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May 28, 2015 / 10 Sivan, 5775
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Suspected!

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“I arranged with Simon Cooper, the plumber, to clear the blockage in the kitchen sink this morning,” Mr. Laks told his wife.

“Oh, great!” she replied. “I’ll clean the kitchen before he comes.”

At 10 o’clock Simon arrived. Mr. Laks showed him into the kitchen. “This sink is blocked terribly,” he said. “I’ve tried drain cleaner and a snake, but haven’t been able to clear it.”

“I’ll get to the bottom of it,” replied Simon confidently.

“Do you need help?” asked Mr. Laks.

“No,” said Simon. “You can go about your business; leave the sink to me.” He worked for about a half hour, going in and out of the house to bring tools from his car.

Mrs. Laks came into the kitchen and opened the drawer near the sink. “Have you seen my ring?” she asked Simon.

“No, I haven’t,” Simon responded.

“I left my ring in the kitchen drawer when I cleaned the kitchen this morning,” Mrs. Laks confided to her husband, panic-stricken. “There was no one else in the house other than Simon all morning, and he’s been in and out to his car numerous times.”

“Are you sure you left it in the drawer?” Mr. Laks asked her.

“Absolutely positive,” she said. “I also noticed the drawer was ajar and had been rummaged through.”

“Did you confront Simon?” Mr. Laks asked his wife.

“I asked him if he saw the ring,” replied Mrs. Laks, “but he claims he didn’t. I’m sure he took it, though.”

“I’m going to confront him directly,” Mr. Laks said.

Mr. Laks went over to Simon. “My wife is missing her ring,” he said. “She is positive she left it the drawer near the sink this morning, and only you were in the house today.”

“How dare you accuse me?” said Simon indignantly. “Your wife probably moved it and forgot where.”

“She is sure she left it in the drawer,” said Mr. Laks emphatically.

“You have no evidence I took it,” said Simon, shaking his head angrily. “Anyway, I just finished clearing the blockage. That’s $150 for the repair and I’ll be off.”

“I’m not paying anything,” said Mr. Laks. “I’m holding the payment in lieu of the ring, until we discuss this with Rabbi Dayan.”

“We’d better do so,” retorted Simon. “Let’s go right now!”

“My wife left her ring in the kitchen drawer, and it was taken,” Mr. Laks told Rabbi Dayan. “Mr. Cooper was working in the kitchen and was the only other person in the house. What recourse do we have?”

“A person who makes a definite claim but has no evidence or testimony an impose an oath, shevuas heses, on the other party who denies the claim,” answered Rabbi Dayan. “Although in general a person cannot impose an oath without a definite claim, Rama writes that a person can impose an oath if there is a strong basis, raglayim ladavar, for the claim, even if it is not definite.” (C.M. 75:17)

“What is an example of something considered a strong basis?” asked Mr. Laks.

“Let’s say someone was in your house. You find the moneybox broken and the contents stolen, and you suspect that person – you can impose an oath upon him,” replied Rabbi Dayan. “However, the Shach [75:63] questions the Rama’s ruling. He concludes that it depends on the evaluation of the beis din; if they see sufficient basis for the allegation, they can impose an oath upon the accused.”

“I understand that nowadays beis din is wary about imposing an oath,” said Mr. Laks. “Anyway, I want to withhold Mr. Cooper’s wages!”

“This is a complicated issue,” replied Rabbi Dayan. “The SM”A [75:49] writes that if the plaintiff grabs payment from the suspected thief unobserved, so that there is no evidence that he grabbed, he can keep the payment. Shach [75:64] and Taz [75:17] vehemently disagree; a person cannot take money from another when there is an element of doubt. Pischei Teshuvah [75:20] cites varying opinions of later authorities. Bottom line, since the plaintiff is already in possession of the money, he can keep it when he has clear basis for his claim.” (See Pischei Choshen, Geneivah 1:13)

“Then I should be able to withhold the wages,” said Mr. Laks, “since I am in possession of the money.”

“It would seem so, provided that, due to the circumstances, your wife is sure Mr. Cooper stole and is willing to swear, not just that there is a good chance,” said Rabbi Dayan. “Also, be aware that if there was another person in the house, you cannot accuse Mr. Cooper and withhold from him, even if the other person is trustworthy and Mr. Cooper had a history of theft.” (See 408:2; Pischei Teshuvah 75:20)

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 subscribe@businesshalacha.com. 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 ask@businesshalacha.com.

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 subscribe@businesshalacha.com. 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 ask@businesshalacha.com.


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