Story LineHalf and HalfRabbi Chaim Meir Roth
The school year was winding down. The parent representatives of each class began collecting money for the end-of-year gift for the teachers. Mr. Weiss was collecting for the eighth-grade class of Yeshiva Derech Mishpat.
He sent a message to all the parents of his class: “We are collecting money to give as a gift to the Rebbi and teachers of each subject. Each family is asked to donate $36.”
When the collection was completed, Mr. Weiss brought the money to the principal, Rabbi Handel, and said: “This is money we collected for the Rebbi and teachers of eighth grade. Please distribute it to them.”
“Thank you very much,” replied Rabbi Handel.
After Mr. Weiss left, Rabbi Handel wondered how he should divide the money. The Rebbi taught for three hours, and there were five secular-subject teachers, each of whom taught one hour.
“Should I give each teacher the same amount, including the Rebbi?” wondered Rabbi Handel. “Or perhaps I should give double to the Rebbi, who teaches the class on a regular basis. Or perhaps I should divide the money into eighths and give each teacher according to the time he teaches. Or should I give the bulk to the Rebbi who teaches the group and just a token amount to each subject teacher?”
Rabbi Handel called Mr. Weiss and asked how the money should be divided.
“According to your discretion,” replied Mr. Weiss. “We rely on you.”
Rabbi Handel could not decide the proper way to divide the money.
“Why don’t you consult Rabbi Dayan?” suggested the assistant principal.
“Good idea,” said Rabbi Handel.
Rabbi Handel called Rabbi Dayan. “I was given money to distribute to the Rebbi and teachers,” he said. “How should I best divide the money?
“The Torah, in Parashas Emor (Vayikra 24:9), states about the division of the lechem hapanim (the show-bread in the Mishkan): ‘It should be for Aharon and for his children,’” replied Rabbi Dayan. “Chazal interpret this to mean that Aharon receives half the bread and his children, as a group, receive half the bread.
“The Gemara (B.B. 143a; A.Z. 10b) extrapolates from this regarding one who gives a gift or makes a will,” continued Rabbi Dayan. “If a person gives a gift or bequeaths his assets to so-and-so and his children, the individual mentioned receives half and the group receives half” (C.M. 247:5; 253:24).
“What if there are multiple individuals or multiple groups?” asked Mr. Weiss.
“Rema states that if there are two groups, each group is entitled to half, even though one group may have more members than the other,” replied Rabbi Dayan. “For example, if a couple bequeathed their assets to their relatives, the assumption is that half the amount is intended for the husband’s relatives and half for the wife’s, even if one has a larger family.
“If there were numerous individuals and a group, such as: ‘Reuven and Shimon and the children of Levi,’ continued Rabbi Dayan, “there is a dispute among the Rishonim whether the group gets half or a share equal to one of the individuals” (See Rambam, Raavad and Maggid Mishneh, Hil. Zechiyah 11:6).
“Nonetheless, Maharsham (3:191) indicates that if the clear assumption is that the person’s intention was that everyone should share evenly, we follow his intention,” added Rabbi Dayan.
“Furthermore, some suggest that the rule to divide half and half applies only when there is a rationale to give half to the individual, such as the Kohen Gadol, whom we are required to honor and raise. However, if there was a collection for orphans and one was mentioned by name, there is no logic to give him half at the expense of his siblings” (Pischei Choshen, Kinyanim 15:61; Chashukei Chemed, B.B. 143b).
“In this case,” concluded Rabbi Dayan, “you should give the Rebbi half the money, and divide the other half among the teachers.”
From the BHI HotlineLost Loan Document
I borrowed money from a friend. When I contacted the lender to repay the loan he informed me that he had misplaced the loan contract.
Q: May I refuse to repay the loan until he produces the loan contract, or am I obligated to repay the loan and rely on his credibility that he will destroy the contract when he finds it?
A: Shulchan Aruch (C.M. 54:2) prohibits a borrower from refusing to repay a loan because the lender lost the loan contract. The borrower must repay the loan and the lender must give the borrower a receipt. The reason is that it is illogical to consider that a borrower should be exempt from repaying a loan because the lender lost the loan document. Although the borrower may be concerned that he will lose the receipt and without evidence that he repaid the loan could be forced to repay the loan a second time, nevertheless, the lender has the leveraged position in the relationship because a borrower becomes “subservient” to his lender (eved loveh l’ish malveh) and the borrower bears the responsibility to keep the receipt (Bava Basra 171b).
Even in situations where the debt did not emanate from a loan, e.g., a kesubah, so that the above reason does not apply (See Business Weekly #209), nevertheless, we write a receipt. The reason is that since the debtor certainly owes the money, he cannot exempt himself by expressing concern that he may lose the receipt. It is also rare that the lender would be aware that the borrower lost the receipt and thereby collect twice. Additionally, Chazal enacted that in all circumstances, a receipt is written (Rashba, Kesubos 16b, and see Tosafos).
There is a debate about a circumstance in which the borrower has a concern that he will suffer a loss, for example, an uncashed check. Some maintain that the borrower must replace the check and the lender must commit to cover any loss that the borrower will suffer (Tzemach Tzedek 10). Others state that the borrower is not obligated to rely on the lender’s assurance and is not obligated to replace the check when there is a realistic possibility that he could suffer a financial loss by issuing a replacement check (Nesivos 50:5; see Pischei Teshuvah 54:1, Beis Yitzchak, C.M. 14. See also Business Weekly #56).
The obligation for a borrower to repay his loan and accept a receipt is limited to where the lender claims that the loan document was lost. If the lender claims that he has the document but it would be difficult to obtain, e.g., it is located out of town and he therefore wants to issue a receipt rather than return the original loan contract, the borrower does not have to repay the loan until the lender returns the loan contract to him. The same is true if the lender asks for time to find the loan contract (C.M. 54:3; and see Minchas Pitim and Meromei Sadeh, Sotah 7b). Some maintain that if the lender needs the money and beis din does not suspect deception, the borrower is compelled to repay the loan and accept a receipt (Aruch Hashulchan, C.M. 54:8).
Poskim imply that there is no difference whether the original loan contract had witnesses or whether the contract was signed by the borrower (see C.M. 69:2). In both circumstances the borrower is not required to pay unless the lender returns the original loan contract, assuming it still exists (Pischei Choshen, Halvaah, 2:).
Money mattersOpen-End Guarantee#408
Q: Someone planned to take multiple loans from a gemach and asked me to sign as a guarantor for whatever amount he would borrow during the year. Is such a guarantor liable?
A: Rambam (Hil. Malveh 25:13) states that an open-end guarantor, who does not define the amount, is not liable. Shulchan Aruch states that subsequent authorities disagree with Rambam and he rules like them (C.M. 131:13).
Many explain that this parallels their dispute whether an open-end obligation is binding. However, Sma maintains that even the Raavad, who disagrees with the Rambam and upholds open-end obligations, would agree that a guarantor commits only within reasonable estimate, because of the additional element of asmachta inherent in a guarantor. Shach concludes like Shulchan Aruch, though, that an open-end guarantee is binding. Nonetheless, some require a kinyan for this (C.M. 60:2; Sma 131:25; Shach 131:15).
Even according to the Rambam, if a maximum limit was set, the guarantor is liable; if the open-end guarantor already paid, the borrower is required to reimburse him (Pischei Choshen, Halvaah 13:).