by Chaim Weber
Many Americans saw last week that their president is at a stage in life where he forgets things. Putting it mildly.
But one thing remains clear: Mr. Biden (and his advisers) must still know about the Gemara in Bava Basra.
After all, Mr. Biden and his team have been attempting to forgive vast amounts of student loan debt. Putting aside issues of fairness to the general populace and inflation, shouldn’t Mr. Biden be concerned about borrowers who were good citizens and repaid their student loans early? These voters would surely be bitter to find out that Uncle Sam would have stepped in to pay it for them if they hadn’t been good citizens!
Clearly, Mr. Biden assumes like the opinion of Reish Lakish (Bava Basra 5a) that people generally don’t repay loans before their due date.
Although the Gemara presents a dissenting opinion of Abaye and Rava that people do pay loans early, the Gemara concludes like Reish Lakish.
What About the Rule of Hamotzi Mechaveiro Alav Hara’aya?
Reish Lakish’s assumption that borrowers don’t repay loans early is deemed very strong. Strong enough that if a borrower claims to have repaid a loan early but didn’t bring proof, he’s not believed.
The question is: why not?
Ordinarily, we have a rule hamotzi mechaveiro alav hara’ayah – that if a plaintiff seeks to take money from someone else, the plaintiff must bring proof. And yet, when a borrower claims that he repaid a loan early, the assumption that he didn’t pay is enough to force him to pay the lender.
Why? Do we force people to pay based on general presumptions of human behavior?
Furthermore, the idea that people generally don’t repay loans early seems to be based on the principle of rov – that we follow the majority. However, we follow the opinion of Shmuel (Bava Kamma 46b) that one cannot use the power of rov to force a defendant to pay because of the rule of hamotzi mechaveiro alav hara’ayah! Why then when it comes to the assumption that people won’t pay loans early do we disregard the iron-clad rule of hamotzi mechaveiro alav hara’ayah?
Answer #1 – The Answer of the Maharit
The Maharit explains that the assumption that people don’t repay loans early isn’t based on the principle of rov. Rather, it’s logic that’s so self-evident that it has the power of anan sahadi – logic so self-evident that it’s as if witnesses testified to that effect. An anan sahadi has the power of witnesses and can therefore be used to take money away from a defendant.
Answer #2 – The Answer of R’ Shimon Shkop and the Chasam Sofer
R’ Shimon Shkop zt”l gives a different explanation.
He notes that the assumption that people don’t repay loans early may indeed be based on the principle of rov. However, there are two types of rov: a statistical majority and a logic-mandated majority.
A statistical majority is when one crunches numbers and finds out that 51% of the world acts in a certain way. By a statistical majority, we follow the opinion of Shmuel that a majority is not powerful enough to force someone to pay.
A logic-mandated majority is not based on surveying people and finding what 51% of people do. Rather, it’s based on the fact that logic mandates that most people would act a certain way in certain situations. A logic-mandated majority is powerful enough to take money away from a defendant.
The Chasam Sofer gives a similar explanation and notes that by a statistical majority, there’s a distinct and recognizable minority that tells us not to force a defendant to pay. This type of rov is not powerful enough to force someone to pay.
When it comes to a logic-mandated majority, there’s no distinct and recognizable minority telling us not to force the defendant to pay. Such a rov is indeed powerful enough to force someone to pay.
Answer #3 – The Answer of the Imrei Binah
The Imrei Binah answers that although there’s a minority of people who would pay before a due date, those people would surely retain proof that they paid. For a borrower to claim that he paid early while also not providing proof of payment, such a claim is so weak and is not similar to other cases where we follow the minority and avoid forcing a defendant to pay.
Answer #4 – The Answer of R’ Elchanan Wasserman and R’ Isser Zalman Meltzer
R’ Elchanan and R’ Isser Zalman zt”l both explain that our case is not a typical case of a plaintiff taking money from someone else. Rather, it’s a borrower claiming he repaid a loan after it was established that he owed the money.
Since it was established that the money was owed, the burden of proof is shifted to the borrower to prove that he paid the loan. It’s true that when the loan reaches the due date, the borrower can claim (in certain cases) that the debt was paid since the loan is now in a state of omed lepira’on – “about to be paid.” However, before the due date, the debt is not considered omed lepira’on. Therefore, the borrower loses his ability to claim that the loan was paid.
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One Response
I may have missed it, but I don’t see the factor of interest rates above. These days, that can be an added cost to an existing loan. Many people are looking to clear their past debt burdens and move forward without them.
In addition, if one has the funds available, why wait for the additional interest to accumulate. This is often a personal calculation of a tax write-off for interest vs paying off the loan balance while the funds are available, thereby putting it all in the rearview mirror.