In this week’s parsha we have the mitzvah of אם כסף תלוה את עמי, the mitzvah of lending money to the needy. The Rambam (Hilchos Malveh V’Loveh 1:1) writes:מצות עשה להלוות לעניי ישראל שנאמר אם כסף תלוה את עמי יכול רשות תלמוד לומר העבט תעביטנו וגו׳ ומצוה זו גדולה מן הצדקה אל העני השואל שזה כבר נצרך לשאול וזה עדיין לא הגיע למדה זו – “There is a positive commandment to lend money to the needy of Yisroel as it says, ‘if you lend money to my people’. One may think (from the way the pasuk is worded) that the mitzvah is optional, therefore, the Torah says, ‘and you shall also lend’. This mitzvah (of lending money) is greater than the mitzvah of giving tzedokah to the poor, as by lending one money you are helping him out before he reaches a bad situation, and it’s better to save one from falling into a bad situation, than to help out someone who is already in a bad situation”.
There is a prohibition to lend money with ribbis [interest], therefore, when lending money one must make sure to lend it interest free. We all know that money costs money, and when borrowing from a bank or a credit card company, the interest rates are exceedingly high. When a Yid lends money to another Yid interest free, besides for fulfilling a mitzvah, he is also doing his fellow Yid a tremendous favor. If one lends money to help someone start off a business, we saw from the Rambam, that it is an even bigger mitzvah than giving tzedokah to the poor.
Gemara in Bava Metzia
The Gemara in Bava Metzia (75b) teaches:אמר רב יהודה אמר רב כל מי שיש לו מעות ומלוה אותן שלא בעדים עובר משום ולפני עור לא תתן מכשול - “Rav Yehuda says in the name of Rav: Anyone who has money and lends it without witnesses, transgresses the prohibition of ‘You shall not place a stumbling block in front of the blind’”. Rashi explains, because he is giving the borrower the opportunity to entertain the thought of not repaying the loan.
The Gemara continues:וריש לקיש אמר גורם קללה לעצמו שנאמר תאלמנה שפתי שקר הדוברות על צדיק עתק – “Reish Lokish says: He causes himself to be cursed, as it is written ‘Let the lying lips which speak with arrogance and contempt against the righteous be silenced’”. Rashi explains, since the borrower may forget about the loan and deny it, people will accuse the lender of wanting to take money that is not rightfully his and they will start cursing him.
The Gemara then cites a related incident:אמרו ליה רבנן לרב אשי קא מקיים רבינא כל מה דאמור רבנן שלח ליה בהדי פניא דמעלי שבתא לישדר לי מר עשרה זוזי דאתרמי לי קטינא דארעא למזבן שלח ליה ניתי מר סהדי ונכתב כתבא שלח ליה אפילו אנא נמי שלח ליה כל שכן מר דטריד בגירסיה משתלי וגורם קללה לעצמי – “The Rabbonon said to Rav Ashi: Ravina fulfills all of the directives that Chazal say. In order to test it out, Rav Ashi sent a messenger to him close to sunset on erev Shabbos (the busiest time of the week) with the following request: Let the Master send me ten zuz [type of currency] as a loan, as the opportunity to invest in a small piece of land has come up and I need the money. Ravina sent a message to him: Let the Master bring witnesses, and we will write a written document for this loan. Rav Ashi sent a message to him: Even I, as well? Do you suspect even me of shirking payment? Ravina sent a message to him: All the more so someone like you needs to write a document, as you are very occupied with your learning and are very likely to forget, and I will thereby bring a curse upon myself.”
We see from the above Gemara that when one lends money to his friend, he must do it in front of witnesses and if he doesn’t, he transgresses on lifnei iver and brings curse upon himself.
Is There a Prohibition for the Borrower Aswell?
The Shu”t Even HaSho’am (Choshen Mishpot 85) writes that from the aforementioned Gemara and the poskim it is clear that there is no prohibition for the borrower to borrow money without witnesses, and the prohibition is only upon the lender. However, the Kesef HaKodshim (Choshen Mishpot 70:1) writes: It’s logical that there is a prohibition on the borrower as well, in order that he doesn’t come to stumble, and the reason the Gemara mentions the lender, is because on him there is a stronger obligation. Some add that it is forbidden for a borrower to borrow money without witnesses, as he is causing the lender to transgress on lifnei iver (Rav Yerucham Fishel Perla, Vol. 2, pg. 53)
The above is seemingly very difficult, as what is the heter for people to curse the lender out of doubt, perhaps he is right, and the borrower is a rosha and a wicked person who is denying the loan? The Chofetz Chaim (Hilchos Lashon Horah, Klal 3, Be’er Mayim Chaim s.k. 10) explains, since in the times of Chazal everyone lent with witnesses, when a lender asked for money without any witnesses and the borrower denies it, the odds are stacked against him, and since it is more likely the lender is lying, it is permissible for people to judge him unfavorably, and they are not cursing him for no reason.
