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Ramifications Of A Printers Error
‘The Note Holder’s Burden of Proof’
(Kesubos 83b)

 

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Halacha follows a general rule, as stated in our sugya, that when a doubt arises as to the authenticity or meaning of a promissory note (shtar chov), the burden of proof lies on the person bearing the note (Shulchan Aruch C.M. 42).

 

Which Pesach?

The Rosh (Teshuvos, 68:14) notes that there are some exceptions to this rule. For example, suppose a promissory note is produced in which the borrower promises to pay “by Pesach” but does specify which Pesach. The lender claims it means this Pesach, but the borrower claims it means Pesach several years from now. How is beis din to interpret the ambiguous note?

The answer is that it accepts the lender’s interpretation because if it accepts the borrower’s interpretation, the borrower can theoretically delay paying until the last Pesach of the world’s existence. Since this prospect is impossible to accept, beis din has no choice but to accept the lender’s interpretation.

 

Due After Yom Tov

If the note states that the loan will be repaid “after Pesach,” but does not specify when, the Shulchan Aruch (C.M. 43:29) rules that it must be paid before the majority of days between Pesach and Shavuos have passed. The Shulchan Aruch then adds a curious note, “Until the twenty-first day.”

Poskim explain that the Shulchan Aruch did not literally mean that the majority of days must pass. Rather, it is enough for half the days to pass. Outside Eretz Yisrael, where Pesach is celebrated for eight days, there are 42 days between Pesach and Shavuos. Therefore, the debt must be paid on the twenty-first day after Pesach, when half the days have passed. In Eretz Yisrael, where Pesach is celebrated for seven days, there are 43 days between Pesach and Shavuos. Half this time is 21 and-a-half days. Since we do not assume that an obligation to pay begins in the middle of a day, the borrower has until the twenty-second day to pay (Shach and Gra; both argue against the Sma).

The problem with this explanation is that the Shulchan Aruch writes, “Until the twenty-first day” – which is only correct for Jews living outside Eretz Yisrael. The Shulchan Aruch, however, was written in Eretz Yisrael, and in Eretz Yisrael, the borrower can pay on the twenty-second day.

The Shulchan Aruch Study Cycle

A possible explanation is as follows: In the introduction to the Shulchan Aruch, the Mechaber writes that all four sections of the Shulchan Aruch can be reviewed every month. In the original printings of the Shulchan Aruch, a learning schedule was included, similar to those we find in current printings of Tehillim or Chafetz Chaim. On the twenty-first day of the month, the material to be covered is siman 174 in Even Ha’Ezer to siman 43 in Choshen Mishpat. Printers of later editions of the Shulchan Aruch removed the date marks, but the mark for the twenty-first day was mistakenly left in place. Thus, “Until the twenty-first day” has nothing to do with the halachos of debts. It simply tells a person that a person should learn “until here” on the twenty-first day of each month (Sma, Be’er HaGolah).

 

“In a Few Years”

Poskim also discuss notes in which the borrower promises to pay “in a few years.” How many years are “a few”? The Beis Ephraim (Teshuvos C.M. 75) rules that since the contract is unclear, one should interpret it in accordance with how the locals in the place where it was written would interpret it. If there is no common interpretation of “in a few years” in the locale in question, the borrower must pay within nine years. If the parties had intended a longer period than that, surely the contract would have been more specific.

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RABBI YAAKOV KLASS, rav of Congregation K’hal Bnei Matisyahu in Flatbush, Brooklyn, is Torah Editor of The Jewish Press. He can be contacted at yklass@jewishpress.com. RABBI GERSHON TANNENBAUM, rav of Congregation Bnai Israel of Linden Heights, Boro Park, Brooklyn, is the Director of Igud HaRabbanim – The Rabbinical Alliance of America.