Bava Metzia 33

ואמר פרעתי נאמן בא מלוה לכתוב אין כותבין ונותנין לו

and he [the debtor] said [later], 'I have paid [as ordered]', he is believed.<span class="x" onmousemove="('comment',' After taking an 'oath of inducement'. V. p. 20, n. 4. ');">¹</span>

חייב אתה ליתן לו ואמר פרעתי אינו נאמן בא מלוה לכתוב כותבין ונותנין לו

[If then] the lender comes [to the Court and asks for a decree] to be written,<span class="x" onmousemove="('comment',' If the lender asks the Court to write a document authorising him to seize the debtor's property. Cf. supra P. 95, n. 8. ');">²</span>

רב זביד משמיה דר"נ אמר בין צא תן לו בין חייב אתה ליתן לו ואמר פרעתי נאמן בא מלוה לכתוב אין כותבין ונותנין לו

[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. [If<span class="x" onmousemove="('comment',' 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. ');">³</span>

אלא אי איכא לפלוגי הכי הוא דאיכא לפלוגי אמרו לו צא תן לו ואמר פרעתי והעדים מעידין אותו שלא פרעו (וחזר ואמר פרעתי) הוחזק כפרן לאותו ממון

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,<span class="x" onmousemove="('comment',' 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'. ');">⁴</span>

חייב אתה ליתן לו ואמר פרעתי והעדים מעידין אותו שלא פרע וחזר ואמר פרעתי לא הוחזק כפרן לאותו ממון

while he repeats his assertion that he did pay,<span class="x" onmousemove="('comment',' On a later date in the absence of witnesses. ');">⁵</span>

מ"ט אשתמוטי הוא קא משתמיט מיניה סבר עד דמעיינו בי רבנן בדיני

[then we say:] 'He has been found to be a liar in regard to this money.'<span class="x" onmousemove="('comment',' And his statement is not accepted. ');">⁶</span>

אמר רבה בר בר חנה א"ר יוחנן מנה לי בידך והלה אומר אין לך בידי כלום והעדים מעידים אותו שיש לו וחזר ואמר פרעתי הוחזק כפרן לאותו ממון

[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,<span class="x" onmousemove="('comment',' When called upon to pay in their presence. ');">⁷</span>

כי הא דשבתאי בריה דרבי מרינוס כתב לה לכלתיה איצטלא דמילתא בכתובתה וקבלה עליה אירכס כתובתה אמר (להו) לא היו דברים מעולם אתו סהדי ואמרי אין כתב לה לסוף אמר להו פרעתיה אתא לקמיה דרבי חייא א"ל הוחזקת כפרן לאותה איצטלא:

while he repeats his assertion that he did pay,<span class="x" onmousemove="('comment',' And his statement is not accepted. ');">⁶</span>

א"ר אבין א"ר אלעא א"ר יוחנן היה חייב לחבירו שבועה ואמר נשבעתי והעדים מעידין אותו שלא נשבע (וחזר ואמר נשבעתי) הוחזק כפרן לאותה שבועה

[then we say:] 'He has not been found to be a liar in regard to this money.'<span class="x" onmousemove="('comment',' He is not believed except if there are witnesses to corroborate his statement. ');">⁸</span>

אמרוה קמיה דר' אבהו אמר להו מסתברא מלתא דרבי אבין שנתחייב שבועה בב"ד אבל חייב עצמו שבועה [נאמן] עביד איניש דמקרי ואמר אהדרוה קמיה דר' אבין אמר להו אנא נמי בב"ד אמרי

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.<span class="x" onmousemove="('comment',' And may yet decide in his favour. ');">⁹</span>

איתמר נמי א"ר אבין א"ר אלעא א"ר יוחנן היה חייב לחבירו שבועה בב"ד ואמר נשבעתי והעדים מעידין אותו שלא נשבע (וחזר ואמר נשבעתי) הוחזק כפרן לאותה שבועה

Rabba b. Bar Hanah said in the name of R. Johanan: [If one says to another], 'You have in your possession<span class="x" onmousemove="('comment',' I.e., on loan. ');">¹⁰</span>

א"ר אסי א"ר יוחנן המוצא שטר חוב בשוק וכתוב בו הנפק וכתוב בו זמנו בו ביום יחזירו לבעלים

a hundred <i>zuz</i> 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 <i>Kethubah</i><span class="x" onmousemove="('comment',' Marriage contract, v. Glos. ');">¹¹</span>

אי משום כתב ללות ולא לוה הא כתוב בו הנפק אי משום פרעון לפריעה בת יומא לא חיישינן

a cloak of fine wool, and he pledged himself to it. Her <i>Kethubah</i> got lost, [whereupon] he [Sabbathai] said to her,<span class="x" onmousemove="('comment',' Var. lec. 'to them' (the judges). ');">¹²</span>

