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Shabbat Parashat Shelach| 5764

Ask the Rabbi

Question: I am a student who sold a product to friends on behalf of a businessman for a percentage of the sales. I mentioned to the owner my concern about a safe place to keep the sales money until I would find time to give him the money, but we decided it would be okay. I thought that if something happened to the money, it would be his loss. It turns out that a significant amount of the money was stolen, and the owner expects me to pay. I told him that I didn’t think I had to pay, and that we could go to a din Torah (rabbinical court case). Then the idea arose that instead of having a din Torah, we would make a p’shara (compromise). Which way am I better off?
Answer: First of all, we have a problem giving advice on how you can come out monetarily ahead at someone else’s expense. The mishna in Pirkei Avot warns us to avoid being like orchei hadayanim (translated, in modern Hebrew as, lawyers). While there are different opinions exactly when this applies (see Shulchan Aruch, Choshen Mishpat 17:9), our policy, as a service dedicated to helping Jews further their Jewish knowledge and appreciation, is to not take sides in disputes between litigants, as honorable as either side might be.
 The next thing you need to understand is what “I am better off” should mean. While society, in general, concentrates on how to get every penny one can, the Torah teaches that it is at least as important to pay every penny you owe. Now it is true that when one is not sure if he owes money, the halacha often is, “the burden of proof is on he who wants to extract money,” and the “one who is holding on” doesn’t need to volunteer the money. However, if the defendant knows he owes the money, he is obligated to pay everything he owes unless the other side relinquishes his rights.P’shara, whetherby means of arbitration or mediation, is the best way to solve a conflict (see Choshen Mishpat 12). Even a beit din which is approached to adjudicate should try to convince the parties to agree to a compromise (ibid.). However, that is the case as long as the litigants believe that they are or are likely to be correct. The Shulchan Aruch (CM 12:6) rules: “Someone who is demanded to pay money is forbidden to search for means to get out of paying in order that the other party will make a p’shara with him and relinquish his rights to the rest of the money.” Realize that if you want us to look into the facts, as you present them, that we cannot assure you that you deserve to win the case, as we do not know what the other party would respond to your claims. But we might be able to determine that, according to your story, you clearly do not deserve to win all or part of the money in dispute. Then you would be bound to pay what you owe, and a p’shara would only be possible within the range of the money that is still in doubt. You would have a responsibility to inform the other side how much you concede, in order that any money he relinquishes through compromise would be based on informed consent, not ignorance.The following are exceptions to the rule that you must willingly pay that which beit din  would require you to pay. If you are correct, in principle, but are unable to prove your claims, then you could take certain steps to pressure the other side to a p’shara rather than lose the din Torah (Tumim 12:5). Other circumstances and steps are discussed (see Pitchei Teshuva 12:8), but are more tenuous. You are permitted to tell the other side that, although halachically you have to pay (if that is the case), you have claims that strengthen your side morally, and you can appeal to your counterpart’s sense of fair play to go beyond the letter of the law. (This can be done even after a formal verdict of beit din hasbeen handed down (see Shach 12:6).
Outcome: The student requested that we try to determine his status. Based on his story alone, he was seen to owe at least most of the money [details beyond our present scope]. He informed the other side and appealed to him with a variety of claims, and they reached a gentlemanly compromise somewhere in the middle, to the satisfaction of each.
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This edition of Hemdat Yamim is dedicated to

the memory of R’ Meir ben Yechezkel

 Shraga Brachfeld o.b.m.

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