Sa’if 1, Mechaber: A person borrowed three hundred dinarim from two lenders. From one lender he borrowed one hundred dinarim and from the other he borrowed two hundred dinarim. The loan was an oral loan. It was not recorded in a promissory note. At the time they advanced the oral loans, each lender informed the borrower how much he was lending. Each of the two lenders subsequently sues the borrower. Each claims he lent him two hundred dinarim. The borrower does not remember who gave him one hundred dinarim and who gave him two hundred dinarim. The halacha (according to the Rosh) is that each lender must swear that he lent two hundred dinarim. The borrower must then repay each lender two hundred dinarim.
Some are of the opinion that if the plaintiffs themselves are not certain who lent two hundred dinarim and who lent one hundred dinarim, the defendant has a moral duty to pay the additional one hundred dinarim, although he is not legally obliged to do so.
Ner Eyal: In order to better understand this Sa’if, it is helpful to first review the halacha with respect to deposits and then with respect to loans.
On Monday, A deposits with C a money bag containing two hundred dinarim, for safekeeping. On Tuesday, B deposits with C a money bag containing 100 dinarim, for safekeeping.
Even though C is the bailee in both situations, the two deposits are regarded as two separate transactions. It is C’s responsibility to remember who gave him what.
Subsequently, A claims, with certainty, that he was the one who deposited the money bag containing two hundred dinarim with C. Similarly, B claims, with certainty, that he was the one who deposited the money bag containing two hundred dinarim with C.
One of the two is obviously lying, but we don’t know which one.
The halacha is that first C must repay the two hundred dinarim that are not in dispute. Accordingly he must pay one hundred dinarim to A and one hundred dinarim to B. As for the one hundred dinarim in dispute, he must deposit it in escrow until either A or B admits that one of them deposited one hundred dinarim.
If, however A and B deposited those amounts with C simultaneously and in each other’s presence, both deposits are deemed to be one transaction. C is then not responsible to remember who gave him what. This is because C can argue that by giving him their deposits simultaneously, A and B were partners in one transaction. Even if A and B had specifically informed C who gave him what, C could say that it was not incumbent upon him to remember.
As partners, A and B trusted each other that neither would claim from C more than he deposited with him. C is entitled to assume that as partners in the transaction, A and B would remember who gave C what, even if C forgot. The moneybags given as a deposit are, after all, physically present at the time of the dispute. C can reasonably expect each owner to recognize and remember his own moneybag, even if C forgot.
The case brought in this Sa’if, however, is different.
First, by specifically informing C who lent him what, A and B indicated to C that they were not partners in one transaction. They did not want C to assume they trusted each other. Their purpose in telling him who lent what was so that C should take note of it. He should remember it when they would come to claim their money. It was incumbent upon C to remember who gave him what, just as if there had been two separate transactions at different times.
Second, the transaction dealt with in this Sa’if is not a deposit. It is a loan.
C is entitled to spend the money. Money is fungible. Unlike the deposited moneybags that are identifiable at the time of the dispute, all trace of ownership over the money will be wiped out once the money is spent. Nobody will be able to say which money belonged to A and which to B. The only way to prevent this is for C to make a note of who gave him what. If C does not do so, he only has himself to blame. In this situation, if both A and B are certain of their claim and are prepared to swear that each lent two hundred dinarim to C, C must pay two hundred dinarim to both, even though one of them is clearly lying.
This, however, is the result only if both A and B claim with certainty that each lent C two hundred dinarim. If, however, A and B are not sure themselves who lent what, the halacha is different. C must return one hundred dinarim to each plaintiff and the plaintiffs then divide one hundred dinarim in dispute between them. In view of the fact that the plaintiffs are not certain which of them lent two hundred dinarim, the defendant in this situation is also absolved from taking the Shevuat Heiset oath of denial.
Although there is no legal obligation to do so, some authorities are of the opinion that the defendant has a moral obligation to go beyond the black-letter law and exonerate himself ethically in the eyes of God by paying two hundred dinarim to each plaintiff, even though each is uncertain of the amount of his claim.