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Shabbat Parashat Shelach | 5769

Ask the Rabbi: Is a plaintiff who is certain a defendant owes money, permitted to extract money when the defendant is unsure?

Question: In my yeshiva, one of the madrichim is our middleman with a laundromat. He usually keeps a ledger of how much we owe. We usually pay after they return the laundry, and he then crosses out the entry in the ledger. Recently I used the system and am sure I paid but he didn’t erase the debt. He is sure I did not pay. Must I pay a second time? I am asking this with my madrich's blessing. While we may work things out on our own, we want to know the halacha.

Follow-Up Questions: 1) When one incurs a debt to the madrich, does he sign to this on the ledger? 2) Does the madrich have a policy that one who owes the money must make sure himself that the debt entry is erased? 3) Did anyone see you incur this debt or admit to it prior to your claim that you returned the money? 4) Does the madrich get paid for this service?


Response to Follow-Up Questions: 1) There are no signatures, as we trust each other. 2) There is no stipulation about the erasures. He usually takes care of it quickly. 3) We do not think that anyone saw me incur the debt. 4) He does not get paid.  

Answer: There is a machloket in the gemara (Bava Kama 118a) whether a plaintiff who is certain a defendant owes money can extract money when the defendant is unsure. We rule that he is not required to pay (Shulchan Aruch, Choshen Mishpat 75:9). However, if there had been a definite debt, the plaintiff is sure it still exists, and the defendant is unsure if he paid, the defendant must pay (ibid.). When the defendant is confident he does not owe money, he is exempt from paying, whether he claims that he never incurred the debt or that he paid it back. This is so even if there are witnesses he once owed the money and he just claims he paid back (Shulchan Aruch, CM 70:1).

If a lender wants to ensure that the borrower cannot claim he paid, he has a few options. He can tell the borrower that he must pay in front of witnesses (ibid.). He can draw up a shtar (contract). Then the borrower either has to have the shtar ripped up when he pays, have witnesses of the payment, or have a valid receipt drawn up. In your case, there was no IOU, contract, or even witnesses. Therefore, it is clear that you are not obligated “straight out” to pay money.

Nevertheless, when it is one person’s word against another’s, the defendant must make a rabbinic level oath that he does not owe the money (Shulchan Aruch, CM 75:7). Since the minhag of batei din is to not administer oaths, beit din can impose a compromise in which the oath is “redeemed” with a minority but more than symbolical payment of a percentage of the money claimed. This is especially true in a case like this where your madrich’s claim is not something you would dismiss as a ploy to extract payment, but a sincere belief with reasonable grounds that you do owe money. We would add that it seems somewhat morally problematic for people to make free use of your madrich’s efforts on the group’s behalf and leave him possibly losing money (either of you could be remembering wrong) when there are questions of this sort. While he might want to protect himself better, the right thing for you would be to pay at least most of the money.



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