Babylonian Talmud: Tractate Baba Mezi'a

Baba Mezi'a 17a

and he [the debtor] said [later], 'I have paid [as ordered]', he is believed.¹  [If then] the lender comes [to the Court and asks for a decree] to be written,²  [the decree] may not be written and given to him. [But if the Court said to the debtor,] 'You are obliged to give him [what you owe him],' and he [the debtor] said [later], 'I have paid,' he is not believed. [If³  then] the lender comes [to the Court and asks for a decree] to be written, [the decree] may be written and given to him. R. Zebid said in the name of R. Nahman: Whether [the Court said], 'Go [and] give him' or [it said] 'You are obliged to give him,' if [the debtor subsequently comes and] says, 'I have paid,' he is believed. [If then] the lender comes [to the Court and asks for a decree] to be written, [the decree] may not be written and given to him. If, therefore, [the wording of the Court's decision] is to make a difference [at all], the difference can only apply to the following cases: If they [the members of the Court] said to him [the debtor], 'Go [and] give him [what you owe him],' and he [the debtor] said [later], 'I have paid [as ordered],' and witnesses testify that he did not pay him,⁴  while he repeats his assertion that he did pay,⁵  [then we say:] 'He has been found to be a liar in regard to this money.'⁶  [But if the Court said to the debtor,] 'You are obliged to give him [what you owe him], and he [the debtor] said later, 'I have paid,' and witnesses testify that he did not pay,⁷  while he repeats his assertion that he did pay,⁶  [then we say:] 'He has not been found to be a liar in regard to this money.'⁸  For what reason? — [We say that the debtor] was just trying to put him off, thinking to gain time until the Rabbis would consider their decision more carefully.⁹

Rabba b. Bar Hanah said in the name of R. Johanan: [If one says to another], 'You have in your possession¹⁰  a hundred zuz belonging to me,' and the other replies, 'I have nothing belonging to you,' while witnesses testify that he [the defendant] has [the money], and he [the defendant] again pleads, 'I paid it,' [then we say], 'He has been found to be a liar in regard to this money.' Such was the case of Sabbathai, the son of R. Merinus: He assigned to his daughter-in-law in her Kethubah¹¹  a cloak of fine wool, and he pledged himself to it. Her Kethubah got lost, [whereupon] he [Sabbathai] said to her,¹²  'I deny altogether [having assigned to you the cloak].' [But] witnesses came and said, 'Yes, he did assign it to her.' In the end he said, 'I gave it to her.' He then appeared before R. Hiyya,¹³  [and R. Hiyya] said to him: You have been found to be a liar in regard to this cloak.'¹⁴

R. Abin said in the name of R. Elai, who said in the name of R. Johanan: If one was due [to take] an oath [in regard] to [a claim of] his neighbour, and he said, 'I took the oath,' but witnesses testify that he did not take the oath, while he repeats the assertion, 'I did take the oath,' [we say:] 'He has been found to be a liar in regard to this oath.'¹⁵  This [decision] was conveyed to R. Abbahu, [whereupon] he said: R. Abin's decision seems right [in a case where] the oath was imposed upon [the defendant] by a Court of Law,¹⁶  but [in a case where the defendant] imposed an oath upon himself,¹⁷  [he is believed,]¹⁸  for it happens that a person talks like this.¹⁹  [When this observation] was conveyed back to R. Abin, he said: I also spoke of a court case. And it was also stated so [in another place]: R. Abin said in the name of R. Elai, who said in the name of R. Johanan: If one was due [to take] an oath in a Court of Law [in regard] to [a claim of] his neighbour, and he said, 'I took the oath,' but witnesses testify that he did not take the oath, while he repeats the assertion, 'I did take the oath', [we say:] He has been found a liar in regard to this oath.

