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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 recorded in one promissory note for the aggregate amount of three hundred dinarim.

At the time they advanced the money, each lender informed the borrower how much he was lending. The two lenders subsequently sue the borrower, each claiming he was the one who lent him two hundred dinarim. The borrower does not remember who gave him one hundred dinarim and who gave him two hundred dinarim.

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The borrower must pay one hundred dinarim to each lender and deposit the remaining, disputed one hundred dinarim in escrow where it will remain until such time as one of the lenders admits to the other that he only lent one hundred dinarim.

 

Rama: The reason for this is that by recording the two loans in one promissory note, the two lenders become partners in the loan transaction. Furthermore, the lender who holds the promissory note can sue for the entire three hundred dinarim without a power of attorney from his partner. Accordingly, in this situation the borrower is not guilty of negligence for failing to record who lent him one hundred dinarim and who lent him two hundred dinarim.

 

Ner Eyal: Previously in this Sa’if 1, the case of an oral loan was discussed. There too, the borrower did not remember who lent him one hundred dinarim and who lent him two hundred dinarim, even though he was told this at the time of the loan. The halacha in that case was that the borrower must pay a total of four hundred dinarim, being two hundred dinarim to each lender, leaving him one hundred dinarim out of pocket.

Before receiving two hundred dinarim, each lender must swear that he was the one who lent two hundred dinarim. We explained that by specifically informing the borrower who lent him what, the two lenders indicated to the borrower that they were not partners in one transaction. They did not want the borrower to assume they trusted each other. Their purpose in telling him who lent what was so the borrower should take note of it. He should remember it when they would come to claim their money. It was incumbent upon the borrower to remember who gave him what, just as if there had been two separate transactions at different times.

The halacha is different, however, if the loan was not an oral one but was recorded in a promissory note. If the loan was recorded in a promissory note, even if the two loans were made simultaneously in the presence of the two lenders and even if the two lenders informed the borrower who lent what, the defendant is not required to pay two hundred dinarim to both. Instead, he takes the Shevuat Heiset oath of denial and pays one hundred dinarim to each lender. As for the one hundred dinarim in dispute, he places the sum in escrow until one of the plaintiffs admits he lent only one hundred dinarim.

Clearly, the result for the borrower is more favorable in the case of the promissory note because he only pays three hundred dinarim (one hundred to each lender and one hundred in escrow), whereas in the case of the oral loan in the same situation he would have to pay four hundred dinarim. He would remain one hundred dinarim out of pocket.

The reason for the different result in the case of the loan recorded in the promissory note is as follows. By agreeing to have the two loans recorded in one promissory note, the two lenders agreed the loan is one transaction. By doing so, they also agreed the promissory note for three hundred dinarim (representing as it does the loan of two hundred dinarim from one lender and the loan of one hundred dinarim from the other lender) would be held by only one of the lenders. Indeed, it could physically only be held by one of them.

Furthermore, both lenders are aware and in agreement that the one holding the promissory note has the power to sue for the full three hundred dinarim recorded in the note. He will hold the other lender’s portion of the money he collected in trust for him.

Clearly, then, in the case of the promissory note, the two lenders trust each other. There is no need for the borrower to assume that one of them will lie and claim what was not his. Therefore, the borrower has no obligation to record who gave him what, even if the lenders informed him of that at the time of the loan. The only condition attached to the borrower having to pay only three hundred dinarim in this case (one hundred dinarim to each lender and one hundred dinarim into escrow) instead of four hundred dinarim as was the case with the oral loan, is that the borrower must take a Shevuat Heiset oath that he does not know who lent him two hundred dinarim and who lent him one hundred dinarim.

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Raphael Grunfeld received semicha in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Maran Hagaon Harav Dovid Feinstein, Shlitah. A partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, where he specializes in cross-border mergers and acquisitions, Raphael is the author of “Ner Eyal, a Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zerayim” (2016) and “Ner Eyal, a Guide to the Laws of Shabbat and Festivals in Seder Moed” (2001), both of which are available for purchase at https://www.amazon.com/dp/057816731X Questions for the author can be sent to rafegrunfeld@gmail.com