In this week’s parsha, our forefather Yaakov must learn to deal with a dishonest person without compromising his own morality.
It had already been a really tough day. Now, on top of that, Mrs. Gartenhaus (all names in this story have been changed) was very unhappy with the cab driver she had hailed. Aside from his discourteous behavior, she sensed a certain shadiness to his personality. She just couldn’t wait to get home and get out of his vehicle.
To compound everything, on her way home Mrs. Gartenhaus realized that she had no more money in her wallet - and she also realized that Mr. Gartenhaus would not be home from his chavrusa for a while. She really did not want to disturb his learning just because she had forgotten to bring enough money for the cab home. But what was she to do?
She wondered whether one of the neighbors might be home, and whether she could remember their phone numbers. Sure enough, Mrs. Horowitz’s phone number popped into her head -- if only she was home. Mrs. G. dialed the number on her cell phone, and Baruch Hashem, Mrs. Horowitz answered! Mrs. G. quickly explained her predicament, and Mrs. Horowitz answered, "No problem. I have a 100 shekel bill in my wallet. That will be more than enough for your fare."
Mrs. G. breathed an audible sigh of relief. "The fare should actually not be more than 40 shekalim, so I don’t need to borrow that much," she told Mrs. Horowitz.
"I happened to check my wallet this morning and noticed that I have only one single 100 shekel bill," Mrs. H. replied. "But feel free to borrow it. I have to go to the bank later today anyway to withdraw some money. I’ll send my daughter Chanie outside to meet your cab."
Mrs. Horowitz asked 13-year-old Chanie to fetch the bill from her wallet and meet Mrs. Gartenhaus’s cab. Mrs. G., who was very relieved to escape the sleazy driver’s vehicle, paid little attention to the bill that she transferred from Chanie’s hand to the cabby’s outstretched paw. Before receiving her change, she gratefully began to exit the cab.
"One minute," the driver shouted gruffly, brandishing a 20 shekel bill in his hand, "You owe me another 20 shekalim!"
Mrs. Gartenhaus was at a loss. She had assumed that Chanie gave her the 100 shekel note her mother promised, but maybe there was some mistake. In the meantime, Chanie had returned home, the driver was hissing, and Mrs. G. just wanted to get home and climb into bed.
Noticing one of her neighbors on the curb, she embarrassingly called out the window, "Do you perhaps have 20 shekels I can borrow?" Having successfully borrowed the additional 20 shekels, she paid the cabbie, and struggled into her house. Meanwhile, she was trying to figure out what went wrong in her communication with her wonderful neighbor, Mrs. Horowitz. And only later did she realize that she should have taken down the cabby’s license number and the name of his company.
After resting a while, she called Mrs. Horowitz to ask her if she could send one of her children over in order to repay her loan. "By the way, how much money did you send with Chanie?" She inquired.
"I sent 100 shekel," came the swift reply. "Why? Was there some problem?"
Mrs. G. told Mrs. Horowitz what had happened. "I’ll check with Chanie, but I am pretty certain that I only had one 100 shekel bill in my wallet."
Chanie confirmed that she had found only one 100 shekel bill in the wallet.
How much must Mrs. Gartenhaus pay back to Mrs. Horowitz?
Does Chanie have any legal responsibilities in this case?
Mrs. Horowitz called Rav Cohen to ask how much Mrs. Gartenhaus owes her. Although it might seem like an open-and-shut case, the halacha is anything but obvious, as we will see.
Rav Cohen mulled over the case, thinking over the complicated halachic topics this event encompasses. Clearly, both women want to do what is correct. Is it clear that Mrs. Gartenhaus owes 100 shekalim?
Legally, in this case, the claimant, usually called the plaintiff, is Mrs. Horowitz. She is placing a claim that Mrs. Gartenhaus borrowed 100 shekalim that Chanie delivered. Mrs. Gartenhaus’s response is that she does not know how much money she borrowed. It might seem that Mrs. G. has a very weak defense: After all, Mrs. Horowitz is making a definite claim that Mrs. Gartenhaus owes her 100 shekalim, while Mrs. Gartenhaus’s only response is that she did not pay attention.
Halachically, Mrs. Horowitz’s definite claim is called a bari, a person with a certain claim. Mrs. Gartenhaus response that she is unaware how much she owes makes her a shema, a defendant stating that he is uncertain. This case is the subject of a Talmudic dispute. Here is one case where this question is discussed:
Reuven borrowed a cow from Shimon and also rented a different cow. One of the cows died in a way that would make Reuven liable if he had borrowed it, but he would not have to pay if it was rented. Unfortunately, Reuven does not remember which cow was borrowed and which was rented, but Shimon is certain that the dead cow is the one that was borrowed and that Reuven is obligated to pay. Must Reuven compensate Shimon for the dead cow?
The halacha is that bari vi’shema lav bari adif, the certain claim of the bari is insufficient on its own to win the case. This rule is true even in a case where the shema should have known for certain whether the claim against him is valid, like in our situation (Gemara Bava Metzia 97b). Therefore, Reuven does not have to pay for the dead cow.
Applying the principal to our case, it could be that Mrs. Horowitz would have to prove that she loaned 100 shekalim in order to require Mrs. Gartenhaus to pay the full amount. But this is true only when the claim is challenged.
Ah, but you’ll tell me, Mrs. Horowitz has a witness on her side which Shimon did not have. Chanie can testify that the loan was indeed 100 shekalim!
