Hilchos Choshen Mishpat
Volume I : Number 14
Repaying Money Mistakenly Taken
Reuven traveled from Yerushalayim to spend a few days on vacation in
Tzefat. While he was there, he purchased a souvenir for 40 Shekel. When
he returned to Yerushalayim he realized that he had actually only given
the storekeeper 38 Shekel for the item. Evidently, the storekeeper also
had not realized that he had been underpaid.
- Is Reuven obligated to return the two Shekel to the storekeeper?
What should Reuven do if he does not remember in which store he had
purchased the souvenir?
- What would be the Din [Halacha] in the opposite situation, if Reuven
gave the merchant a 50 Shekel bill, and received 12 Shekel in return
instead of 10 Shekel?
What is the Halacha?
- In Question A, Reuven is obligated to return the two Shekel to the
seller. If he recalls which store he bought it in, he may mail the money
to the proper store, or he may send the money with a friend traveling to
Tzefat. If neither of these options are feasible, Reuven must travel to
Tzefat to return the money that he owes.
If Reuven does not recall which store he owes the money to, since there
is no better option available, Reuven should give the money to the city
of Tzefat to be used for a public service.
- Regarding Question B, the extra two Shekel that Reuven received are
considered a lost article. If Reuven knows which store gave him the extra
change, he must notify the store owner that he has in his possession
money that belongs to him, and that he may come to Yerushalayim to pick
it up at any time he would like. Once Reuven has done this, he has no
further obligation regarding this money.
If Reuven does not remember which store had given him the extra change,
he should write in his records the facts of what happened to whatever
extent that he can remember them. He should keep this record with his
valuable papers, until Eliyahu HaNavi will come and inform him who had
lost this extra money.
An important distinction must be made between a situation where a buyer
purchased something but did not pay enough money for it (Question A), and
a situation where he paid sufficiently but received too much change from
the storekeeper (Question B). A buyer that has not paid the full cost of
the purchased item is stealing from the owner the amount that has not
been paid for, since the seller is clearly selling it only with the
understanding that he will receive the full agreed upon price. However,
since this "theft" was unintentional, the Poskim say that he has not
transgressed the prohibition of "Lo Signovu" (You Shall Not Steal), which
is reserved for those who knowingly take the possessions of others.
However, once the purchaser becomes aware of the discrepancy, he must
immediately return the unpaid amount to the seller.
In the Shulchan Oruch (Choshen Mishpat 367:1) it states that a thief that
has stolen someone else's property and now wants to return it, if he has
taken no false oath regarding this theft, does not have to bring the
stolen property to the owner's home, rather it is sufficient to inform
the owner where he lives and tell him to pick it up at any convenient
time. This is because, although in the Torah it says that a thief must
return the stolen property at all costs, the Rabbis made a special edict
(Takanas HaShovim), to make it more convenient for the thief to repent.
(See the S'ma  and the Shach  there.) However this Halacha only
applies to someone who has intentionally and deliberately stolen. Only
such a person needs the Rabbis to intervene and try to facilitate his
Teshuva. But in our case where the "theft" was unintentional, or in a
case of someone who has borrowed money or an item from someone else, we
remain with the Din of the Torah that the owner or lender must be located
at all costs and the buyer or borrower must bring the item or money to
him. (This is clearly stated in the Nesivos in his Biurim 232:10).
Therefore, if the buyer knows who the seller is and where he lives, he is
obligated to make sure that he is paid at all costs, and even if he would
need to travel to the seller's home at a higher expense than the amount
owed, he must do so.
If the purchaser has no way of identifying and locating the person that
the money is owed to, the Halacha (Choshen Mishpat 366:2) is that he
should do public service with the money owed, in the community of the
person that it is owed to, in the hope that at least to a certain extent
the person will receive some degree of compensation in this manner.
However, if Reuven had paid in full for the item purchased, but received
extra change, he would not qualify as a "thief" at all. He has paid for
the item in its entirety! The extra change in his possession is a "lost
article" that Reuven must now return because of the Mitzvah of "Hashavas
Aveidah" (Returning Lost Articles). Therefore, Reuven only has an
obligation to try to locate the owner and inform him that he has "found"
his lost article and that the owner is welcome to pick it up at a
mutually convenient time. Reuven has no obligation to spend any time,
effort, or funds to actually bring the item to the owner, as he would
have had to do if he had borrowed the money or underpaid for the item. If
the seller can not be located, then Reuven may keep the money, but should
write a note - to be kept with his valuable documents- to remind himself
to ask Eliyahu HaNavi (May he come speedily in our days!) whom the owner
of the money is.
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an
Av Bet Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his
permission and approval.
This class is translated and moderated by Rabbi Aaron Tendler of Yeshivas
Ner Yisroel in Baltimore. Rabbi Tendler accepts full responsibility for
the accuracy of the translation and will be happy to fax originals of the
articles in Hebrew to anyone interested.
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!
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