#697: Must I always arrange for witnesses when lending money?
Halachah requires the presence of two eidim (witnesses) when a person lends money to another. The reason for this is the lav (Torah prohibition) of lifnei iver lo siten michshol (do not place a stumbling block before the blind). The absence of witnesses may make it too difficult for the borrower to avoid the human foibles of forgetting about the loan, or perhaps even lying outright that it never occurred.
In addition, not appointing eidim is gorem kelalah l’atzmo (brings curses upon himself) from outsiders who, in the case of a denied loan, disdain him for exhorting money from an “innocent”. The Gemara goes as far as to state that if one davens to Hashem and receives no answer to his prayers, this could be on account of money he lent without witnesses.
In Case a Witness Goes AWOL
The Ritva maintains that arranging for witnesses is a midas chassidus (extra-pious behavior), but the consensus in mainstream halachah is that it is compulsory. An acceptable alternative to witnesses is collateral from the borrower, which can come even in the form of a post-dated check. Optimal practice is a shtar (lit., contract—a promissory note) signed by witnesses, for unlike human witnesses, it cannot skip town, and in contrast to collateral, it tells the full account. It is a machlokes (dispute in halachah) whether a private IOU is considered a shtar, or perhaps equivalent to two witnesses; most agree that one witness is insufficient.
A Case for Limud Zechus
Poskim discuss various reasons why this practice has lost favor among lenders who are otherwise halachah-observant, such as: Frequent lenders are subject to the restriction of providing two witnesses. Those who lend only intermittently may be absolved. Also: Wealthy people are more susceptible to being taken advantage of than their less solvent brothers. There is less concern that borrowers will “forget” to repay a loan to someone who relies on the repaid loan to remain out of debt. But both these sevaros (theories) are viewed as justification, not valid arguments, by the majority of poskim.
Less personal contact existed between lender and borrower in days of old, some poskim maintain. In current times, non-brokered loans are more likely to be between friends than strangers, so it would be uncommon for the borrower to avoid settling the loan when the two are on companionable terms. We know this reasoning does not circumvent the issue of a borrower legitimately forgetting the loan. But is it really lifnei iver after the fact if the borrower didn’t intentionally trip up? How can a lender be held responsible for a borrower’s sketchy memory? Thus, these poskim argue, only the prohibition of gorem kelalah l’atzmo remains—about which the lender can say, “I pay no mind.”
This sevara too has been used as limud zechus (viewing [a lapse] favorably) as halachic authors grapple with the phenomenon of a halachah that has been ignored for many generations without just cause—but this rationalization too is not upheld as mainstream psak (ruling). We are therefore required, as originally, to lend money only with the requisite witnesses, shtar, post-dated check or any other halachically-sound alternative arrangement.
The Case of the Lukewarm Lender
There remains one legitimate exception to the requirement of witnesses: If the loan sum is insignificant enough to the lender that he doesn’t care whether the money is returned or not, he may tell the borrower, “I am mochel (forgive) the money if you cannot repay.”