Mr. Ganz was a gardener. He tended to many of the properties in his area, among them that of Mr. Levy. During the spring, Mr. Levy had asked Mr. Ganz to upgrade his garden, including planting high-priced flowers in front of the house and bushes around the perimeter.
Unfortunately, shortly afterwards Mr. Levy passed away after an illness. Two weeks after the shiva was over, Mr. Ganz approached Mr. Levy’s family.
“As you know, I did extra work on the garden this spring,” he said politely. “Mr. Levy also owed me for two months of routine upkeep while he was ill. Altogether, the bill comes to $7,000.”
“We are certainly happy to pay what we owe,” replied the family, “but do you have any record or proof of the amount you claim?”
“Unfortunately not,” replied Mr. Ganz. “Because of our long-standing relationship, we did not write a contract, and sufficed with a verbal agreement. In addition, Mr. Levy usually paid for the routine care of the garden in cash, so that there is no way to prove which months were paid for.”
“My father did mention at one point that he owed you a few thousand dollars,” acknowledged the son. “That could be anything, though – two, three, four… How can you expect us to pay a large sum of $7,000 without any proof of how much was owed?”
“You yourselves acknowledge that you owe a few thousand dollars, but don’t know the exact amount,” replied Mr. Ganz. “I am sure of the amount; you are not contradicting me – so, my claim is the stronger one. The amount is reasonable.”
“I’d like to discuss this with a halachic authority,” said the son. They turned to Rabbi Dayan and asked:
“How much do we have to pay Mr. Ganz?”
“A person who admits partially to a claim is known as modeh b’miktzas,” replied Rabbi Dayan. “The Torah requires him to swear that he does not owe the remainder in order to be exempt” (C.M. 75:2).
“The Gemara (B.M. 98a, 116b) teaches that if the defendant is unsure about the remainder and unable to swear, he is liable for the entire claim. This is known as: mitoch she’eino yachol lishava – meshalem (since he is unable to swear – he pays)” (C.M. 75:13).
“Nonetheless, the Gemara derives from the verses that this rule applies only to the borrower himself, but not to his heirs. Thus, if someone claims that the father borrowed $7,000, and the heirs admit that he owed $3,000 but do not know about the remainder, they are exempt from the remaining $4,000, unless the plaintiff proves the full amount” (C.M. 75:15).
“Many explain the rationale that the borrower is expected to know the amount, whereas the heirs are not expected to know. Thus, some Rishonim extrapolate this exemption even to claims against the debtor himself, in cases that he is not expected to know. Others explain the rationale somewhat differently, though, that perhaps the father – who is the primary defendant – would have denied the remainder definitively, but do not extrapolate to cases where the debtor himself is understandably unsure” (Sma 75:41; Shach 75:54, 72:51).
“The heirs do not even have to swear that their father did not instruct them regarding this debt, unless the plaintiff claims that the heirs know the remaining amount, in which case they are obligated to at least a light shevuas heses that they do not know” (Shach 75:56).
“Moreover, even if the heirs acknowledge that their father instructed them about the debt, but they forgot the amount, we do not apply the rule of mitoch she’eino yachol lishava meshalem. Tumim questions whether they have a Heavenly obligation in such a case” (Tumim 75:15).
“Thus, Mr. Ganz would have to prove the amount of the debt beyond the son’s admission,” concluded Rabbi Dayan. “Otherwise, the heirs need to pay only what they admit.”
Verdict: An heir who cannot swear about the remainder of a partial admission is exempt from the remainder until the plaintiff proves the amount of his claim.
