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 Shabbat Parashat Bereshit 5766P’ninat MishpatDisputed Payment Made by an Agent - Based on Piskei Din Rabbaniim - vol. II, pp. 294-297
Case: Reuven bought suits from Shimon for 400 lira and paid 100 lira on the spot. He sent his son, Levi, a few days later with another sum of money and sent 100 lira a few days later and claimed that he had thereby payed the whole debt. Shimon says that he had counted the middle payment in front of Levi and had written down that it was 100 lira for a subtotal of 200 and 200 remaining. Levi admits not counting the money but claims that Reuven had said that it was 200 and that Shimon had agreed after counting it. Shimon says that he had said that the 200 he mentioned included the first payment. Yehuda, who was present at the time, testified that Shimon had written down the amount and heard the numbers 100 and 200 in a manner that sounded more like Shimon’s claim. However, was not certain about the exact wording of the conversation.
Ruling: The Shulchan Aruch (Choshen Mishpat 121:9) talks about a case where an agent who was appointed only by a debtor claims that he paid the creditor, but the creditor denies it. The ruling is that the agent swears and is exempt, and the creditor swears while holding a holy object that he did not receive payment and the debtor must pay him it. Our case seems to be precisely the same case, as Levi was sent by Reuven, but not by Shimon. (It makes no difference in this regard that Levi, the agent, is Reuven’s son.)
If Yehuda had testified that he saw Shimon receive only 100 lira on the second occasion, then we would have applied the rule that if one witness corroborates the claim of one who otherwise requires an oath, he is exempted from the oath (Rama, CM 87:6). However, while Yehuda generally strengthened Shimon’s claim, he did not actually testify that Shimon was correct.
On the other hand, Levi’s claim, which could possibly require Shimon to swear before extracting money, is also not a definite one, as he did not count the money. The Mabit talks about almost the identical case. The debtor sent money with an agent who did not know how much money he delivered but knew that he delivered all that he received, and the recipient said that some of the owed money was missing. The Mabit ruled that the creditor was entitled to receive the money he claimed was missing without an oath but must accept a cherem (lower level of curse for the violator) in case he was really lying. Here, the agent does at least say that Shimon counted the money as 200 in his presence, but, on the other hand, there are a few pieces of circumstantial or partial evidence that point toward Shimon’s claim. Therefore, we would not obligate Shimon in more than a cherem or at most a sh’vuat heset (the lowest level oath) before receiving payment.
Since we consistently avoid administering oaths and since the sides accepted adjudication of “compromise that is close to judgment,” Reuven must pay Shimon another 65 lira.
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