Shevuos Daf 41 חג השבועות דַף 41

Rav Nachman said that although there is no שבועה דאורייתא for someone who completely denies a debt, he must swear a שבועת היסת, which is מדרבנן. The Gemara seeks a practical difference between a שבועה דאורייתא and a שבועה דרבנן, since he must swear regardless. It first explains: מיפך שבועה – if the נתבע can reverse the שבועה (i.e., instead of swearing to be exempt, demand that the תובע swear to collect). He cannot do so for a שבועה דאורייתא, but he can reverse a שבועה דרבנן. According to Mar bar Rav Ashi, that one can even reverse a שבועה דאורייתא, a new answer is required. The Gemara says the difference is מיחת לנכסיה – descend to his property to collect it. Beis Din forcibly collects property of one who refuses to swear a שבועה דאורייתא, but not for a שבועה דרבנן. According to Rebbe Yose, who holds we forcibly collect property even for Rabbinical obligations, the Gemara instead answers that the difference is about שכנגדו חשוד על השבועה – where his opponent (the נתבע) is suspect about swearing falsely. For a שבועה דאורייתא, we would reverse the shevuah to the תובע to swear and collect, but not for a שבועה דרבנן.

Rav Assi said: המלוה את חבירו בעדים – if one lends his friend in front of witnesses, צריך לפורעו בעדים – [the borrower] must repay him in front of witnesses, and is otherwise not believed to say he repaid. Shmuel disagreed, because the borrower can say: פרעתיך בפני פלוני ופלוני והלכו להם למדה"י – “I repaid you in front of Ploni and Ploni, and they went overseas and cannot testify.” The Mishnah teaches that if a lender claimed a loan, and the borrower admitted to it before witnesses, he is still believed later to say he repaid. Rav Assi explains that payment before witnesses is only required when the loan itself was made in the presence of witnesses, דלא לדידיה הימניה – because [the lender] demonstrated he did not trust him. But when he originally lent him money without עדים, and later claimed it from him before עדים, the payment can still be made without עדים.

In another version, Rav Assi agreed that even if one lends money with עדים, the borrower is believed to say he repaid without עדים. However, if he said, אל תפרעני אלא בעדים – “Do not repay me except with עדים,” then he must pay in front of עדים. Shmuel holds the borrower can still say, “I paid you in front of Ploni and Ploni, but they went overseas.”

A man once demanded repayment of a hundred-zuz loan, and the נתבע replied: לא היו דברים מעולם – “It never happened (I never borrowed from you).” Witnesses came forward and testified that he did borrow the money, but had already repaid it. Abaye commented that there seems to be no way to obligate the נתבע, for although the עדים testified that he borrowed the money, they also testified that he repaid it, and there is no remaining debt. However, Rava argued: כל האומר לא לויתי כאומר לא פרעתי דמי – Anyone who says, “I have not borrowed,” is like one who says, “I have not repaid.” Since, according to his claim, he never borrowed, he never would have paid. Therefore, although עדים testified that he paid, he must still pay based on his personal admission, because הודאת בעל דין כמאה עדים – a litigant’s admission is like one hundred witnesses testifying.