Question: I lent a friend $50. When I asked him to repay, he replied that although he inquired about the loan, he doesn’t remember whether he ended up borrowing. Does he have to pay? What if he admits borrowing, but doesn’t remember if he repaid already?
Answer: There is a distinction between the two cases.
When a person is uncertain whether he borrowed, he is not required to pay without evidence, even if the plaintiff claims with certainty. Nonetheless, one who wants to fulfill his obligation towards heaven should pay if the lender claims with certainty. (C.M. 75:9) This is only meritorious, though, not required. (Shach 88:36)
On the other hand, when a person definitely borrowed and is uncertain whether he repaid, the borrower is required to pay if the lender claims with certainty that the loan was not repaid. (75:9)
The rationale for the distinction is as follows: When the defendant is in possession of the money, the burden of the proof is upon the plaintiff when there is any doubt (“hamotzi mei’chaveiro alav ha’raaya“). However, when there is a known debt, the known status quo of debt supports the definite claim of the lender against the uncertain claim of the borrower. Therefore, the borrower must repay the loan if he cannot counter with a definite claim that he already paid. (Shach 75:23)
Authored by Rabbi Meir Orlian
These articles are for learning purposes only and cannot be used for final halachic decision.
The Business Halacha email is a project of Business Halacha Institute (www.businesshalacha.com) and is under the auspices of Rav Chaim Kohn.
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A lender is obligated per halacha to get a written agreement acknowledging the loan from the borrower prior to making the loan.
If one of them were mistaken, and an overpayment of the loan was made (i.e. he repaid it two times) OR if a mistake were made and he doesn’t repay the loan altogether, in dinei shamayim will he be punished?