Sources and Reasoning:
Whether a borrower who evades repayment of his debt is considered a thief
The Torah states (Exodus 23:1): “Do not bear a false report; do not join hands with a wicked person to be a corrupt witness.” From here Chazal derived that a wicked person may not serve as a witness and may likewise not take an oath in beit din.
However, we must consider who is called a thief. Is only one who possesses another person’s object and denies it considered a thief, and thus disqualified from testimony and from taking an oath? Or is one who borrowed money and evades repaying his debt likewise considered a thief?
Proof from the Gemara that one who borrows and does not pay is not considered a thief
From the Gemara in Bava Metzia 5, it may be proven that one who borrows and does not pay is not considered a thief. The following is the language of the Gemara, Bava Metzia 5:
Rav Idi bar Avin said in the name of Rav Chisda: One who denies a loan is fit for testimony; one who denies a deposit is disqualified from testimony.
It would appear from the Gemara that only one who possesses another person’s object and denies it is considered a thief and is disqualified from testimony and from taking an oath. However, one who denies that he owes money to the lender is not considered a thief. The reason, apparently, is that he presumably does not intend to evade payment of the debt entirely, but only to delay until he has the means to repay, or until he has no choice but to repay.
This may likewise be proven from Rashi in Sanhedrin 2
Regarding the Mishnah at the beginning of tractate Sanhedrin 2: “Monetary laws are adjudicated by three; cases of theft and bodily injury by three,” Rashi explains there, s.v. gezalot, as follows:
“One who denies a deposit—for once he has used it, he is a thief—and likewise one who snatches from his fellow’s hand is a thief, as in: ‘and he seized the spear from the Egyptian’s hand’ (II Samuel 23). But one who borrows and does not pay is not called a thief, for a loan is given to be spent.”
An apparent contradiction in Rashi’s words
However, Rashi’s words in Gittin 36 indicate the opposite. There, in explaining the Gemara’s question, “Is there anything that by Torah law is not remitted, yet the Sages enacted that it be remitted?”, Rashi writes, s.v. ve’amru Rabbanan delo tishamet: “Thus the borrower is a thief according to their ruling.”
Rashi’s words seemingly indicate that because rabbinically the loan is not remitted and the borrower does not repay his debt, he is therefore considered a thief.
Even according to those who maintain that a borrower who does not pay is a thief, there is room to say that he is not disqualified from testimony
I have now found a lengthy, reasoned ruling by Rabbi Tzvi Yehudah ben Yaakov shlit”a discussing this matter—whether a borrower who does not repay on time has the status of a thief. He presents proofs in both directions and proves from the Yerushalmi that he has the status of a thief, and likewise adduces proof from Ketzot HaChoshen, siman 73, se’if katan 2; see there.
His conclusion is that if the borrower evades repayment of his loan, whether he is a thief depends upon a dispute among the poskim. However, if the borrower merely postpones the date of repayment and evades paying on time, he is not thereby disqualified from testimony.
He further proves there that even according to those who rule that a borrower who evades payment has the same law as a thief, he is nevertheless not disqualified from testimony, since wherever it may be said that the borrower believes he is not doing anything prohibited, he is not disqualified from testimony or from taking an oath.
One who borrows from the outset with no intent to repay is considered a thief according to all opinions
However, it appears clear that the disagreement extends only to a borrower who, at the time of the loan, takes the money intending to return it, but because “a loan is given to be spent,” finds it difficult to return the money and evades payment with various excuses. But one who takes money from the outset with no intent to return it is considered a thief from the outset, for had the lender known that the borrower had no intention of returning it, he would not have given him his money at all. Thus, from the outset he takes the money by theft and without the lender’s consent.
Proof of this may be cited from Tosafot in Bava Kamma 112, s.v. af al pi, which states:
It may be explained that although they gave it to him willingly, it is in his possession as stolen property, for it is like a mistaken transfer: it was not given as a gift, but as interest. It is called theft in its original state, since the money remains intact and they would have been obligated to return it were it not regarded as having entered the purchaser’s domain, which constitutes a change of domain.
Tosafot makes clear that even money given consensually as a loan, a gift, interest payment, or the like is considered stolen property in the recipient’s hands when the entire transfer was made in error. For example, where it was given because the giver thought the recipient was entitled to interest payments, whereas had he known that halachically the recipient was not entitled to interest, he would not have given it. The same applies here: had the lender known that the borrower did not intend to return the money, he would not have given it. Therefore, it is considered stolen property in the borrower’s hands from the outset.
In my opinion, this is a simple and undisputed matter: if the borrower took the money from the outset with no intent to return it, he is considered a thief from that moment in every respect, including disqualification from testimony. People also understand that one who borrows without intending to return the money is a thief, and do not delude themselves that no prohibition is involved.
I have now found that Imrei Binah, Hilchot Geviyat Chov, siman 2, resolves the aforementioned contradiction in Rashi in this manner: it depends on the borrower’s intent at the time of the loan. If he intended to repay the loan, he is not considered a thief even if he later evades repayment; whereas if already at the time of the loan he did not intend to repay, he is considered a thief and is disqualified from testimony. He explains Rashi in Gittin to mean that when the borrower does not repay the loan, it becomes clear retroactively that he was not a borrower but rather a thief.
This is the language of Imrei Binah there, Hilchot Geviyat Chov, siman 2:
One must examine Rashi’s words in Gittin (36b), concerning the Gemara’s question: “Is there anything that by Torah law is not remitted, yet the Sages enacted that it be remitted?” He writes, “Thus the borrower is a thief according to their ruling.” Yet according to Rashi, he is not a thief in this case, but merely fails to fulfill the positive commandment, as Rashi writes there in the Gemara’s answer: “Sit and refrain from acting”—this borrower sits and nullifies, and does not fulfill the mitzvah to repay his debt. See also Rashi at the beginning of Sanhedrin: “One who borrows and does not pay is not called a thief, for a loan is given to be spent.” I have already written concerning this in Chiddushei Rabbeinu, Kuntres HaTeshuvot (siman 3), that where one borrows, has the means to pay, and does not wish to do so, it is compelling evidence that the loan was not given with this understanding; the status of the loan is voided, and he becomes a thief retroactively.
The practical halachic conclusion in the case before us
To the extent that the witness borrowed from the outset without intending to pay, and there is compelling evidence that this was his intention, there is no doubt that he is a thief and disqualified from testimony.
However, if the witness did not have this intention at the time of the loan, or if we do not know what his intention was at that time, the matter is subject to the dispute among the poskim mentioned briefly above. We may not remove him from his presumption of fitness, particularly since it may be said that people do not perceive this as prohibited; therefore, even if he is considered a thief, he is not thereby disqualified from testimony.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