By now, the yeshiva minds among us are racing with valid reasons why Chanie’s testimony is insufficient to prove her mother’s case. Firstly, a single witness is not enough. Secondly, Chanie is related to one of the interested parties. Furthermore, Chanie herself is an interested party, nogea b’edus, in the litigation. If she denies that she received a 100 shekel bill from her mother, she exposes herself to a law suit from her mother that she, as an agent, received money as an agent that she cannot account for. Although the likelihood of Mrs. Horowitz suing her own daughter for 100 shekalim is slim, it is still sufficient reason for Chanie to be considered a nogea b’edus, making her testimony inadmissible.
Mrs. Horowitz has not yet exhausted her legal approaches. She may still stake a claim against Mrs. Gartenhaus based on either of the following reasons:
1. Modeh b’miktzas. Mrs. Gartenhaus agrees that she borrowed money, but is challenging the amount of the loan. The Gemara calls this modeh b’miktzas, acknowledging part of a claim. The Torah requires someone who acknowledges part of a claim, and denies part, to swear an oath he does not owe the balance (Gemara Bava Metzia 3a et al.). If he does not want to swear, he must pay the balance of the claim.
2. Shevuas heses. Based on Mrs. Horowitz’s definite claim that Mrs. Gartenhaus owes her 100 shekalim, Mrs. H. can insist that Mrs. G. swear an oath denying that she owes money. The Gemara calls this shevuas heses, an oath to discourage defendants from denying claims that lack sufficient evidence (Gemara Shevuos 40b; Shulchan Aruch, Choshen Mishpat 87:1).
We will examine each of these legal arguments. In the first argument, modeh bimiktzas, Mrs. Horowitz is claiming 100 shekalim. Mrs. Gartenhaus acknowledges that she owes 20 shekalim, but is uncertain about the remaining 80 shekalim. Thus, to fulfill the Torah’s requirement to swear an oath, Mrs. Gartenhaus would have to swear that she definitely does not owe more than 20 shekalim, something she cannot do. What is the halacha in this situation?
The Gemara discusses this exact case: Reuven claimed that Shimon owed him 100 dinarim. Shimon responds, "I know that I owe you fifty, but I do not know about the other fifty." Is Shimon obligated to swear on the remaining balance? And if so, what does he swear?
The Gemara rules that since Shimon cannot swear that he does not owe the balance, he is obligated to pay the full 100 dinarim (Gemara Bava Metzia 98a).
Thus, Mrs. Horowitz seems to have her case wrapped up. Mrs. Gartenhaus cannot swear that she definitely does not owe 80 shekalim. Consequently, she should be required to pay the full 100 shekalim.
Except for one detail: Has Mrs. Gartenhaus paid back the 20 shekalim? If she already paid back 20 shekalim, the case is halachically different. Now, Mrs. Horowitz is claiming 80 shekalim and Mrs. Gartenhaus is denying the entire claim. Thus, Mrs. G. is no longer modeh b’miktzas, someone who acknowledges part of the claim, but kofeir hakol, someone denying the entire claim. Although it may seem that there is not much difference between the two scenarios, halachically someone who acknowledges part of a claim must swear an oath min haTorah, whereas someone who denies the entire claim does not. The rationale for this distinction is unfortunately beyond the scope of this article (Gemara Bava Metzia 3a).
This is where the other type of oath, shevuas heses, comes into play. Since Mrs. Horowitz claims that Mrs. Gartenhaus definitely owes her 80 shekalim, she can insist that Mrs. G. swear an oath about the claim.
But one minute?! Either way, there would be a technical responsibility to swear an oath. What is the difference whether Mrs. Gartenhaus is being asked to swear a oath because of modeh b’miktzas or as a shevuas heses? Either way, there is an oath that she cannot swear!
However, there is a big difference in halacha between the two oaths, which makes a big practical halachic difference in our case. If the oath is min haTorah, the fact that Mrs. G. cannot swear for certain to deny the claim works against her as we explained above. However, if the oath is of the heses variety, it is sufficient for Mrs. Gartenhaus to swear that she is unaware how much she owes (Shulchan Aruch, Choshen Mishpat 87:1). Thus, Mrs. Horowitz cannot insist that Mrs. Gartenhaus pay her the full sum. She must be satisfied with 20 shekalim and an oath from Mrs. Gartenhaus that she truthfully does not know how much she borrowed.
Rav Cohen reflected over the fact that batei din do not usually insist on oaths, but instead will suggest some form of compromise. Not that these two well-meaning ladies were about to pursue this matter in a beis din setting- they are two fine ladies who want to do what is halachically correct.
The Rav asked Mrs. Horowitz to have Mrs. Gartenhaus give him a phone call.
The phone rings. Mrs. G. is on the phone. Rav Cohen asks her what happened, to see if the versions substantiate one another. They do. And it is also clear that Mrs. Gartenhaus wants to do what is correct.
"Is it true that you told Mrs. Horowitz that I don’t have to pay her back?" asked Mrs. G. "I feel really guilty about that. I can’t imagine that just because I didn’t pay attention to how much money Chanie gave me that she should be out 80 shekalim."
"Actually, I was simply pointing out that the halacha is not obvious," replied the Rav. "In fact, however, someone who wants to be certain that he has done the mitzvah correctly (ba latzeis lidei shamayim) should pay back a full 100 shekalim (Gemara Bava Kamma 118a). Thus, the correct thing to do is to offer her the full amount."
Mrs. Gartenhaus paid the money in full, and as you can imagine, she never heard from the cabby again. Besides the halacha principles gleaned from her story, an added lesson is to check before handing over a bill, especially to an unscrupulous cab driver!
This Shiur is published also at Rabbi Kaganof's site