Shabbat Parashat Reeh| 5767
Ask The Rabbi
Question: I heard in a shiur given by a talmid chacham the following surprising ruling. Someone bought milk and found it to be spoiled. He decided it was not worth the bother to go to the store to return it. Soon thereafter his son announced he was going to the store, and the father asked him to return the milk. The ruling was that he was forbidden to demand a refund or replacement because he was already mochel (relinquish) this right. Is that really so?
Answer: It is not for us to determine if the talmid chacham was right or wrong, all the more so because we do not know the exact case and all his reasoning. We will gladly share our understanding of the topic, which can shed light only on some of the various possible scenarios.
The main issue here is that of mechila b’lev (mental relinquishing of rights). In contrast to most financial dealings, mechila does not require a kinyan (act of finalization) (Shulchan Aruch, Choshen Mishpat 12:8). Thus, oral mechila, even in the absence of the person who is obligated, is binding and the mochel can no longer demand payment. The Ketzot Hachoshen (ad loc.:1) cites the Maharshal who says that the mechila can even be accomplished mentally. One proof is from the gemara (Ketubot 102) regarding a widow who did not request payment of her ketubah for 25 years. She can no longer demand it because of the assumption she was mochelet. Since there is no indication she would verbalize this mechila,we see that mechila b’lev works.
The Ketzot is bothered by the fact that there is a broad rule that matters of the heart are not binding. He accepts the following distinction of the Maharit (II, CM 45). When there is a presumption throughout society of mechila (e.g., regarding the ketubah)it does not need to be verbalized. However, mechila which an individual may have contemplated where others might not have is not binding in and of itself.
We suggest the following practical rationale for this distinction (see also Sha’ar Mishpat 68:1). In many areas of life one regularly vacillates before arriving at a not obvious decision. He might have been “sure” at one point but decided later the opposite. It is unfair to bind someone to a decision unless he was aware that after a given point, he will be unable to change his mind. Regarding most monetary matters, only a kinyan indicates finality. Regarding mechila, speech is sufficient, but thought is not. If a person is in a situation where almost all arrive at the same final decision and he makes no contrary indication, we can assume that he too was fully mochel.
There are significant opinions on both sides of the question of mechila b’lev (see Pitchei Choshen, Halva’ah 12:(11)). Our feeling is that the stronger position is that it is not binding. We should note that even according to the Maharshal, the level of finality in one’s mental mechila must be strong. If one thought to himself, “I’m too tired to go now so I guess I’ll forgo the money,” it is meaningless. One can probably train himself to not consider something a final decision until he truly plans to stick by it. It is questionable whether one who planned not to return milk because of the trouble involved had any reason to unequivocally turn that into a final decision.
An action which indicates mechila can also be binding. For example, if the milk were still edible and one put some in his coffee, that would be an indication he was mochel his right to return it (Rambam, Mechira 15:3).
A final factor to consider is that even if mechila b’lev is binding, it might have been a mechila b’ta’ut (based on a false premise). Specifically, had the buyer known that his son was going to the store, he might not have been mochel. In general, ta’ut neutralizes mechila and even kinyanim (Rama, CM 241:2). However, this is the case only when the unknown situation existed at the time of the mechila (see Ketubot 97a). For example, if the son decided to go to the store after his father was mochel, it would not be ta’ut.
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This edition of Hemdat Yamim is dedicated to the memory of
R' Meir ben Yechezkel Shraga Brachfeld o.b.m.
Hemdat Yamim is also dedicated by Les & Ethel Sutker of Chicago, Illinois in loving memory of
Max and Mary Sutker
and Louis and Lillian Klein, z"l.
May their memory be a blessing!