Story LineJust Joking!Rabbi Meir Orlean
The class was sitting around the table during lunch.
“Jacob, you borrowed $1,000 a year ago and haven’t paid up yet,” Ariel said loudly.
“Oh, sure!” replied Jacob, in an audible voice. Many ears perked up.
The following morning, Ariel approached Jacob. “Now that you admit that you owe,” he said, “I would appreciate payment!”
“You think that I was serious yesterday?” replied Jacob. “I don’t owe you a penny!”
“But you admitted outright that you owe me,” responded Ariel. “The whole class heard you, loud and clear!”
“I was just joking,” said Jacob. “I thought that you were pulling my leg, so I responded in kind.”
“I was 100-percent serious,” Ariel declared. “This loan has been on my mind all year.”
“Well, I wasn’t serious,” Jacob retorted.
“I doubt that such a claim is valid,” argued Ariel. “A monetary admission suffices to obligate you, as if there were testimony against you!”
“I did not intend to admit sincerely,” insisted Jacob. “I don’t owe anything and will not pay! You’re bothering me for nothing!”
“In that case, I’ll have to sue you,” Ariel declared. “Now I have evidence! A lot of people heard your admission.”
Shortly afterward, Jacob received a summons to appear at Rabbi Dayan’s beis din.
“I lent Jacob $1,000 a year ago and he hasn’t paid,” claimed Ariel.
“What do you say to the claim?” Rabbi Dayan asked Jacob.
“I don’t owe him a penny,” replied Jacob. “I never borrowed from him.”
“Do you have any evidence of the loan?” Rabbi Dayan asked Ariel.
“Two weeks ago, Jacob admitted the debt before the entire class,” replied Ariel. “I brought two witness who can testify to the admission.”
Rabbi Dayan heard the witnesses, who testified that Jacob acknowledged his debt to Ariel.
“What do you have to say in light of your admission?” asked Rabbi Dayan.
“I was just joking,” replied Jacob. “I didn’t take him seriously and responded in kind.”
“Jacob’s claim is acceptable in this case,” ruled Rabbi Dayan. “This admission is insufficient to obligate him.”
“Could you please explain?” asked Ariel.
“The Gemara (Sanhedrin 29b) addresses this case,” replied Rabbi Dayan. “Someone said to another, ‘You owe me money,’ and he replied, ‘Yes,’ but the following day refused to pay and claimed that he was joking (meshateh ani). He is exempt, even if witnesses overheard the admission, but is required to swear that he does not owe and that he admitted in jest” (C.M. 81:1; Sma 81:2).
“Why is that?” asked Ariel. “Isn’t a person’s admission like the testimony of witnesses?”
“It is, indeed,” replied Rabbi Dayan. “However, that applies when the admission is sincere. But a person can claim that he admitted in jest in certain situations. Beis din will not raise the possibility of an insincere admission, though, unless the person claims so on his own” (C.M. 81:3).
“When can such a claim be made?” asked Jacob.
“According to the Shulchan Aruch and most authorities, a person can claim that he admitted insincerely only if the other party initiated the demand, but not if he admitted of his own initiative,” answered Rabbi Dayan. “The rationale is that the one who admitted can claim: ‘Just as you demanded in jest, I responded in jest.’ The Shach, however, maintains that a person can claim meshateh ani even if he initiated the admission” (C.M. 81:5; Shach 81:12).
“Are there other limitations on this claim?” asked Ariel.
“If the admission was made in court, before witnesses who were appointed to hear the admission, during severe illness, or when said in a context and tone of complete and sincere admission — a claim of insincerity and joking is not accepted,” replied Rabbi Dayan. “Similarly, if the other party holds money of the person, we do not accept a claim that the admission was insincere” (C.M. 81:2, 6, 8; Pischei Choshen, Shtaros 11:50-62).
From the BHI HotlineNo-Show at Beis Din
I received a summons to appear before beis din. I showed up on the appointed date but the plaintiff did not.
Q: May I demand reimbursement for my lawyer and toen (advocate) that I had to pay even though beis din did not convene? I also had to miss a day of work; is he obligated to reimburse me since it was for naught?
A: We have previously explained (Business Weekly #152) that when a plaintiff files a suit against another, even if he does not win, he is not obligated to reimburse the defendant for his expenses (C.M. 14:5). But if the plaintiff filed a frivolous claim and knew he would not win, he is obligated to reimburse the defendant for his expenses (Yeshuos Yisrael 14:4).
In your case, let’s assume that the plaintiff’s complaint is valid, but since he did not appear in beis din at the designated time, the money the defendant spent to defend himself was wasted. Rema (C.M. 14:5) rules that in such a case the plaintiff is obligated to reimburse the defendant for his expenses. The basis for his liability is garmi (indirect damages that border on direct damage, for which one is liable [Nesivos 200:13, 232:10]).
Others explain that the basis of the liability is that the defendant spent money based on the plaintiff’s instructions. The plaintiff’s liability is based on arev (guarantor), since he instructed the lender to spend money (Imrei Binah, Dayanim 21; cf. Minchas Pitim 209:4). Seemingly, if he told the plaintiff that he would bring a toen, the plaintiff would have to compensate him for that expense as well. However, some state that in many batei din in Yerushalayim they do not obligate the plaintiff to pay the defendant’s expenses but inform him that he has a moral obligation to pay (Teshuvos V’Hanhagos 4:303 bases this practice on Biur HaGra 14:31).
Concerning the missed day of work, there are some authorities who categorize this as sheves — unemployment. It is similar to the case of an employer who, at the last minute, cancels the employment agreement and the employee cannot find alternative employment, in which case the employer must reimburse his employee for the loss he caused (C.M. 333:2; Ketzos 333:2). Others contend that sheves applies only when one directly assaults his friend. Although an employer who reneges on an employment agreement is obligated to pay, that is due to an enactment of Chazal in an employment relationship (see Nesivos 333:3). Therefore, in your situation, where there is no such enactment, the plaintiff cannot be forced to reimburse you for indirectly causing loss of wages (see Mishpat Hamazik 18:16; Seder Hadin 10:27). There is, however, a moral obligation (latzeis yedei Shamayim), similar to any other indirect damage (see Business Weekly #274 as to whether there is a moral obligation to reimburse for lost potential profit [menias revach]).
Even if the plaintiff is not obligated to compensate for sheves, Poskim debate whether the plaintiff is liable for the defendant’s physical exertion and effort to come to beis din (see Erech Shai 14:5, 200:7; Be’er Moshe, Slabodka, C.M. 6).
The above applies if the plaintiff intentionally skipped the session or did not appear due to negligence. If he can demonstrate that he was not able to attend due to circumstances beyond his control and was not able to call and cancel, he is exempt from having to reimburse the defendant (Pischei Teshuvah 14:15; Minchas Pitim 209:4).
Money mattersGuarantor After Loan Was Granted#410
Q: My friend took out a loan, and after he received the money I agreed to be a guarantor. Is such a commitment binding?
A: A verbal commitment after the loan was granted does not suffice to obligate a guarantor, since the lender did not initially rely on him. There is a dispute whether an informal written commitment suffices (C.M. 129:1, 4).
However, the guarantor becomes obligated in one of these cases:
The guarantor accepted responsibility with a kinyan sudar, even if not done before beis din or witnesses but in private (C.M. 129:1; Sma 129:4).
Beis din relied on the guarantor’s commitment to avoid collecting the loan when due, or the lender relied on the guarantor to return a collateral item (C.M. 129:2,3).
The lender initially stipulated obtaining a guarantor for the loan, even though he committed only after the money was given (footnote, Sma 129:4).