GEMARA

Question (Rav Yehudah): If Shimon told Levi 'I gave 100 Zuz to you in front of Ploni and Almoni', and they saw this from outside, what is the law?

Answer (Rav Hamnuna): If Levi denied ever getting the money, when Ploni and Almoni testify, he is Huchzak Kafran (established to be a liar). If Levi says 'yes. You paid me 100 Zuz that you owed me', he is exempt.

(Reish Lakish): If Reuven told Yehudah 'I gave 100 Zuz to you next to this pillar', and Yehudah said 'I did not pass by this pillar,' and witnesses testified that he once urinated by the pillar, he is Huchzak Kafran.

Objection (Rav Nachman): Yehudah did not say that he never passed by the pillar. Rather, he did not receive money by it! Rather, if Reuven said 'I gave 100 Zuz to you next to this pillar', and Yehudah said 'I never passed by it,' and witnesses testified that once he urinated by it, he is Huchzak Kafran.

Objection (Rava): Since Yehudah never thought that it was relevant if he was by the pillar, he never put it to his mind, so it is reasonable that he does not remember that he was once there.

41a: Reuven claimed a Maneh from Shimon. Shimon said 'I paid you in front of Ploni and Almoni.' Ploni and Almoni said 'we never saw this.'

(Rav Sheshes): Shimon is Huchzak Kafran.

(Rava): No. Anything that is not incumbent on a person, he is not mindful about it.

Bava Basra 169b (Beraisa - Rebbi): If Levi says that he has a document and a Chazakah for his land, he must produce the document;

R. Shimon ben Gamliel says, he brings witnesses of Chazakah.

170a: They argue about whether one must clarify all his claims. Rebbi holds that he must validate the document and bring witnesses of Chazakah. R. Shimon ben Gamliel holds that witnesses of Chazakah suffice.

A lender claimed from R. Aba, who answered 'I paid you in front of Ploni and Almoni.' R. Yitzchak Nafcha (the judge) said 'let them come to testify!'

R. Aba: I do not need them! One who borrowed money in front of witnesses (without a document), need not pay in front of witnesses!

R. Yitzchak Nafcha: You yourself taught in Rav's name that if one says 'I paid you in front of Ploni and Almoni', they must testify for him!

R. Aba: Rav said that the Halachah follows R. Shimon ben Gamliel. Even Rebbi said to validate the document just to clarify his claim!

R. Yitzchak Nafcha: Also I said only that they should testify in order to clarify your claim!

Sanhedrin 23a (Mishnah - R. Meir): Either party can disqualify the other's witnesses;

Chachamim say, he must prove that they are relatives or Pesulim.

23b (Rav Dimi): The case is, he said 'I have two pairs of witnesses.' R. Meir and Chachamim argue about whether he must defend his claim.

RISHONIM

The Rif and Rosh (6:17) brings the Gemara on 41a.

Ran (DH Kol): In Bava Basra, we say that when witnesses testify unlike he claimed, he is Huchzak Kafran, even if it was not incumbent on him! R. Chananel (and Rashi) say that if witnesses say that he never paid, he is not believed and he must pay. The Rif omitted this. He brought only our Gemara. He rejected that Sugya due to ours. This is astounding! R. Yitzchak Nafcha ruled even like Rebbi! The Halachah follows Rebbi. The Rashba gave the best answer to this. One must clarify only in cases like a document and a Chazakah, for a Chazakah depends on the document. It is Batel if the document is Pasul. If one ate Peros due to a document, and it was found to be Pasul, the Chazakah is Batel. Since he says that he had the document, he must bring it. A claim of payment in front of witnesses is not due to the witnesses. The witnesses are an extra matter, so even if the witnesses deny it he is believed according to Rava, whom the Halachah follows. Even Rebbi agrees. In Sanhedrin, we suggested that R. Meir and Chachamim argue about one who has two pairs of witnesses, like Rebbi and R. Shimon ben Gamliel. We rejected this, for even Rebbi could agree that one need not clarify in this case, for neither (pair) depends on the other. This shows that whenever one matter does not depend on the other, e.g. I paid in front of Ploni and Almoni, Rebbi holds that one need not clarify. R. Yitzchak Nafcha told R. Aba to clarify his claim, for R. Yitzchak holds like the opinion that Rebbi argues even in such a case. Also Rav Sheshes holds like this. The Halachah follows Rava. This is why the Rif omitted the case in Sanhedrin.

Rebuttal (Gra CM 70:9): If Rebbi holds that one need not clarify when neither (pair) depends on the other (but elsewhere, if he did not clarify, he is liable), in Sanhedrin we must explain that Chachamim require clarifying in every case (and the Halachah follows them against R. Meir)!

Hagahos Ashri: If he said 'I surely paid you in front of them, and not in private' (and they denied this), he is Huchzak Kafran. R. Baruch disagrees. Perhaps the witnesses forgot, for their testimony was not needed.

Rambam (Hilchos To'en 6:34): If Reuven claimed from Shimon, and Shimon said 'I paid you in front of Ploni and Almoni', and they said that they never saw this, Shimon is not Huchzak Kafran. Witnesses remember only what they are witnesses about. Therefore, Shimon swears Heses and he is exempt.

Rambam (5): If Reuven claimed from Shimon, and there are witnesses, and Shimon said 'I paid you in front of Ploni and Almoni', we tell Shimon to bring them and be exempt. If they did not come, or died or went abroad, Shimon swears Heses that he paid. We require him to bring them only to clarify is words and be exempt from swearing. If one lends with witnesses, the borrower need not pay in front of witnesses.

