Shabbat Parashat Chayei Sarah | 5765

Question: Shimon lent Levi $100, and then Levi worked for Shimon and deserved $100 for his work. If Shimon disputes the fee for his work, can Levi claim that the two financial obligations offset each other, and he is exempt from paying the loan, or must Levi pay back the loan and then make efforts to receive payment for the work?

Answer: It is unclear from the question if there is an actual case which depends on the answer to this question, or if it is asked out of a thirst for Torah knowledge. We may not help one side get an upper hand in a financial dispute (see Choshen Mishpat 17). However, we have a responsibility to answer someone as to whether what he wants to do is permissible.

  You present two opposite possibilities: 1) the obligations offset each other; 2) they do not offset each other, and therefore Levi (the debtor/worker) has to pay. It is likely that neither possibility is correct, as we will explain, before we get to the bottom line.

  The gemara (Ketubot 110a) brings two opinions if, in a case where two people borrowed money from each other, both have to pay or neither does. The gemara explains that when the payments are totally identical, it is ridiculous to just have payment change hands. It also rules that when there is a difference between the terms of the payments, the one who has the preferable terms can demand that each pay the other according to their rules. The relatively local machloket is whether there is a difference between the payments in the given case. We see then that the two opposing obligations do not simply cancel each other out.

  There are complex discussions of this rule’s applications. Here is one example. If a defendant responds to an unproved claim by saying that he is unsure whether he ever became obligated, he is exempt. But if he was obligated and is unsure if he paid, then he must pay. What if he is unsure if the definite obligation was preceded by an equal obligation of his counterpart to him? The K’tzot Hachoshen (75:5) says that because of the rule that obligations do not cancel each other out, we obligate the defendant to pay the definite obligation, and he loses the doubtful counter claim. We do not say that because he may have been owed first, he may never have been obligated. The Netivot (75:5.) argues that the rule of not offsetting does not apply here. He seems to contradict himself in 59:1, and the solutions are complex (see Pitchei Teshuva 75:10).

  If there is no canceling, then Levi should ostensibly have to pay, as you suggest. However, the Shulchan Aruch (75:7) rules that if one responds to a monetary claim with the counter claim that the plaintiff owes him also, he is exempt if neither has proof, as in effect he denies the claim that he owes money. Doesn’t this undisputed halacha contradict what we have already seen?

  The answer seems to be based on the concept of tefisa (grabbing). There are times that one can “take the law into his own hands” and grab from the person who owes him in order to ensure payment. If nobody sees the claimant do so, the tefisa may even improve his chances in the din Torah (court case) (see Shach 4:2). On the other hand, there are limitations on when and to what extent one is allowed to take the law into his own hands, for practical and moral reasons (see Tumim 4:2 and many other sources, ad loc.). The details are well beyond our scope.

  However, you (and the Shulchan Aruch 75:7) describe a case where Levi does not have to grab. Rather he can temporarily withhold payment until the other party properly addresses his claims. This is permitted even though he owes money (we do not offset obligations), as withholding facilitates his attempt to receive money he (thinks he) knows he deserves.

  If this is a real case, we cannot rule if Levi deserves payment for his work. That needs to be worked out by agreement, or by a rav or a beit din, authorized by both parties to adjudicate, after hearing the claims of each.