Mr. Fink was struggling financially. He was laid off and had a difficult time finding a new permanent position and settled for temporary odd jobs. He borrowed $5,000 from one of his neighbors, Mr. Birnbaum. Three months later, Mr. Birnbaum generously agreed to lend another $3,000.
Mr. Fink’s situation continued to worsen, though. He realized that he would have a very difficult time repaying even one of the loans, and certainly both of them.
Mr. Fink drafted a message to Mr. Birnbaum in which he described his difficult financial situation. He asked Mr. Birnbaum whether he would be willing to forgo one of the debts, and anxiously waited for a response.
A few days later, Mr. Birnbaum replied: “I am sorry to hear of your situation. After considering the issue, I consent to your request and agree to forgo one of the loans. The other remains overdue. Please pay ASAP.”
Mr. Fink worked hard to amass and set aside $3,000, which he gave to Mr. Birnbaum. “One loan you agreed to cancel, so I’m paying the other,” he said.
“Thank you,” said Mr. Birnbaum, “but you still owe $2,000 to complete the $5,000. Since I am the one to forgo, it’s up to me to choose which loan I cancel.”
“You could have chosen initially which one you want to cancel,” acknowledged Mr. Fink. “However, once you were mochel [forgiving of the debt] without specifying, there is a doubt which was canceled. Since you are collecting from me, we should apply the rule of hamotzi meichaveiro alav har’ayah – the burden of the proof is on the plaintiff.”
“How can I bring proof?” replied Mr. Birnbaum. “We never specified!”
“Exactly!” countered Mr. Fink. “Since the doubt exists, I only have to pay the smaller debt!”
The two decided to approach Rabbi Dayan. Mr. Birnbaum asked:
“Which debt was canceled? How much does Mr. Fink have to pay?”
“Indeed, the general rule is: hamotzi meichaveiro alav har’ayah, and the plaintiff has the burden of proof,” replied Rabbi Dayan. “Thus, we would expect that when there exists a doubt which loan was canceled, Mr. Fink should have to pay only the smaller one, and we should presume that Mr. Binrbaum was mochel the larger debt.
“However, the halachah is not so. This is because we view a creditor who willingly forgoes a debt as effectively granting the debtor a gift. Mr. Birnbaum did not receive payment or compensation for the debt, but of the goodness of his heart was willing to forgo it” (Sma 65:76).
“In the case of a questionable gift, we apply hamotzi meichaveiro to the recipient of the gift; the burden of proof is upon him to prove and uphold the gift that he claims. Similarly, if there is a doubt about the amount of the gift, we presume the smaller amount, since the recipient claims the gift from the giver, who is in possession” (C.M. 246:5).
“In the same way, when the creditor is mochel one of the two debts, we presume that he was mochel the smaller debt, since, effectively, the debtor is claiming the “gift” of the exemption from the creditor, so that the burden of proof is upon the debtor” (C.M. 65:23).
“Thus, we apply the unspecified mechilah to the smaller loan, and Mr. Fink must pay $5,000.
“Following this logic,” concluded Rabbi Dayan, “Shach (65:78) rules that if the debtor has a definitive claim that the creditor had to forgo the larger debt for some reason (e.g., in lieu of something else), not from the goodness of his heart, the burden of proof returns to the creditor. In such a case, the mechilah is not a “gift” from the creditor, so we resort to the regular rules of possession and apply hamotzi meichaveiro to the creditor who claims payment from the debtor.”
Verdict: Willful mechilah is considered a “gift” from the lender. Therefore, in cases of doubt we minimize the mechilah and presume that the creditor forgoes only the smaller debt.
