Shabbat Parashat Ki Tisa 5780

P'ninat Mishpat: Return of “Borrowed” Pre-School Items 1

Part 1

Case: The defendant (=def) runs a religious pre-school program in an Israeli town and started employing the plaintiff’s (=pl) daughter-in-law (=dil) a few years ago. Shortly thereafter, pl gave several thousand shekels worth of pre-school accessories (tables, books, toys, etc.) in a few installments. A year ago, dil stopped working at the pre-school, of her own accord. Pl demanded the items back, claiming that she had stated it was a loan. Def refused but wrote a letter acknowledging the items belong to pl with the promise to return it to her if a relative of pl opens a pre-school program. Months later, pl told def that pl’s daughter is doing so, and def sent her some of the items. Pl claimed it was too little, too late (because of the lack of materials, her daughter stopped her plans), and many of the items have been seriously damaged. Pl now wants 30,000 shekels rather than a return of the materials. Def contends that pl did not stipulate that she might want the materials back; if she would have, def would not have taken them because it caused her to throw out old, still usable materials. She had every reason to believe it was a donation to an altruistic religious organization close to pl’s heart. The letter admitting the items were pl’s was due to a threat, right before the beginning of the school year, that pl would come to take them.   

Ruling: Given the factual disagreement (and def’s lack of certainty in the details) whether there was a stipulation early on about the materials being a loan, what would the halacha be if pl intended for a loan without sufficiently verbalizing? The general rule is that devarim shebalev (transactions done without a spoken intention) are treated as unconditional transactions (Kiddushin 49b).  

There is a machloket among Rishonim and Acharonim as to whether the reason that devarim shebalev do not count is that he is not believed that he intended something that went unspoken, or whether such an intention is fundamentally unimpactful for the transaction even if we there was such an intention. The more accepted opinion is like the Chelkat Mechokek (42:4) that even if we believe the person harboring the thoughts, it does not change the matter. However, the S’ma (207:4) is among the many who posit that the above is regarding a sale, but regarding a present, we follow the thought process of the one giving.

In this case, def says that she trusts pl’s son (dil’s husband), and he says that pl told him relatively soon after giving the items that they were just on loan. On the other hand, since there was an expectation that dil would be staying at the job for a long time, there is some logic to assume that if indeed pl did not say anything to def at the time of the presentation, it was a full present. Based on this situation of doubt, strict justice would not allow taking money or property from def.

We will continue next time with other elements of the dispute.

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