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Shabbat Parashat Masei 5776

P'ninat Mishpat: A Loan or a Gift? part III

(ruling 74052 of the Eretz Hemdah-Gazit Rabbinical Courts)

Case: A few years ago, Shimon wanted to buy a home and asked his brother, Levi, for help. Levi gave 60,000 shekels and then later another 100,000. Levi has put Shimon on notice that he wants Shimon to repay him the 100,000 shekels, which was a loan, when he has the ability. Shimon asked beit din to make a declaratory ruling that the money had been a gift. This, he says, is evidenced by the fact that there was no loan contract and is in line with the many gifts Levi had given Shimon over the years. Something had just caused Levi to “change his tune.” Levi says that originally Shimon had asked him for a loan for the entire cost of the home, but that he had agreed only to a more modest gift plus a loan. Levi described a discussion before the loan in which he had said that he was unable to give the 100,000 as a gift. Shimon says that occurred well after the money was given, and that, in any case, Levi had previously pledged the money as a present, without which Shimon would not have bought the home.


Ruling: [We have seen different opinions in the poskim on whether the claim that money was given as a gift is believed without a migo, and that even relatives do not usually give large presents.]

It is likely that Levi expressed to Shimon, in a way that was not strong enough for Shimon to have allowed himself to internalize, that eventually he wanted the 100,000 shekels returned.

What would be if Levi wanted the money returned, which beit din is convinced was the case, but did not take the opportunity, for whatever reason, to tell Shimon explicitly? Generally, we have a rule that “matters one kept in his heart do not play a halachic role.” However, there are opinions, and the Rama (Choshen Mishpat 207:4) cites them, that the rule is said only regarding sales and the like, in which it is unfair for someone who is giving as well as receiving, to have conditions that he was not told about affect the transaction. In contrast, these opinions hold, if one giving a present had unspoken intentions, they are valid (see S’ma ad loc. 10). These opinions should also be factored in. There is also a general rule that it is not proper to benefit from someone else in a manner that is not fair and just, and this applies to receiving the favor of a loan and refusing to repay because a stipulation might not have been verbalized.

It is possible that the halacha should be that Shimon should swear that he received the money as a gift and be exempt from repaying. Nowadays, we do not make or allow litigants to swear, and a minority of the money is given instead of the oath. However, in deciding the portion of the money that is given instead of the oath, beit din may and should factor in, within the framework of a compromise that is close to the din, circumstantial evidence or their educated or instinctive belief on who is telling the truth. In this case, for a variety of reasons, beit din tends to believe Levi over Shimon, and this impacts the ruling. The members of beit din disagreed whether Shimon should be required to pay a significant minority or a majority of the 100,000 shekels.

Next week, in our final installment, we will discuss what should be decided at this time, considering that no one claims that Shimon has the money to pay now.

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