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 Shabbat Parashat R'ei | 5765P’ninat MishpatAn “I Owe You” Found by a Inheritor - Excerpts from Piskei Din Rabbaniim - vol. IX, pp. 242-251
Case: A woman lent money to a man and received an “I owe you” note and a heter iska (a legal/halachic document that enables a lender to receive more money than he gave). The lender died, and her inheritor found the note and demanded payment. The defendant said that he had paid the debt and had neglected to demand the note in return. He also brought a witness who testified that the woman mentioned that he had paid.
Majority Ruling: Regarding the ability to claim that a loan was paid despite the fact that the lender possesses a promissory note signed by the borrower, the Shulchan Aruch (CM 69:2) brings two opinions, but the Shach concludes that we accept the Ramban’s opinion that the borrower is believed to say he paid. However, there are several opinions (including Noda B’yehuda I, CM 10) that this does not apply in a place that such a note can be used in secular courts to extract payment. The logic is as follows. One cannot usually claim he paid a loan when there is an outstanding document against him, because we assume that he would not pay without demanding the document in return. If it is a note that does not have witnesses, it is less powerful, and the Ramban rules that since people are not always careful to demand it back, it is not proof of non-payment. However, when the note can force payment in court, then a borrower would be careful and the lender’s possession of the note is proof.
However, in our case, there is a reason to exempt the borrower. In a case that the borrower is sure he paid, he can make the lender’s inheritor swear that the lender did not inform him that the loan was paid. In this case, the general heter iska form mentions that the lender and others who come in his or her stead will be exempt from the need to swear. However, it is clear from the fact that all the information regarding the loan was found only in the note and not in the heter iska, that they used the heter iska only as a mechanism to obviate the prohibition of usury, not for ancillary matters having to do with claims. In our case the plaintiff is unwilling to swear.
Although the plaintiff has made a counter-claim that the borrower should swear that he does not owe the money (which he is unwilling to do) we do not accept that claim. That is because a witness testified that he paid, and his testimony is sufficient to exempt the defendant from the oath (Shulchan Aruch, CM 87:6). Although the witness heard only an informal admission, the standards for an admission that one has received payment are lower than for an admission that he owes money (ibid. 81:29). The defendant only has to accept a cherem that he is telling the truth.
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