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 Shabbat Parashat Emor| 5764P’ninat MishpatA Question if Cash was Received - Condensed from Piskei Din Rabbani’im, pp.25-35
Case: The plaintiff (=pl) would periodically give the defendant (=def) a check and receive cash in return soon thereafter. If cash were unavailable, def would right a note in his ledger that he owed the money. A certain time, def did not write down anything in his ledger, even though, according to pl, def did not give the cash. Def responded that in all eight years that they used this arrangement, it never occurred that he failed to immediately write down a debt. He is, therefore, sure that he gave the cash, although he doesn’t actually remember doing so.
Ruling: When a plaintiff is sure he is owed money and the defendant is unsure whether he ever owed the money, the defendant is exempt from paying. However, if the defendant admits to borrowing money and is unsure whether he paid back (and the plaintiff claims that he definitely did not), then he must pay (Bava Kama 118a; Shulchan Aruch, Choshen Mishpat 75:9). The question is then whether our case is like that of a doubt whether the money was ever owed or like a case where it is unclear if there was payment.
To determine this, we must understand the logic behind the aforementioned distinction. The Rif (Bava Kama, ibid.) explains that when one piece of information is clear (that there was a loan) and the other is unclear (if there was payment), we give precedence to the clear and say that barring indications to the contrary, the lender must pay. In our case, then, since the check was definitely given and it is questionable whether the cash was, def would have to pay. The other approach is that if we know that there was once an obligation and we are unclear whether it was ever relieved, we continue with the chazaka (assumption) of obligation, unless the defendant claims that he definitely paid. In our case, if def gave the cash right away, as he suspects, then there was never a time of definite obligation, and, therefore, def would be exempt. [After analysis of several sources, it appears that] the matter is subject to an evenly weighted machloket between the Tumim and Panim Meirot (exempt) vs. the Chatam Sofer and Rashdam (obligated).
There is an additional and stronger reason to exempt def. The Shach (CM 91:25) brings the Rosh’s opinion (Shut 103:2) that if one always writes down obligations immediately in his ledger and didn’t do so one time, we consider him as one who is sure that he is not obligated. This is the case over here. Although pl claims that, at times, def failed to write down an obligation, the fact that def contests this claim makes him considered as one who is sure that he is exempt. Thus, he does not have to pay when there is no proof against him.
In circumstances of a claim against a claim or against a doubtful claim, the defendant must make a low-level oath (shvuat heset). Since def is unwilling to swear and our interest is that people not put themselves in the severe situation of a possible false oath, we will enforce a “compromise close to the actual law” and make def pay one third of the disputed money.
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