Siman 70

One should not lend without witnesses, even to a Torah scholar, unless he lent against a mashkon. One who lends with a shetar is even more praiseworthy, for there is no possibility of denials regarding the sum of the money. Anyone who lends without witnesses violates "do not place a stumbling block before the blind," for the borrower may forget and deny it, and he causes a curse upon himself, as people will curse him and say that he claims from his fellow for nothing. As for why people are not careful about this now and lend to one another gemilut chasadim without witnesses and without a shetar, it is because they know one another and trust one another, and the lender knows that he will not forget and will not deny it to him [it appears to me].

One who lends to his fellow before witnesses without a kinyan and without a shetar does not necessarily need to repay him before witnesses, and he is believed with a shevuat hesset to say, "I repaid you between me and you." This is specifically after the time that he set, but within his time he is not believed to say, "I repaid." And so too, if he received with a kinyan sudar before witnesses at the time of the loan, even if the witnesses did not write a shetar then, since the kinyan was before witnesses, he is not believed to say, "I repaid." For behold, every kinyan stands to be written, as I wrote in siman 39, and if so, how did he repay him? For he should have been concerned lest the witnesses wrote a shetar for him, for behold, they may write even after a long time, as I wrote there, and if he were repaying him, he should have at least received a shover from him. Since he did not do so, certainly he did not repay him. And even though there are those who disagree and hold that a kinyan is not like a shetar regarding a claim of "I repaid," nevertheless, this is the primary ruling in halacha [Shach]. And anywhere that he is believed to say, "I repaid," he is also believed to say that he forgave him; even though forgiveness is a weak claim, as it is not the way to forgive, nevertheless, he is believed when he claims so with a migo of "I repaid," and it will be explained in siman 82.

If the borrower said, "I paid you in the presence of so-and-so and so-and-so," they tell the borrower to bring them and let them testify, for he must clarify his words if it is within his power to clarify, such as if they are in the city. And if they did not come, we do not concern ourselves with this, and he is believed. Not only this, but even if they came and contradicted him and said, "We know nothing of this," nevertheless he is not established as a liar and is believed with a shevuat hesset, and we reconcile his words: since there was no obligation upon him to pay in the presence of witnesses, he did not scrutinize this well and it seemed to him that they saw the payment, but in truth they did not see. Therefore, if he says that he summoned them as witnesses to see the payment, and they contradict him and say, "We know nothing of this," he is established as a liar and must pay. And there are those who disagree on this and hold that certainly when there is great trouble to bring the witnesses, the beit din does not command him to bring them; but when they came and contradicted him, he is established as a liar even when he did not summon them as witnesses, for if he had truly paid him in the presence of the witnesses, it is impossible that they would not have seen the payment [see Shach subsection 6 and in siman 75].

If the lender said to the borrower in the presence of witnesses, "Do not repay me except in the presence of witnesses," whether he said this to him at the time of the loan or whether he said it to him afterwards, he must repay him in the presence of witnesses. And if he claimed that he repaid him not in the presence of witnesses, he is not believed, and the lender collects from him without an oath. And even if he said, "I forgot regarding what you told me to pay you in the presence of witnesses," he is not believed. And even if the borrower did not accept it upon himself at the time the lender said to him that he should not repay him except in the presence of witnesses, and he answered him, "I will repay you not in the presence of witnesses," nevertheless he is not believed to say that he repaid him not in the presence of witnesses, for we are witnesses that he would not have repaid him except in the presence of witnesses in order to remove himself from suspicion, since the lender warned him so, and "the borrower is a servant to the man who lends." Therefore, the lender is believed even without an oath [Sma]. And there are those who say that if the borrower did not accept it upon himself, he does not need to repay him in the presence of witnesses [Shach]. And it is good to act in this according to the sight of the eyes of the dayan according to the estimation of the lender and the borrower. But if he said to him between themselves, "Do not repay me except in the presence of witnesses," and afterwards he said, "I repaid you not in the presence of witnesses," the borrower is believed with an oath by a migo that if he wanted, he could have said, "You never said this to me." And the borrower may have relied on this, since he did not say it to him in the presence of witnesses, presumably he is not concerned about this. And even though also when he said it to him in the presence of witnesses he also has a migo that if he wanted, he could have said, "I repaid you in the presence of so-and-so and so-and-so and they went to the provinces of the sea," where he would be believed as will be explained, nevertheless this is not a good migo, for he is afraid to say so lest he be caught in his lie. And furthermore, it would be like a migo in the place of witnesses, for we are witnesses that he would not have repaid him except in the presence of witnesses, as I have written.

