The Shulchan Aruch (Choshen Mishpot 69:2) writes, if there is a handwritten document without witnesses, the borrower is believed to say he already paid back, and the lender can’t argue back “what is your document doing in my hand” (שטרך בידי מאי בעי), as the borrower can say I wasn’t worried about keeping the document by you as it’s not a proper document, as you can’t use it to claim money from buyers, or inheritors.
However, when lending money in front of witnesses without a document, the borrower could also argue “I paid”, and if we aren’t worried about this when lending with witness, then when lending with a handwritten document we also shouldn’t worry about this.
In Ahavas Chesed (Vol. 1, 1:8), the Chofetz Chaim writes: “One should lend in front of witnesses, or with a document with witnesses signed on it (שטר חוב), or at least a handwritten document”. We see that a document with witnesses is better than a handwritten document, and that lending with witnesses is better than a handwritten document.
Is Lending in Front of One Witness Enough
The poskim discuss if one needs to lend specifically in front of two witnesses, or if perhaps even one is enough. If the main concern is that the borrower may forget, then seemingly even on witness would be enough to avoid this. The Ohel Gershon (siman 8) discusses this shailah at length and concludes that the minhag is to lend even in the presence of one witness, like the opinion of the Tumim and Chavas Yoir (and perhaps R’ Akiva Eiger as well).
Does the Lender Violate Lifnei Iver, Even if In His Heart He Forgives the Borrower
If the lender lends without witnesses and a document, however, he thinks in his heart that if the borrower doesn’t pay back he forgives the loan, does it help, or does he still violate lifnei iver?
The Shu”t L’Horas Nossan (Vol. 1, 5:6) and Shu”t Seridei Eish (Vol. 1, end of siman 58) write, that even in such a case the lender transgresses on lifnei iver. The Gemara in Nazir (23a) and Kiddushin (81b) says: “If one intends to eat non-kosher meat and he ends up accidently eating kosher meat, he needs forgiveness and atonement”. Therefore, when one lends without witnesses and the borrower denies the lone, even if the lender forgives in his heart, the borrower doesn’t know about it, as it’s obvious that the lender won’t reveal to the borrower that he forgives. Therefore, it may be true that the borrower hasn’t done an act of an aveirah, however, he certainly intended to, therefore, the lender still violates lifnei iver of causing the borrower to sin in his mind.
The above is very meduyak in Rashi, Rashi writes that if one lends without witnesses it is a problem as: שעולה על רוחו של לוה לכפור – “It enters the mind of the borrower to deny the loan”. Why doesn’t Rashi simply say, “the borrower will deny”? What we have to say is, Rashi is talking about a case when one lent without witnesses, and the lender decided in his heart that if the borrower denies the loan he will forgive him. In such a case, Rashi says, it’s true that in this case there is no act of an aveirah, however, since there is intention of an aveirah, there is still lifnei iver for the lender, as he causes the borrower to think of doing an aveirah.
If One Gives “Tzedokah” To A Fraudster and Forgives in His Heart, Does the Collector Still Need to Do Teshuvah
Along the same lines, R’ Shlomah Zalman Auerbach (cited in Tzedokah U’Mishpot, Hilchos Tzedokah, Perek 2, he’orah 57) writes: If one gives tzedokah to someone who he knows is a fraudster, even if the giver decided in his heart to give it as a present, he still causes the collector to stumble, as the collector is like someone who tried to eat non-kosher who ends up eating kosher, and he still needs forgiveness and atonement.
Distinction Between the Two Cases
However, there is room to differentiate between the two cases. It’s true that if the borrower denies the loan on purpose, then forgiveness won’t help the borrower from having had thoughts of an aveirah, however, if we aren’t worried that he will purposely deny the loan like the achronim write, as “are we dealing with wicked people?”, and the concern is only that the borrower might forget by mistake, then in such a case if the lender forgives him in his heart, the borrower won’t violate “trying to eat non-kosher and ending up eating kosher”, as he is only denying the loan accidentally.
R' Yosef Chaim Sonnenfeld (Shu”t Salmas Chaim, siman 746,747 and in new print Choshen Mishpot 18) writes in a Teshuvah: Praiseworthy is one who keeps the words of Chazal as they are written, however, under pressing circumstances (i.e. one is lending money to a chosuvah Yid, and if he asks for a document and witnesses when lending $1 it will be very embarrassing) then the lender should think at the time of the loan that he won’t ask for the money back since he has no document or witnesses, and if he doesn’t get it back it should be a present from now, and if the borrower doesn’t forget, it will be like a regular loan starting from now.