R. Assi said in the name of R. Johanan: If one finds in the street a note of indebtedness which contains the endorsement of the Court²⁰  and the date of that very day,²¹  it shall be returned to the owners. [For] if [the objection is raised that] it may have been written for the purpose of a loan, and the loan may [in fact] not have been granted, [the objection is not valid,] as [the note] contains the endorsement of the Court,²²  [and] if [the objection is raised] that [the loan] may have been repaid, [the objection is not valid,] as we are not afraid of a loan having been repaid on the day [on which it was granted]. R. Zera then said to R. Assi: Did R. Johanan really teach this? Did you not yourself teach in the name of R. Johanan [as follows]: A note which was given for a loan that was [subsequently] repaid cannot be used for the purpose of another loan, because the obligation [incurred by the first loan] was cancelled [on it being repaid]?²³  Now, when [was the note to be used again]? If on the following day or on any date later [than that given in the note], why state as a reason the fact that the obligation [incurred by the first loan] was cancelled? [The invalidity of the note] follows from the fact that it is antedated,²⁴  for we have learned in a Mishnah: Antedated notes of indebtedness are invalid.²⁵  It must therefore be assumed that [the note was to be used a second time] on the same day [as that given in the note]: so we see that people do pay on the same day [as they borrow]? — R. Assi answered him: Did I say that one never pays [a debt on the day it is incurred]? I said: people do not usually pay on the same day.²⁶

R. Kahana said: [The lost document is to be returned²⁷  to the owner] when the debtor admits [that he has not paid]. But if so, [it is asked,] why need we be told this? — [Because] you might say: This [debtor] has really paid, and the reason why he says he has not paid is that he wishes to have [the note] returned [to the creditor] so that he may borrow on it again and thus save the scribe's fees.²⁸  Therefore we are told [that we do not say this, the reason being] that in such circumstances the lender himself would not permit it, thinking the Rabbis may hear of it and make me lose [my money].²⁹  But why is this case different from the one we have learned.³⁰  IF ONE HAS FOUND NOTES OF INDEBTEDNESS WHICH CONTAIN A CLAUSE PLEDGING [THE DEBTOR'S] PROPERTY, ONE SHALL NOT RETURN THEM — and it is explained as referring to a case where the debtor admits [the debt], and [the note has not to be returned] for the reason that it may have been written for the purpose of a loan to be granted in Nisan, while in reality the loan may not have been granted till Tishri, with the result that the creditor may come unlawfully to seize property bought by people [from the debtor] between Nisan and Tishri. Now, why do we not say [there also] that in such circumstances the lender himself would not permit [the note to be used in Tishri] but would say to him [the borrower]: Write another note in Tishri, as otherwise the Rabbis may hear of it and make me lose [my money]? — It was said [in reply]: There [in the Mishnah], seeing that he [the lender] would profit by seizing property sold [by the debtor] between Nisan and Tishri, he [the lender] would be content and would say nothing. But here, seeing that he [the lender] would have no profit, as after all the note has only just been written,³¹  what advantage is there in that note as regards seizing sold property?³²  [Therefore we may assume that the lender] will not permit [the renewed use of] a note, the obligation of which expired [when the first loan was paid].³³

