No. So an oral statement? Yes. Fine.

[Speaker F] An oral statement is opera.

[Speaker C] Something else entirely.

[Rabbi Michael Abraham] Do you have something against that opera? Fine, that’s this opera. That you can make a loan orally.

[Speaker F] Fine. But there is some worldly practice that a person shouldn’t lend to another without witnesses.

[Rabbi Michael Abraham] That’s something else. That’s a moral practice, not to place him before a stumbling block, but certainly a loan without witnesses is a valid loan.

[Speaker F] Huh? But it says that anyone who lends to his fellow without witnesses…

[Speaker C] Right, that’s what he said.

[Rabbi Michael Abraham] That’s only a moral issue. So that you don’t cause him to stumble under “do not place a stumbling block,” lest he come to fail and not repay. But obviously, if you lend without witnesses, he owes you. There’s no question that he owes you if you lent without witnesses. Just don’t do it, because you are putting him in front of an obstacle, since he may be tempted not to repay you because you have no witnesses to the loan. Fine. So the explanation of the Rashba’s words contradicts what I said earlier, and we have to understand that. The Rashba basically says that even Rav Pappi, who says that one who lends to another with witnesses must be repaid with witnesses, really holds that the borrower should have the upper hand. He should have been exempt. Why don’t I believe the borrower? Simply because there was some implicit stipulation: if he set up witnesses, he probably expects the repayment also to be with witnesses. But without that reasoning, by the basic laws of evidence, if he sues me and I say to him, “I repaid,” then even Rav Pappi says I am believed. By law I am believed. Okay? Everything Rav Pappi says—that I am not believed—is only because if he set up witnesses, then there’s some implicit stipulation here. That’s not what I said earlier. I explained in our passage that one who lends to another with witnesses—why according to the view that he must be repaid with witnesses, why must he be repaid with witnesses? Because it’s like an initial presumption, right? Like an initial presumption, meaning what is known is that the money belonged to the lender. Now I want to claim that I repaid, so I should bring proof. I’m trying to change the previously known state, right? Like an initial presumption. According to the Rashba, if that were the case, there would be no need to say everything the Rashba says. There would be no need to say that he set up witnesses and by that revealed that he wants the repayment with witnesses too. It’s unrelated; this is the law of claims and counterclaims. It’s simply the laws of evidence; there’s no need to get into estimating the parties’ intention. Under the simple laws of evidence, I can’t claim “paid” against the initial presumption that I owed him. The Rashba does not accept the initial presumption. Now of course in Jewish law we don’t accept the initial presumption in our passage either, but I’m speaking within Rav Pappi’s approach, which is the initial assumption in our passage, that one who lends to another with witnesses must be repaid with witnesses. In that approach, possession would seemingly function as an initial presumption. The Rashba argues that even in that approach, possession is not an initial presumption. That’s why I told you the medieval authorities (Rishonim) would not accept this even within the approach that one who lends to another with witnesses must be repaid with witnesses. Even there the medieval authorities (Rishonim) don’t accept it. It’s not because of an initial presumption; rather, it’s because there was some implicit stipulation here. Without that, I really would be exempt, because the burden of proof is on the one seeking to extract money from another. Okay? And this is much, much stronger—now this is already a third dispute against the legal world. I already brought two disputes. First of all, we rule that one who lends to another with witnesses does not need to be repaid with witnesses. I am believed to say “paid.” Second, even according to Rav Pappi, who says that one who lends to another with witnesses must be repaid with witnesses, if I have “the mouth that forbade,” I am believed anyway; the law also doesn’t accept that. The Rashba says even more than that: even if I don’t have “the mouth that forbade,” even then in principle I should be believed, were it not for some implicit stipulation because witnesses were established here. Okay? This is worlds apart from the accepted legal conception. So that’s what the Rashba says.

[Speaker B] So according to the Rashba, if he admits—if he really didn’t lend to him with witnesses, he says, “I lent…” then he really would be exempt.

[Rabbi Michael Abraham] More than that—he would be exempt even without “the mouth that forbade.”

