1) "ISRA SHTARA"

OPINIONS: The Gemara discusses a case in which a person claims 100 Zuz from another person, and he has a loan document to support his claim. The borrower replies that he already returned the money. The claimant asserts that the repayment was not for the present debt, but for a different debt. Rav Nachman rules "Isra Shtara" -- "the document has been weakened."

What exactly is Rav Nachman's ruling? Must the borrower repay the loan or not?

(a) RABEINU CHANANEL writes that because the Shtar was weakened, the lender may collect only if he is prepared to make a Shevu'ah, as implied by the Gemara's usage of the term "Isra" -- "weakened." The Shtar is only "weakened," but not "nullified ("Ivtal") altogether, and thus it still has some power. Even if the borrower had written a clause of "Ne'emanus" ("believability") in the document. (Such a clause entitles the lender to the right to claim the money in Beis Din and collect without having to make a Shevu'ah.) Since the lender admitted that he received some payment (even though he claims it was from a different debt), he may not collect without an oath.

(b) The RIF quotes RAV HAI GA'ON and RAV SHERIRA GA'ON who maintain that "Isra Shtara" means that the Shtar was not merely weakened, but nullified entirely. They maintain that the borrower may make a Shevu'as Heses that he owes nothing, and exempt himself from paying.

Rav Hai Ga'on and Rav Sherira Ga'on cite proof from the words of the Gemara. Rav Papa argues with Rav Nachman in this case and rules that "Lo Isra Shtara" -- "the Shtar is not weakened." The Gemara asks that Rav Papa himself ruled "Isra Shtara" in a similar case: a person claimed 100 Zuz from another person, and he had a loan document to support his claim. The borrower replied that the lender knew that he borrowed the money in order to buy oxen (and sell them for slaughter), and that the lender in fact came to the very place where the meat was cut and sold and received his payment for the loan. The lender claimed that the money he received was for a different loan. In that case, Rav Papa ruled "Isra Shtara." The Gemara answers the case of the oxen was different; there, the claim was strong and clear enough that, indeed, "Isra Shtara." In the first case, the claim is not strong enough, and thus Rav Papa rules "Lo Isra Shtara."

Rav Hai Ga'on and Rav Sherira Ga'on point out that the Gemara clearly shows that "Isra Shtara" means that the document is invalid. In the case of the oxen, Rav Papa accepts the borrower's claim that he returned the money to the lender at the place where the meat was cut and sold. When Rav Papa uses the words "Isra Shtara," he clearly means that the Shtar is entirely invalid. It must be that this is also the intention of Rav Nachman when he uses those words.

The RAN refutes this proof. He asserts that even in the case of the oxen, Rav Papa did not mean that the Shtar was annulled. Perhaps the borrower indeed returned a different loan, as the lender claims. In fact, this claim is supported by the fact that the borrower did not take back the Shtar at the time that he claims that he repaid the loan. Rav Papa therefore indeed may rule that the lender may collect the loan with an oath.

(c) TOSFOS (DH Isra) cites the Gemara in Kesuvos (36b) in which Rav Papa says that one may not collect money with a weakened Shtar. Tosfos concludes that "Isra Shtara" refers to such a Shtar; while one may not collect money with it, it is not torn up by Beis Din.

If the Shtar cannot be used to collect money, then what is the purpose of keeping it? The REMA (CM 58:2) rules that not tearing up the Shtar signifies that the debt remains a doubt, and if the lender would seize the money from the borrower, Beis Din would not take the money away from the lender. (D. BLOOM)

2) AN ARROGANT DENIAL

QUESTION: Rabah explains the reason behind the Torah's requirement to make a Shevu'as Modeh b'Miktzas. The Torah requires that when a person admits that he owes part of the money claimed from him, he must make a Shevu'ah that he does not owe the rest of the money. Rabah explains that this is because of a Chazakah that a person does not have the brazenness to openly lie and deny that he owes money in the presence of the person who did him a favor and lent him money. He wants to admit that he owes the full amount, but he does not have the money to pay, and he therefore decides that he will admit that he owes part of the money and will pay the rest of the money when he gets it. The Torah requires that he make an oath in order to deter him from lying in such a way.

The Gemara here seems to contradict the Gemara earlier (40b), in which Rav Nachman says that when a person denies that he owes money, he must make a Shevu'as Heses, which is a Shevu'ah mid'Rabanan. Rav Nachman asserts that the reason for such an oath is that there is a Chazakah that a person does not claim money from another person unless his claim has some basis. The Gemara asks that, on the contrary, there is a Chazakah that a person does not have the brazenness to deny the loan in front of the lender. If the lender really lent him money, the borrower would not brazenly deny it. The Gemara therefore explains that because the borrower does not have the money with which to pay, he denies owing *anything*.

The Gemara there clearly says that a borrower indeed will deny that he owes anything in order to delay the collection of the debt. This clearly contradicts the Gemara here which says that a borrower would not brazenly say that he owes nothing.

ANSWERS:

(a) TOSFOS (40b, DH Aderabah) answers that there is a difference between one who falsely denies the entire claim and one who denies only part of the claim and admits to part of it. When one denies everything, he has no "Migu" to support his claim; there is no logical basis to believe his present claim, because there is no better claim that he could have said. When one admits that he owes some of the money being claimed from him, he has believability due to a "Migu"; if he wanted to lie, he would say the better claim that he owes nothing at all. Since there is a logical basis to believe his claim that he owes part of the money, it is understandable why the Torah suspects that he would falsely make such a claim, and thus it mandates that he make a Shevu'ah. In contrast, one who denies everything has no "Migu" and must explain why the claimant demands money from him. The Gemara therefore asks that since this is a brazen and unreasonable claim, it must be that he is telling the truth, for otherwise he would not make such a claim. Rav Nachman answers that there is some logic to why he would make such a claim falsely (he wants to delay paying until he has money), and thus there is reason to require that he make a Shevu'as Heses.

(b) The RITVA explains that the Gemara earlier (40b) does not mean that a person will deny everything when he does not have the money to pay at present. The Torah understands that a person normally would deny owing some of the money in order to gain more time to pay back, but he would not be so brazen as to deny owing all of it. The Rabanan, however, decreed (for various reasons, such as people becoming more dishonest) that even when a person denies owing everything, he must make a Shevu'ah. The Gemara therefore gives a similar reason to the one given for Shevu'as Modeh b'Miktzas, since the decrees of the Rabanan are often based on Torah precedents. However, this is not a Torah law, but rather a requirement of the Rabanan based on the circumstances of their generation. (D. BLOOM)