Siman 78

Our rabbis, of blessed memory, said [Bava Batra 5a]: There is a presumption that a person does not pay within his time, and would that he should pay at his time. Therefore, one who sets a time for his fellow for his loan and [the lender] claimed it from him within his time, and he said to him "I paid you," he is not believed. And even an oath he does not have against the lender, only a cherem stam [Tur]. And even though there is one who disagrees on this as I wrote in section 4, nevertheless, such is the primary ruling in law. And there is no distinction in this between a loan with a shetar and a loan by word of mouth if there are witnesses to the loan. But if there are no witnesses, he is believed to say "I paid" with a migo that he could have denied the loan or that he could have said it was after the time. And even though it is a migo in the place of a presumption, nevertheless, it is not a powerful presumption that would cancel the migo, for sometimes when the borrower has money and fears that after the time he will be pressed for money, he pays within his time so that the lender will not trouble him after the time. And so too, if he claimed it from him after the time and he said "I paid you within his time," he is believed in all loans with a migo that he could have said "I paid you after the time." And in a shetar with witnesses, when the shetar is in the hand of the lender, he is not believed to say "I paid" even after the time, and he only has the ability to obligate the lender an oath as I wrote in siman 82. But in a shetar in the handwriting of the borrower, he is believed to say "I paid" after the time as I wrote in siman 69. And if he claimed it from him within his time and he said "I paid you," and afterwards he claimed it from him after the time and he said to him "I paid you after the time," he is established as a liar; for according to his words, why did he pay him a second time, for did he not say that he paid him within his time? And he is obligated to pay now. And this is specifically when they were not in beit din the first time, but if they were in beit din, he is believed to say after his time that he paid him and he is not established as a liar, for since they were in beit din and the beit din said to him that he is not believed to say that he paid within his time, automatically he was forced to pay after the time [and the difficulty of the Shach in subsection 7 is answered]. And just as he is not believed to say "within the time I paid," so too he is not believed to say "you forgave me," for a claim of mechilah is only effective when he has a migo of "the matter never occurred" or "I paid," and within the time and the debt is known where he has no migo, he is not believed even with a claim of mechilah [Mordechai, first chapter of Bava Batra].

We state this chazaka even against minor orphans, such as where the borrower died within the time period and left minor orphans; we collect from them without an oath, and we do not fear that their father paid within the time period. This is specifically regarding a loan with a shetar or a loan by word of mouth where their father stood in judgment and the testimony was received in his presence, for if not so, we do not receive the testimony now, as we do not receive testimony not in the presence of the litigant, as written in siman 29, and minor orphans are considered as not in the presence of the litigant. However, regarding a loan with a shetar, we authenticate the shetar even after his death, according to what we have established there, that we authenticate the shetar even not in the presence of the litigant, for when the shetar is authenticated, it is as if their signatures were authenticated in beit din previously while he was still alive. And some say that even with a shetar, it is required that it be authenticated before he died [Shach], or that the judges themselves recognize the signatures. And the reason is that even though it is true that we authenticate a shetar even not in the presence of the litigant, nevertheless we only collect in his presence; but with minor orphans, where we need to collect from them now, it follows that it is impossible to authenticate the shetar and collect from them until they grow up [see Shach siman 110, subsection 12, and in the Taz there]. And if we were to say to authenticate now and wait with the collection until they grow up, if so, why should we trouble ourselves now? Let us also wait with the authentication until they grow up.

We do not state this chazakah except when the claimant claims with certainty that he was not paid by him; but when he claims "perhaps," his claim is weakened, and then when the defendant claims "I paid within the time," he is believed even without an oath, for one does not swear regarding a claim of "perhaps" [it appears to me]. And this is specifically regarding the claimant himself, but regarding his heirs, even when they claim "perhaps," we state this chazakah regarding them. For regarding the claimant himself it is a deficiency when he claims "perhaps," for how does he not know if he was paid or if he was not paid? But the heirs are not expected to know the affairs of their testator, and therefore even their claim of "perhaps" is a good claim, and we state this chazakah and he is liable to pay [Urim VeTumim].