The Question of the Lechem Mishnah, That Even If One Lends with Witnesses, We Should Still Be Worried that The Borrower Will Say “I Already Paid”
The Lechem Mishnah (Hilchos Malveh V’Loveh 2:7) asks, that from Rashi it seems that we are worried that the borrower will deny the loan when he sees that the lender doesn’t have any witnesses. If, so, even if he has witnesses, we should be worried that the borrower will argue, “I already paid” (porati), as the halachah is, if one lends his friend money with witnesses, he doesn’t need to repay with witnesses?
The Lechem Mishnah answers: Rashi doesn’t mean that we are worried that the borrower will deny the loan on purpose, as we aren’t dealing with wicked people, rather, we are worried that the borrower may innocently forget, and he may even come to make an oath as he honestly doesn’t remember. However, when there is witnesses, even if he forgets, he will pay as opposed to making an oath. See the Tumim (70:1) who adds, that the whole concern is that one may forget and he will argue “I don’t know”, therefore, if there is no witnesses, the borrower will argue “I don’t know if you lent me” and he will be exempt. If, however, he lends with witnesses, then when he says “I don’t know”, he will be obligated to pay.
Do We Rule in Accordance With the Above Gemara?
Both the Rambam and Shulchan Aruch bring down the aforementioned Gemara l’halachah. The Rambam writes (Hilchos Malveh V’Loveh 2:7):אסור לאדם להלוות מעותיו בלא עדים ואפלו לתלמיד חכם אלא אם כן הלוהו על המשכון. והמלוה בשטר משבח יתר. וכל המלוה בלא עדים עובר משום "ולפני עור לא תתן מכשל" וגורם קללה לעצמו. – “It’s forbidden for one to lend his friend money without witnesses, even if his friend is a talmid chocham, unless he leaves a collateral (i.e., watch). If one lends with documentation, it’s even better. Anyone who lends without witnesses violates the prohibition of lifnei iver and brings curse upon himself”.
Similarly, the Shulchan Aruch (Choshen Mishpot 70:1) rules:אסור להלוות בלא עדים ואפי' לתלמיד חכם אלא א"כ הלוהו על המשכון והמלוה בשטר משובח יותר וכל המלוה בלא עדים עובר משום לפני עור לא תתן מכשול וגורם קללה לעצמו – “It’s forbidden for one to lend without witnesses, even if his friend is a talmid chocham, unless he leaves a collateral (i.e., a watch). If one lends with documentation it’s even better. Anyone who lends without witnesses violates the prohibition of lifnei iver and brings curse upon himself”.
It seems quite clear from the above, that when one lends money he must make sure to use either witnesses or some form of documentation, or at least take some form of collateral. The big question is, however, that when most people lend money they don’t seem to do any of the above. It’s true that when people lend out large sums of money they might, but generally when people lend out small amounts of money they don’t seem to do any of the above. Based on the above it would seem, if one lends without witnesses or a document, instead of getting a mitzvah he is doing a mitzvah haboh b’aveirah [a mitzvah achieved through an act of an aveirah]. So why in fact are people not so particular about the above, what are they relying on?
A Limud Zechus from the Tosfos Yom Tov (Pilpula Charifta)
The Pilpula Chariftah (under the Rosh in Bava Metzia) suggests as follows:
The Gemara starts off by citing Rav Yehuda in the name of Rav that if one lends without witnesses he transgresses on lifnei iver. Then the Gemara cites Reish Lokish who says that if one lends without witnesses he brings curse upon himself. Why does Reish Lokish not say: אף גורם קללה לעצמו – “He also brings curse upon himself”, i.e. that as well as transgressing on lifnei iver, one also brings curse upon himself?
