Shevuot

which is a refutation of R. Assi!1 — R. Assi may say to you: I said [that he must repay him before witnesses] only if originally he lent him before witnesses, [which shows that] he did not trust him; but here, he trusted him!’2 R. Joseph taught it thus:3 R. Judah said, R. Assi said: If one lends to his neighbour before witnesses, he need not repay him before witnesses; but if he said to him: ‘Do not repay me except before witnesses,’ he must repay him before witnesses. When I said this before Samuel, he said to me: He may say to him: ‘I paid you before So-and-so and So-and-so, and they went to a country beyond the seas.’4 We learnt: ‘YOU HAVE OF MINE IN YOUR POSSESSION A HUNDRED DENARII’; HE SAID TO HIM [BEFORE WITNESSES]: ‘YES’. HE SAID TO HIM: ‘DO NOT GIVE THEM TO ME EXCEPT BEFORE WITNESSES’; ON THE MORROW HE SAID TO HIM: ‘GIVE THEM TO ME’; [AND THE OTHER REPLIED:] ‘I HAVE GIVEN THEM TO YOU,’ HE IS LIABLE, BECAUSE HE MUST GIVE THEM TO HIM BEFORE WITNESSES. This is a refutation of Samuel!5 — Samuel may say to you: This is a question upon which Tannaim disagree;6 for it was taught: [If a man said to his fellow] ‘I lent you before witnesses; pay me before witnesses’; he must either pay, or bring proof that he has paid.7 R. Judah b. Bathyra said: He may say to him: ‘I paid you before So-and-so and So-and-so, and they went to a country beyond the seas.’ 8 R. Aha9 asked: How do we know that this10 refers to the time of the loan, perhaps it refers to the time of the claim? And thus he says to him: ‘Did I not lend you before witnesses? You should have repaid me before witnesses!’ But at the time of the loan, all hold that he is liable.11 R. Papi said in the name of Raba: The law is: If one lends his neighbour before witnesses, he must repay him before witnesses. But R. Papa said in the name of Raba: If one lends his neighbour before witnesses he need not repay him before witnesses; but if he said to him: ‘Do not repay me except before witnesses,’ he must repay him before witnesses; and if he says to him: ‘I repaid you before So-and-so and So-and-so, and they went to a country beyond the seas,’ he is believed. 12 (Mnemonic:13 Reuben and Simeon, who studied the law, they lent and paid (before) So-and-so and So-and-so, gallnuts, different claims, being believed as two.) There was a certain [man] who said to his neighbour: ‘When you repay me, repay me before Reuben and Simeon’; but he went and repaid him before two others.14 Abaye said: He told him to repay him before two witnesses, and [he said] he repaid him before two witnesses.15 Said Raba to him: For this reason he said to him: Before Reuben and Simeon, so that he should not be able to put him off.16 There was a certain [man] who said to his neighbour: ‘When you repay me, repay me before two who have studied laws.’17 He went and repaid him privately.18 The money was lost.19 The lender came to R. Nahman and said, ‘Yes, I received it from him, but only as a deposit,20 and I said, Let it remain with me as a deposit until we obtain two witnesses who have studied laws, so that the condition may be fulfilled.’ Said [R. Nahman] to him: ‘Since you admit that you definitely received the money from him, it is a proper repayment; if you desire the condition to be fulfilled, go and bring the money [here], for here am I and R. Shesheth who have studied the laws, Sifra, Sifre, Tosefta,21 and the whole Gemara.’22 There was a certain [man] who said to his neighbour: ‘Give me the hundred zuz that l lent you.’ The other said to him: ‘The thing never happened.’23 He went and brought witnesses that he lent him, but [they also said] he repaid him. Abaye said: What shall we do? They say he lent him, and they themselves say he repaid him.24 Raba said: If he says, ‘I did not borrow,’ it is as if he said, ‘I did not repay.’25 There was a certain [man] who said to his neighbour: ‘Give me the hundred zuz that I claim from you.’ He replied to him: ‘Did I not repay you before So-and-so and So-and-so?’ [Thereupon] So-and-so and So-and-so came and said: ‘The thing never happened.’26 R. Shesheth thought of saying that he was therefore proven a liar.27 Said Raba to him: Anything which does not rest upon a man he will do unconsciously.28 There was a certain [man] who said to his neighbour: ‘Give me the six hundred zuz that I claim from you.’ The other replied to him: ‘Did I not repay you a hundred kabs saying he did repay him before witnesses, but they are not now available. abroad. Bathyra will agree that be cannot free himself by saying the witnesses have gone abroad. Hence Samuel has no Tanna to support him, whilst our Mishnah is clearly in refutation of him. him before two other witnesses who went abroad and are not available. It is therefore no excuse, and he must pay. learned witnesses; and now that the money is lost, he must still repay the loan, because I was only a gratuitous bailee not responsible for loss. the loan. [MS.M. reads ‘Talmud’ for ‘Gemara’ in curr. ed. On these terms, v. B.M. (Sonc. ed.) p. 206, n. 6.] they are not believed when they say he repaid, for he himself admits that he did not repay; therefore he must pay. already been proved guilty of a lie. stipulated that he must repay him before witnesses; when, therefore, he said he had repaid before witnesses, his memory was at fault, but he is not thereby accounted a liar, and may take an oath that he has repaid the loan.