R. Hiyya b. Abba said in the name of R. Johanan: Whoever pleads after an act of the Court

1. After taking an 'oath of inducement'. V. p. 20, n. 4.
2. If the lender asks the Court to write a document authorising him to seize the debtor's property. Cf. supra P. 95, n. 8.
3. Even if he is ready to take the 'oath of inducement' he is not allowed to do so, but the plaintiff may take the oath and receive payment (Rashi). The reason for this is that the defendant is not likely to have paid on the strength of the Court's verdict, which is merely a statement regarding his obligation to pay and is not an order to pay. Seeing that the defendant waited to be sued for payment it is not assumed that he would actually have paid without a definite order from the Court.
4. Witnesses give evidence to the effect that following the order issued by the Court the plaintiff demanded payment from the defendant in their presence and was refused. As a consequence it is assumed that having defied the order of the Court in the presence of witnesses the defendant is not likely to have paid later in their absence, and he is not believed if he pleads subsequently 'I have paid'.
5. On a later date in the absence of witnesses.
6. And his statement is not accepted.
7. When called upon to pay in their presence.
8. He is not believed except if there are witnesses to corroborate his statement.
9. And may yet decide in his favour.
10. I.e., on loan.
11. Marriage contract, v. Glos.
12. Var. lec. 'to them' (the judges).
13. R. Isaac Alfasi and Asheri have a different version of this passage. According to that version the translation would be as follows: He appeared before R. Hiyya. Witnesses then came and said, 'Yes, he did assign it to her.' R. Hiyya then said: 'Go (and) give it to her.' In the end he (Sabbathai) said to her: 'I gave you (the cloak).' (Then R. Hiyya) said to him: 'You have been found to be a liar in regard to this cloak.'
14. Sabbathai's plea was rejected, and he had to pay.
15. And he is obliged to take the oath in Court.
16. If he refused to take the oath imposed on him by the Court, although he was called upon by the plaintiff to do so in the presence of witnesses, he cannot be believed if he asserts that he took the oath later in the absence of witnesses.
17. I.e., he offered to swear of his own accord but refused to take the oath when called upon by the plaintiff to do so in the presence of witnesses. Subsequently, however, he asserted that he did take the oath (privately), in spite of his previous refusal before witnesses.
18. His plea that he has taken the oath is accepted by the Court.
19. It is a common thing for a person to refuse when pressed to do something he had volunteered to do, although he may do it later of his own accord. This attitude is not so insolent or obstinate as that involved in the refusal to take a compulsory oath.
20. V. supra p. 33, n. 1.
21. I.e., the day on which it was found, which shows that the document was written on the same day.
22. Which shows that the transaction recorded in the document must have taken place.
23. As the loan to which the note referred, and which formed a lien on the borrower's property, was repaid, the borrower's indebtedness in regard to this loan ceased. If then a new loan is granted, without a new note of indebtedness, it must be regarded as a mere verbal transaction, which does not form a lien on the borrower's property and does not entitle the lender to seize goods sold by the borrower. If, however, the note used for the repaid loan is retained by the lender for the purpose of the second loan, the lender may, on the strength of it, seize property sold by the borrower — which would be illegal, as in reality the second loan was a mere verbal transaction.
24. If the second loan was granted on a day after the date given in the note, or on any subsequent date, the note, if applied to the second loan, must be regarded as antedated, and therefore it is invalid.
25. Sheb. X. V. infra 72a; Sanh. 32a; B.B. 157b and 171b.
26. And as it is not usual for a loan to be repaid on the same day, we do not apprehend that this may have happened in the case of the lost document, which must consequently be returned to the creditor, but if it did happen that a loan was repaid on the same day, R. Johanan teaches that the note must not be used for a second loan — not even on the same day — for the reason given by him.
27. According to R. Johanan.
28. For writing another note, which is charged to the debtor, v. supra p. 200, n. 7.
29. The lender would be afraid that the Rabbis, on learning that the note was antedated and therefore invalid, so far as the second loan was concerned, would prevent him from seizing the debtor's sold property.
30. V. supra 12b.
31. As it bears that day's date.
32. As both loans were granted on the same day, the note for the second loan, even if written afresh, would have borne the same date and would have served the same purpose so far as the lender's right to seize the borrower's sold property is concerned.
33. As legally the lender would not be entitled to seize sold property at all on the strength of such a note.

says nothing.¹  What is the reason? Every act of the Court is regarded as [if it constituted] a document placed in the hand [of the claimant].²  R. Hiyya b. Abba then said to R. Johanan [himself]: And is not this [implied in] our Mishnah [which says]: If she produces a bill of divorcement unaccompanied by the Kethubah, she may exact payment of [the money due to her in accordance with] her Kethubah.³  [R. Johanan then] answered him: If I had not lifted the sherd for you, you would not have found the pearl underneath.⁴  Abaye asked: What pearl [has R. Hiyya b. Abba found]?⁵  Maybe we deal [in the Mishnah] with a place where a marriage-contract is not [usually] written,⁶  so that her bill of divorcement serves the purpose of a Kethubah, but in a place where a Kethubah is [usually] written [the law would be that] if she produces her Kethubah she may exact payment, but that if [she does] not [produce it she may] not [exact payment]?⁷  Later Abaye corrected himself: What I said⁸  is really no argument; for if you were to assume that the reference [in the Mishnah] is to a place where a Kethubah is not [usually] written, but that in a place where a Kethubah is [usually] written [the law would be that] if she produces her Kethubah she may exact payment, but not if she does not — how would a woman who became a widow after erusin⁹  exact payment?¹⁰  If by [the evidence of] witnesses [testifying] to the death of the husband [the latter's heirs] could plead and say: 'She has been paid [already].' And if you will say, 'It is really so,'¹¹  then what have the Sages achieved by their provision?¹²

