Reuven agrees that he owes Shimon $1,000 due to services rendered. Reuven claims that Shimon owes Rueven $300 for damages caused in a separate matter. Shimon disagrees. Reuven is willing to go to Beth Din to prove his case. Before he does so, is he allowed to only pay $700, and withold the $300?

If so, how do we understand the gemura in B’rachos 5b, where Rav Huna is reprimanded for withholding payment to a sharecropper he holds stole from him? Is this a middis chassidus?

Also, if the answer is “no”, Reuven is not allowed to withhold payment, does it make any difference if the two matters relate to the same basic transaction? For example, Reuven needs to pay Shimon rent, and Reuven claims that Shimon needs to fix the airconditioner in the apartments. Shimon claims its not his responsibility. Reuven is willing to go to Beis Din. Can he reduce rent by the cost he incurred in fixing the air-conditioner?

Thank you

Answer:

Withholding payment would be permissible in both cases, pending the decision of bais din.

Sources:

See Rama C:M 4:1, who brings various opinions as to when a person may take the law into his own hands to get what is rightfully his. The first opinion is that of the Rivash who permits in any case that the other person’s assets are already in you r possesion, as in this case. The second opinion is that of the Mordechai, which would seem to indicate that your example may in fact be prohibited. The Vilna Gaon there s”k 12 explains the source for this opinion is none other than the Gemara in Brachos 5b.

See Avnei Yashpa 7:120 who explains that one may rely on the Rivash. He explains that according to this opinion we  can explain the gemara is referring to a situation where he could have retrieved his money in other ways [with certainty] in which case one may not take the law in to his own hands.

Tags: bais din damages din torah payment

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