Story Line‘I Paid Your Half!’Rabbi Meir Orlean
Reuven and Moshe ran a small food-vending business in their school. Part of the capital to start the business was a $1,000 loan from Moshe’s uncle, Dovid.
Dovid met Reuven one afternoon. “You and Moshe still owe me $1,000,” he said. “You were supposed to repay two months ago.”
“You’re right,” Reuven acknowledged. “It took some time till the business got off the ground. We’ve started reaping profits.”
“Glad to hear it,” said Dovid. “Then I expect you should be able to repay now?”
“I don’t have checks from the business with me,” Reuven said. “However, I happen to have taken out cash from my account today. I’ll pay you the $1,000 and get the money back from Moshe.”
Reuven pulled out his wallet and gave $1,000 to Dovid.
Later that evening, Reuven met Moshe. “I bumped into your Uncle Dovid this afternoon,” Reuven said. “He asked for the $1,000 that we owe him.”
“Yes, he’s been after me also,” said Moshe. “What happened?”
“I had cash, so I paid him,” said Reuven.
“How much did you pay?” asked Moshe.
“I paid the full $1,000,” replied Reuven. “I’d like you to reimburse me from the joint account.”
“I didn’t ask you to pay my uncle,” said Moshe. “I was hoping to work something out with him or convince him to let us keep the money! You paid of your own accord. I’ll reimburse your half, but not mine!”
“What do you mean?!” exclaimed Reuven. “We’re partners in the business, and we owed $1,000 to your uncle. If I paid your part, I’m entitled to reimbursement from you also!”
“I didn’t ask you to pay for me,” insisted Moshe. “You’re welcome to pay your half, but not mine!”
The two agreed to come to Rabbi Dayan. “I repaid a loan made to the business partnership out of my pocket,” said Reuven. “Does Moshe have to reimburse me for his half?”
“Indeed, a person who pays another’s debt of his own accord is not always entitled to compensation, since the debtor can claim that he would have settled with the creditor,” replied Rabbi Dayan. “Nonetheless, Shulchan Aruch rules that if one partner repays a joint debt, the other partner must reimburse his half” (C.M. 128:1; 77:1).
“Why is a partner different?” asked Moshe.
“Rosh (Responsa 73:9) explains that each partner is liable also as a guarantor for the others, so that the creditor is entitled to demand full payment from him, and that partner is not considered as having paid of his own accord,” explained Rabbi Dayan. “Therefore Shach (77:5) links this ruling to the dispute regarding a guarantor who paid the creditor without the borrower’s instruction. He maintains that Rambam, who exempts the borrower from reimbursing the guarantor, would exempt also a partner who paid of his own accord” (C.M. 130:2).
“However, most Acharonim explain that a partner is more than a regular guarantor,” continued Rabbi Dayan. “Partners enter the partnership with the understanding that one can pay for the other; they each have tacit permission to pay fully. Therefore, even Rambam would agree that a partner can demand reimbursement “ (Sma 77:6; Tumim 77:4; Gra 77:12-13).
“What is the source for this?” asked Reuven.
“Gra cites the Gemara (B.K. 113b) that a tax collector can collect from one partner what is due from all the partners,” replied Rabbi Dayan. “They cannot claim that it is his loss alone, and must reimburse him. Similarly, a partner who invests appropriately on behalf of the partnership is considered as having done so with implicit permission, and is entitled to full compensation” (B.B. 42b).
“Sma adds, based on the Rema, that even if the partner did not state that he is paying for the other partner, presumably his intention is to pay also on his behalf,” concluded Rabbi Dayan. “Thus, Moshe must reimburse Reuven from the joint account also the half that he paid for him.”
From the BHI HotlineA Call for Compromise
Q: I laid a claim against someone in beis din and received a shtar beirurin that states that I accept upon myself whatever judgment the beis din reaches, whether through strict adherence to din or through a pesharah (compromise). Must I agree to accept a ruling of a pesharah, or may I insist on a ruling based on strict din, in which the defendant pays me the full amount he owes if he is found liable, and if not, he pays nothing?