When the borrower dies within the time period and [the lender] comes to collect from purchasers when it is a loan with a shetar, according to the Rambam, of blessed memory, an oath is not required as it is with orphans. And some say that one never collects from purchasers without an oath, for even when the borrower is alive and says he did not pay, nevertheless the lender must swear, as is written in siman 114, and all the more so when he died and did not command anything. And it is not similar to orphans, for regarding orphans we say if he had paid he would have commanded the orphans, as he is concerned for their benefit, and since he did not entrust them [with this information], it is proven that he did not pay them; but for the benefit of the purchasers he is not concerned, and there is no proof from the fact that he did not command before his death. Therefore we suspect perhaps he paid, to the extent that the lender shall not take without an oath. And similarly, regarding what was explained in section 1, that when the borrower claims he paid he does not require an oath, there are those who disagree and hold that since he claims with certainty, the lender must swear. And even if regarding purchasers an oath is not required, nevertheless when the borrower is alive and claims with certainty that he paid him, how can he take without an oath? However, our teacher, the Rema, decided that an oath is not required. And even if regarding purchasers an oath is required, this is an enactment of the sages regarding purchasers, that they must be concerned for their benefit even for a slight suspicion, and we suspect perhaps he had a shover and the purchasers do not know of this; but when he is alive and there is no shover in his hand, we do not need to be concerned for his words at all because of this presumption that a person does not pay within his time period. However, after the lender receives his money, the borrower has the ability to make him swear a shevuat hesset if he took from him according to the law, for after the payment this is like all other claims [Shach].

We do not state this chazakah except in the case of an explicit loan for a set time, but in an ordinary loan which is thirty days, if he claims that he paid him within the thirty days, we do not state this chazakah. For it is understandable that when he himself set the time, he presumably knew that he would need the money until the time he set; but in an ordinary loan where the sages set thirty days so that the lender would not be able to claim it from him, nevertheless, it is possible that he did not need it for thirty days and paid him beforehand. And so too, a beit din or mediators who set a time for payments, he can claim "I paid" even within its time, for they set the time according to their assessment that by the time they set he would obtain money, and he perhaps obtained it earlier. However, if it was based on the request of the borrower, who asked them to set a specific time for him, he is not believed to say "I paid" within the time, for he presumably knew that until that time he would not obtain money [it appears to me]. And so too, if the obligation does not fall upon him at all until that time, such as in the redemption of the son where the obligation is not upon him until after thirty days from the birth of the firstborn, and so too regarding rent which by law is not paid except at the end of the term, he is not believed to say that he paid within its time even if he did not set the time [Netivot HaMishpat], and so too anything similar to this.

We state this chazaka regarding a loan and regarding credit for merchandise [Shach], and regarding redemption of the son and hiring, as we have written. However, if money was deposited in his hand and he is dealing with it for the needs of others, it is like any other deposit, and he can say "I returned it" even within its time, since he has no benefit from the time that was set. Therefore, regarding an iska, he is not believed to say that he paid within its time, since an iska is half loan and half deposit; and just as he is not believed regarding the half of the loan, so too he is not believed regarding the half of the deposit. Furthermore, the half of the deposit is liened to the half of the loan, as written in Yoreh Deah siman 177, and behold, he has benefit also from the half of the deposit. And a great principle the judges must understand regarding this chazaka is that when they understand that the payer had a benefit in this by paying within its time—such as that through this he would pay little by little, or that through this the time was extended for him in some manner, and the like—we do not state this chazaka [Responsa of the Acharonim]. And so too with any work that is divisible, such as if he hired a scribe to write him several quires, each quire for such and such a price, each quire is its own time. And so too if he hired a craftsman to make him many vessels, each vessel for such and such a price, each vessel is its own time, and similarly in all crafts. But if he hired him to write him ten quires for such and such a price, or to make him ten vessels for such and such a price, the time is at the end of the work. However, in a place where it is the way of householders to pay also in the middle of the work because the craftsman needs it for his household expenses, as is the custom among us, and similarly in a place where those who rent houses pay little by little also in the middle of the rental as is customary among us, certainly in this we do not state this chazaka [it appears to me]. And the custom is a great principle in this matter, and it is impossible to specify everything in writing; give to a wise man and he will become yet wiser.

