Two years ago, Reuven lent Shimon $5,000. Since then, Reuven asked Shimon to pay numerous times, but Shimon brushed him off time after time. Finally, Reuven sued Shimon in beis din for the $5,000.
On the day of the hearing, Shimon came half-an-hour before the appointed time. He submitted an opposing claim against Reuven for work he had done last year, suing him $8,000 for labor and parts.
The two then entered the session before Rabbi Dayan about Reuven’s claim.
“Shimon owes me $5,000,” Reuven claimed, “money that I lent him.”
“What do you have to say about the loan?” Rabbi Dayan asked Shimon.
“That Reuven is not honest…” replied Shimon.
“Do you have any evidence of the loan?” Rabbi Dayan asked Reuven.
“I have a formal loan document, signed by witnesses and notarized,” replied Reuven. He presented the loan document.
“Reuven has clear evidence of the loan,” Rabbi Dayan said to Shimon. “Did you ever repay the loan?”
“No, I didn’t repay it,” said Shimon.
“Then you have to pay,” declared Rabbi Dayan.
“Well, I did work for him worth $8,000,” argued Shimon. “He owes me for that! Although I owe him, he owes me more!”
“Do you have evidence?” Rabbi Dayan asked Shimon.
“No, we never drafted a contract,” replied Shimon, “but Reuven knows that I worked for him.”
“What do you claim about the work?” Rabbi Dayan asked Reuven.
“I remember that we discussed the possibility of his doing work,” replied Reuven, “but I don’t remember whether Shimon ended up doing it.”
“If you have no evidence,” Rabbi Dayan said to Shimon, “and Reuven claims that maybe you never did the work, we cannot require him to pay.”
“That does not seem fair,” Shimon said. He asked Rabbi Dayan:
“Why did you rule in each case as you did? Furthermore, should we not look at the two cases together?”
“Regarding your claim of work for Reuven,” replied Rabbi Dayan, “when the plaintiff does not have evidence and the defendant questions whether he owed in the first place – the defendant is exempt, based on the rule of hamotzi mei’chaveiro alav hareaya (the burden of proof is on the plaintiff (C.M. 75:10).
“On the other hand, regarding Reuven’s loan to you, when the lender holds a formal loan document, the borrower’s statement that he repaid is not believed without evidence. However, if the borrower were to claim definitively that he already repaid, he can demand an oath from the lender before paying now. Therefore, if the lender is unsure whether he was repaid, he cannot collect with his document against the borrower’s definitive claim, since the lender cannot swear (C.M. 82:2).
“However, you don’t claim that you repaid the loan, even though you have an opposing claim that you worked for Reuven.
“Indeed, if we were to view the two cases as one and view your supposed work for Reuven as payment of his loan, you could then demand an oath of Reuven; since he is unsure, he could not swear and collect.
“However, Ketzos (59:2) and Nesivos (59:1) rule that when each claim is presented independently, and you never indicated that your claim of work for Reuven is considered as payment of his loan to you, we rule each case independent of the ruling in the other case. This is the principle of zeh goveh v’zeh goveh – each one collects separately (Kesubos 110a; C.M. 85:3).
“Thus,” concluded Rabbi Dayan, “since Reuven questions whether you ever did work for him, he is exempt. On the other hand, since you never claimed that you repaid the debt to Reuven, you are liable to pay. We do not say that since Reuven is unsure whether you worked, it is like he is unsure whether his loan was repaid, in which case he could not collect.”
Verdict: When two litigants submit opposing claims and do not indicate that they want their claim to be considered as payment towards the other’s claim, we rule each case independently.
