Q&A: Learning from Presumptions
Learning from Presumptions
Question
You have argued more than once, rightly, that the presumption that a person does not repay before the due date depends on context. In times when it is in fact common to repay before the due date, money is not extracted on that basis. All that is learned from the Talmud is that a presumption can extract money.
It is obvious that not every presumption can extract money. What can be learned from that Talmudic passage is only a lower bound for the strength of a presumption that can extract money. But in order to understand what that lower bound actually is, one would need to do social-psychological research into what was considered normal in the period when the Talmud was written (if that is even possible at all).
1. Is there religious / halakhic value in this kind of research? If so, why is it not done?
2. If there is really no way to arrive at an estimate of how strong that presumption was back then, what halakhic value is there at all in dealing with this topic and others like it (any other presumption)? After all, no practical Jewish law can be derived from it other than the fact that there are presumptions that can extract money?
Answer
I don’t think there is any practical way to research this. If there were, then obviously it would have great value. But it is possible to estimate it in one way or another, exactly as the sages of that time estimated it, since they too did not actually conduct research.
But beyond that, the novelty of the Talmud is that there are presumptions that can extract money from the current possessor. Even without defining the threshold, that itself is a novelty: that money can be extracted without two witnesses. Now the sages of each generation can estimate / determine which presumptions, in their view, are strong enough to extract money like witnesses. In short, the answer to #2 is exactly what you wrote: the novelty is that there are presumptions that extract money. You assume that this leaves us with no implications. That is not true. It leaves us with the fact that the sages of the generation will decide, regarding each presumption, whether it is sufficient to extract money or not.
Discussion on Answer
If there is one thing that is really not trivial in that passage, it is this novelty. Even though it says, “A matter shall be established by the testimony of two witnesses,” and despite the advantage of the current possessor, a presumption can also extract money. That is a very great novelty. The factual point—that people do not repay before the due date—is the trivial part.
One of the important principles in monetary law that needs to be revised is the assertion, “A person would not be so brazen.” It seems to me that nowadays, the Sages would not have formulated that rule.
That leaves us with such a trivial conclusion: that there are presumptions (pieces of evidence—the fact that people generally do not repay before the due date is evidence) strong enough to extract money. Nu, fine.