Story LineIs He Believed?Rabbi Meir Orlean
I’d like to borrow $300,” Danny said to Asher. “Do you have it?”
Asher took out his wallet. “How long do you need it for?” he asked
“Three weeks,” replied Danny.
Asher took out $300. Danny put out his hand to receive the money.
“Not so fast,” said Asher. “Do you think that I’m going to lend money without evidence? Tomorrow you’ll say that you never borrowed!”
Asher called over two people. “Please be witnesses that I’m lending Danny $300 for three weeks,” he said. He then handed the money to Danny in their presence.
Some time later, Asher said to Danny. “I want to remind you that you owe me $300.”
“What do you mean?” asked Danny, startled. “I paid you back two days ago!”
“How did you pay?” asked Asher.
“I gave you $300 cash, just like you gave me,” replied Danny.
“Do you have any proof?” asked Asher.
“No,” answered Danny, “since I paid you cash.”
“Then how can you expect me to believe you?” said Asher.
“Well, it’s my word against your word,” replied Danny. “Why should you be believed more than I?”
“I made sure that witnesses saw the loan, so you should have realized that I didn’t consider you trustworthy,” argued Asher. “You received the money with witnesses; you should have repaid it with witnesses.”
“One thing has nothing to do with the other,” insisted Danny. “You chose to be extra careful when granting the loan. That doesn’t mean that I have to keep the same standard. There’s no reason that my word is worth less than yours, and I’m in possession of the money.”
“Then I’ll have to sue you in a din Torah,” said Asher.
The two came to Rabbi Dayan. “I lent Danny money before witnesses,” said Asher. “He claims that he repaid, but has no evidence of payment. I vehemently deny that he paid me! Is he believed?”
“The Gemara (B.B. 170a; Shavuos 41b-42b) teaches that the borrower is believed that he repaid the loan when the lender does not hold a loan document,” replied Rabbi Dayan. “He requires a light oath (shevuas heses), though, to counter the definitive claim of the lender. He is believed even if the lender was careful to lend before witnesses” (C.M. 70:1).
“Why is this?” asked Danny.
“This is because a loan is expected to be repaid,” replied Rabbi Dayan. “Therefore, the borrower’s claim that he repaid is a strong one. Furthermore, a borrower generally would not have the audacity to falsely claim that he repaid, especially since the creditor did him a favor by lending.
“However, the borrower is believed only when the loan becomes due,” continued Rabbi Dayan. “Before the due date, he is not believed without proof. The reality is that people don’t always pay on time, and certainly we don’t expect that they paid early!” (C.M. 39:5; Sma 70:5).
“If the borrower is believed, what recourse does the lender have?” asked Asher.
“The lender can insist on a loan document,” replied Rabbi Dayan. “The borrower is not believed without proof when the lender holds the document. Alternatively, the lender can stipulate when lending that he should be believed that he was not repaid (ne’emanus), or that the borrower should repay only before witnesses” (C.M.70:3; 71:1).
“What if the borrower claims, instead, that the lender forgave the loan (mechilah)?” asked Danny.
“Mechilah is a weaker claim, since the loan is not expected to be forgiven,” replied Rabbi Dayan. “Therefore, according to most authorities, this claim is not believed in its own right. Nonetheless, when the borrower can claim that he repaid, he is alternatively believed to say that the lender forgave the loan, based on the concept of migo” (Rema, C.M. 70:1; Gra 70:6; Pischei Choshen, Halvaah 2:35; Eidus 11:30).
“Thus,” concluded Rabbi Dayan, “before the due date Danny is not believed without proof that he repaid; afterward he is.”
From the BHI HotlineAre Partners Entitled to Compensation?
We received two questions dealing with similar issues of partners requesting compensation for an investment in a shared endeavor.
One of two partners in a service business invested company funds into developing a website. The site took off, and the company revenue skyrocketed. Now the partner is demanding compensation for the time he invested into developing the website. Is he entitled to payment?