[Speaker B] That’s why the Mishnah didn’t spell it out…

[Rabbi Michael Abraham] Exactly. Think about it and you’ll understand: the Rashba is not against what I said earlier; the Rashba is against the Talmudic text. Because according to the Rashba, there is no room for the Talmud’s question in our passage. You always get one step ahead of me. According to the Rashba, there is no room for the Talmud’s question in our passage. What does the Talmud ask in our passage? And we said that this is according to the view that one who lends to another with witnesses must be repaid with witnesses. What does the Talmud ask? According to that view, if Avi and Yehoshua come and say, “You have a maneh in my hand and I repaid it to you,” meaning, “You lent me and I repaid you,” he is believed because of “the mouth that forbade.” According to the Rashba, why in the world? He isn’t believed because of “the mouth that forbade”; he is believed even without “the mouth that forbade.” Why? Because if that other party didn’t establish witnesses here, then he is not demanding repayment with witnesses from me. So I admit to him that there was a loan—so what? That’s irrelevant. No, not because of “the mouth that forbade”; even without “the mouth that forbade.” After all, the Rashba argues that even Rav Pappi holds that I am basically believed—I, the borrower, am believed to say “paid.” The only reason I am not believed is that if the lender established witnesses here, he probably expects me to repay him with witnesses too. But in our case, the story is that there were no witnesses; the lender didn’t establish witnesses. I admitted there was a loan; I am the witnesses—my admission as a litigant. So this is not a situation that proves the lender’s intention that he expects repayment with witnesses. In such a case, even according to Rav Pappi…

[Speaker F] So…

[Rabbi Michael Abraham] …you can’t explain our Mishnah as a case of “You have a maneh in my hand and I repaid you.” Because you are not believed by way of “the mouth that forbade”; you are believed simply because repayment does not require witnesses. Not because of “the mouth that forbade.” And the Rashba is not against what I said earlier. The Rashba is against the Talmud. Look at the Ran, the next source in front of you: “For the matter is not because of the lien, but because whenever he lent him with witnesses,” etc.—I’m skipping a bit—“we say that certainly the borrower would not repay without witnesses.” Not that he is forbidden to repay without witnesses, but rather his natural tendency, his psychology, is that if he borrowed with witnesses, he will not repay without witnesses. Because he is afraid of a future claim, and he won’t be able to defend himself if he has no witnesses to the repayment. So he will insist on repaying with witnesses. “And if he claims and says, ‘I repaid you without witnesses,’ we say that he is certainly lying. Since the lender can verify his loan through witnesses, the borrower cannot repay him except with witnesses, so that the lender should not present him publicly as one who borrows and does not pay.” Not because he will extract money from him. He won’t extract money from him. But so that the borrower won’t be portrayed publicly as someone who borrowed and didn’t pay. What is the Ran assuming? A different explanation from the Rashba. The Ran argues that one who lends to another with witnesses, even according to Rav Pappi, really does not need to be repaid with witnesses. It’s just that in people’s psychology, if there were witnesses to the loan, a person won’t repay without witnesses. He won’t take that risk. Therefore now, if he comes and says, “I repaid without witnesses,” we won’t believe him. Because in human psychology, people do not repay that way. Not because he really isn’t legally credible, but because people generally don’t rely on that credibility, because they don’t want someone to slander them later and say they borrowed and didn’t repay. He won’t succeed in extracting the money from them, but he will succeed in slandering them. So because of the fear of slander, they will certainly be careful, when repaying, to do it before witnesses. Consequently, if you now come and say that you repaid without witnesses, you are not believed. That’s what the Ran says. It’s a different explanation from the Rashba, but it resembles the Rashba at one point.

[Speaker F] And he develops it into a sort of two-sided lack of trust—that just as the borrower doesn’t trust the lender, the lender isn’t trusted by the borrower. And he is afraid the lender will sue him again.

[Rabbi Michael Abraham] Right, but he won’t succeed in suing him.

[Speaker F] It’s not really from the lender’s side at all.

[Rabbi Michael Abraham] He won’t succeed in suing him, because I am in fact believed. Even if he lent to me with witnesses, I am believed. Exactly. Meaning that even Rav Pappi agrees, and the Ran…

[Speaker F] …ties it to the borrower’s psychology, to the mutual lack of trust between them.

