A halachic question raised with some frequency how to handle cases that involve disputed payments. This can arise in cases of claim that money is counterfeit, or when a miscount is claimed.
With every new banknote issued by the central bank, the counterfeit industry adjusts and begins to print the relevant banknotes, with alarming accuracy. The going rate, based on reports in Israeli news outlets, is a counterfeit hundred-shekel bill for the cost of twenty shekels. While the police do their utmost to locate and shut down counterfeit industries, modern printing techniques make forging currency all too easy, and the source is often hard to track down.
Many of us will have therefore undergone the unpleasant experience of finding a fake note or coin in our wallets. Ultimately, the counterfeit money is exposed, usually during or after a money transaction, raising of course the halachic question of responsibility for payment.
What must a buyer do after discovering he paid with counterfeit money? What is the halacha when a seller or creditor claim, after some time, that the money transferred was counterfeit? And how does this compare with a claim that there was a miscount of cash? These questions, among others, are discussed below.
The definition of money is in terms of buying power. If it can be spent, it is money; if not, it is not.
This obvious definition leads to the conclusion that counterfeit money is not considered “money” for any halachic and legal purpose. In a regular transaction of an item in exchange for money, the obligation is thus to pay with proper legal tender. If somebody buys something and pays with counterfeit money, he will transgress the prohibition of theft gezel, and of course remains obligated to pay for the item with genuine money.
This is effectively similar to a case in which a buyer hands over insufficient cash, due to a miscount of the money. After the mistake is discovered, he of course remains obligated to make up the difference.
What happens if the storekeeper has already passed on the fake currency to another customer or vendor? Even under these circumstances, the original customer (who paid with the counterfeit money) remains obligated to pay. The fact that the store has made no actual loss (because the note has already passed on) makes no difference: a person must pay for his purchases, and counterfeit money is not considered payment.
The same principle applies to a monetary loan. The obligation of the borrower is to pay back money, and counterfeit notes do not qualify. If one of the banknotes used for repayment was forged, the borrower has not repaid the loan, and remains obligated to do so.
The Matter of Credibility
Our analysis so far is relatively simple. However, it is often complicated by the problem of credibility. What happens if after a couple of days, the vendor contacts the buyer and claims that money he paid was counterfeit? In a similar sense, what happens if a debtor pays back his creditor, and a day later the creditor claims that the money he paid was fake? Is the vendor/creditor believed in his claim?
If the receiver could prove, for instance by means of witnesses, that one of the banknotes he received as payment was forged, no question will emerge. In the standard case, however, the creditor is unable to prove this, and the question of his credibility therefore arises: Can the buyer or borrower claim that he does not trust the vendor or creditor, and suspects he is being made to pay twice over?
This seems to be a case of bari veshema—a certain claim coming up against an uncertain claim. The vendor’s claim is certain (he claims to know that the received banknote was forged), whereas the buyer’s claim is inherently uncertain. Although he might suspect the lender of lying, he admits that one of the banknotes he delivered could have been a forgery. Unless he is a banker or otherwise expert, he will not be able to make a certain claim that none of the banknotes he paid were counterfeit.
Under ordinary circumstances, the halacha in cases of bari veshema follows the opinion of Rav Nachman and Rav Yochanan, who exempt the unsure defendant of any obligation to pay (Kesubos 12b). The sureness of the plaintiff is insufficient grounds to extract money. This ruling is given by the Rambam and the Shulchan Aruch (Choshen Mishpat 75:9).
However, when there is a chezkas chiyuv—an assumption of obligation, meaning that the defendant was previously obligated to the plaintiff—the certain claim of the plaintiff is considered sufficient to obligate payment. Because the question relates not to a new obligation, but to whether an already extant obligation remains, the plaintiff is given the upper hand, and his certain claim (taanas bari) defeats the defendants uncertainly.
For instance, if a creditor makes a certain claim that a debtor hasn’t paid his debt, and the debtor claims uncertainly that he might have paid the debt, but he might not have paid it, the halachic ruling is that the debtor is obligated to pay. The previously existing debt creates a chezkas chiyuv in favour of the creditor, and his certain claim against the debtor’s uncertainty is sufficient to extract the payment.
