Q&A: The Presumption That a Person Does Not Repay Before the Due Date
The Presumption That a Person Does Not Repay Before the Due Date
Question
I’ve heard several times your proof from the law brought in the Talmud in Bava Batra 5, that there is a presumption that a person does not repay before the due date, and you use that to prove from there that the Sages spoke about the conditions of their own time and that it is not relevant to our time, because reality has changed.
I’m not getting into the issue right now of changed natural conditions, discussed at length by the leading halakhic authorities, for example the Magen Avraham regarding eating fish and cheese, etc. (It is well known that the Vilna Gaon argued that even if the reason revealed by the Sages no longer applies in reality, there are still additional reasons they did not reveal to us, and therefore the law was not nullified.)
I want to address the rule of the presumption that a person does not repay before the due date, because I think your explanation of the concept of presumption is not accurate.
The presumption that a person does not repay before the due date: the Sages were not speaking about some specific reality that existed in their time. The Sages are speaking about human nature. That is, by nature, a person repays after the due date.
They were not dealing with a statistical question of how many people, and whether most people repay before the due date or after the due date.
They were dealing with an evaluative question, namely: what is human nature?
The proof is simple, as later authorities point out: after all, in monetary matters we do not follow the majority, so what difference does it make that most people repay after the due date?
Another proof: the Talmud there brings a dispute between Reish Lakish and Abaye and Rava whether a person repays before the due date or after the due date.
So was their disagreement a factual disagreement? About what happens in the world? Let them check.
The disagreement was about what human nature is. What the reason is.
Not what actually happens, but what ought to happen.
And beyond the proofs, which can be discussed, etc., the matter is evident from the very concept of a presumption.
A presumption applies only when the reality is unknown. A presumption does not come to resolve factual questions. A presumption comes to decide a doubt. These are practical decision rules, as is known.
And so it is with all presumptions.
There is a presumption that a woman does not brazenly contradict her husband.
There is a presumption that a person does not brazenly face his creditor.
There is a presumption that a person does not repay before the due date.
There is a presumption that a person does not steal (establishing someone as a thief).
All these presumptions do not speak about reality; they speak about the root of things, about what ought to be.
Therefore, even if we conduct an examination and discover that most women are in fact brazen, etc., we would still, in a case of doubt, apply the law of the presumption that by nature a woman is not brazen.
The same reasoning applies to a non-present majority, as is known from Rabbi Shimon Shkop in Sha’arei Yosher 3:17.
For example, that most animals are kosher, or that most women carry to term. Even if we were to check and discover that most animals born are non-kosher defects, the law would not change, because every case that comes before us—even if there were a billion such cases—does not change nature.
The Sages spoke about nature. An animal by nature ought to be born kosher—not that an animal is born kosher. The Sages were not trying to predict reality; they spoke about causes, not results.
So I do not understand at all what the proof from reality is. Who is talking about reality?
All presumptions and majority rules do not deal with reality, with what was. They deal with what should have been.
Answer
This is not a proof but an example. I do not understand the claim that the Sages were not dealing with reality but with human nature. If that is human nature, then that is also reality.
A disagreement proves nothing. You cannot simply check, because obviously there are people who repay and people who do not. The question is whether the number of people who do repay is enough to undermine the presumption or not. I have written more than once that all the yeshiva boys who assume there are no factual disputes are mistaken. Of course there are factual disputes. In most cases, however, the dispute is about where to draw the line, and that is not really a factual dispute. That is the situation here.
The difficulty from majority is no difficulty at all. First, the later authorities already distinguished between presumption and majority. Second, beyond that, according to quite a number of halakhic decisors, in monetary matters too we do follow the majority, aside from a majority such as for plowing, and the like (Rabbi Shimon Shkop and Rabbi Chaim Soloveitchik in Tosafot on Bava Kamma 26, and others). This is not the place to elaborate.
It is clear that a presumption decides practical conduct only in a case of doubt. But that ruling is based on an assessment of the likely reality. If most people repay before the due date, then in a case of doubt we would not assume that repayment had not been made before the due date.
This has no connection whatsoever to a non-present majority. I have explained this in several columns here on the site.
Discussion on Answer
No.
The Rabbi mentioned that the later authorities distinguished between them. I am familiar with the distinction that the Rabbi specifically does not agree with—between majority as a matter of reality and presumption as a conception of what human nature essentially is / what ought to be.
Are there other explanations? According to the Rabbi’s approach, why in some places is it defined as a majority and in others as a presumption?
Examples: most ignoramuses tithe; most women conceive and give birth; as opposed to the presumption that a person does not repay before the due date, the presumption that a person does not brazenly confront someone, etc.
Thank you.