Magid Mishneh (5): All the Meforshim ask about Halachah 4 from Bava Basra, in which R. Aba needed to bring witnesses just to clarify. The Rambam explains that he must clarify to be exempt from an oath. Here, there were witnesses about the loan. In Halachah 4, there were not. Or, perhaps the Rambam distinguishes between saying 'I paid you in front of Ploni and Almoni' and 'didn't I pay you in front of Ploni and Almoni?!' Some Meforshim distinguish this way. Many say that in this case, if the witnesses contradict Shimon, he must pay. It seems that the Rambam holds like this. We hold like Rava, but not like R. Yitzchak Nafcha. One must clarify only regarding a document and a Chazakah on land, for the Chazakah is due to the document. One is believed to say that he paid a loan, therefore, one is always believed (even if he cannot bring the witnesses). This is why the Rif omitted the case in Bava Basra. The Rashba and Ramah agree.

Hagahos Ashri (Sanhedrin 3:4(7)): If Shimon said 'I paid you in front of Ploni and Almoni', they need not come to testify. Further, even if they said that they never saw this, Shimon swears Heses and he is exempt. Rashi holds that even an oath does not exempt Shimon, until they testify.

POSKIM

Shulchan Aruch (CM 70:2): If Shimon said 'I paid you in front of Ploni and Almoni', we tell him to bring them and exempt himself (Rema - for one must clarify). If he did not bring them, or even if they contradict him and say 'this never happened', he swears Heses and he is exempt. If he says that he summonsed them to be witnesses when he paid and they contradict him, he must pay.

Beis Yosef (DH veha'Ran): Why did the Tur say that the Ramah holds like the Rif? The Ramah says that if one said incredulously 'didn't I pay you in front of Ploni and Almoni', he is not Huchzak Kafran even if they contradict him. This connotes that if he said definitely and they contradict him, he is Huchzak Kafran. Perhaps the Ramah seeks to resolve the Sugya in Bava Basra with the Sugya in Shevuos. In the former he spoke definitely, and in the latter the spoke incredulously. Rashi holds that he never needs to clarify his words, for anything that is not incumbent on a person, he is not mindful about it. This is like the Ran, Rashba and Magid Mishneh.

Tur: The Ba'al ha'Ma'or says that he is Huchzak Kafran only if he summonsed them to be witnesses.

Beis Yosef (DH v'Chen): The Tur says that the Rambam holds like the Rif. They are very different! The Rif omitted the case in Bava Basra, and brought only the case in Shevuos. The Rambam brought both of them. Rather, the Rambam distinguishes, like the Ba'al ha'Ma'or, between whether or not he summonsed the witnesses. This is why Halachah 4 says 'witnesses remember only a matter that they were (summonsed to be) witnesses about.' Perhaps the Rambam equates both cases. However, Halachah 5 says 'if they did not come, or died or went abroad.' It seems that he did not discuss if they contradict Shimon, for then Shimon would be liable.

Bedek ha'Bayis: Perhaps the Rambam merely gave the usual reasons why witnesses would not come. L'Halachah, all agree that when the witnesses do not come, is swears and he is exempt. If they contradict him, the Rif, Rashbam and Rashba exempt, and perhaps also the Rambam, so we do not make him pay. If he summonsed the witnesses, presumably they would have remembered, so if they do not he is liable.

SMA (8): The Rambam says that he must clarify to exempt himself from the oath. The opinion that he must clarify Stam, holds that if the witnesses contradict him, he is liable. The Rema should not have explained that he must bring witnesses to clarify, since the Mechaber exempts even if the witnesses contradict him.

Shach (7): The Tur, Tosfos and others say Stam that he must clarify, but they exempt even if the witnesses contradict him.

SMA (10): The Rif, Rashbam, Rashba, Ran, Rosh and Tur hold that if it is hard to bring the witnesses, he swears and he is exempt, even if the witnesses contradict him later. The Tur says that the Rambam agrees, just l'Chatchilah he must bring them to avoid swearing.

Bach (3 DH u'Mah she'Chosav v'Chen Kosav): The Tur rules like the Rif and Rambam, that he is exempt even if the witnesses contradict him. This is unlike the Rosh in Bava Basra.

Rebuttal (Shach 6): Also the Darchei Moshe says so. They err. The Tur himself brought the Rosh! Rather, the Rosh said so only about a document and a Chazakah. The Rambam holds like the Rif, like the Tur says. Why does the Rema say that some obligate whenever witnesses contradict him? No one says so. This is unlike Shevuos 41b! The Rema should have distinguished when we say so. It seems that the Rema cites the Rambam according to the Magid Mishneh. This is a minority opinion! The Rambam, Ba'al ha'Ma'or and others explains that 'one is not mindful about anything not incumbent on him' refers to the witnesses. Rashi, the Ran and others explain that it refers to the borrower. Both of these are true. This is why he can retract and say 'I erred. I did not paid in front of Ploni and Almoni', even if he initially said that he summonsed them. However, if he persists and says that the witnesses err, he is not believed if he summonsed them, for then they paid attention. If he said that he paid in front of Ploni and Almoni, and immediately retracted, he need not bring them, for bringing them is only to spare him from swearing.

Rema: Some say that whether or not he summonsed them, if they contradict him he must pay. However, he need not bring witnesses.

Gra (12): This is like the Ramah, who distinguishes a definite statement (like the Shulchan Aruch discusses) from one said incredulously. Why didn't the Rema specify? The Mechaber ruled differently in 140:4 (about a document and a Chazakah).