QUESTION: Rav Zevid in the name of Rav Nachman rules that there is no difference between a case in which Beis Din formally passed a verdict requiring a borrower to pay his debt ("Tzei Ten Lo") and a case in which Beis Din merely told the borrower to pay ("Chayav Atah Liten Lo") but did not actually pass a verdict. In both cases, if the debtor later claims that he paid he is believed, since the loan was made verbally and no Shtar was written.

The Gemara earlier (15a) seems to contradict this ruling. The Gemara there says that once a claim against a borrower has been brought to court ("k'she'Amad ba'Din"), it is as if the loan is written in a Shtar, because the matter of the loan becomes publicized. Hence, if someone bought property from a borrower after the lender made a claim against him in court, the lender may take that property from the buyer just as a lender may collect property that was purchased from the borrower when the loan was written in a Shtar.

Why, in the case of the Gemara here, is the borrower believed to say that he paid back the debt? Since the claim was brought to court, it should be like a loan written in a Shtar. A borrower who claims to have repaid the loan is not believed when the loan is written in a Shtar. Rather, he must bring witnesses or show a receipt from the lender.

(a) The RIF answers that the Gemara earlier refers to a case in which the borrower does not agree to obey the instructions of Beis Din, and he refuses to pay. The loan in such a case becomes like a loan written in a Shtar. In the case of the Gemara here, the borrower left Beis Din with the intent to comply and pay his debt. In such a case, when he later claims that he paid, he is believed.

(b) RABEINU CHANANEL and RABEINU EFRAIM answer that the fact that the case has been brought to Beis Din does not automatically make the loan considered like one written in a Shtar, and thus the borrower is believed to say that he paid. The Gemara earlier refers to a case in which Beis Din actually wrote a Shtar stating that the borrower owes money to the lender. The Gemara teaches that even though the Shtar was not written at the behest of the borrower, it still is considered a fully valid Shtar Chov and it enables the lender to collect from the Lekuchos.

(c) The RAMBAN, RASHBA, RAN, and RITVA answer that when the Gemara earlier states that the loan becomes like one written in a Shtar when the case is brought to Beis Din, it refers only to the lender's right to collect from Lekuchos. The lender may collect from Lekuchos because the loan became public knowledge when the case was brought to court, and the buyers knew that they were purchasing land from a person who was in debt, so they are considered to have caused the loss to themselves. The Gemara here, in contrast, discusses whether the borrower is believed to say that he paid back the loan. In general, the only reason such a claim does not work against a Shtar is that the lender can prove that the loan has not been paid from the fact that he is still holding the Shtar Chov. The lender can argue that if the borrower truly paid back his debt, then he would have insisted that the lender return the Shtar to him. In the case of a loan brought before Beis Din, although it is considered as if the loan was written in a Shtar, the lender does not have an actual Shtar, and thus his argument is not applicable. Consequently, the borrower is believed to say that he paid his debt.

QUESTION: Rav Zevid in the name of Rav Nachman rules that when a borrower claims to have paid back his debt, he is believed regardless of whether Beis Din formally passed a verdict requiring him to pay ("Tzei Ten Lo") or Beis Din merely told the borrower to pay ("Chayav Atah Liten Lo") but did not actually pass a verdict. In both cases, if the debtor later claims that he paid he is believed, since the loan was made verbally and no Shtar was written. The difference between these two cases exist when the borrower claims that he paid and witnesses testify that he did not pay. If Beis Din passed an actual verdict requiring him to pay, and he then claimed to have paid and was contradicted by witnesses, he is "Huchzak Kafran" and is not believed subsequently to claim that he paid, unless he brings proof. In contrast, if Beis Din merely told him to pay but did not pass a verdict, and he then claimed to have paid and was contradicted by witnesses, he is not "Huchzak Kafran" and he retains the ability to claim subsequently that he paid (even without bringing proof). In a case where no actual verdict was passed, Beis Din assumes that when he contradicted the witnesses, he did not mean to deny the debt's existence outright but merely wanted to get more time to pay back, and he rationalized that he would wait until Beis Din looked into the case further.

How can witnesses contradict the borrower who says that he paid and cause him to be "Huchzak Kafran"? How is it possible for witnesses to testify that an event did not happen, and that the borrower did not pay?

(a) Most Rishonim (RASHBA, RITVA, RAN, ROSH) explain that the borrower is "Huchzak Kafran" when he claims that he paid back the loan on a certain day at a certain time and witnesses testify that he was with them at that time. (He is not "Huchzak Kafran" if Beis Din merely told him to pay but did not yet pass a verdict, even though it is still clear that he lied, because Beis Din assumes that he merely wanted to delay paying until Beis Din would look into the case, and he did not have intention to steal the money.)

