Hilchos Choshen Mishpat

Volume I : Number 14
Repaying Money Mistakenly Taken

Question:
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?

Answer:

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.

Sources:

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 [2] and the Shach [2] 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.

Feedback is appreciated! It can be sent to atendler@torah.org.

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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!