Itís Not Quite That Simple

For the week ending 16 August 2014 / 20 Av 5774

If You Borrow from Us, Do We Not Get it Back?

by Rabbi Dr. Yitzchak Greenblatt
The Color of HeavenArtscroll

Shylock the moneylender and Antonio the borrower come to court. Shylock claims that he lent Antonio $200 and it’s time to pay up. Antonio looks at him incredulously and replies, “$200? I only borrowed $100 from you!” There is no documentation of the loan and no other evidence available to the court. How should the judges rule?

In Jewish monetary law there is a principle that when a person makes a claim to his detriment, his admission constituents rock-solid evidence. For example, if he claims to owe someone money, we believe that he does. So Shylock will certainly get the first $100, which Antonio clearly admitted to borrowing and not having paid back. This is simple and easy to grasp. But what about the second $100?

There is another principle in halacha known as a migo (an argument based on “given that”), which adds credence to a person’s claim, under specific circumstances. The principle is as follows: If a person is lying, it makes sense for him to make the greatest claim possible. It is illogical for a person to make a lesser claim when he could win with a greater claim, unless the lesser claim is the truth and he is being honest. So, given that he could have made a better winning claim, we believe his lesser claim, in the absence of other evidence. If he were a liar he would have told a better lie!

Applied to our case, Antonio has a clear migo. He could simply have denied ever having borrowed anything from Shylock! Then there would be no evidence of the loan, because Antonio’s confession was all we had. Therefore, when Antonio says he only owes $100 he should be believed, given that he could have denied the entire $200. He should pay $100 and walk away, leaving Shylock fuming, “‘Tis mine and I will have it! Fie upon your law!”

But, as I’m sure you’ve guessed by now, as with many topics in Judaism — it’s not quite that simple!

The Gemara in Bava Kama (106b), basing itself on a verse in the Torah, derives the law that when someone admits to part of a claim against him, despite the fact that he has a migo, he must take an oath. So Antonio would have to swear that he does not owe a further $100. Not exactly a pound of flesh for our Shylock, but something to make him feel a little better about life. Now, in Judaism we do not take oaths lightly. To take an unnecessary oath is to take G-d’s name in vain, breaking the third commandment!

Antonio has a migo, as discussed above, so why do we not believe him? After all, if he had wanted to lie, he could have denied the entire loan and would pay nothing. To strengthen the question, think of it like this: If Antonio denies the whole loan, he walks out of the courtroom without paying anything, and without having to make an oath; if he is honest enough to admit to owing a portion of the money, we become suspicious of him and make him take an oath to get out of paying the rest!

To understand the reasoning we need to know another Gemara. In Gittin 51b we are taught a principle in human psychology. Normally, a person does not have the “chutzpah” (audacity, brazenness) to flatly deny something when the guy opposite him in court knows that he is lying. This wipes out the migo! Remember, the logic of the migo is that it is as if Antonio is saying, “Why would I lie by denying $100 and admitting that there was a loan? If I were a liar I would simply deny the whole $200!” The only time a migo works is when there is no reason at allto use the lesser claim, and the only explanation is that the lesser claim is the truth. According to the not-having-the-chutzpah principle, the court has good reason to suspect that Antonio would prefer to deny $100 than $200. Denying the whole loan, with Shylock brooding in front of him, staring at him with knowing scorn, would be a much harder thing for Antonio to do. So he has an obvious incentive to make the lesser claim, which undermines the whole migo. Arguing on the amount of the loan is certainly easier (although still no walk in the park). Antonio might be less embarrassed, because Shylock may assume Antonio has just made an innocent accounting error, or Shylock may doubt his own memory of the amount. Also, it is possible that Antonio is not serious in his denial of the other $100 of the loan, and means only to buy time to get the money together, at which point he’ll come clean. In any event, the court has ample reason to suspect that Antonio is up to something and would therefore make him take an oath.

Paradoxically, if Antonio had denied the whole loan, in the absence of any other evidence about this loan, the very same not-having-the-chutzpah principle would lead us to conclude that Antonio is probably telling the truth, because people generally find it hard to flatly deny something which the other guy knows to be the truth.

Monetary and financial law and human psychology are usually thought of as being quite separate areas of thought. In Torah, the system of life, the universe and everything — all is intertwined. True justice relies on an accurate understanding of the human psyche.

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