On the last day of the term, a person is likely to pay. Therefore, if he claimed from him on the day the term was completed and he said to him, "I paid you today," the borrower is believed with a shevuat hesset if it is a loan by word of mouth. And if it is a loan by a document, the lender must swear and take, just as if he were claiming from him after the term, where if the borrower claims "I paid," the lender swears and takes, as will be explained in siman 82. And all day long he can say "I paid," whether in the morning or in the evening. Only if he claimed from him at the moment of the beginning of the day, he cannot say "I paid you previously," for behold, the day had not yet begun. And even though our teacher, the Beit Yosef, wrote that there is one who says that only at the end of the day is he believed to say "I paid you" and not before then, nevertheless, most of the great Acharonim rejected this opinion, and all the great Rishonim do not hold so, and so it is explicitly implied in the Shas [and Rashi at the end of chapter HaSho'el explained that we even say a migo from the end of the day to its beginning, according to the opinion of the Ramban brought by the Nimukei Yosef; and even the Tosafot at the beginning of Bava Batra who hold that we do not say a migo, yet regarding payment it is simple that he is believed, and also regarding migo it is possible that in the conclusion we say it, see Taz]. And some say that in this there is a practical difference between the last day and after that time; for after the term, he is believed to say "I paid you within its term" with a migo that if he wanted, he could have said "I paid you after the term." But on the last day, he is not believed to say "I paid you within the term" with a migo of "I paid you today," because this is not a good migo, for it is difficult for him to embolden his face before the lender and say "I paid you today," and it is better for him to say that he paid him previously. And some say that even in this he has a migo, for if he claimed from him at the end of the day and he said to him "I paid you within the term," he is believed with a migo that if he wanted, he could have said "I paid you today in the morning." But when he claimed from him at the beginning of the day or in the middle of the day, he is not believed to say "I paid you within the term" with a migo that if he wanted, he could have said "I paid you now," for that is a great boldness; but from the end of the day to its beginning, it is not such boldness. And there is one who says that this law is a legal doubt and the burden of proof is on the claimant [Shach]. And there is one who says that certainly we say a migo from the end of the day to its beginning [Taz], and so it appears primary [as I wrote from Rashi and Ramban, and also the Tosafot in the conclusion possibly hold so; and also the words of the Tur in section 4 can be explained that he spoke regarding migo, and what he wrote at the beginning of the siman that at the beginning of the day he is not believed, he means that he claimed from him at its beginning and he said "I paid you previously" and it was still within the term, but when he said later "I paid at its beginning," he is believed, and all the difficulties are settled; and perforce one must say so, see there. And the Rambam, who wrote in chapter 14 of Malveh that if he claimed within its term he shall pay without an oath, it is impossible to explain it according to its plain meaning, for this is against the Gemara, and as he himself wrote in chapter 7 of Sechirut, halacha 3, see there; rather, he spoke regarding orphans, according to the opinion of the Ra'avad and Nimukei Yosef, that regarding orphans we do not claim thus, as our teacher, the Rema, wrote, and delve into it].

Our teacher, the Rema, wrote that on the day the time expires, if he claims and says "I paid," he is believed; however, for orphans we do not claim thus, that he paid on the day the time was completed, because it is an uncommon matter. And so it is implied from the words of the Rambam, of blessed memory, in chapter 14 of Malveh, law 1 [as written in the previous gloss]. And a borrower who died within his time and his heirs produced a general writing of payment stating that he paid all his debts to Reuven, they are exempt even from this debt if the receipt is authenticated or if the lender admits it is his handwriting. And if the lender died within the time and his heirs produced a promissory note and the borrower produced a writing of payment, it was explained at the end of siman 71, see there.

One who holds a shtar against his fellow to repay him at a certain time and it was lost from him, and he claimed it from him within its time, and similarly if the shtar emerges from the hand of another and the lender claims it within its time and the borrower claims, "It fell from me and I paid you," we do not say in this case this chazakah that "a person does not pay within his time," for since it fell or is not in the hand of the lender, it has been weakened, and it was explained in siman 41.