[Rabbi Michael Abraham] But it isn’t a real legal lack of trust; it’s a psychological lack of trust, because legally I really am believed. Legally, he won’t succeed in extracting money from me even if he lent to me with witnesses. But now, once that is the psychology, then now he actually will succeed in extracting money from me. He really will. Why? Because now when he sues me and I say, “Wait, I repaid you without witnesses,” the religious court will raise its eyebrows and say, “What, and you weren’t afraid he would slander you?” That’s implausible. And therefore, apparently, you didn’t repay—you’re lying. So in the end we won’t believe you that you repaid without witnesses. So by strict law you are believed to repay without witnesses, but people won’t take the risk that someone will slander them. And because of that, in the final analysis a person won’t be able to claim, “I repaid without witnesses.”

[Speaker D] And maybe it’s like the implausible claim we mentioned, where he has no migo, something like “the mouth that forbade,” where we say that if a person says, “I repaid within the term,” that is an implausible claim. So “I repaid without witnesses when there were witnesses” is an implausible claim.

[Rabbi Michael Abraham] Yes, same thing. Yes. So therefore—but here it’s not even migo; rather, this itself is what he is claiming: “I repaid without witnesses,” and we say it’s an unacceptable claim because it’s implausible. Yes. The point—notice—in this sense, though, the Ran does join the Rashba. The Ran also agrees that there is not and cannot be any dispute that under the regular laws of evidence, the borrower is believed to say, “I repaid.” Even Rav Pappi, who says that one who lends to another with witnesses must be repaid with witnesses—that is not by strict law. By strict law, from the standpoint of evidence, the borrower is believed according to all views. There is no dispute about that. All Rav Pappi claims is: true, but in practice people are afraid of slander and things like that, and therefore they do repay with witnesses, and therefore now when you come and say that you repaid without witnesses, we won’t believe you.

[Speaker C] And that would be grounds for the religious court to rule against him?

[Rabbi Michael Abraham] Yes, that’s what the Ran argues. Okay? That’s his argument. But for our purposes, the Ran too is against our Talmudic passage.

[Speaker C] Because seemingly—wait—

[Rabbi Michael Abraham] One second. According to the Ran, what comes out? According to the Ran, it follows that even according to Rav Pappi, who says that one who lends to another with witnesses must be repaid with witnesses, Rabbi Yehoshua could not say—Rabbi Yehoshua could not come and say, “You lent me a maneh and I repaid you.” Because the credibility there is not due to “the mouth that forbade.” The Ran too would agree that there it is not due to “the mouth that forbade,” not only the Rashba. Why? Because there, after all, there are no witnesses to the loan. If there are no witnesses to the loan, I’m not afraid of slander. Slander is when he can prove that there was a loan. If there is slander, I’ll say there was no loan; I’ll deny the loan itself. I won’t say “I repaid”; I’ll deny the loan itself if he slanders me. Therefore that’s the point. On the contrary, here the Ran too would agree with the Rashba that in such a case the credibility exists even without “the mouth that forbade.” Even according to the view that one who lends to another with witnesses must be repaid with witnesses, you don’t need “the mouth that forbade” here. That goes against the Talmud. Because in our Talmudic passage it says that if one who lends to another with witnesses must be repaid with witnesses, that really is a difficulty against Rabbi Yehoshua, because the credibility here is based on “the mouth that forbade,” and therefore the question is why the Mishnah did not bring this case. And they answer that this is only according to the view that one who lends to another with witnesses does not need to be repaid with witnesses. Okay. The Ran and the Rashba are contradicted by our Talmudic passage. There is—I just want to note here—

[Speaker F] You can understand this language, “must be repaid with witnesses,” as meaning that here this is an obligation imposed on you, the borrower.

[Rabbi Michael Abraham] Right. In the final analysis, yes.

[Speaker F] As if we’re taking it completely out of…

[Rabbi Michael Abraham] It doesn’t matter. In the final analysis, it really is an obligation imposed on you, only it’s because of some psychological calculation. Fine, but still the law is the law.

