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April 18, 2014 / 18 Nisan, 5774
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Never Borrowed!

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Mr. Morris was home one evening, when an acquaintance, Mr. Roth, knocked at his door. “May I have a word with you?” Mr. Roth asked.

“Certainly, come in,” Mr. Morris said, welcoming him into the living room.

“Perhaps you’ve forgotten,” Mr. Roth began, “but last year I lent you $500, which you never repaid.”

Mr. Morris scratched his head and thought for a moment. “I never borrowed from you,” he replied.

“You definitely did,” Mr. Roth insisted. “And you never repaid.”

“Do you have any written evidence?” asked Mr. Morris.

“No I don’t,” acknowledged Mr. Roth.

“That just proves I never borrowed,” said Mr. Morris, emphatically.

“No, it doesn’t,” retorted Mr. Roth. “It just proves that I was a fool for not insisting on a written document!” He stood up and left.

Two weeks later, Mr. Morris was summoned to Rabbi Dayan’s bet din. Mr. Roth was asked to present his claim.

“I lent Mr. Morris $500 a year ago, which he hasn’t repaid,” claimed Mr. Roth.

“And what do you say about this?” Rabbi Dayan asked Mr. Morris.

“I never borrowed from Mr. Roth,” claimed Mr. Morris.

Rabbi Dayan turned to Mr. Roth: “Do you have any evidence?” he asked.

“I have two witnesses to the loan,” replied Mr. Roth. Rabbi Dayan called upon the witnesses to present their testimony. Each testified that Mr. Roth lent Mr. Morris $500 in his presence.

Rabbi Dayan asked the witnesses a few basic questions. When he was satisfied with the testimony, he turned to Mr. Morris. “Witnesses have attested to the loan,” he said. “Do you have anything further to say?”

“I would like a month to seek counter-evidence,” requested Mr. Morris. Rabbi Dayan consented to delay the final verdict for a month.

At the second hearing, Rabbi Dayan asked Mr. Morris: “Have you found any evidence to counter the testimony presented last time?”

“Yes, I also have witnesses,” replied Mr. Morris. “They will prove I don’t owe Mr. Roth any money.”

The witnesses testified that Mr. Morris repaid the $500 loan to Mr. Roth four months earlier.

“See, I don’t owe Mr. Roth any money,” Mr. Morris said. “Even if I borrowed, I paid back what I borrowed.” He sat down with a triumphant smile.

Rabbi Dayan requested that Mr. Roth and Mr. Morris exit for a few moments, while the dayanim convened. The two were called in shortly for the ruling:

“Mr. Morris is liable, and must pay the $500,” ruled Rabbi Dayan.

What?!” asked Mr. Morris, shocked. “How can you hold me liable when witnesses state that I already repaid?”

“I will explain the reason,” replied Rabbi Dayan. “There is an important, well-know concept: ‘hoda’as ba’al hadin k’meiah eidim dami’ – the admission of a litigant is like the testimony of a hundred witnesses. In actuality, his admission is believed – to his detriment – more than witnesses! If a person admits he owes, even if witnesses testify that he doesn’t, he remains legally liable.”

“But I didn’t admit anything,” said Mr. Morris. “I deny the charge completely! The witnesses also say I’m exempt!”

“That is correct,” replied Rabbi Dayan. “However, realize that there are two parts to this case: one, whether you borrowed; two, whether you repaid.”

“You initially claimed in court that you never borrowed the money,” continued Rabbi Dayan. “A person who never borrowed doesn’t pay! Thus, implicit in your claim that you didn’t borrow is an admission that you didn’t repay. This is expressed in the Gemara [B.B. 6a] as: kol ha’omer lo lavisi k’omer lo parati dami ­– whoever says, ‘I didn’t borrow,’ is like saying, ‘I didn’t repay.’ ”

“But since there are witnesses to both parts of the case,” reasoned Mr. Morris, “shouldn’t we follow them?”

“In regards to the loan, obviously we accept the witnesses’ testimony that you borrowed, despite your denial otherwise,” explained Rabbi Dayan. “However, regarding repayment, we accept your implicit admission, even against the testimony of the witnesses. Thus, on the one hand, we believe the witnesses that you borrowed. On the other hand, we believe your implicit admission that you didn’t repay.” (79:1,6)

“I don’t understand, though,” insisted Mr. Morris. “All the time, people initially deny outright all kinds of claim, and then come to bet din and adjust their claim and bring witnesses. Are you saying these witnesses are all rendered meaningless?”

“If the initial claim denying the loan was stated informally, not in bet din, or if the borrower changed his claim before the lender brought witnesses,” replied Rabbi Dayan, “he is believed to say that he already repaid and is not considered a proven liar. [79:9] You, however, maintained your claim of having never borrowed until after Mr. Roth’s witnesses came. Hence, you remain liable, based on your implicit admission.”

Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.

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About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


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