(b) RASHI explains that the borrower becomes "Huchzak Kafran" (and later loses his credibility to claim that he paid) in a case in which witnesses were present when the lender demanded his money from the borrower, and the borrower refused to pay. Since he so brazenly and blatantly disobeyed the verdict of Beis Din in front of witnesses, he is "Huchzak Kafran" and is not believed later to claim that he paid (unless he brings proof to support his claim).

The Rishonim challenge Rashi's explanation and contend that even when the borrower refuses to pay in front of witnesses, he should not be "Huchzak Kafran." They reason that in that case as well it is possible that he did not have money at the time and he merely wanted to stall for time.

The Acharonim offer various approaches to resolve the Rishonim's difficulty with the words of Rashi.

1. The GIDULEI TERUMAH (II:12:3) answers that Rashi maintains that if the borrower's intention truly was to gain more time, he would not have tried to do so in such a brazen way. Instead of blatantly refusing to obey the ruling of Beis Din, he would have found some other way to gain more time. Since he was so brazen, it must be that he lied outright and intended to steal, with no intention to pay later.

2. The LECHEM ABIRIM answers that when Rashi writes that the borrower "did not pay" when the lender demanded repayment from him in front of witnesses, he means that the borrower said, "I do not want to pay," which implied that he had no intention of paying at all, even later. If his intention had been to delay and gain more time, he would not have said that he does not want to pay, but he simply would have evaded paying at that moment.

Some Rishonim, however, strengthen their question on Rashi's explanation. They contend that even if the borrower said that he does not want to pay, Beis Din still should assume that he was attempting to gain more time, and not that he had no intention of ever paying. The ROSH (1:42) asserts that whenever it is possible to find some merit in the borrower's claim -- and not declare him to be a liar and a thief -- Beis Din is required to give him the benefit of the doubt. The Rosh proves this from the Gemara earlier which discusses a Shomer who denies having a Pikadon. In such a case, the Gemara says that the Shomer is not deemed to be "Huchzak Kafran" unless witnesses testify that they saw the Pikadon in his possession at the time that he denied having it. As long as witnesses have not testified to that effect, Beis Din gives him the benefit of the doubt and assumes that he lost the Pikadon and merely wanted to gain more time to find it. Similarly, in the case of the Gemara here, Beis Din should give the borrower the benefit of the doubt and assume that he refused to pay merely in order to gain more time, and that he does intend to pay his debt at some point. Why, then, does Rashi write that the borrower is "Huchzak Kafran" when he disobeys the ruling of Beis Din in front of witnesses and refuses to pay? Perhaps he merely is stalling for more time.

3. The MILCHEMES MITZVAH and IMREI MAHARSHACH (cited in Otzar ha'Mefarshim) answer that the proof of the Rosh from the case of a Pikadon does not apply to the case of the Gemara here. Only in the case of a Pikadon can the Shomer be given the benefit of the doubt in this way. It is reasonable to assume that the Shomer denies having the Pikadon in order to stall for time, because he would be afraid to admit that he has the Pikadon lest the claimant force him to surrender it immediately. In contrast, when the defendant has no Pikadon that he must return but merely owes money from a loan, he could tell the truth (that he does not yet have money to pay back) and he would not be forced to pay right away; he does not have to be so brazen as to say that he does not want to pay.

4. The Milchemes Mitzvah answers further that in the case of the Pikadon, when the Gemara says that the Shomer is not a proven liar and thief when he denies having the Pikadon (until witnesses testify that they saw the Pikadon in his possession at the time that he denied having it), the Gemara is referring to the Shomer's credibility with regard to all other matters. Once he is proven beyond any doubt to have lied (i.e. when witnesses testify that they saw the Pikadon in his possession at the time that he denied having it), he no longer is trusted to testify in any monetary matter. In contrast, in the case of the Gemara here, the borrower who refuses in front of witnesses to obey Beis Din merely becomes "Huchzak Kafran" with regard to this loan; if he later claims again that he paid the loan, he will not be believed unless he brings proof that he paid, such as witnesses who saw him pay. However, the borrower still will be believed if he testifies or makes a claim in any other monetary matter. Since his status of "Huchzak Kafran" applies only to this loan, Beis Din does not require as strong a reason to establish him as a liar as it requires in the case of a Pikadon. For that reason, the borrower is "Huchzak Kafran" when he disobeys Beis Din in front of two witnesses, and Beis Din does not assume that he is simply trying to gain more time, in contrast to the case of a Pikadon in which the Shomer is given the benefit of the doubt even in that respect. (I. Alsheich)