Latest update: March 1st, 2013
The Golds were planning a two-week vacation. Mrs. Gold did not want to travel with her jewelry, but was concerned about leaving it in their apartment while they traveled.
“What should we do with my jewelry?” Mrs. Gold asked her husband. “I’m afraid to leave it unattended in the apartment. There has been a rash of robberies recently in the building.”
“We could hide the jewelry in one of the closets,” suggested Mr. Gold.
“I’m not happy with that,” said Mrs. Gold. “If a thief searches the apartment, he still might find it. We’ll be away for two weeks.”
“If you’re comfortable, we can leave the jewelry with our neighbors, the Ehrlichs,” said Mr. Gold. “They have a safe in their apartment.”
“That would be much better,” said Mrs. Gold. “I would feel more secure knowing the jewelry was stowed away.”
Mr. Gold called the Ehrlichs and asked if he could bring over some valuables to put in their safe while they would be away on vacation.
“That’s fine,” said Mr. Ehrlich. “We’ll be happy to keep it for you in our safe. It’s not such a big safe, though, so focus on the smaller items.”
Mrs. Gold gathered together the valuable jewelry she wasn’t planning to take and put it in a bag. Mr. Gold brought it over to the Ehrlichs. He quickly showed Mr. Ehrlich the contents: some necklaces, earrings, rings, and some gold pins. Then he knotted the bag carefully and gave it to Mr. Ehrlich to put in his safe.
“Have a safe trip,” Mr. Ehrlich wished Mr. Gold. “Enjoy your vacation!”
When the Golds returned two weeks later, Mr. Gold went to retrieve the bag of jewelry from the Ehrlichs. Mr. Ehrlich took the bag out of the safe.
“Thank you very much,” said Mr. Gold.
“No problem at all,” said Mr. Ehrlich. “We were happy to help.”
Mr. Gold took the bag and untied it. He perused the contents. With a concerned look, he said: “Would you mind if I examined the contents before retuning home?”
“You’re welcome to,” said Mr. Ehrlich, “but I assure you that nobody touched the bag while you were gone.”
Mr. Gold took out the items one by one. “There was also a golden pin with a diamond tip that is missing!” he said.
“I have no idea whether there was or wasn’t such a pin,” said Mr. Ehrlich in an offended tone. “I didn’t examine the contents of the bag carefully when you gave it to me. I assure you, though, that whatever you gave is what you got back!”
“But I’m sure the pin was in the bag,” said Mr. Gold softly. “You’re obligated in a Torah oath of modeh b’miktzas, partial admission.”
Mr. Ehrlich paled. “I’m not swearing any such oath,” he said.
“Then you’ll have to pay,” said Mr. Gold. “We’re going to have to take this up with Rabbi Dayan.”
Mr. Gold and Mr. Ehrlich met with Rabbi Dayan. “I gave Mr. Ehrlich a bag of jewelry to keep in his safe and a diamond-tipped pin is missing from the bag,” said Mr. Gold. “He doesn’t know whether he received the pin but claims he returned the bag intact. Is this not a case of modeh b’miktzas, partial admission?”
“At first glance, it might seem so,” replied Rabbi Dayan. “Mr. Ehrlich admits to having received a bag of jewelry, but denies having received that pin in the bag. As such, he would be obligated in a Torah oath to deny the claim.”
“However,” continued Rabbi Dayan, “the truth is that Mr. Ehrlich is not required a Torah oath.”
“Why not?” asked Mr. Gold.
“There is a significant exception to the rule of partial admission known as heilech, ‘Here, take it,’ ” answered Rabbi Dayan. “If the defendant admits partially, but is prepared to return the admitted items – or to pay immediately in beis din the sum that he admits – we do not view the case as one of partial admission; he is not required the Torah oath of partial admission.” (C.M. 87:1; 88:24)
“I don’t quite follow the logic,” said Mr. Ehrlich. “Why should that make a difference?”
“Since Mr. Ehrlich returned the remaining jewelry, the entire litigation revolves only around the golden brooch,” explained Rabbi Dayan. “Mr. Gold claims he entrusted a brooch; Mr. Ehrlich denies it. Thus, there is no partial admission of the litigation claim. At most, Mr. Gold would be obligated in a rabbinic oath.” (See also C.M. 88:23.)
About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to firstname.lastname@example.org. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail email@example.com.
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