If the borrower claimed and said, "I paid you in the presence of so-and-so and so-and-so, and they went to the provinces overseas or died," he is believed, for he says that he fulfilled his condition, and he swears a shevuat hesset and is exempt. But if he says, "I paid you in the presence of witnesses" generically, and did not specify their names, he is not believed, for it is evident that he is lying [ibid.]. However, if there are grounds for the matter that he forgot in whose presence he paid him, he is exempt [ibid.]. And similarly, if he said to him, "Do not pay me except in the presence of Torah scholars" or "in the presence of physicians" and the like, and did not specify their names, and he said to him, "I did so, for I paid you in their presence and they died or went to the provinces overseas," he is believed and swears a shevuat hesset and is exempt; for since the lender did not specify names for him, it is not incumbent upon him to remember specifically who they are, and it is sufficient that he kept his condition for him.

If he said to him, "Do not repay me except in the presence of so-and-so and so-and-so," and he said to him, "I repaid you in the presence of others," if those others came and testified that he repaid in their presence, he is exempt. We do not say that this one who designated his witnesses intended to disqualify others besides them, for this is not a logical reasoning at all; rather, his intention was that the borrower should not push him off by saying, "I repaid you in the presence of so-and-so and so-and-so," who died or went to a distant land. For in this, he is certainly not believed if he says so regarding other people. However, if he said, "I repaid you in the presence of those you designated, and they died or went to a distant land," he is believed with a shevuat hesset, for what was he to do? For according to his words, he fulfilled his condition. And not only this, but even if he said, "I repaid you between me and you" after these people you designated died or went to a distant land, he is also believed, since it was not possible to fulfill his condition for him now [Taz]. And if he admits that he has not yet repaid him, but says, "I will not repay you until so-and-so and so-and-so whom you designated arrive, and I will repay you in their presence," we do not listen to him; rather, he repays him in beit din, and they write for him that he repaid him in their presence, for then there is no longer a concern for the borrower.

That which we explained, that even when he designated witnesses for him, nevertheless if he brought other witnesses who testified that he paid in their presence he is exempt, this is specifically when they testified that he paid explicitly for this debt. However, if they said that he gave him money without specification, the lender can say that he received them for another debt, since there is a deficiency in that he paid him not in the presence of those he had designated for him. But when he did not designate witnesses for him and paid him in the presence of two witnesses, even when he gave to him in their presence without specification, he is not believed to say that he received them for another debt. See in siman 58 for the detailed laws regarding this.

If he said to him, "Do not repay me except in the presence of witnesses," or if he said to him, "in the presence of Ploni and Ploni," and he repaid him between the two of them, and the lender admits to this but the money was lost through an unavoidable accident from the hand of the lender, and the lender claims that in his heart at the time he received the money from him it was not to be now in the category of repayment but rather in the category of a deposit since it was not according to his condition—there is nothing in his words. Since he admits that he received it from him, and we are witnesses that the borrower delivered them to him as repayment, and the things he says he thought in his heart, even if the truth is so, they are "matters of the heart" and are not matters. Therefore, even if he has a migo that if he wanted he could have said "I did not receive it at all," nevertheless, migo is not relevant in this case, for it is like a migo in the place of witnesses. Furthermore, migo is only relevant so that we believe him regarding his claim, and here we believe him, but there is no substance to his claim as I have written. Therefore, if he says that he explicitly said to the borrower that he is receiving them in the category of a deposit and the borrower consented to this, such as if he said "let it be according to your words" or even if he remained silent, he is believed with a migo and takes an oath and receives his money. But if the borrower did not consent to this, and the lender said "I am taking it as a deposit" and the borrower said "I am giving it as repayment," the law is with the borrower [see in the Taz].

One whose document was erased and the beit din wrote him another document, as explained in siman 41, his status is like a loan with a document and he is not believed to say "I paid," and he has every law of a document, even to collect from purchasers. And there is one who says that the same law applies if he sued his fellow orally and he was found liable to him in judgment, and he did not have anything with which to pay then, and the beit din wrote him a "deed of the court" (ma'aseh beit din), it is also like a document and he is not believed to say "I paid" and he collects from purchasers. And even according to that opinion that we explained in siman 39, that against a verdict one is believed to say "I paid," nevertheless here it is like a document with witnesses; for there, when they gave him the verdict, it was intended to be paid immediately and it does not have the status of a document, but here, did they not give him the verdict to be in his hand as evidence for a later time? Since he has nothing with which to pay now, it is like a complete document [Sma].

One who sold his field under duress and submitted a moda'a beforehand in a manner that the sale is void, as written in siman 205, the money of the oppressor that is in the hand of the seller has only the status of a loan by word of mouth, and he is believed to say "I paid," and he does not seize from encumbered properties; for example, if the field left the possession of the oppressor because a creditor of the seller came and seized it, he does not seize from the purchasers of the seller. However, the seller himself, when he wishes to remove the field from the possession of the oppressor, cannot do so unless he returns his money to him. And the same applies to any deed that was not permitted to be written, such as one that contains interest or the like, the money has only the status of a loan by word of mouth. But the sale of a stolen field is called "permitted to be written," and he seizes from encumbered properties and is not believed to say "I paid" [Netivot HaMishpat]. And there is one who is uncertain even regarding a deed that was not permitted to be written, whether he is believed to say regarding the money "I paid" [Shach].