It was Yom Kippur eve. The shul began filling rapidly as the time approached for Kol Nidrei. Herzl Machlis sat in his seat, cloaked in his tallis and kittel, quietly reciting Tefillah Zakkah, composed by the Chayei Adam 150 years ago.
This emotional prayer ushers in Yom Kippur with an admission of our spiritual inadequacies and a supplication that the afflictions and prayers of the day should atone for our sins. It includes a declaration of forgiveness toward those who have wronged us and a request that they may forgive us in kind, as well.
“I forgive completely anyone who sinned against me, whether physically, monetarily, or verbally…except for money that I [intend to and] can collect in beis din… Everyone else I forgive completely, so that no one should be punished on my account. Just as I forgive every person, so too give me favor in the eyes of other people that they should forgive me fully.”
Mr. Machlis paused to think about Mr. Schor. Earlier in the year, Mr. Schor had borrowed money from him to marry off a child. As the months wore on, it became clear that the money would not be returned quickly. Mr. Machlis had decided in his mind to forgo the loan as an additional “wedding gift,” but had never said anything to Mr. Schor.
A month ago, though, the two had gotten into a dispute. Mr. Machlis changed his mind and was no longer willing to forgo the debt; he had asked for the money back.
As Mr. Machlis stood there just before Kol Nidrei, he reflected on this incident. He wondered whether it was correct to demand the loan back after having decided to forgo it.
Mr. Machlis decided to speak with Rabbi Dayan after davening. “G’mar chasima tova,” he wished Rabbi Dayan. “I have a dilemma – Tefillah Zakkah made me think about an incident that happened this past year.”
“Indeed, Yom Kippur is a day to reflect on the past year,” Rabbi Dayan said. “What happened?”
“I lent somebody money and decided to forgo the loan, but later we got into a dispute and I changed my mind,” Mr. Machlis said. “After I intended to forgo the loan, am I still allowed to demand the money?”
“The primary intent of Tefillah Zakkah is to exempt the debtor from heavenly punishment,” replied Rabbi Dayan. “Although it uses the term “mechila gemura” (complete forgoing), it likely does not express intent to forgo legal rights. Nonetheless, the issue you raised is a fascinating one, known in halacha as ‘mechila balev’ – forgoing in one’s mind.”
“Ketzos HaChoshen (12:1) cites a statement of the Maharshal that a person who decided to forgo his loan and now wants to take revenge and collect it may no longer do so, since forgoing in the mind is considered valid mechila.
The proof is from a Gemara (Kesubos 104a) that a widow who did not claim her kesubah for 25 years can no longer do so. One explanation is that, in the context of kesubah, her extended silence indicates intention to forgo it. Although she never said anything, her intention to forgo is valid.
However, the Ketzos is troubled by the principle ‘Devarim shebalev ainam devarim’ – that thoughts alone are not of legal consequence, with the exception of sacred donations.
Citing the Maharit, the Ketzos differentiates between the case of the widow and the average case of mechila balev. When the intention is clearly evident to all, as in the case of the widow, we attribute significance to thoughts. However, when the intention is not clearly evident, as in the average case of mechila balev, it is not of significance.
Most authorities agree with the Ketzos that thought alone is insufficient. There are some, though, who concur with the Maharshal. (See Nesivos 12:5; Aruch HaShulchan 12:8; Yabia Omer C.M. 3:3.)
Thus, you are certainly entitled to demand your money, in accordance with the majority opinion. If it were to become known to the beis din, though, that you initially decided in your mind to forgo the loan, they would likely not enforce payment, in deference to the minority opinion and the principle of ‘Hamotzi mei’chaveiro alav hare’aya’ (the burden of the proof in on the plaintiff).
“If there was a dispute, though, you should try to resolve it,” concluded Rabbi Dayan. “Appeasement and restoring peace between people are a great merit on Yom Kippur.”
Verdict: One who was owed money by another and in his mind decided to forgo the loan may later decide to demand payment since mechila balev is not binding unless it was outwardly evident. However, because a minority opinion disagrees, beit din would not enforce the debt.