By Rabbi Meir Orlian
Avrumi spent the afternoon visiting his friend Itzik. “I have to leave now,” he said. “I told my parents I’d be home for dinner.”
“It was nice having you,” said Itzik. “Can I ask you for a favor?”
“Anything for a friend,” replied Avrumi. “What do you need?”
“I owe your brother Jake $300,” said Itzik. “Can I send the money with you?”
“I’m happy to take the money,” answered Avrumi. “Do I get a percentage?” They laughed.
Itzik put $300 in an envelope and gave it to Avrumi. “Please bring this to Jake,” he said.
Avrumi got into his car and headed home. On the way Itzik texted him: “I just realized that I need the money for something else. Please don’t give it to Jake.”
Avrumi pulled over and called Itzik. “You’ve owed Jake the money for a while,” he said. “Once you gave it to me, I’m not going to give it back. It’s not fair to my brother.”
“But it’s my money until it gets to Jake’s hands,” said Itzik. “You have no right to withhold it!”
“I can’t discuss this now; I’ve got to get home,” Avrumi said. “We’ll talk tomorrow.”
When Avrumi got home, he was accosted by robbers as he got out of the car. They grabbed the envelope with the money and sped off on motorcycles.
Avrumi informed Itzik that the money was stolen. “Well, in that case,” said Itzik, “just tell Jake that I paid back the money and it was stolen.”
“But you said it was still your money,” said Avrumi. “Now you’re saying that it’s Jake’s loss?”
“But you said that you’re not giving it back,” replied Itzik. “I sent the money. I suggest we take this up with Rabbi Dayan.”
“Avrumi was right not to give the money back, but it’s still Itzik’s loss,” ruled Rabbi Dayan. “The Gemara (Gittin 14a) teaches that if the borrower gives someone money and says, ‘Bring it to the lender,’ he remains liable, but cannot retract and demand the money back” (C.M. 125:1).
“How can this be?” asked Itzik. “Either it’s considered repaid or not.”
“There is a concept ‘zachin l’adam shelo b’fanav’—we benefit a person in his absence,” explained Rabbi Dayan. “Thus, once the person received the money from the borrower on behalf of the lender, he acquires it for him insofar as it is a benefit. Therefore, he cannot give the money back. However, if the money is lost, it’s no longer a benefit; the lender can choose to refuse the ‘favor.’ The borrower remains liable, since the lender never authorized the person as his agent to receive repayment of the loan.”
“This ruling depends partially on the language of the borrower,” added Rabbi Dayan. “If he said ‘zechei’—it clearly means ‘acquire.’ Even if he said ‘bring to’ (holeich), or ‘give’ (tein), the same halacha applies. However, if he said, ‘hachzer’ (return), according to many authorities this is not understood as instruction to acquire on behalf of the lender” (see Shach 125:9).
“What if the person gave the money back to the borrower?” asked Avrumi.
“Since he already received the money on behalf of the lender, it is tantamount to giving away someone else’s money,” answered Rabbi Dayan. “The person would now be liable to the lender if payment is not received promptly from the borrower.”
“This can get touchy,” commented Jake. “What if the borrower threatens the person?”
“This depends on the nature of the threat,” replied Rabbi Dayan. “In many situations the person would be exempt if he was threatened if he did not return the money” (see Sma 125:9; Shach 125:10).
From The BHI Hotline:
Beis Din Or Zabla
- I contacted a beis din to send a hazmanah (summons) to someone who owes me money. He responded that he was not interested in going to beis din and wished to exercise his right to zabla. Could you explain the difference between beis din and zabla? Additionally, does he have the right to choose zabla as a venue rather than beis din?
- When someone has a claim against another, he must present his claim to beis din. When there is a beis din in a city that was empowered by the residents (beis din kavua) or if a person is a member of a kehillah that has a beis din (Shevet HaLevi 8:302), he must comply with that beis din’s summons and may not choose zabla (C.M. 3:1) unless both parties agree to that venue (ShevYaakov, C.M. 1).
When there is no beis din kavua, which is generally the case in the U.S. (Igros Moshe, C.M. 2:3, cf. Shevet HaLevi, ibid.), one cannot force the other party to appear before a particular beis din and the respondent can ask for the disagreement to be adjudicated via zabla. The term zabla is an acronym for the words “zeh borer lo echad”—he chooses one [judge].
Zabla involves each litigant choosing a dayan, and those two dayanim choosing the third dayan to form an ad hoc beis din. The advantage of this venue is that it is likely to generate the most truthful decision. Each judge will be most mindful of the litigant that chose him to make sure that every angle that could support that litigant’s claim will be presented, and the third, impartial, judge will cast the deciding vote in favor of the position that was strongest. Furthermore, each litigant will be confident that his dayan “advocated” for him and submitted whatever argument could have been presented, and consequently the litigants will be more receptive to beis din’s decision (C.M. 13:1; Sema 5, 6).
[The right to demand zabla may be exercised even if it entails additional expenses for the other litigant, provided that the additional expenses are not exorbitant and the intent is to generate a true judgment, according to Igros Moshe (C.M. 2:7). Other authorities do not differentiate whether zabla generates a significant increase in expenses or not (Minchas Yitzchak 3:131).]
It must be emphasized that even when utilizing zabla, a dayan may not introduce arguments unless those arguments are true. He may not attempt to influence the other dayan with false arguments, since this involves corrupting justice (Tur 13:8).
It is also prohibited for one of the litigants to present his case to his chosen dayan before the zabla convenes (Panim Meiros 2:159, cited by Pischei Teshuvah 13:3; Urim V’Tumim 17:14). Panim Meiros protests this practice in unusually strong terms and adds that leaders must remove this stumbling block.
Some justify the practice based on the fact that both litigants accept the practice so that each party can discuss the case with his dayan (Kesef HaKodashim 17:5; Aruch HaShulchan 13:4). This justification may be correct when both parties agree to zabla. However, if one of the parties does not want to follow this path and prefers to present his case to dayanim who have not heard the litigants’ claims before convening, it is clear that he cannot be forced into such a circumstance. Rema’s comment that zabla is preferred to an ad hoc beis din refers to one that does not have the above-mentioned shortcomings, which is quite rare (Shevet HaLevi 8:302; Seder HaDin 2:).
Dividing Profits And Losses
- I provided two-thirds of the capital for our business partnership. How should we divide the profits or losses?
- As with other aspects of partnership, the profits or losses should be divided according to the initial agreement or the local business custom. A clause in the partnership contract that business will be conducted according to the local civil law would likely be understood as applying also to the rules of dividing profits (see Maharshach in Hagahos Rav Akiva Eiger C.M. 3:1).
In the absence of these, the Gemara (Kesubos 93a–b) teaches that business profits and losses should generally be shared equally, despite unequal percentages of capital. [Be’H, we will address the rationale for this next week.]
However, if the profit results directly from an increase in value of the initial assets, such as partners who provided unequal amounts of foreign currency or commodities that increased in value, the profit is divided proportionally (C.M. 176:5; Pischei Choshen, Shutfim 3:14–18).
This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dinad’malchusa to consider in actual cases.
Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, which is headed by HaRav Chaim Kohn, shlita, a noted dayan. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, please call the confidential hotline at 877-845-8455 or e‑mail email@example.com. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to firstname.lastname@example.org.