On the one hand, the case of the suspect banknote seems to fit this halachic template. The buyer/debtor was previously obligated towards the seller/creditor—an obligation created by the sale or the loan. A doubt has now arisen concerning whether payment has been legitimately made: if one of the banknotes was counterfeit, the buyer/debtor has not paid back his debt. Because the seller’s/creditor’s claim is certain, and the buyer’s/debtor’s defence is uncertain, the halacha seems to side in favour of the creditor.
Yet, there is another way of analysing the case of (suspected) counterfeit payment. Before the alleged counterfeit was discovered, both parties had considered the matter settled. Because the assumption was that no obligation exists, perhaps there are no longer grounds to view the case as a previously existing obligation. In other words, perhaps the original payment effective nullifies the chezkas chiyuv, so that the claim of counterfeit money will be insufficient to obligate payment.
Addressing precisely this case, the Shach (Choshen Mishpat 232:15, relating to a case of repayment of a loan) cites from the Rashdam (Choshen Mishpat 80), who rules that since doubt was cast on the payment of the loan the borrower is obligated to pay. The Shach proceeds to state that this ruling is simple: a chezkas chiyuv exists in favour of the creditor, and the creditor’s certain claim thus outweighs the borrower’s uncertainly.
The Taz, (Choshen Mishpat 75) however, states that the clear ruling exactly the contrary. Because the borrower has already paid, and the current status quo is that he is no longer obligated to pay, the creditor’s claim is not considered as continuing the original obligation. The concept of chezkas chiyuv therefore does not apply, and we return to the basic principle of bari veshema,lav bori adif: the certain claim (against an uncertain claim) is insufficient to extract payment.
The notes of the Even Ha’ozer on Be’er Heitev (Choshen Mishpat 232:24) lists several other authorities who disagree with the ruling of the Shach.
Counterfeits and Miscounts
The Even Ha’ozer raises a seeming contradiction in the rulings of the Shach himself. Elsewhere, relating to the question of a possible miscount of moneys, the Shach (Choshen Mishpat 126:69, citing from the Rashba, Gittin 14a) rules that if a borrower paid back his debt, only for the creditor to claim that there was a miscount and not enough money was paid, the debtor is exempt from further payment. The certainty of the creditor, even in the face of the debtor’s uncertainty, is not sufficient to obligated payment.
This appears to be in direct contradiction with the above ruling of the Shach: Although the validity of the debtor’s repayment is called into question, his uncertain claim is sufficient to exempt him from further payment.
The Ketzos Hachoshen (75, 6) resolves the issue by making a distinction between a miscount and counterfeit money. The way of people is to be careful in transferring money, so that beis din always assumes that money is properly counted (see Shulchan Aruch, Choshen Mishpat 126:13). Based on this assumption, it follows that a claim of miscounting cannot receive the backing of a chezkas chiyuv (an assumption of obligation): we assume, rather, that the money was correctly counted, and the debt repaid in full.
On the other hand, there is no basic assumption that coins are not counterfeit. The claim of counterfeit money is therefore able to cast a doubt on the original payment, relying on the chezkas chiyuv of original debt. The certain claim of the creditor thus defeats the uncertain claim of the debtor, who must make the payment.
The case of alleged counterfeit currency thus involves a major dispute amongst authorities. The Taz and several other authorities (see, for instance, Tumim 75:22) disagree with the ruling of the Shach, so that the buyer or debtor, who are in holding of their money, will not have to make a second payment. This halachic ruling is the more so true concerning claim of a miscount: the buyer or debtor, who suspect that their payment was made in full, are not obligated to pay again.
However, this is true only insofar as the buyer or debtor do not trust the seller or creditor the claim they make. If a debtor does not suspect the creditor of falsehood, and knows him to be trustworthy, he must make a second payment to avoid the transgression of gezel—whether the claim is of counterfeit currency, or of a miscount.
Furthermore, even when doubtful of the truth, the Gemara (Bava Kama 118a) and Shulchan Aruch (Choshen Mishpat 75:9) teach that one who wishes to “fulfil the obligation of Heaven” should pay in cases of uncertainty in the face of a certain claim (bari veshema). Although beis din does not enforce the payment, one who pays out of doubt is doing acting properly, and not merely donating a gift.
The soundest advice, from both a practical and halachic perspective, is to ensure that there are no counterfeit notes at the time of payment, and that payment is properly counted.