Mar Kashisha, the son of R. Hisda, then said to R. Ashi: And how do we know that a [woman who became a] widow after erusin is entitled to [payment of] the Kethubah?¹³  If I should say [that we derive it] from the passage which we learnt: 'A woman who became a widow or was divorced, either after erusin or nesu'in, exacts payment of all [that is due her from her deceased husband]'¹⁴  — perhaps [this refers to a case] where [the betrothed man or the husband] had written her [a Kethubah]. And if you will argue: 'What need is there to tell us this?' [I will answer]: In order [to let us know] that we must reject the view of R. Eleazar b. Azariah, who says that he did write her the Kethubah except on condition that he would wed her.¹⁵  It is necessary [to let us know that this is not so].¹⁶  It can also be proved [that the Mishnah really deals with a case where there is a written Kethubah], for it says, '[She] exacts payment of all [that is due to her]' — if you agree that [the case is one where the husband] wrote a Kethubah, there is an explanation why [the Mishnah] uses the term, '[She] exacts payment of all [that is due to her].'¹⁷  But if you say that he did not write her [a Kethubah],

1. I.e., any legal provision which is based on a general enactment ([H]) 'act of the Court'. Such as e.g., is made for a wife in her marriage-contract, or for the maintenance of wife and children (grown-up-daughters), is as binding as a properly attested obligation entered into in writing by contracting parties. The plea of a defendant in such an action that he has discharged his obligation cannot be accepted unless it is corroborated by witnesses or by other legal evidence.
2. The onus of proving that he has discharged his obligations therefore rests on the defendant.
3. V. Keth. 88b.
4. I.e., 'If I had not stated the law regarding the validity of an act of Court you would not have discovered the reason for the law of the Mishnah cited by you.'
5. I.e., is the law of the Mishnah cited by R. Hiyya b. Abba really based on the principle laid down by R. Johanan?
6. And it is usual to depend on the provision of the Court, so that a husband who has divorced his wife is under an obligation to pay her Kethubah, even if it has not been put in writing, and the husband cannot plead, 'I have paid,' unless he produces a receipt or other legal evidence.
7. The husband may plead that he has paid, or he may demand the production of the Kethubah on the ground that if she does not give up the document she may demand payment a second time by producing the document later.
8. I.e., the distinction that Abaye made between places where the marriage-contract is usually written and the places where it is not written.
9. [H] 'Betrothal', v. Glos. I.e., a woman whose betrothed died before the marriage proper ([H] nesu'in) took place.
10. Viz., of the Kethubah due to her, seeing that no Kethubah is written at erusin, even in the places where it is written at (nesu'in), although the man becomes liable to pay the Kethubah from the time of the erusin.
11. I.e., that the heirs can put forward such a plea.
12. What benefit have the Rabbis bestowed upon the woman by the provision that she is entitled to the Kethubah as soon as she becomes betrothed, seeing that the man's heirs would always he able to claim that she has been paid, without having to produce a receipt?
13. Where is the law stated that erusin entitles a woman to claim the Kethubah just as marriage does?
14. V. Keth. 54b.
15. Since he however died before marriage she is not entitled to the Kethubah.
16. I.e., that if a man writes a Kethubah at the time of erusin he does not make it dependent on the actual marriage taking place.
17. I.e., both the legal amount for which the Kethubah is written, viz., one hundred zuz for a widow, and two hundred for a virgin, and the additional amount which a husband may settle on his wife, and which she could claim only if it is expressly written in the Kethubah, but not as a provision of the Rabbis.