[Speaker F] Seemingly, “must be repaid” sounds principled.

[Rabbi Michael Abraham] No, no, no—he says “must be repaid” meaning—

[Speaker F] Bottom line.

[Rabbi Michael Abraham] —it’s implausible and implausible. No, and consequently now you really do have to repay with witnesses.

[Speaker F] Like a disclosure, like…

[Rabbi Michael Abraham] But in the end you really do have to repay with witnesses, meaning that without that you won’t be believed. Correct—but that this is not the core law; rather, it’s some psychological calculation, not the straightforward laws of evidence. In that sense, both the Ran and the Rashba are moving in the same direction, and that stands in direct opposition to our passage—head-on opposition to our passage. The old Tosafot in our passage—and in Tosafot we saw this too—but I’m saying this is the plain meaning of the Talmud; you don’t need the old Tosafot and Tosafot for this. It says otherwise. It says that the explanation in Rav Pappa is a third explanation, not like the Ran and not like the Rashba. The explanation in Rav Pappa—that one who lends to another with witnesses must be repaid with witnesses—is because this is an initial presumption, because possession is an initial presumption. This is all without implicit stipulations and without psychological fears; it’s in the laws of evidence. Once it was known that there was a loan, if you claim that you repaid, the burden of proof is on you, as with an initial presumption. That is Rav Pappa’s view, and that is what is written in our passage. How can we nevertheless understand our passage according to the Ran and the Rashba? Perhaps, perhaps what the Talmud says—what the Talmud says—that we hold that one who lends to another with witnesses does not need to be repaid with witnesses, maybe the Talmud means here to state a principle that is true even according to Rav Pappa. Even according to Rav Pappa, one who lends to another with witnesses does not need to be repaid with witnesses. Everything Rav Pappa says—that he must—is only because of the Ran’s and the Rashba’s explanations, not because there is a principle that he must be repaid with witnesses. Consequently, even according to his view you also can’t explain the Mishnah that way. And when the Talmud goes on to say—it’s not saying, “Fine, but as a matter of Jewish law, Rav Pappa, you’re right, but as a matter of Jewish law we hold that one who lends to another with witnesses does not need to be repaid with witnesses, and therefore the Mishnah can’t be explained in that case.” According to the Ran and the Rashba, maybe you have to say it differently. What the Talmud is saying is that since as a matter of Jewish law we hold… since we hold that one who lends to another with witnesses does not need to be repaid with witnesses, and since Rav Pappa also agrees with that, only he says there is some implicit stipulation or a psychological estimate or something like that, that’s all. And in our Mishnah there is no such estimate. So even according to Rav Pappa, you don’t need “the mouth that forbade” here in order to be believed. That’s what the Talmud answers. Meaning, according to the Ran and the Rashba, the Talmud is not answering, “Fine, but Rav Pappa is not the law.” No. It says the opposite: Rav Pappa too holds that one who lends to another with witnesses does not need to be repaid with witnesses in principle. Everything that is required is only for some side reason. And that side reason obviously does not exist here, because here I am the one sustaining the document; there are no witnesses to the loan, so the Ran’s and Rashba’s reasons do not exist here. Therefore even according to Rav Pappa this won’t work, because you can’t explain it on the basis of “the mouth that forbade.” So for them, the Tosafot question is not a difficulty.

[Speaker G] What? So for them, the Tosafot question is not difficult. Right. Exactly.

