By Rabbi Yosef Fleischman

 

Question:  Reuvain gave me a sum of money to return to Shimon, his creditor. However, Reuvain also owes me money. May I keep the money for his debt to me, or must I carry out Reuvain’s wishes?

 

Answer: It depends on three factors: One is what Reuvain said. The second is what you thought when you received the money. And the third is the due date of your loan to Reuvain.

 

The critical issue here is whom the money belongs to. Reuvain owes you money and therefore, you may collect any of Reuvain’s money that is in your possession. However, you may have unwittingly helped Reuvain legally transfer the money to Shimon. If the money was already legally transferred to Shimon you may not keep the money since Shimon does not owe you any money.

 

In order to determine the current owner of the money, we must clarify how one transfers possession of money or, for that matter, any movable object. If Reuvain gives money directly to Shimon as repayment of a loan or as a present, ownership of the money has been transferred from Reuvain to Shimon. The Torah adds that even when the money was not given directly into the hands of Shimon but also into the hands of Shimon’s agent, ownership is still transferred based on the concept that shlucho shel odom kemosso i.e. the actions of one’s agent are legally equivalent to one’s own actions.

 

Chazal went a step further and said that one can function as an agent even if he was not appointed by the person for whom he will serve as an agent. This concept is called zechiyo and one who functions in this capacity is called a zoche. This is the critical issue in your case. We must determine if you were zoche in the money for Shimon or not.

 

The Gemoro (Gittin 14A) says that when a debtor gives someone money and requests him to “take” or “give” the money to his creditor he is considered as having requested the person to not only physically transport the money to his creditor but also to immediately be zoche in the money for his creditor i.e. to legally transfer ownership of the money to his creditor immediately. This is in contrast to a debtor who requests that the messenger should “pay” his creditor, where the interpretation is that the messenger should just physically transport the money to the creditor. Therefore, if Reuvain said to you, “Please, pay this money to Shimon,” and you haven’t yet done so, the money still belongs to Reuvain and you may take the money as payment of your loan.

 

Moreover, even in case Reuvain requested you to “take” or “give” the money to Shimon, if you immediately thought to take the money for yourself you can keep the money, because then, when you received the money from Reuvain, you thought not to comply with his request to transfer ownership to Shimon immediately (See Ramo in Choshen Mishpot 83, 2 and Shach note 2.). However, if you only thought of taking the money for yourself after you received the money, then you may not keep the money for yourself, since upon receipt of the money you transferred ownership of the money to Shimon. Since the money already belongs to Shimon you may not take it since Shimon doesn’t owe you money. In case Reuvain asked you to be “zoche” the money for Shimon and witnesses saw Reuvain give you the money and you now claim that you immediately thought to take the money for yourself there is a dispute amongst the Poskim whether you are believed. The Ketsos (83, 2) says you are not believed but the Nesivos (83, 1) says you are believed.

 

Finally, we must add that all the above is only relevant if the loan you extended to Reuvain is already due. However, if it is not due then you may not take the money in any case because you have no right to collect a debt before it is due (See Shulchan Aruch 83, 2).

 

 

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