Q&A: Anyone Who Says "I Did Not Borrow" Is Like One Who Says "I Did Not Repay"
Anyone Who Says "I Did Not Borrow" Is Like One Who Says "I Did Not Repay"
Question
Hello Rabbi,
I would appreciate your thoughts on the topic of the passage "anyone who says: I did not borrow" in a case where two witnesses came and said that he borrowed and repaid.
We learned this passage in yeshiva, and I still haven’t managed to understand how we overcome the internal contradictions and how the litigant’s own words can override the witnesses. It all seems to me difficult and paradoxical.
Thank you very much.
.
Answer
I don’t see an internal contradiction here. What we have here is an admission by a litigant against two witnesses. The problem is how his credibility can be stronger than that of two witnesses. But that itself is the novelty in the law of a litigant’s admission.
A person’s credibility regarding himself is absolute. Therefore Mahariv"l (cited in Ketzot HaChoshen, sec. 34, subsec. 4) writes that this is by virtue of a vow or a gift. But that is obviously unreasonable, and this case is one of the strongest proofs against him. I explained in the past that this is a matter of a person’s absolute credibility in matters that pertain to himself and his own domain.
See on this in Column 306, and in a broader perspective in the article “A Good Measure” on Parashat Miketz 5767:
https://drive.google.com/drive/folders/0BwJAdMjYRm7IY0xlc1dmYTMweVE
What is really difficult here is how these statements by the litigant can be viewed as an admission at all, even aside from the witnesses against him. He did not admit that he failed to repay; rather, he claimed that he never borrowed. True, once he now changes his reasoning and claims that he did borrow, his original claim remains relevant only regarding the point that he did not repay. If a person claims in religious court that he did not borrow, then as far as we are concerned he did not repay. This is not necessarily our assessment of reality; rather, we do not make claims for a person beyond what he himself claimed.
Certainly there is also an element of justice here, in that a person cannot change his claim every time, and what he said in religious court is what binds him. But, as I said, I do not think this law is because of justice (a regulation designed to punish liars); rather, it is truly the primary law for this case.
Discussion on Answer
Completely agree. This is adversariality. We judge only what the litigants place before the religious court.
One could suggest a line of reasoning for Rava’s view there in the Talmud in Shevuot: since the litigants agree on some fact—namely, that there was no repayment—and the entire dispute concerns another fact—whether there was a loan—the discussion is “closed” on that point. There is no reason to believe (or more accurately, to follow) the witnesses on that point, since the litigants agree about it. Therefore, when the witnesses testify that he borrowed and repaid, we ignore what they said about the repayment (since there is agreement that there was no repayment, as stated), and relate only to their statement that there was a loan. In other words, the entire monetary discussion in religious court revolves around one factual question alone: was there a loan (and therefore he must pay), or not (and then he does not)? The witnesses are brought in to answer that question, and that’s it.