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Shabbat Parashat Pinchas 5772

P'ninat Mishpat: Dispute over Sales Price and Product Quality part I

(condensed from Hemdat Mishpat, rulings of the Eretz Hemdah-Gazit Rabbinical Courts)

Case:   The plaintiff (=pl) sold a large amount of oil and dried dates to a grocery store owner (=def). Def did not pay right away and after time refused to pay much of the bill for the following reasons. Def does not remember what price they had decided on for the oil and thinks that the amount demanded is too high. The dates became wormy over time. Def claims that he kept the dates properly refrigerated and blames pl for having transported the dates to him in an non-refrigerated transport. Pl responded that other people to whom he sold dates in a similar manner did not have problems of infestation, and he therefore suspects that def did not store them properly.


Ruling:  Regarding the oil, who has the obligation to prove what price was set: the buyer or the seller? First, we should point out that we are talking about a case where neither side’s suggested price is out of the range of reasonable. (If it were, then there could be an issue of ona’ah (mispricing), which could even nullify the sale.)

If the two sides had each come with definite claims as to the agreed price, then the seller would have to prove that the higher price is correct before he would be able to extract additional payment. However, we are talking about a case where the plaintiff made a definite claim and the defendant is unsure. When a plaintiff says that he is sure the defendant borrowed money and the defendant says that he is not sure if he borrowed it, we rule that there is no payment without proof. Still, the defendant is required to swear that he is indeed unsure and has some level of moral obligation to pay (Shulchan Aruch, Choshen Mishpat 75:9). If there were clearly a loan and the borrower is unsure if he paid it back, then because of the existing known obligation, the borrower has to pay (ibid.). Here, on one hand, it is clear that there was an obligation, but the question is how much the obligation was, and this fits into neither category cleanly.

The Shulchan Aruch (ibid. 18) says the following about a case where the defendant agrees that he is obligated but is not sure how much. Since he admits part of the claim, he is called a modeh b’miktzat and has to swear a Torah-level oath that he does not owe more than he admits to knowing about. Since he is unsure how much that amount is, we say that one who is obligated in an oath which he is not capable of taking has to pay the amount demanded. One of the explanations is as follows. The fact that there is an obligation to swear shows that without something to counteract the plaintiff’s claim, the defendant would have to pay. Thus, in the case, where def is unable to swear and he cannot bring any other proof, there is nothing to prevent him from needing to pay.

Therefore, def has to pay the full value claimed by pl for the oil.

[Next week, we will deal with the dispute about the dates.]

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