Achrei - Kedoshim
Achrei - Kedoshim
Story LineSum TotalRabbi Meir Orlian
Rabbi Dayan turned to the plaintiff, Mr. Lander, to present his case.
“I lent Mr. Broyer money on four occasions,” said Mr. Lander. “He owes me a total of $18,000.”
“And what do you claim?” Rabbi Dayan asked Mr. Broyer.
“I only owe $17,000,” Mr. Broyer replied.
“Do you have a written loan document?” Rabbi Dayan asked Mr. Lander.
“Yes, we drafted a signed loan document with the detailed sums,” Mr. Lander replied. He presented the beis din with a copy of the document.
“The loans were $5,000, $5,000, $4,000, and $4,000,” continued Mr. Lander. “The problem is that the sum total is listed as $17,000. However, when you add the sums mentioned, it is clear that the total of $17,000 is an error. Thus, Mr. Broyer owes me $18,000, not $17,000.”
“And what do you say in response?” Rabbi Dayan asked Mr. Broyer. “How much did you borrow?”
“I only borrowed $17,000,” claimed Mr. Broyer. “The second loan was also only $4,000. Anyway, even if was $5,000, the total listed is $17,000. Therefore, regardless, I should not have to pay more than that!”
“How can you claim that the second loan was only $4,000?” exploded Mr. Lander. “The loan document clearly states that it was $5,000! The sum total is clearly an error.”
“Or, maybe the total is the correct amount, and the $5,000 was an error,” Mr. Broyer shot back. “Clearly, there’s some doubt here. Even if it remains an unresolved issue, I should only have to pay the lower figure!”
“Is there anything else?” Rabbi Dayan asked the two parties.
“No,” replied Mr. Lander and Mr. Broyer.
Rabbi Dayan asked the two parties to step out for a few minutes while the beis din deliberated.
When they finished deliberating, the secretary called the litigants back in. Rabbi Dayan turned to Mr. Broyer and said: “The beis din rules that you are liable for the full sum of $18,000.”
“I accept the ruling,” said Mr. Broyer, “but would like to understand the reasoning.”
“There is an inherent contradiction within the loan document,” explained Rabbi Dayan. “When it is not possible to reconcile the contradiction, the Shulchan Aruch differentiates between three cases” (C.M. 42:5).
“The first case is a contradiction between the amount mentioned in the beginning of the document and the amount repeated in the end,” replied Rabbi Dayan. “Here, the amount mentioned at the end is binding. We assume that there was a change or retraction from the beginning of the document until it was finalized at the end.”
“Isn’t that our case?” asked Mr. Broyer. “The beginning of the document indicates $18,000, whereas the end states $17,000!”
“No, our case is the second contradiction mentioned in the Shulchan Aruch, where there is discrepancy between individual amounts and the sum total,” replied Rabbi Dayan. “Since the individual amounts are clearly listed, we give them greater weight and assume that an error occurred in the computation, which is prone to error. For this reason, Mr. Broyer must pay the full $18,000.”
“And what is the third case?” asked Mr. Lander.
“An irreconcilable contradiction within the same section,” continued Rabbi Dayan. “For example, if the document said, ‘$10,000 in twelve monthly payment of $1,000.’ Here, the two sums simply do not match, and there is no way to ascertain which is binding and which is erroneous.”
“What do we do in such a situation?” asked Mr. Broyer.
“We apply the principle yad baal hashtar al hatachtonah — The one possessing the document has the lower hand,” replied Rabbi Dayan. “The simple explanation of this is that the one possessing the document is usually the plaintiff. For example, the lender holds the loan document and wants to extract payment from the borrower. As you know, the fundamental principle of monetary law is: hamotzi meichaveiro alav haraayah — the plaintiff has the burden of the proof. Thus, where the document is contradictory, we assume the lower amount, unless we have proof or reason to assume otherwise.”
From the BHI HotlineFound Money
I found a $20 bill on the floor of the beis medrash.
Q: What am I obligated to do with the money?
A: The halachah is yei’ush shelo midaas, lo havei yei’ush. This principle addresses lost objects that the owner does not realize are lost, but undoubtedly once he realizes they are lost, he will despair of recovering them, e.g., an object lacking a siman (identifying characteristic). Even later after the owner realizes the object was lost and despairs, the finder remains obligated to return it.
The Gemara (B.M. 21b) challenges this principle based on the Mishnah’s ruling that one who finds lost money may keep it, seemingly without concern that the owner is unaware that the money was lost. The Gemara answers: Since people regularly check the money in their pockets it is assumed that the owner immediately realizes when he loses money (C.M. 262: 3, 6).
Chazon Ish is cited as stating that the halachah is an enactment of Chazal. Consequently, although nowadays people do not check the money in their pockets as frequently, and often do not know how much money is in their pocket, nevertheless the enactment remains in force and the finder may keep the lost money (Pe’er Hador, vol. III:98; Maaseh Ish, vol. III:29, 87 and vol. VII:163. See also Mishpat Haaveidah, p. 93).
Some authorities question this assertion since the implication of the Gemara and Poskim is that the halachah is based on the presumption that the owner realizes the money is lost and despairs of recovering it, and it is not an enactment of Chazal that applies automatically.
Other authorities write that nowadays, since people do not realize when they lose money, the principle of yei’ush shelo midaas applies (Hashavas Aveidah K’halachah, p. 163 quoting Harav Elyashiv, zt”l; see also Taz, C.M. 262:6 and Pischei Choshen, Aveidah 2:).
Others contend that although yei’ush shelo midaas does not allow the finder to keep the lost item for himself, he is permitted to use it until he finds the owner and returns it (Shach, C.M. 260:26 — according to Rambam; see also Sema 260:42 and Rav Akiva Eiger for an alternate approach). Others reject this approach since the matter involves a Biblical prohibition and rule that one may not use an item found before the owner despaired of recovering it (Shulchan Aruch HaRav, Metziah 2).
An approach that satisfies all opinions is to record all the details related to the lost money (e.g., the amount, where it was found, the date it was found and anything else that would allow the owner to prove that it is his) and then the finder may use it, understanding that he will return it to the owner following witnesses’ testimony, or when Eliyahu Hanavi arrives (Mishpetei HaTorah, B.M., Hashavas Aveidah 2:13). Obviously, this is limited to amounts the finder would have available to give to the owner, but if the finder would not be able to produce that amount when requested, he may not employ this approach (see C.M. 267:25; Hashavas Aveidah K’halachah 6:3).
Money mattersPermission to Sue in Civil Court#256
Q: What happens if the defendant ignores the summons of beis din?
A: The defendant is required to heed the summons. If he ignores it and beis din cannot make him appear, they will usually give the plaintiff permission to sue in civil court, to uphold justice. The practice is to summon three times, but, depending on circumstances of the refusal, some batei din suffice with one summons and a warning that if the defendant refuses to appear, beis din will permit the plaintiff to sue in civil court (C.M. 26:2; Aruch Hashulchan 11:1; Minchas Yitzchak 9:155).
On the other hand, if the defendant is willing to appear before another beis din, even elsewhere or of lower stature, he is not considered as refusing to submit to beis din. If his statement seems insincere, though, as an attempt to evade adjudicating, he is considered as refusing to submit and the plaintiff is given permission to sue in civil court (Nesivos 26:13; Aruch Hashulchan 26:5).