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 and forgoing bygones to those who have wronged us, and a request that others may forgive us, as well.
“I forgive completely to 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 my 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 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 was willing to forgo the debt; he had asked for the money back.
As Mr. Machlis stood there just before Kol Nidrei, he reflected about 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 chasimah tovah,” he wished Rabbi Dayan. “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,” said Rabbi Dayan. “What happened?”
“I loaned somebody money and decided to forego the loan, but 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 is uses the term “mechila gemura” (forgoing completely) 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.”
“Oh, really?!” exclaimed Mr. “Who addresses this issue?”
“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,” replied Rabbi Dayan, “since mechila in the mind is considered mechila.”
“The proof is from a Gemara [Kesubos 104a] that a widow who did not claim her kesuba for twenty-five years can no longer do so,” explained Rabbi Dayan. “One explanation is that, in the context of kesuba, her extended silence indicates intention to forgo the kesuba. Although she never said anything, her intention to forgo is valid.”
“Does the Ketzos accept this view?” asked Mr. Machlis.
“The Ketzos is troubled by the principle, ‘devarim shebalev ainam devarim,'” said Rabbi Dayan. Thoughts alone are not of legal consequence, with the exception of sacred donations.
“But what about the proof from the case of the widow?” asked Mr. Machlis.
“The Ketzos, citing the Maharit, differentiates between that case and the average case of mechila balev,” answered Rabbi Dayan. “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.”
“What is the accepted ruling?” asked Mr. Machlis.
“Most authorities agree with the Ketzos that thought alone is insufficient,” said Rabbi Dayan. “There are some, though, who concur with the Maharshal.” (See Nesivos 12:5; Aruch Hashulchan 12:8; Yabia Omer C.M. 3:3)
“So what do I do?” asked Mr. Machlis.
“You are certainly entitled to demand your money, in accordance with the majority opinion,” said Rabbi Dayan. “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.”