[Rabbi Michael Abraham] And therefore Tosafot certainly did not learn it that way. And the old Tosafot probably didn’t learn it that way either. Because according to the Ran and the Rashba, Tosafot’s question is not difficult; that’s why I brought it. Because Tosafot asks: wait, what about the view that he must be repaid with witnesses? According to the Ran and the Rashba, we explained that even according to the view that he must be repaid with witnesses, the Talmud’s answer explains why our Mishnah cannot be explained that way. Yes, because even according to that view it is not due to “the mouth that forbade.” Okay? Tosafot’s question shows that Tosafot did not learn it that way. Now look—here enters this recurring mantra in the passage in Shevuot. The passage in Shevuot says: he can say to him, “I repaid you before so-and-so and so-and-so, and they went overseas.” What does it mean, “I repaid you before so-and-so and so-and-so, and they went overseas”? I basically repaid you before witnesses, right? But they left. According to the Ran and the Rashba, even Rav Pappa agrees that I am believed in such a situation. Sorry—no, according to the Ran, not according to the Rashba. According to the Ran. Why? Because what does the Ran say? I don’t believe you that you went to repay not before witnesses. What do you want? I did repay before witnesses. Only now—it was a year ago. Now they’ve left. What do you want from me? I can’t keep them in my pocket all the time. So the Ran’s argument doesn’t apply here. Here, according to the Ran, Rav Pappi really would agree that he is believed. That is why the Talmud keeps coming back and saying, yes, but if he said, “I repaid you before so-and-so and so-and-so and they went overseas,” that is also fine, even though he is not bringing so-and-so and so-and-so now. Meaning, there in the Talmud you see that the view that he must repay with witnesses is only for a side reason, like the Ran and the Rashba—or at least like the Ran. Why do I say not like the Rashba? Because the Rashba argues that where you borrowed with witnesses, there is some implicit stipulation—I do not believe you when you claim “I repaid”; I want you to bring me witnesses to the repayment. So it’s not enough that you repaid before witnesses; I want you to bring them. I don’t believe you that you repaid. What do you mean? According to the Ran it’s psychological. Meaning: how could you have allowed yourself to repay without witnesses? So he says, not true, I didn’t allow myself to do that; I did repay before witnesses, only they left. So there’s no problem. The Ran’s problem falls away. But according to the Rashba, it’s a stipulation: I am demanding proof from you for the repayment. You repaid before witnesses? Bring them. Okay? So that’s why I’m saying that this is the difference between the Ran and the Rashba. But at least according to the Ran, it seems that the passage there really proves his position. Because if I were right as I said in this passage here—or what Tosafot says, or what the old Tosafot say—that it is because this is an initial presumption, then it has nothing to do with all this discussion that if I said “before so-and-so and so-and-so and they went overseas” that it’s okay. All of that is irrelevant. If the Talmud there qualifies and says that if he said, “I repaid before so-and-so and so-and-so and they went overseas,” that is indeed acceptable, then the Talmud is basically saying there is only a side problem here, not a principled problem. So it comes out that the plain sense of the Talmud there is like the Ran, while the plain sense of our Talmudic passage is like Tosafot. Seemingly that is a dispute between passages. Although what I said earlier gives one possibility for explaining our passage like the Ran and the Rashba. What does our passage say in the end? It’s not that as a matter of Jewish law we hold that one who lends to another with witnesses does not need to be repaid with witnesses; rather, we hold that one who lends to another with witnesses does not need to be repaid with witnesses according to everyone. And even Rav Pappi only disagrees because of side reasons. Consequently, in the earlier clause, if you brought that case, the credibility would not be because of “the mouth that forbade,” and therefore even according to Rav Pappi there is no place to ask that question. Not only according to Rav Pappa. Okay, so the Ran and the Rashba can explain our passage. Explaining that other passage according to Tosafot and the old Tosafot is harder. Why should I care that so-and-so and so-and-so went overseas? So what? There is an initial presumption—exactly, bring proof. Meaning, it could be that we require him to bring proof, but we can’t leave him—what do you want him to do, tie the witnesses to his legs? It could be that we let it go, once again, within the practical framework of the litigation, not in the principled laws of evidence. Look, if you claim that you repaid before witnesses and really did the effort you could, they’re not—you can’t keep them in your pocket. So maybe we let you off. Although that’s a bit difficult. So make a receipt. Have witnesses sign a receipt that you repaid, and then you have proof attached to you; you don’t need to keep the witnesses themselves. Right? That’s more difficult. So I’m saying: in that passage it is proven like the Ran and the Rashba; in this passage, seemingly like Tosafot and the old Tosafot. But the Ran and the Rashba can explain this passage. Okay? And that passage works like the Ran; according to the Rashba it’s harder. But that’s why I say: either this is a dispute between passages, or it depends on how each medieval authority (Rishon) sets it up. Okay, we’ll stop here.