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Beit Midrash Series P'ninat Mishpat

Chapter 72

Determining Whether a Transfer is a Gift or a Loan

Various Rabbis27 SHEVAT 5769
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P'ninat Mishpat (577)
Various Rabbis
71 - Signs of Mechilla (Relinquishing of Rights)
72 - Determining Whether a Transfer is a Gift or a Loan
73 - An Incomplete Sale of an Apartment
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The plaintiff (=pl) and the defendant (=def) are a couple that is getting divorced. During their marriage, pl’s brothers helped the couple buy and renovate an apartment, contributing close to 200,000 shekels in cash and labor. Pl now demands that def pay her share of returning the money that pl’s brothers gave. Def says that she knows that some of the money in question was given as a present and is not sure about the status of the rest of the money.

Ruling : The Rama (Choshen Mishpat 246:17) says that one who tells his friend to eat with him is to be assumed to be lending him the food’s value, and the recipient is not believed that it was given as a present. He says, therefore, that if a son-in-law eats at his father-in-law’s house beyond the time the latter agreed to support him, the former has to pay for what he ate. We see that when money is given without stipulation from a person to one with whom he has a relationship, it is assumed to be a loan.
The gemara (Ketubot 12b) brings different opinions regarding a case where one is sure that his friend owes him money (bari) and the friend says he is unsure (shema). We rule that in such a case, the bari cannot extract money without proof. There is a machloket among Acharonim if the halacha is different in a case where one admits that he received the money but is unsure whether it was as a present or a loan. The Sha’ar Mishpat (75:6) says that he must pay, whereas the Maharashdam and Imrei Bina (To’ein V’nitan 7) say that he is still exempt. Therefore, regarding the money about whose nature def is not sure, the halacha seems to depend on that machloket.
The Yeshuot Yaakov (Even Haezer 50:2) says that although usually we do not assume that money was given as a present, if one gave to his sister, we have to take seriously the possibility that it was a present and thus if the recipient is unsure, it is a regular case of bari and shema and the recipient is exempt. Since we have already seen that the Rama says that one can extract money from a son-in-law for his support, it appears that every case must be considered according to its own merits. The more distant the relative and the larger the sum of money involved, the more likely we are talking about a loan. In our case, the brothers gave large sums of money, and they are not very well off. Therefore, it is most likely that the money was a loan, and def should pay for the sums she does not know about.
Regarding the money that def says she knows was a gift, she is believed to hold on to her money, but halacha requires her to swear that her claim is true. Since we no longer administer oaths and the minhag is to replace them with partial payment, beit din required her to pay a significant portion of that sum as well even though her arbitration agreement does not call for compromise.
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