The Pilpula Chariftah is medayak [makes an implication] that it must be that Reish Lokish argues on Rav Yehuda in the name of Rav and maintains there is no problem of lifnei iver. Moreover, in the story that the Gemara relates between Ravina and Rav Ashi, Ravina only makes mention of bringing curse upon himself and not the reason of lifnei iver, from the fact that Ravina makes no mention of lifnei iver it would seem that in the conclusion of the Gemara there is no longer any problem of lifnei iver.
Why should there not be a problem of lifnei iver? The Pilpula Chariftah explains, that there is only a problem of lifnei iver, for example, when one passes a cup of wine to a nozir and the nozir drinks it immediately. When the aveirah happens immediately then there is a problem of lifnei iver. If, however, the aveirah is not going to happen immediately then there is no lifnei iver. When one lends without witnesses the aveirah isn’t immediate, therefore, there is no problem of lifnei iver. Consequently, the only issue that remains is that one is causing himself to be cursed, therefore, if one is happy to accept being cursed upon himself then the Pilpula Chariftah says, there is no problem to lend without witnesses.
The Pilpula Chariftah concludes:ועל זה אפשר שסמכו העולם שאין מדקדקין בכך כך נ״ל ליישב מנהגא – “Perhaps this is what people rely on when they lend without witnesses”.
However, the above approach is difficult to understand, as the Gemara says that if one lends without witnesses, he “brings curse upon himself”, so how can one just turn around and say, “I don’t care”.
Once Again The Aruch HaShulchan Attempts to Defend Klal Yisroel
The Aruch HaShulchan who often tries to come along and defend the minhag of Klal Yisroel attempts to do the same thing here. He writes:ומה שאין נזהרין בזה ולוים זה מזה גמ״ח בלא עדים ובלא שטר משום דמכירין זה את זה ונאמנין זה לזה ויודע המלוה שלא ישכח ולא יכפור לו – “That which nowadays people lend money to each other without witnesses, and without any documentation, is because nowadays we recognize each other, and trust each other, and the lender knows that the borrower won’t forget about the loan and he will make sure to pay back”.
This approach is exceedingly difficult, as normally we say that our generation is on a far lower level than the generation of Ravina and Rav Ashi, consequently, if in the times of the Gemara they needed to worry, all the more so today?
The Shu”t Shevet HaLevi (Vol. 10, 268:1) also asks on the Aruch HaShulchan and says it’s difficult to be lenient against the simple reading of the Gemara, especially when the Rambam, Rif, Rosh, Tur and Shulchan Aruch all bring it.
A Limud Zechus from the Eirach Shai
The Eirach Shai (Choshen Mishpot, siman 70) tries to find a merit for Klal Yisroel based on a diyuk in the language of the Gemara. The Gemara says:אמר רב יהודה אמר רב כל מי שיש לו מעות ומלוה אותן שלא בעדים עובר משום ולפני עור לא תתן מכשול - “Rav Yehuda says in the name of Rav: Anyone who has money and lends it without witnesses, transgresses the prohibition of ‘You shall not place a stumbling block in front of the blind’”. Why is the Gemara so lengthy, why doesn’t it simply say, “One who lends without witnesses”, why does it add, “Anyone who has money and lends it without witnesses”, obviously one only lends money if he has money?
The Eirach Shai explains: There is a chazokah [presumption] that “one isn’t brazen in front of one who lends him money” (אין אדם מעיז פניו בפני בע״ח) and it’s not common for one to deny borrowing money. For this reason, if one denies the entire loan he is exempt from making an oath (on a de’O’raisa level). However, one who has money set aside for lending, and often lends money, by such a person due the large number of times he lends money it is likely that eventually someone will deny a loan. However, for a regular person, who only occasionally lends money, it’s unlikely the borrower will deny the loan. Therefore, Rav says: כל מי שיש לו מעות ומלוה אותן – “Anyone who has money and lends it”, meaning, only someone who has spare money which he sets aside for lending people, by such a person we are worried that the borrower will deny the loan, therefore, such a person must lend in front of witnesses. However, a regular person he doesn’t lend out money very often, there is no concern, and he doesn’t need to lend in front of witnesses.
However, the Eirach Shai points out, both the Tur and Shulchan Aruch change the lashon of the Gemara and miss out the addition of, כל מי שיש לו מעות ומלוה אותן.
