“We are pleased to announce we have been donated a car for communal use,” read the sign in Kollel Mishpat. “Members of the Kollel can use the car g’mach, as available, in coordination with Dani.”
“Wow!” said Yossi. “How much is usage?”
“The charge is 50 cents per mile, to cover gasoline and wear and tear,” said Dani. “Payment is due immediately upon returning the car. If you fill up with gas, the g’mach will refund you that amount.”
“I have an appointment next Tuesday afternoon,” said Yossi. “Is the car available then?”
“Yes,” said Dani. “I’ll write you down.”
Yossi picked up the keys on Tuesday afternoon. “I should be back in about five hours,” he said.
“There’s not much gas in the car,” said Dani. “You’ll probably have to add gas on the way home.”
Yossi drove to his appointment 30 miles away. On the way home, he pulled into the gas station.
“How much gas should I put in?” Yossi thought to himself. He checked his wallet. “I’ve only got $40 cash. Should I put in $10, $20, or $30?” After deliberating a moment, he paid the attendant and proceeded to the pump.
When Yossi came home, his wife said, “While you have the car, there are a few more errands to do.”
Yossi returned just before Minchah. He gave the keys to Dani, and said, “I’ve got to run to minchah now! We’ll settle later.”
A month later, Dani gave Yossi a call. “I was reviewing the car log,” he said. “You drove 60 miles, which is $30, but no payment was listed.”
“You’re right,” Yossi apologized, “I forgot to take care of it, but I purchased gas.”
“That’s fine,” said Dani. “We reimburse for that. How much did you put in?”
“It’s funny, but I don’t remember anymore,” said Yossi. “I remember debating, though, whether to put in 10, 20, or 30 dollars.” He tried very hard to jar his memory, but couldn’t.
“It’s a pity you didn’t pay on time, like you were supposed to,” said Dani. “Then we wouldn’t have had this problem. Ask Rabbi Dayan how to deal with this.”
Yossi called Rabbi Dayan. “I owe the car g’mach $30, but purchased gas on the way home,” he said. “I don’t remember, though, whether I added $10, $20 or $30. Should I assume the least, most, or middle amount?”
“This issue seems to be an intricate dispute between the Ketzos Hachoshen and the Nesivos Hamishpat,” said Rabbi Dayan, “although there is an additional factor here.”
“Oh?” said Yossi. “I didn’t think it would be so complicated.”
“In general, when neither the lender nor the borrower remembers whether the loan was repaid,” explained Rabbi Dayan, “the person cannot be made to pay in beis din, and there is even a dispute whether he has a moral obligation to pay, latzeis yedei shamayim.” (See Taz 75:10; Shach 75:65-67; Pischei Teshuvah 75:21)
“This seems to be our case,” said Yossi. “Neither of us knows whether I repaid the loan by purchasing the gasoline.”
“It seems so at first,” said Rabbi Dayan, “but our case is somewhat different.”
“In what way?” asked Yossi.
“In our case, you have a definite obligation of $30 for using the car, which you did not repay, and there is a possible counter obligation of $10-30 for the gas you bought,” said Rabbi Dayan. “The Ketzos Hachosen [75:5] differentiates between a possible repayment and a counter obligation. When there are two counterclaims, the Ketzos reasons that we treat each obligation independently. The obligation of $30 is clear, whereas the counter obligation for the gasoline is questionable, so that we have to assume the minimal amount of $10. As such you remain obligated for $20.”
“You mentioned that the Nesivos argues,” said Yossi.
“Yes. The Nesivos Hamishpat [75:5] reasons that the counter obligation is considered a form of repayment,” said Rabbi Dayan. “As such, this case is also considered one of possible repayment where neither party knows, so that there remains, at most, a moral obligation.”
“Nonetheless, in this particular case, there is an additional reason to obligate you,” concluded Rabbi Dayan. “This is because the uncertainty arose because of your negligence. In a normal situation where neither the borrower nor the lender remembers whether the loan was repaid, both parties are equally at fault. Furthermore, it is understandable that people sometimes forget.
“Here, however, had you paid in a timely manner according to the rules, you would have known how much you spent on gas. Only because you delayed so much did the doubt arise, so that you cannot hide behind the veil of forgetfulness. Therefore, you can assume only the lower amount of $10, and must repay the remaining $20.” (See Pischei Choshen, Halva’ah, ch. 2, note 78; Nesivos 75:5)
