Mr. Silver had sued Mr. Kaplan in Rabbi Dayan’s beis din to collect a $2,000 loan. Mr. Silver presented his loan document, properly signed by witnesses, in beis din.
“What do you say about this?” Rabbi Dayan asked Mr. Kaplan.
“Indeed, I borrowed,” acknowledged Mr. Kaplan, “but I repaid already. Mr. Silver didn’t have the loan document handy to return it to me then; I trusted him.”
“What do have to say in response?” Rabbi Dayan asked Mr. Silver.
“When do you claim you repaid?” Mr. Silver asked Mr. Kaplan.
“It was about three months ago,” Mr. Kaplan replied.
“What do you have to say in response?” Rabbi Dayan asked Mr. Silver again.
“To be honest, I don’t remember clearly,” replied Mr. Silver. “We did discuss repaying, but I don’t remember whether in the end Mr. Kaplan paid. I assume, though, that since I didn’t return the loan document to him, the loan was not paid, but cannot say for sure.”
“I am sure that I repaid!” reiterated Mr. Kaplan. “I repaid in cash, though, so I can’t provide a clear record of the payment.”
“But what about the loan document?” Mr. Silver asked Rabbi Dayan. “Doesn’t Mr. Kaplan have to pay because of it?”
“When the lender holds a properly signed loan document, the borrower is not believed if he claims that he repaid the loan without proof,” replied Rabbi Dayan. “This is because the fact that the lender is holding the loan document strongly supports his claim that the loan was not repaid” (C.M. 82:2).
“However, if the borrower claims definitively that he repaid and the lender is unsure, the lender cannot collect based on the document alone. Since he is unsure, we cannot collect money from the borrower who claims definitively. If both parties were in doubt, though, the lender could collect based on the document” (C.M., Sma and Shach 59:1).
Mr. Silver and Mr. Kaplan thanked Rabbi Dayan and left.
A week later, Mr. Silver and Mr. Kaplan reappeared in beis din.
“I remember now that Mr. Kaplan did not repay me!” stated Mr. Silver. “He did call and mention that he wanted to repay, but in the end it did not work out. I also checked my records and see that there was no deposit of any substantial cash sum.”
“What do you say to this?” Rabbi Dayan asked Mr. Kaplan.
“I reiterate what I said before,” replied Mr. Kaplan. “I repaid Mr. Silver and trusted him about the loan document. Now I regret it!”
He then added:
“How can Mr. Silver change his claim after the case was closed?”
“If the lender subsequently returns with a claim that he checked his records and remembers that the loan was not repaid, he is believed,” replied Rabbi Dayan. “This is because the loan document was never disqualified. The lender simply could not collect with it meanwhile due to his questionable claim” (Sma 59:2).
“Nonetheless, had Mr. Kaplan initially demanded that the loan document be returned to him, Shach writes that beis din should do so, even though the document was not disqualified, since the lender was then not able to collect with it” (Shach 59:2).
“Moreover, in that case, Nesivos states that if the lender should subsequently return to beis din and claim that he checked his records and is sure that the loan was not repaid, he is no longer believed,” concluded Rabbi Dayan. “Once the lender leaves beis din after they ruled to remove the document from his possession, he can no longer change his claim, since we are concerned that he received legal advice and was taught to claim so” (Nesivos 59:2).
Verdict: A lender who is unsure whether the loan was repaid cannot collect based on his loan document against the definitive claim of the borrower that he repaid. However, the lender can later claim definitively that he was not repaid, unless beis din ruled meanwhile to return the document.