Rabbi Meir Orlean
Mr. Klein had bought $40,000 worth of merchandise from one of his suppliers, Stein Supplies.
Although the invoice was past due, Mr. Klein had not paid. Month after month, he pushed off Mr. Stein. “I’m very tight now with cash flow,” he explained. “I expect business to pick up shortly.”
Mr. Stein waited patiently for a few months. Finally, he said: “I cannot wait any longer. I also have suppliers to pay.”
“I’m very sorry,” apologized Mr. Klein, “but business has worsened each month. At this point, I don’t have any cash to pay with.”
“You’ll have to take a loan or raise cash somehow,” said Mr. Stein. “What do you suggest?”
“I have a delivery truck that I can pay you with,” said Mr. Klein. “It’s worth $40,000.”
“That’s a start,” said Mr. Stein. “However, I don’t need another delivery truck. Sell the truck and raise cash! Then you’ll be able to pay me.”
“It will be difficult for me to sell the truck,” said Mr. Stein. “People know my situation and will take advantage of me.
“Besides, I have to leave the country next week for two months, and it will delay everything. Also, once I get payment for the truck, other creditors will want their share. I’ll give you the truck as payment, and you can sell it if you want.”
“I don’t want to sell a truck,” replied Mr. Klein. “I sold you merchandise and expect money for it! If you don’t have money, it’s your responsibility to raise the cash, even if you have to sell two trucks.”
“Why can’t I pay you with the truck?” argued Mr. Stein. “It’s worth what I owe, and I don’t have money.”
“I refuse to accept the truck as payment,” insisted Mr. Klein. “Raising cash is your problem, not mine!”
The two came to Rabbi Dayan. “I sold Mr. Stein merchandise,” said Mr. Klein. “He has no cash and wants to repay me with a truck. Can I insist that he sell it and repay with money?”
“A borrower is required to repay with money if he has it,” replied Rabbi Dayan. “However, if he does not have money, the Gemara (Kesubos 86a) teaches that the borrower can repay the lender with real estate or movable items, and he is not required to sell them himself to raise cash” (C.M. 101:1-2).
“Why is that?” asked Mr. Klein.
“Sma (101:1) explains that the borrower received money and therefore must return money, if he has it,” explained Rabbi Dayan. “Nonetheless, the lender was aware that the borrower might not have money to pay, and therefore relies also on other assets, particularly real estate.
“Yet the lender can elect not to accept the other assets and wait until the borrower has money,” added Rabbi Dayan.
“Furthermore, if the lender explicitly stipulated that the payment be with money, the stipulation is binding as with any other agreement” (ibid. 101:4; 101:10).
“Does this apply to all debts?” asked Mr. Stein.”
“Tosafos (ibid.) writes that, regarding wages, an employer is required to sell assets to pay money,” answered Rabbi Dayan. “This is because the employee relies on the wages for his household expenses, and the implicit agreement was to pay with money” (Shach 336:4; Pischei Choshen, Sechirus 9:1).
“Additionally, Ritva maintains that, regarding a purchase, the buyer must pay with money,” continued Rabbi Dayan. “Here, too, the implicit agreement was that he pay with money, and the buyer cannot require the seller to accept other goods for the merchandise that was sold” (C.M. 101:6).
“Some disagree with this, and compare a buyer to a borrower,” added Rabbi Dayan. “However, Aruch Hashulchan rules like the Ritva, that the buyer must raise cash to pay money, since this is the common commercial practice” (Darchei Moshe 101:2; Taz 101:6; Aruch Hashulchan 101:3).
“Thus,” concluded Rabbi Dayan, “Mr. Klein must pay with money, and it is his responsibility to sell the truck to raise cash.”