There is no such thing as “what human nature ought to be.” What does that mean—that we look at God’s blueprint and see what He wants a person to do? Are we talking about a normative obligation? We are talking about an assessment of what reasonable people do. The accepted distinction is that a majority is something incidental, a result of statistics—that is, usually something that applies in the particular time and place under discussion. A presumption, by contrast, is something more essential, and perhaps also not learned from statistics but from a general observation of reality and human nature. But it is still obvious that a presumption also speaks about reality and is expressed in reality. And if in reality we see that people do repay before the due date, then the presumption is null and void, of course—exactly like a majority. There is no way to say otherwise. It is indeed reasonable to say that if we have no data, there will be a difference: on a majority we would not rely, but on a presumption we would. But we would rely on a presumption because we think it is true, not because it has force even when it is not true in reality. Therefore this distinction is not important for our purposes.
This is not a good example.
What kind of argument is this: “I do not understand the claim that the Sages were not dealing with reality but with human nature; if that is human nature then that is reality”?
If that is human nature then that is reality?
Is this the naturalistic fallacy? Is this just an empirical claim?
That you would say such a sentence?
What connection is there between human nature and reality? These are two questions that are unrelated to each other.
You can explain Hume’s principle of causality eloquently, and even though in reality the cause brought about the result, there is still no proof of that. So here, where the cause is not in reality but is our assumption or the Sages’ assumption, I think it is much easier to explain.
In other words,
there is no connection whatsoever between what ought to be and what actually happens.
There are many causes such that, from their standpoint, the results should have occurred in a certain way, but the result is accidental and nothing can be inferred from it.
Suppose all people are brazen or thieves, as it says that everyone is involved in theft; there is still a presumption regarding each individual that by nature he is not a thief or not brazen.
Events that occur do not determine the causes retroactively.
If there is a natural physiological reason that a woman should give birth in the ninth month, and we see that everyone gives birth in the seventh month or everyone miscarries, that does not mean nature changed; it means that the result we are getting is miscarriage. We cannot infer that nature changed.
The same applies regarding repayment after the due date. The same applies regarding a non-present majority, which is based on reasoning, as the later authorities wrote, and it is exactly the same as the kinds of presumptions based on the Sages’ reasoning—that they penetrated to the depth of a person’s mind and nature and said: when you have a doubt about what happened, follow the basic human nature. The fact that there are many cases that are not like this means nothing. As is known, there is no reasoning in a present majority. Like the well-known example of lottery tickets: the majority does not make it more likely to win, because in the end only one ticket wins, and it contradicts all the other tickets. The same here: most people in the world lie or do not repay, but in the end our discussion is about one person, and if we find that person, he contradicts all the others, so they are irrelevant to him.
If you insist, then there is no point in the discussion. What does the statement mean that X is human nature? That a person behaves that way (unless constrained). Everything else is just word games.
Your answer is really not to the point.
What do you mean when you ask what human nature means? You do not know what human nature means? Nature does not mean that this is how a person behaves. Nature means that this is how he is supposed to behave.
An example: there is a midrash that says that Moses our teacher by nature had corrupt character traits. Did he therefore behave that way?
What connection is there?
There is what ought to be, and there is what is.
Conclusions about what ought to be arise from recognizing the causes. What actually happened—that is already a scientific, statistical question.
“The operation succeeded; the patient died”—you know the expression?
And so on.
The distinction between nature and behavior is not word games; it is a fundamental distinction. It is astonishing that you do not notice something so simple.
For some reason you prefer to understand the concept of presumption as a concept that speaks about sociological reality, and then argue that society changed, instead of understanding that presumption is an ethical, evaluative question, and that never changes.
I will explain one last time what I already explained very clearly above.
I wrote above that if human nature is X, then a person will do X unless there are circumstances that cause him to act otherwise.
You claim that the Talmud implies that human nature is not to repay before the due date. We are now discussing a hypothetical reality in which it has now become clear to us that the reasonable person does repay before the due date. I claim that the presumption would change—meaning that someone who claims to have repaid before the due date would be believed. Why? Because either some other factor is intervening and causing a person to act contrary to his nature (for example, a heter iska, which allows charging interest and therefore gives a person an incentive to repay before the due date), or human nature itself has changed. Either way, if the reasonable person now repays before the due date, then obviously his claim is plausible. That is all.
You apparently claim that if in such a situation a person comes before a religious court and says that he repaid before the due date, he would not be believed. Why? Because his Platonic nature is not to repay before the due date. This despite the fact that every reasonable person at this time does repay before the due date, whether because human nature changed or because of the heter iska.
Fine. If that is what you are claiming, then the discussion has just ended. That is either stubbornness or another possibility that I do not want to spell out here (I will only say that it is even less flattering).
If you are not claiming that, but something else, then I do not understand your claim. Please explain it clearly. But only on this example. No slogans and no abstract distinctions. That is all.
I think there is a discussion of this in Netivot Yisrael II by Rabbi Tzvi Yehuda. Has the Rabbi seen it?