A: This is a common question received by many batei din, but this request is categorically dismissed, for several reasons.
We will focus on this topic from two angles — beis din’s angle, and that of the litigants.
The Yerushalmi (Sanhedrin 1:1) states that in the days of Shimon ben Shetach, dinei mamonos (monetary law) was removed from Klal Yisrael. Rav Shimon bar Yochai stated, “I am not a chacham when it comes to din,” meaning that he did not consider himself sufficiently wise to rule according to strict din. The Yerushalmi adds a story in which two litigants approached Rav Yosi ben Chalafta and asked him to resolve their monetary dispute according to din Torah. “I don’t know din Torah,” Rav Yosi answered, “but I will rule according to your claims, and you will accept what I tell you.”
“If this was true for earlier generations,” states the Levush (C.M. 12:4), “then it is certainly true for our generation.”
The Shulchan Aruch (ibid. 12:20) rules, therefore, that Dayanim should distance themselves as much as possible from accepting to rule according to pure din Torah. Furthermore, even when a Dayan knows the correct ruling, he has a mitzvah to begin each din Torah by attempting to forge a compromise, which brings shalom between the feuding parties (ibid. se’if 2).
The Torah instructs litigants, as well, to go beyond the letter of the law and reach a compromise, in the words V’asisa hayashar v’hatov (Devarim 6:18, see Rashi and Ramban). The Gemara (Bava Metzia 30b) states that Yerushalayim was destroyed because people insisted on keeping to the letter of the law (see Pachad Yitzchak’s entry for Din Torah).
A logical person realizes that his prejudice renders him incapable of seeing his own possible malfeasance in a dispute. Therefore, even if he thinks he is 100-percent correct, he should be willing to forfeit some of his claim in order to bring about a peaceful resolution to the dispute.
Now that we understand how vital it is to attempt to compromise, we can discuss some of the details of pesharos.
First, an exception.
Beis din is supposed to try to effect a compromise only if both sides have valid claims and the Dayanim cannot determine who is correct. If one litigant clearly wronged the other, beis din should not try to reach a compromise, so as not to reward the sinner (Shu”t Divrei Malkiel 2:133. See also Business Weekly #53).
This exception aside, in most cases, beis din will attempt to work out a compromise, which actually makes it more likely for a truly just outcome to be reached.
Consider the following examples:
When a litigant is required, either by Torah or Rabbinic law, to swear. Some people are not considered trustworthy enough to swear, but even if a litigant is, nowadays we avoid taking oaths. In cases requiring an oath, a compromise is therefore the preferable resolution (C.M. 12:2).
When the only witnesses are unfit to give testimony (such as relatives), but it seems obvious they are telling the truth, a compromise will allow us to award at least some of the disputed amount to the rightful owner.
In cases in which there is no obligation to pay according to human law, but there is an obligation in din Shamayim — such as cases of grama (causation) of damages — if the two sides had agreed to a ruling based on compromise, beis din can require the person to pay as they see fit.
In cases in which the Poskim are in dispute as to the halachah, and one of the litigants would be absolved based on a minority of the Poskim who rule in his favor (kim li), the beis din can rule in accordance with the majority of Poskim — if the litigants agreed to accept beis din’s ruling on a compromise.
Money mattersWeights and Measures #1#448
Q: What are the parameters of the requirement for proper weights and measures? What are the associated mitzvos and prohibitions?
A: The Torah demands proper weights and measures in sefer Vayikra (19:35-36) and again in sefer Devarim (25:13-16). In both places it associates with this requirement a prohibition against using deceitful measures and also a positive command to use proper ones. This requirement covers all aspects of measuring: length, weight and volume; dry measures and liquid measures. There is a blessing of lengthy days on the Land for one who observes it.
In addition, one who uses defective measures violates the prohibition against theft (Tur, C.M. #231).
The Gemara (B.B. 92b) further derives that it is prohibited to make or maintain a deficient measure, as it says: “You should not have in your pocket a stone and a stone,” even if not used. There is also a communal obligation to oversee correct measures (C.M. 231:2-3).
B’ezras Hashem, we will discuss details of these laws in the coming articles.