By the Bais Hora'ah
Q: The standard procedure in the retail store I own is that a customer brings the goods he wishes to purchase to one employee, who tallies the items and prints out an invoice, which the customer then brings to another employee, who receives the payment and records it on the store’s computer. At the end of each day, the list of invoices is compared to the list of payments, so management can ensure that all items were paid for.
While reviewing the ledger one evening, one of my employees noticed that a certain customer, whom we know to be a trustworthy person, did not pay the invoice that had been printed for him. No one suspected that he had stolen intentionally; we figured that he was probably distracted by a phone call and inadvertently left the store without paying.
I called the customer, who was shocked to hear about the problem. He said that although he doesn’t specifically recall paying, it is unlikely that he would have left with goods without paying for them.
Is he obligated to pay?
A: This is a classic case of “bari v’shema,” where the plaintiff is certain about his claim (bari), and the defendant is uncertain (shema).
The halachah in such cases is as follows:
If the defendant is uncertain whether he ever owed the money (eini yodei’a im nischayavti) – for instance, if Reuven says that Shimon borrowed money from him, and Shimon doesn’t recall borrowing it but cannot say for certain that he didn’t – beis din technically cannot obligate the defendant to pay, but he does have an obligation to pay latzeis yedei Shamayim (to avoid facing judgment in Heaven). If, however, the defendant admits that he owed the money at some point, but he is unsure whether he ever repaid it (eini yodei’a im parati), beis din can obligate him to pay. Since we know that a debt existed and we don’t know that it was paid, the chazakah places us back into the last state of certainty – which is that he owes money to the plaintiff (Shulchan Aruch, Choshen Mishpat 75:9).
If the plaintiff is also uncertain of the circumstances, however, then the defendant has no obligation to pay even if he is sure that he owed money at one point and is uncertain whether he paid (ibid. 75:10 with Taz, and se’if 18 with the commentaries).
In our case, the store owner’s claim, based on the examination of his ledger, is reliable enough to be considered bari (see Choshen Mishpat 91:4; Shach 24; Shu”t Rabbi Akiva Eiger 3:83). The customer is considered a shema.
The question, then, is how we view his uncertainty – is this akin to a person who has already admitted to owing money but is uncertain whether he paid, or to someone who is unsure whether he ever owed money?
If we view this case as one in which the customer is admitting that he owed money at some point, and is uncertain whether he paid, beis din would obligate him to pay. But we might view this case as one in which the customer never admitted to owing money at all, because assuming he is correct in his assertion that he paid for the goods, he did so before leaving the store, in which case he never owed money to the store owner, and his obligation to pay is only latzeis yedei Shamayim (see Tumim 75:22, cited in Pischei Teshuvah 75:27, and Chiddushei Chasam Sofer to Shach 332:15, but see also Shu”t Chasam Sofer, Choshen Mishpat 187).
In all likelihood, in this case the obligation to pay would be latzeis yedei Shamayim, since we cannot say for certain that the customer ever owed money. [We should note that this sort of case is uncommon nowadays, when commercial data systems are capable of tracing payment, or lack thereof, to a very high level of certainty. The principles discussed apply to many other cases, however.]
Additionally, even in a case where the above does not apply and the defendant would not be obligated to pay (e.g., see Urim v’Tumim 88:38; Ateres Chachamim 7, cf. Mishnas Hamishpat 75:28), nevertheless if the defendant believes in his own heart that the plaintiff is telling the truth, he should pay latzeis yedei Shamayim (see Minchas Pitim 17 and Shiyarei Minchah, and Hashmatos).