Translation:Shulchan Aruch/Choshen Mishpat/70

Paragraph 1- One is prohibited from lending without witnesses, even if lending to a scholar, unless he loaned him with collateral. A documented loan is the best option. Anyone who lends without a document violates, “lifnei iver lo siten michshol” and causes a curse to himself. If one lends another with witnesses and no kinyan or document, the borrower does not need to pay back with witnesses. Rather, he is believed with a heses oath to say he paid back. If, however, he accepted a kinyan, he would not be able to claim he paid back, even if there was no document, because it is like a document since every kinyan is meant to be written. There are those that disagree. See earlier 39:5. Any situation where one is believed to say he paid back, he is believed to say the lender waived the loan, even though it is an inferior claim.

Paragraph 2- If the borrower says he paid back in front of so and so and so and so, we tell the borrower to bring them and he will be exempt because he must prove his words. If the witnesses did not come, or even if they did come and they contracted his claim and said the incident never occurred, the borrower will swear a heses oath and be exempt. If the borrower says he appointed them as witnesses when he paid back and they contradict him, the borrower must pay. There are those that say it makes no difference whether he appointed them or not and any time the witnesses come and contradict him, he must pay, but we do not have to prove his words. If he is unable to bring the witnesses, there is no issue. See later in the beginning of Siman 75.

Paragraph 3- If the lender said not to pay him back other than in front of witnesses, the borrower must pay him back in front of witnesses, whether the lender said it at the time of the loan or whether he said after the loan. If the borrower says he paid back without witnesses, he would not be believed and the lender can collect without an oath. If the borrower claims that he followed the lender’s instructions and paid back in front of so and so and so and so who have gone overseas or died, he would be believed and would take a heses oath and be exempt. Similarly, if the lender said do not pay back other than in front of scholars or doctors and the borrower says I paid back in front of them and they died or went overseas, the borrower would be believed and would take a heses oath and be exempt.

Paragraph 4- If the lender said not to pay him back other than in front of so and so and so and so and the borrower says he paid back in front of other witnesses and those other witnesses come and testify that the borrower paid back in front of them, the borrower would be exempt. The lender can, however, say that he accepted the payment on a different loan, even though he was paid back in front of witnesses, because he was not paid back in front of the so and so and so and so that he mentioned. If such witnesses died or went overseas, the borrower would not be believed. If the borrower says he paid back in front of so and so and so and so that the lender had designated and they died or went overseas, the borrower would be believed with an oath because he says that he fulfilled the condition. If the borrower admits that he did not pay back but says that he does not want to pay until the so and so and so and so that the lender had designated come and he will then pay back in front of them, we would not listen to him. Rather, he would pay the lender back in court and they would write for him that he paid back.

Paragraph 5- If the lender said to the borrower not to pay back other than in front of so and so and so and so and he paid him back just between the two of them and something happened to the money and the lender claims that he accepted the money as a deposit until the so and so and so and so would come and he now demands repayment, there is no merit to the lender’s argument since he confessed that he accepted the money and the other party did not give it to him as a deposit, so it is valid repayment and the words of the lender are of no merit.

Paragraph 6-If one’s document was erased and the court wrote another document for him, the new document has the status of a documented loan and the borrower cannot claim he paid back. There are those that say that the same applies in a case where the lender makes an oral claim against the borrower and the borrower was found liable in judgement and he did not have what to pay back with and the court wrote a court document and the borrower later claims he paid back, and the borrower would not be believed and the lender can collect from third-party buyers. If one was forced to sell his field and he gave over a declaration prior to the sale that the sale is void, the money in the hands of the seller has the status of an oral loan and the buyer would not be able to collect from third party buyers via the document in his possession because it does not have the status of document since it was not supposed to be documented. The seller would also be believed to say he paid pack. The same applies to any document that was not supposed to be documented.