During Chol HaMoed, Mrs. Bloom called her neighbor Mrs. Fleisher. “Your daughter mentioned that you’re going to the butcher shop soon,” she said. “Would you mind picking up four roasts for me? We’re having a lot of guests for the end of Yom Tov.”
“With pleasure,” said Mrs. Fleisher. “I’ll drop them off on the way home.”
At the butcher shop, Mrs. Fleisher kept the roasts for Mrs. Bloom aside. She got a separate receipt, which she put in her pocketbook. On the way home, she stopped off at the Blooms.
A child answered the door. “My parents are not home,” he said.
“Your mother asked me to buy these roasts,” said Mrs. Fleisher. “Tell her that we’ll settle the bill after Yom Tov.”
After Pesach, Mrs. Bloom came over to pay. “How much were the roasts?” she asked Mrs. Fleisher.
“I don’t remember,” said Mrs. Fleisher, “but I have the bill in my pocketbook.”
Mrs. Fleisher took out the bill. “It was…” she said, inspecting the bill closely.
“What’s the matter?” asked Mrs. Bloom.
“I can’t read what it says,” Mrs. Fleisher replied. “The ink is smeared.” She gave the bill to Mrs. Bloom to look at.
“I also can’t tell,” said Mrs. Bloom. “It’s either $65 or $85. I’ll give you $85; you did me a favor and shouldn’t lose out.” She handed the money to Mrs. Fleisher.
“No, I can’t take more than $65,” protested Mrs. Fleisher. “You may not owe me more than that.”
Mr. Fleisher overheard their discussion. “You should split the difference and pay $75,” he suggested.
“Why don’t you ask Rabbi Dayan?” piped up their twelve-year old son.
“That’s a good idea,” said Mr. Fleisher.
Mr. Fleisher called Rabbi Dayan and related what happened. “If the bill is unclear,” he asked, “how much should the neighbor pay?”
“In a case where a loan document has an unclear amount, for example if the amount was left out or erased and not legible, we assume the minimal amount of two,” replied Rabbi Dayan. “This is based on the principle of hamotzi meichaveiro alav hareayah – the plaintiff has the burden of the proof. Since it is not clear how much the borrower owes, the lender is only entitled to the lower amount. Thus, Mrs. Bloom needs to pay only $65.” (C.M. 42:11)
“Perhaps I didn’t clarify,” said Mr. Fleisher. “Mrs. Bloom already handed my wife the $85. Does that change the ruling, since now she is in possession of the money?”
“That is a fascinating question,” replied Rabbi Dayan. “The SM”A [42:32] indicates that if the amount in unclear and the lender grabbed the higher amount, he does not have to return it.”
“However, continued Rabbi Dayan, “both the Shach [42:27] and the Taz [42:12] reject the opinion of the SM”A. In a situation where the amount on the document is erased or illegible, it is considered as if there is no document. Furthermore, a store receipt does not have the legal status of a loan document. We should treat the case as any other dispute, without supporting evidence.”
“So what is the ruling,” asked Mr. Fleisher, “if my wife doesn’t remember whether the roasts cost $65 or $85?”
“In a case where neither the lender nor the borrower remembers the amount of the loan, the lender only has to pay the amount he is certain about,” replied Rabbi Dayan. “There is not even a moral obligation [chiyuv b’dinei shamayim] to pay the higher amount. Even if the lender grabbed the higher amount, he is required to return it. Thus, your wife should return the extra $20.” (C.M. 75:11; Shach 75:26)
“Of course, we addressed the halachic requirement,” concluded Rabbi Dayan. “What your wife and her neighbor decide to do out of neighborly considerations in appreciation for doing a favor is up to them.”