After recently paying back a cash loan, the creditor unexpectedly called to inform me that one of the banknotes I had given him was counterfeit, and demanded that I exchange it for a genuine note. Trusting him, I did as I was told, and gave him a new banknote, in exchange for the counterfeit. After the event, I began to think about my rights according to halachah. Was this the correct course of action?
The solution to this not uncommon question can only be reached after careful analysis of the halachic issues involved.
There is no doubt that counterfeit money is not considered ‘money’ for any halachic purpose. For instance, if someone makes a purchase and pays with counterfeit money, he would transgress the prohibition of gezel, and would of course be obligated to pay for the item with genuine money.
Moreover, even if the storekeeper had already passed on the fake note to another customer, the original customer (who paid with the counterfeit note) remains obligated to pay. The fact that the store has made no loss (because the note has 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 payment was forged, the borrower has not repaid the loan, and remains obligated to do so.
The Question of Credibility
Our analysis so far is relatively simple. The complication involved in the case relates to the credibility of the creditor: Is the creditor believed in his claim that one of the banknotes he received was counterfeit?
If the creditor could prove, for instance by means of witnesses, that one of the banknotes he received as repayment was forged, no question would emerge. In the standard case, however, the creditor is unable to prove this, and the question of his credibility therefore arises: Is the borrower able to claim that he does not trust the creditor, and suspects he is being made to pay twice over?
In a halachic sense, the first reaction to this situation is to discern a case of bari veshema—the lender’s claim is certain (he claims to know that the received banknote was forged), whereas the borrower’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.
Certainty v. Uncertainty
Under ordinary circumstances, the halachah 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, even when pitted against the uncertainty of the defendant, is deemed insufficient grounds to extract money. ((Shulchan Aruch, CM 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 sufficient to obligate payment. ((Ibid.)) Because the question relates to the defendant’s remaining obligated, and not to the formation of a new obligation, 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 the debtor hasn’t paid his debt, and the debtor claims uncertainly that he might have paid the debt, 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.
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