Shabbat Parashat Devarim 5776

P'ninat Mishpat: A Loan or a Gift? – part IV

Case: A few years ago, Shimon wanted to buy a home and asked his brother, Levi, for help. Levi gave 60,000 shekels and then later another 100,000. Levi has put Shimon on notice that he wants Shimon to repay him the 100,000 shekels, which was a loan, when he has the ability. Shimon asked beit din to make a declaratory ruling that the money had been a gift. This, he says, is evidenced by the fact that there was no loan contract and is in line with the many gifts Levi had given Shimon over the years. Something had just caused Levi to “change his tune.” Levi says that originally Shimon had asked him for a loan for the entire cost of the home, but that he had agreed only to a more modest gift plus a loan. Levi described a discussion before the loan in which he had said that he was unable to give the 100,000 as a gift. Shimon says that occurred well after the money was given, and that, in any case, Levi had previously pledged the money as a present, without which Shimon would not have bought the home.

Ruling: [We have seen that beit din considers it most likely that the money was a loan and that if it would rule on the matter now, it would award Levi part of the money.]

Levi says that he gave the money so that it should be paid back when Shimon is able to do so, but he gave no specific parameters for when that would be. The Pitchei Teshuva (Choshen Mishpat 42:8) discusses various statements of having to return money by a certain time, where the time is not specified clearly. The sources say that one has to pay by the earlier logical time when the alternative of a later time could make the prospect of payment untenable. In this case, it is hard to give exact guidelines as to when Shimon will be deemed able to pay. If Levi will think at a certain time that the conditions have been met, he can approach a beit din to make that determination.

Beit din hereby refuses to make a declaration that Shimon does not owe Levi, but since the time has not come for payment, it will not make a ruling as to how much Shimon should pay. This will be determined by a beit din at the time it is a practical question.

After we explained the legal situation, beit din cannot help but praise Levi for his generosity with his brother, in giving Shimon significant gifts on several occasions, and, even according to his claim, in giving a large interest-free loan with no specific return date. Perhaps more importantly, beit din has difficulty accepting Shimon’s mindset. Even if he actually owed Levi nothing, would it not be appropriate for him to have hakarat hatov (gratitude) to his brother, and return certain moneys he received, even if just because Levi now regrets it? After all, he still received so much from Levi, and Levi is asking for the money to be returned only if and when Shimon has the wherewithal to make the payment.

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