א"ל ר' זירא לר' אסי מי א"ר יוחנן הכי הא את הוא דאמרת משמיה דר' יוחנן שטר שלוה בו ופרעו אינו חוזר ולוה בו שכבר נמחל שיעבודו

'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,<span class="x" onmousemove="('comment',' 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.' ');">¹³</span>

אימת אילימא למחר וליומא חרא מאי אריא שכבר נמחל שעבודו תיפוק ליה דהוה ליה מוקדם ותנן שטרי חוב המוקדמין פסולין

[and R. Hiyya] said to him: You have been found to be a liar in regard to this cloak.'<span class="x" onmousemove="('comment',' Sabbathai's plea was rejected, and he had to pay. ');">¹⁴</span>

אלא לאו ביומיה אלמא פרעי אינשי ביומיה

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.'<span class="x" onmousemove="('comment',' And he is obliged to take the oath in Court. ');">¹⁵</span>

א"ל מי קא אמינא דלא פרעי כלל דלא שכיחי אינשי דפרעי ביומיה קא אמינא

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,<span class="x" onmousemove="('comment',' 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. ');">¹⁶</span>

רב כהנא אמר כשחייב מודה אי הכי מאי למימרא

but [in a case where the defendant] imposed an oath upon himself,<span class="x" onmousemove="('comment',' 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. ');">¹⁷</span>

מהו דתימא האי מפרע פרעיה והאי דקא אמר לא פרעתיה משום דקבעי מהדר למזפא ביה זמנא אחריתי ולפשיטי דספרא חייש קמ"ל דאם כן מלוה גופיה לא שבק סבר שמעי בי רבנן ומפסדי לי

[he is believed,]<span class="x" onmousemove="('comment',' His plea that he has taken the oath is accepted by the Court. ');">¹⁸</span>

מאי שנא מהא דתנן מצא שטרי חוב אם יש בהן אחריות נכסים לא יחזיר

for it happens that a person talks like this.<span class="x" onmousemove="('comment',' 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. ');">¹⁹</span>

ואוקימנא כשחייב מודה ומשום שמא כתב ללות בניסן ולא לוה עד תשרי ואתי למטרף לקוחות מניסן ועד תשרי שלא כדין

[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.

ולא אמרינן דא"כ מלוה גופיה לא שביק דא"ל כתוב שטרא אחרינא בתשרי דדלמא שמעי רבנן ומפסדי לי

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 Court<span class="x" onmousemove="('comment',' V. supra p. 33, n. 1. ');">²⁰</span>

אמרי התם משום דאית ליה רווחא דקא טריף לקוחות מניסן ועד תשרי מינח ניחא ליה ולא אמר ולא מידי הכא כיון דלית ליה רווחא דסוף סוף שטרא האידנא כתיב מאי איכא דקטריף לקוחות בשטר שנמחל שיעבודו לא שביק:

and the date of that very day,<span class="x" onmousemove="('comment',' I.e., the day on which it was found, which shows that the document was written on the same day. ');">²¹</span>

אמר רבי חייא בר אבא א"ר יוחנן הטוען אחר מעשה ב"ד

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,<span class="x" onmousemove="('comment',' Which shows that the transaction recorded in the document must have taken place. ');">²²</span> [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]?<span class="x" onmousemove="('comment',' 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. ');">²³</span> 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,<span class="x" onmousemove="('comment',' 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. ');">²⁴</span> for we have learned in a Mishnah: Antedated notes of indebtedness are invalid.<span class="x" onmousemove="('comment',' Sheb. X. V. infra 72a; Sanh. 32a; B.B. 157b and 171b. ');">²⁵</span> 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.<span class="x" onmousemove="('comment',' 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. ');">²⁶</span> R. Kahana said: [The lost document is to be returned<span class="x" onmousemove="('comment',' According to R. Johanan. ');">²⁷</span> 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.<span class="x" onmousemove="('comment',' For writing another note, which is charged to the debtor, v. supra p. 200, n. 7. ');">²⁸</span> 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].<span class="x" onmousemove="('comment',' 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. ');">²⁹</span> But why is this case different from the one we have learned.<span class="x" onmousemove="('comment',' V. supra 12b. ');">³⁰</span> 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,<span class="x" onmousemove="('comment',' As it bears that day's date. ');">³¹</span> what advantage is there in that note as regards seizing sold property?<span class="x" onmousemove="('comment',' 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. ');">³²</span> [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].<span class="x" onmousemove="('comment',' As legally the lender would not be entitled to seize sold property at all on the strength of such a note. ');">³³</span> R. Hiyya b. Abba said in the name of R. Johanan: Whoever pleads after an act of the Court