When Borrowing from the Rich, People Think “He Has Enough Money Anyway, Why Should I Pay Him Back” – A Limud Zechus from the Reshash
The Reshash makes a similar diyuk in the Gemara as the Eirach Shai and suggests a different merit for Klal Yisroel:
The Gemara says:אמר רב יהודה אמר רב כל מי שיש לו מעות ומלוה אותן שלא בעדים עובר משום ולפני עור לא תתן מכשול - “Rav Yehuda says in the name of Rav: Anyone who has money and lends it without witnesses, transgresses the prohibition of ‘You shall not place a stumbling block in front of the blind’”. Why does the Gemara need to say, “anyone who has money...”, obviously if one is lending money he has money, one doesn’t borrow off a poor person?
The Reshash answers: The Gemara isn’t talking simply about someone who has money, the Gemara is talking about someone who is extremely wealthy. When one borrows off someone wealthy he thinks, nu nu, he has enough money anyway, he will manage if I don’t pay him back, and one will try avoid paying back. In such a case one must lend with witnesses. In a normal case, however, where the lender isn’t so wealthy, the borrower won’t be so brazen as to not pay back, therefore, there is no need for any witnesses or a document.
There is a famous story about a certain iluyisha yid who came over from Europe to America, he was a pauper and would spend his day hanging around yeshivos. Once he was at a chasunah and he met one of the Reichman brothers there. He went over to him and asked if he could borrow $10,000, innocently he asked him “when will you pay me back” to which he responded., “when you need it, I’ll pay it back”. This is very similar to the idea of the Reshash, that when one borrows of a wealthy person, he looks for more ways to avoid having to pay back.
Although the above is a nice diyuk, it’s very difficult to disregard a din brought down by both the Rambam and Shulchan Aruch, both which makes no such distinction of how wealthy the one lending is. Additionally, as we mentioned above, the Tur and Shulchan Aruch change the lashon of the Gemara and omit these words.
Perhaps Nowadays the Halachah No Longer Applies – A Limud Zechus from R’ Itzel Peterburger (Pri Yitzchok)
R’ Itzel Peterburger in Teshuvos Pri Yitzchok (1:48, 2:49) attempts another approach to find merit for Klal Yisroel:
He begins by asking some questions on the aforementioned Gemara. Firstly, he says, what are we worried about? We are worried about people borrowing money and denying it, but why would one deny it, are we talking about wicked people who have no concept of basic hakoras hatov [gratitude]? Moreover, the Gemara says:חזקה אין אדם מעיז פניו בפני בעל חובו – “There is a chazokah [presumption] that a person doesn’t have the brazenness to deny a loan after the lender goes out his way to help him”, so what is the Gemara talking about?
R’ Itzel Peterburger explains: The Gemara isn’t talking about someone who wants to deny the loan completely, rather, the Gemara is talking about someone who wants to stall for time and push off the payment deadline a few more weeks. The Gemara is discussing a case, where one borrows money, the pay date arrives, and the lender calls up the borrower to ask for the money and he doesn’t pick up the phone. Then, a few days later he meets him face to face in the street etc. and now it’s too late to push it off, and he now has no choice but to deny the loan. However, he doesn’t intend not to pay, he just denies it to gain more time.
If a lender goes up to the borrower and says, “You owe me $200”, and the borrower turns around and says, “I don’t, I only owe you $100”, the din is, since he partially agreed (modeh bemiksas) he must make a shavuah [oath] in Beis Din, that he doesn’t owe another $100. If, however, the borrower denies the entire thing (kofer bakol), he doesn’t even need to make a shavuah, and he walks away completely free. However, although on a de’O’raisa level one walks away completely free, Chazal saw people weren’t behaving properly and they instituted a shavuas heses [type of rabbinic oath] and they said that even if one denies everything, he still must make a rabbinic shavuah, known as shavuas heses.
During which time period did Chazal institute this? During the times of Rav Nachman, who was one of the Amoroim. Says, R’ Itzel Peterburger, the Gemara in Bava Metzia was Rav Yehuda in the name of Rav. Rav was one of the first Amoroim (Rav tana hu upolig), in the days of Rav they hadn’t yet instituted the shavuas heses and there was still room to be worried that people would lend money and the borrower would play for time and deny the loan and cause the lender to transgress on lifnei iver. However, after Chazal instituted the shavuas hases, people were no longer willing to deny the loan, as if they did, they would need to go to Beis Din and make a shavuas heses. Since there was no longer any room to be worried about people denying loans, there was no longer a problem of lifnei iver, and there was no longer any need to lend in front of witnesses.
