Hebrew | Francais


> > Archive

Shabbat Parashat Beshalach 5773

P'ninat Mishpat: Returning Tuition When a Student Was Expelled part I

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

Case: A student was expelled in the middle of the year from a yeshiva for not living up to the minimum expectations of its staff. The yeshiva refused to return any tuition because of a clause in the contract between the parents and the yeshiva that states that if the student leaves the yeshiva after a certain date, the parents are not entitled to a refund. The two sides disagreed as to whether this condition applies even to a student who leaves because he is expelled or only to one who leaves of his own volition.


Ruling: There is a basic rule in the rules of interpreting documents that the person whom the document is supposed to serve has the burden of proof regarding doubts (Ketubot 83b). Rashi explains that this is connected to the rule that one who wants to extract money has to prove his claim. According to this reasoning, if the document in question is a shovar (literally, a receipt), which nullifies a debt, then the expansive interpretation of the document is actually supporting the one who is trying to use it hold on to his money. Therefore, the Ritva (Bava Batra 173a) says that in a case of doubt on a shovar, the holder of the shovar has the upper hand. While the Maharik disagrees, the Rama (Choshen Mishpat 42:8) agrees with the Ritva that the shovar would exempt from payment broadly. Some Acharonim (see Aruch Hashulchan, CM 42:10) distinguish between cases as follows. If the original document is the cause of the obligation, an unclear shovar can cast aspersions on whether there is a basis for payment, and the person would be exempt out of doubt. In a case where there is a clear, independent obligation, a doubtful shovar cannot undo the assumed debt. When there is circumstantial evidence that indicates which interpretation of the document is logical, all should agree that we follow that evidence even when the literal terminology is unclear (see Maggid Mishneh, Malveh 27:16) and Bach (CM 42:8).

In our case, the clause of the contract that discusses the effect of the student’s leaving the yeshiva is neither exactly like a regular document nor like a shovar. However, it is more like a shovar, in that there is an existing obligation to pay tuition and there is a question as to under what circumstances there is an exemption. After carefully analyzing the language and circumstances of the clause, beit din believes that it was meant to extend the obligation on the parents after their son is no longer attending the yeshiva only if the student decides to leave the yeshiva on his own, not if he is expelled.

On the other hand, the parents already paid, so they need to use the document to actually extract money, which, we have mentioned, is more difficult. It is therefore, appropriate to decide what the halacha would be in a case where there is no indication from the document and progress from there.

[Next time we will continue from here.]

Top of page
Print this page
Send to friend


This edition of
Hemdat Yamim

is dedicated
 to the memory of
R' Meir

Yechezkel Shraga Brachfeld



Hemdat Yamim

is endowed by

Les & Ethel Sutker

of Chicago, Illinois
in loving memory of
Max and Mary Sutker

Louis and Lillian Klein, z”l

Hemdat Yamim

 is dedicated

in memory


HaRav Professor

Reuben M. Rudman


site by entry.
Eretz Hemdah - Institute for Advanced Jewish Studies, Jerusalem All Rights Reserved | Privacy Policy. | Terms of Use.