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The first contract includes interest and the second refers to "benefits" for pl; both refer to a standard heter iska. In actuality, bank transfers indicate that the sums are 255,720 NIS and 170,350 NIS respectively (=426,070). This is confirmed by a statement by pl that the contract sums are rounded off. The sides disagree how to consider the loan amounts and conditions. There are also disputes between the sides about what various payments by def, some direct and some indirect (def paying a person to whom pl owed money) relate to. Def claimed they were to pay for the first loan; pl claimed they were for the second loan and/or additional debts that def had to pl.
Ruling: The amount of the loans that is the principal is 426,070 NIS, not the 500,000 NIS written in the contracts, as pl admitted they were rounded off. However, regarding the 5,720 NIS of the first loan that exceeded the 250,000 NIS listed in the loan contract, nothing indicates that it is interest-bearing.
The basic rule applied here is that when two loans are given at different times, payment of the earlier loan is to be assumed before payment of the later loan. This is all the more logical in a case where the first loan bears interest.
The second contract states that part of pl’s salary would be paid in the form of corresponding forgiving of the first loan. It became clear that this was done to get out of paying taxes, for the "benefit" of both sides. This is forbidden according to Israeli law and according to Halacha (Shulchan Aruch, Choshen Mishpat 369:6). Despite this, regarding the financial situation between the sides, those payments will be considered payment of the first loan.
Although pl said those payments corresponded to other of def’s obligations to him, since during all the hearings, pl did not mention other debts, this claim is quite implausible. Furthermore, claiming that payment was for an undocumented loan (sitrai), not the documented one, is believed only if the claimant could have denied the payment (Shvuot 42a). Acharonim say this is true not only when there are witnesses to payments, but also when the litigant admitted the payments, as pl did. Pl counters that there is a clause in the contract that pl is believed to say that his loan was not paid back unless he signs a receipt that it was. However, the Shach (CM 58:11) says that this ability to claim non-payment falls off when the recipient previously admitted that he received it, as was the case here.
P'ninat Mishpat (834)
Beit Din Eretz Hemda - Gazit
841 - P'NINAT MISHPAT: TO WHOM DO THE PAYMENTS GO? – PART II
842 - P'NINAT MISHPAT: A MESS OF LOANS, REPAYMENTS AND GRIEVANCES – PART I
843 - P'NINAT MISHPAT: A Mess of Loans, Repayments and Grievances – part II
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Beit Din Eretz Hemda - Gazit
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P'ninat Mishpat Limits of Interest Rate for Loan with Heter Iska – part I
based on ruling 80033 of the Eretz Hemdah-Gazit Rabbinical Courts
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Moreshet Shaul Hashem Is your Shadow – part I
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 420 – an address from 1941
P'ninat Mishpat A Non-Contractor in Changing Times – part I
(based on ruling 85128 of the Eretz Hemdah-Gazit Rabbinical Courts)
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Based on Aroch Siach, p. 221 (Rav Shaul Yisraeli)
P'ninat Mishpat A Non-Contractor in Changing Times – part II
(based on ruling 85128 of the Eretz Hemdah-Gazit Rabbinical Courts)
Moreshet Shaul Hashem Is your Shadow – part II
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 420 – an address from 1941
Parashat Hashavua Happiness for the Right Reasons
[With painful longing, we share these divrei Torah from our co-Rosh Kollel for close to 40 years, Harav Moshe Ehrenreich zt”l.]