Similarly, Ravina and R’ Ashi in the Gemara in Bava Metzia weren’t worried about lifnei iver as they were from the later Amoroim, after Chazal instituted the shavuas heses. Since people were now scared to deny the loan, there was no need for witnesses anymore, and that’s what people rely on today, when they lend without witnesses or a document.
In spite of the above the Pri Yitzchok concludes: “Cholilah [Heaven forbid] to budge from the conclusion of the Shulchan Aruch that it is forbidden to lend without witnesses, which is the opinion of all rishonim, the Rif, Rambam and Rosh. Even if we say there is no lifnei iver, nonetheless, one who lends without witnesses brings curse upon himself. One who is careful with this, will merit lots of good blessings!”
Additionally, we can ask, that the Shulchan Aruch brings the din that if one denies the entire loan he must make a shavuas heses, and he also brings down the din that one must lend in front of witnesses, so we see that the dinim work at the same time.
Bottom Line, Is There Anything to Rely On
The Tzitz Eliezer (7:46) quotes a Ritva in Megillah (28b), based on the Ritva he says that we can answer up the minhag ha’olam. The Ritva writes, that the din of R’ Yehuda in the name of Rav that one shouldn’t lend without witnesses is a middas chasidus [a pious act], it’s a nice thing to do, but it’s not obligatory. It’s good to go above and beyond the strict letter of the law and only lend with witnesses, but if one doesn’t it’s ok.
The Divrei Malkiel (4:136) cites proof for the opinion of the Ritva. The Gemara (Bava Metzia) says that they told Rav Ashi that Ravina keeps: כל מה דאמור רבנן – “All Rabbinic enactments”, and Rav Ashi set out try and test him, and he tested to see if he would lend without witnesses. Why did he choose such a test, why didn’t he send him chicken cooked in milk which is also an issur derabonon and test to see if he would eat it? The Divrei Malkiel explains: Obviously Ravina kept issuray derabonon, and what they were telling Rav Ashi was, that Ravina kept even milsah dechasidusa, things which are above and beyond the strict letter of the law, therefore, he set out to test if he kept milsah dechasidusa and tested if he would lend without witnesses.
We see from here says the Divrei Malkiel, that lending without witnesses isn’t an issur derabonon, but is merely a milsah dechasidusa. Based on the above, says the Tzitz Eliezer, we can now understand the minhag ha’olam. Even if one doesn’t want to learn like the Ritva, but using the Ritva together with the other reasons we mentioned above, it would seem that we have a satisfactory answer to the minhag ha’olam.
Some Halachos for Those Who Want to Be Careful with the Above
Although we showed above that if one lends without witnesses he has what to rely on, if, one wants to be stringent, there are a number of points we still have to discuss:
Does One Need Both Witnesses and a Document?
The Shu”t Maharashdam (Choshen Mishpot 23) writes a big chiddush and he says, although there is no prohibition if one lends with witnesses, if one uses just witnesses without writing a document, he is considered negligent. He cites proof from the Gemara in Bava Metzia. The Gemara says that Ravina sent a message to Rav Ashi, ניתי מר סהדי ונכתב כתבא – “Let the Master bring witnesses, and we will write a written document for this loan”, we see that one should have both witnesses and a document.
However, from the Rambam (Hilchos Malveh V’Loveh 2:7) we see not like this. The Rambam writes, “It is forbidden to lend without witnesses ... and one who lends with a document is praiseworthy.” We see that using a document is praiseworthy, however, certainly if one doesn’t, we won’t consider him to be negligent. The Beis Yosef (Choshen Mishpot 70) explains: The advantage of a document is that the borrower will know how much he borrowed and they won’t come to fight about it. The Shulchan Aruch HaRav (Hilchos Halvo’ah 6) writes, that if they don’t have a document, the witnesses may be out of town, and the borrower will deny the loan.
Writing a Document on Chol HaMoed
In Hilchos Chol HaMo’ed (545:6) it says that one shouldn’t write a loan document on Chol HaMo’ed if the lender trusts the borrower. Although the Rambam writes that writing a document is praiseworthy, the Sefes Emes (Mo’ed Kotan 18b) explains the advantage of writing a document doesn’t override the prohibition of writing on Chol HaMo’ed.
Does A Handwritten Document (Kesav Yad) from the Borrower Work?
Is it lechatchilah to use a document written by the borrower without any witnesses, and if it works, is it better to lend in front of witnesses, or is it better to use a handwritten document written by the borrower?