Two partners opened a store, making a joint commitment to be in their store from nine to five each day. In recent weeks, one of the partners has consistently arrived late, leaving the other partner to manage the store himself, with great difficulty. Is he entitled to payment for doing double work during the hours he managed the store on his own?
According to halachah, a partner who cultivates a jointly owned field without discussing it with his partner is considered akin to a sharecropper who received permission to cultivate a field (yoreid b’reshus). Not only is he reimbursed for all personal funds invested into the property, he is also entitled to the standard local hourly wages for a laborer who cultivates fields for the time he put into cultivating his partner’s portion of the field, which is more than the typical wage paid to day laborers (Shulchan Aruch Choshen Mishpat 178:3). This is true even if he planted trees in a field ordinarily used for wheat, since he has equal say in deciding how to use the field.
The She’eilas Yaavetz (6) deduces from this halachah that a partner who does even minimal work to improve a jointly held enterprise is entitled to payment for his work. [If a field is family owned, and one brother invested time and energy into improving it, the Rishonim debate whether he is entitled to payment. We rule that he is reimbursed for heavy labor invested into the field, but if he did light, administrative-style work, such as hiring workers to work in the field, we assume that, as a brother, he is willing to overlook the minimal amount due for such work to one another. Partners, on the other hand, are assumed to expect payment even for light work (ibid. 287:1).]
In theory, then, it would seem that the partners in both of the above cases should be entitled to payment.
Nevertheless, some poskim differentiate between the two cases.
In the first case, since neither partner was required, as part of the partnership agreement, to develop a website, the one who did so of his own initiative is entitled to payment for his work. His counterpart cannot claim that had he known his partner was working on a website, he would have invested time as well instead of paying his partner to do it. Since building the website was not discussed as part of their partnership agreement, his partner had no right to demand any of his time on that project, and the partner is therefore entitled to payment for the time he volunteered.
The case of the partner who was chronically late to the store is different, however. Since punctual arrival was part of the original agreement, the latecomer can claim that had his partner told him that he was overexerting himself and that he needed him to come on time, he would have complied, and since his partner didn’t say anything, he assumed that he was willing to forgo payment for handling the store alone.
This is only true, however, if the latecomer was tardy out of negligence. If it was impossible for him to be in the store one time – if he was ill, for instance, or if he moved to a different neighborhood and could not possibly arrive at nine in the morning – then his partner can demand payment for the time. He can claim, legitimately, that there was no point in informing his partner that he wanted him there on time since that it was impossible for him to comply (Nesivos 177:4 and 287:2; Erech Shai 176; Shu”t Maharsham 4:96. Minchas Pittim  rules, however, that partners never forgo payment for such work).
If a partner did tell his tardy counterpart to start coming on time because it was hard for him to run the store on his own, he is probably entitled to payment if his partner failed to comply (Pischei Choshen, Sechirus 8, fn. 73). Obviously, the punctual partner is entitled to clearly stipulate for the future that he be paid for managing the store on his own (see She’eilas Yaavetz 6).
As with all partnerships, if certain stipulations were made in the original partnership agreement, or if there are local customs governing such partnerships (minhag hamedinah), they would supersede what we have discussed above.
Money mattersGuardianship of Broker#463
Q: Someone gave me a piece of jewelry to sell for him. It was stolen. Am I liable for the theft?
A: A broker (sarsur) who is entrusted with an item to sell becomes a guardian. We know that a paid guardian is liable for theft, whereas an unpaid guardian is not. Therefore, the question is whether you received potential benefit from tending to the sale, even if not directly for guarding the item, and even though the gain was not actualized (C.M. 291:1; 303:2).
Thus, if you were promised a fee for the sale you are a shomer sachar (paid guardian) and liable for theft. Similarly, if the owner set a price for the sale and it was agreed that if you sell for more you can keep the extra, you are a shomer sachar, since you can earn profit. Even if the owner gave you a gift, which was clearly on account of the brokerage, you become a shomer sachar (C.M. 185:1, 7; Be’er Heitev 185:4).