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Rabbi Dayan sat with his beis din. The secretary ushered in the two litigants, who signed binding arbitration forms. They also accepted a kinyan sudar to grant halachic validity to the ruling, whether letter of the law or compromise.

Rabbi Dayan turned to the plaintiff to present his case.

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“I loaned Mr. Broyer money on four occasions,” said Mr. Lander. “He owes me a total of $18,000.”

“And what do you claim?” Rabbi Dayan asked Mr. Broyer.

“I only owe $17,000,” Mr. Broyer replied.

“Do you have a written loan document?” Rabbi Dayan asked Mr. Lander.

“Yes, we drafted a loan document with the detailed sums,” Mr. Lander replied. He presented the beis din with a copy of the loan document.

“The loans were $5,000, $5,000, $4,000, and $4,000,” continued Mr. Lander. “The problem is that the sum total is listed is $17,000. However, when you add the sums mentioned, it is clear that the total of $17,000 is an error. Thus, Mr. Broyer owes me $18,000, not $17,000.”

“And what do you say in response?” Rabbi Dayan asked Mr. Broyer. “How much did you borrow?”

“I only borrowed $17,000,” claimed Mr. Broyer. “The second loan was also only $4,000. Anyway, even if was $5,000, the total listed is $17,000. Therefore, regardless, I should not have to pay more than that!”

“How can you claim that the second loan was only $4,000?!” exploded Mr. Lander. “The loan document clearly states it was $5,000! The sum total is clearly an error.”

“Or maybe the total is the correct amount, and the individual sum of $5,000 was an error,” Mr. Broyer shot back. “Clearly there’s some doubt here. Even if it remains an unresolved issue, I should only have to pay the lower figure!”

“Is there anything else?” Rabbi Dayan asked the two parties.

“No,” replied Mr. Lander and Mr. Broyer in unison. Rabbi Dayan asked them to step out for a few minutes while the beis din deliberated the issue.

When the deliberations were over, the secretary called the litigants back in. Rabbi Dayan turned to Mr. Broyer and said: “The beis din rules that you are liable for the full sum of $18,000.”

“I accept the ruling,” said Mr. Broyer, “but would like to understand the reasoning.”

“There is an inherent contradiction here within the loan document,” explained Rabbi Dayan. “The Shulchan Aruch [C.M. 42:5] provides guidelines for a case. If it is possible to reconcile the contradiction, we do. If not, the Shulchan Aruch differentiates between three cases of contradiction.”

“What are the three cases?” asked Mr. Lander.

“The first case is a contradiction between the amount mentioned in the beginning of the document and the amount repeated in the end,” replied Rabbi Dayan. “Here, we follow the amount mentioned at the end and assume that there was a change or retraction from the beginning of the document until it was finalized at the end.”

“Isn’t that our case?” asked Mr. Broyer. “The beginning of the document indicates $18,000, whereas the end states $17,000!”

“No, our case is the second contradiction mentioned in the Shulchan Aruch, where there is discrepancy between the individual amounts and the sum total,” replied Rabbi Dayan. “Here, since the individual amounts are clearly listed, we give greater weight to them and assume that an error occurred in the computation, which is prone to error. For this reason, Mr. Broyer must pay the full $18,000.”

“And what is the third case?” asked Mr. Lander.

“Where there is an irreconcilable contradiction within the same section,” continued Rabbi Dayan. “For example, if the document said, ‘$10,000 in twelve monthly payments of $1,000.’ Here, the two sums simply do not match, and there is no reason to assume that one is more binding than the other.”

“What do we do in such a situation?” asked Mr. Broyer.

“We apply the principle Yad ba’al hash’tar al hatachtona – the one possessing the document has the lower hand,” replied Rabbi Dayan. “The simple explanation of this is that the one possessing the document is usually the plaintiff. For example, the lender holds the loan document and wants to extract payment from the borrower. As you know, the fundamental principle of monetary law is hamotzi meichaveiro alav ha’reayah ­– the plaintiff has the burden of the proof. Thus, where the document is contradictory, we assume the lower amount, $10,000, unless we have proof or reason to assume otherwise.”

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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.