By Rabbi Meir Orlian
Mr. Rubin was meeting a business associate, Mr. Metzger.
“I owe you $10,000,” Mr. Rubin said. “I hope to pay within the month.”
“That’s funny,” replied Mr. Metzger. “Before our meeting I looked over my records and didn’t see any outstanding balance for you. Are you sure that you owe me?”
“Yes, I’m sure,” said Mr. Rubin. “Last year there was an order that I never paid for.”
“When I return to the office I’ll check the records again,” said Mr. Metzger.
The following day, Mr. Metzger called Mr. Rubin. “I appreciate your honesty,” he said. “However, I reviewed the records, and I’m certain that there’s no outstanding balance.”
Mr. Rubin got off the phone puzzled. “I know that I owe him,” he said to himself. “Perhaps there’s some mistake in his records. There’s nothing to do now, though.”
A year later, Mr. Metzger called Mr. Rubin. “Do you remember that a year ago you said that you owed me $10,000?” he asked.
“Yes,” answered Mr. Rubin. “You said that you were certain that I don’t.”
“Well, I went over the records once again,” said Mr. Metzger. “It seems that I added the numbers wrong and that you do owe me.”
“I was willing to pay you a year ago,” replied Mr. Rubin. “But you were insistent that I didn’t owe. Now you tell me that you added wrong, which is a strange claim.”
“Whatever the reason, I see now that I made a mistake,” said Mr. Metzger. “You do, in fact, owe me.”
“I’d like to consult Rabbi Dayan,” said Mr. Rubin.
“We can go together,” replied Mr. Metzger.
The two went to Rabbi Dayan. “Did I have any obligation previously to pay Mr. Metzger?” Mr. Rubin asked. “Do I have to pay him now that he claims he made a mistake?”
“Shulchan Aruch rules that if one person says to another, ‘I owe you money,’ and the other replies, ‘You certainly don’t owe me,’ the person is exempt,” replied Rabbi Dayan. “He does not even have a moral obligation to pay, since it is as though the other person was mochel (forgave) the debt” (C.M. 75:11; Shach 75:32).
“Maharam of Rothenberg derives this from a case (B.B. 135a) in which one brother declares that so and so is also a brother and should share in their parents’ estate, whereas the other brothers deny this definitively,” explained Rabbi Dayan. “If so and so dies without descendants, only the brother who acknowledged him inherits him, even though he knows that his other brothers are also entitled, since they negated that so and so is their brother and sacrificed their right” (Mordechai, B.B. #590; Maharam, Prague #135, Lvov #106).
“A further proof is from the case (B.K.35b) of ‘taano chittim v’hodah lo b’seorim’ (the plaintiff claimed wheat and the defendant admitted barley),” added Rabbi Dayan. “The defendant is exempt even from barley. Rashi explains that by not claiming barley, the plaintiff implicitly relinquished that claim” (C.M. 88:12; Shach 88:17).
“What if the other person later claims that he made a mistake, and now realizes that he is owed?” asked Mr. Metzger.
“Bach (C.M. 75:10) writes that he is believed and can retract,” replied Rabbi Dayan. “However, Sma (75:28) and Shach (75:33) disagree. He should have been careful earlier, so we assume that he waived with a full heart, and is now trying to back out of his mechilah.
“Urim (75:29–30), cited by Nesivos (Chiddushim 75:25), indicates that this applies only when the other person negated the debt in beis din, where he should have been very careful, but other authorities do not mention this limitation.
“Nonetheless, Aruch HaShulchan (75:15) rules that if the borrower recognizes that the lender initially made a mistake, he remains chayav b’dinei Shamayim (morally obligated),” concluded Rabbi Dayan. “Moreover, if beis din recognizes, based on the circumstances, that the lender initially made a mistake, the borrower remains legally obligated.”
This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’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 confi dential hotline at 877-845-8455 or e-mail ask@businesshalacha.com. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com.