This is not quite the same eitzah that we mentioned above, that the lender should think in his heart that if he doesn’t get the money back he forgives, as that eitzah was only post-facto, i.e. if he doesn’t get the money back he forgives, however, R’ Yosef Chaim Sonnenfeld’s eitzah is that from the very beginning one should say it’s a present and only if he gets it back then he should treat it as a loan. With R’ Yosef Chaim Sonnefeld’s eitzah it could be that even if the borrower intentionally doesn’t pay back there is no problem of “trying to eat non-kosher and ending up eating kosher”.
Is There a Mitzvah to Lend When There is No Option of Using Witnesses, A Document or a Collateral?
The poskim (Rav Yerucham Fishel Perla, Vol. 2, pg. 53 and Shu”t Salmas Chaim 748 – or in new version Choshen Mishpot 18 – 20) write that if one is in a situation where he can’t lend in a permissible manner, i.e. with witnesses, a document with witnesses or a hand written document from the borrower, or a collateral etc. then he is exempt from the mitzvah of lending money as in such a case one can say that he doesn’t want to violate the prohibition of lending without witnesses etc. The pasuk says, אם כסף תלוה את עמי – one only has to lend when there are other people around, i.e. witnesses. We find a similar thing in the Mishnah Berurah (169:11) in the name of the Pri MeGodim (Eishel Avraham s.k. 10) that one isn’t obligated to give a poor person food to eat to fulfil the mitzvah of tzedokah, if he knows that the poor person won’t make the correct berachos.
A Solution to Allow Lending Without the Presence of Witnesses
If the lender says to the borrower, “I am lending you money, however, if in the end you don’t return it, either willingly or accidently, I forgive you, and I won’t ask for the money from you”, then it’s lechatchilah to lend without witnesses or a document etc. as in such a case there is no stumbling block of “trying to eat non-kosher and ending up eating kosher”, since the borrower knows that the lender forgives him if he doesn’t pay. The Pela Yo’etz (Erech Halvah) writes a similar thing regarding small loans.
Limud Zechus on Those Who Lend Small Amounts of Money Without Witnesses
Some say that there is room for leniency when it comes to small loans, as according to Rashi the concern is “it will enter one’s heart to deny”, and it’s unlikely that by small loan one will do this, as the gain is not very great. Even if we are worried that the borrower will forget he ever borrowed, when it comes to a small loan, he is unlikely to deny it and he will just believe the lender. There is testimony that the Chazon Ish and Steipler were lenient when it came to small amounts of money (See Orchos Rabbeinu, Vol. 3 pg. 94).
Conclusion
If one doesn’t want to rely on the limuday zechusim that we mentioned in part one of this week’s sheet and one wants to follow the ruling of the Shulchan Aruch, when lending money to someone one should make sure to do it in front of witnesses (some say even one witness is enough), or he should use a document - it can even be a handwritten one from the borrower (Shach 70:2, although the Maharshadam is stringent, in Ahavas Chesed 1:8 it says one can be lenient, and this is how the Chazon Ish and Steipler were accustomed – Orchos Rabbeinu Vol. 3, pg. 94) or one written by the lender and signed by the borrower (R’ Elyashiv – Piskei HaGrish, Choshen Mishpot pg. 415), or he should take a collateral.
If the lender says to the borrower, “although I am lending you money, if you don’t end up returning it, whether willingly or accidently I forgive you, and I won’t ask for the money”, then it’s lechatchilah to lend without any witness, documents etc.
If it’s a small amount and the lender is prepared to forgive, he should say clearly before the loan (see sefer Darchei Choshen Vol. 1, pg. 146 for a machlokes if forgiveness in the heart helps) and then if the borrower forgets he won’t transgress anything, and the lender won’t transgress lifnei iver, even if there are no witnesses or documents.
If it’s a large loan, and the lender isn’t prepared to forgive the loan and there are no witnesses or documentation etc. then he is exempt from the mitzvah of lending as there a prohibition to lend without witnesses.
(Based on shiurim from R’ Yom Tov Sanger shlita and R’ Yissochar Frand shlita)
