Shabbat Parashat Pinchas | 5769

Hemdat Hadaf Hayomi: The Prohibition to Lend without Witnesses

Baba Metzia 71-77

This week in the Daf Hayomi, the Gemara (75b) states that it is prohibited to give a loan without witnesses. The Gemara gives two reasons for this prohibition. The first is that it is considered "putting a stumbling block before the blind," since one is "putting" the temptation to deny the loan before the borrower. The second reason is that this will bring a curse on the lender, since it is possible that the borrower will forget the loan and deny it, and people will think that the lender is lying and will curse him.

The Gemara tells a story about Rav Ashi who asked Ravina for a loan on Friday afternoon close to Shabbat. Ravina refused to give the loan without a shtar (promissory note) signed by witnesses.  Even though Rav Ashi was a Talmid Chacham, and there was no doubt regarding his credibility, Ravina was concerned that Rav Ashi would forget the loan.

At first glance. Ravina's behavior appears a bit puzzling. The situation was close to Shabbat, so why couldn't witnesses suffice for Ravina? Why did he demand a shtar signed by witnesses? From this the Rambam (Malveh Veloveh 2, 7) learned that, although witnesses are sufficient, it is better to write a shtar. The Poskim (Choshen Mishpat 70, 1 and commentators), following the Rambam, delineate the hierarchy of different proofs for a loan that one can take.

The basic option is to have witnesses on the loan. The problem with this option is that the lender is dependent on the presence and memory of the witnesses, and also that the borrower can claim that he repaid the loan. The second option is to take collateral. This is better in that the lender is not dependant on witnesses and that the borrower cannot claim that he repaid the loan (in most cases- see Choshen Mishpat 72). The problem with collateral is that there is no proof as to the amount of money lent, and a dispute between the lender and the borrower can occur regarding this (Sma'ah ibid 4).

Another option is a promissory note signed by the lender (ktav yado). The advantages of this method are that there is no dependence on witnesses, and that there is proof of the amount lent. The disadvantage is that the borrower can still claim that he repaid the loan (Maharshadam 23, quoted by the Shach ibid 2). Thus, the best way to lend is with a shtar. That way, there is no dependence on witnesses, there is proof of the amount of the loan, and the borrower cannot claim that he repaid the loan.

Nowadays, there is an option to give a check for a later date against the loan. According to some Poskim (Minchat Yitzchak 5, 19), a check is considered almost equal to a shtar, and the borrower will not be able to claim that he repaid the loan. According to this opinion, a check would be as good as a shtar for this matter.

Summary:

It is prohibited to give a loan without receiving proof of the loan. One can give the loan in the presence of witnesses, take collateral, or take a promissory note signed by the borrower, but the best option is to take a shtar.          

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