By Rabbi Meir Orlian

Simcha Beigel remembered it like yesterday; he called it “Go for broke week.” That week after Sukkos, everything broke. The fridge broke; the water heater broke; the dryer broke; the car radiator broke.

When his wife told him that the oven also broke and they would have to buy a new one, Simcha replied: “Guess what? We’re also broke!” The surge of expenses had completely exhausted their available cash assets.

“What are we going to do?” his wife asked worriedly. “I don’t know,” Simcha admitted. “We’ll have to get some help.” He began scrambling around for some short-term loans to help cover expenses during the difficult period.

Simcha turned to his neighbor, Zalman Mazal, to borrow $1,000. “How long do you need the money for?” asked Zalman.

Simcha thought for a few minutes. “Four to six months should suffice,” he answered. “We should be able to set aside enough each month to get back on track.”

“How about we say until Rosh Chodesh Adar?” suggested Zalman.

“That’s fine,” Simcha exclaimed. “Thanks a lot!”

Zalman took a pen and paper and wrote clearly: “Sam Beigel borrowed $1,000 from Zalman Mazal. Payment due Rosh Chodesh Adar 5771.” Sam took the pen and affixed his signature.

During the coming months, Simcha managed to stabilize his financial position and pay back his loans, each at its proper time.

It was the end of Shevat, Shabbos Mevorchim, and Simcha was asked to serve as chazan for Mussaf. He took the sefer Torah and proclaimed the upcoming Rosh Chodesh: “Rosh Chodesh Adar I will be on the upcoming Thursday and Friday.” As he uttered the words, he realized suddenly: “There are two Adars this year of 5771, each of which has two days of Rosh Chodesh! When is the loan to Zalman due?”

After davening, Sam went over to wish Rabbi Tzedek a “Gut Shabbos.”

“Yashar koach for Mussaf; I enjoyed your davening very much,” Rabbi Tzedek complimented him.

“Thank you,” Sam responded. “Can I ask you a question?”

“Sure,” said Rabbi Tzedek.

“I borrowed money from Zalman Mazal and agreed to repay him on Rosh Chodesh Adar,” Simcha said. “Does this mean Adar I or Adar II? Is it the first day of Rosh Chodesh or the second?”

Rabbi Tzedek replied: “When a person says ‘Rosh Chodesh Adar’ without specifying, it is unclear whether this refers to Adar I or Adar II, and also to which day of Rosh Chodesh. On account of the doubt, Zalman cannot demand payment until the second day of Rosh Chodesh Adar II.”

Rabbi Tzedek then explained: “There is a dispute in the Gemara (Nedarim 63a) as to what ‘Adar’ refers to when not specified. R. Yehuda is of the opinion that it refers to Adar I, whereas R. Meir maintains that it usually refers to Adar II. The Rosh rules like R. Yehuda, Adar I, whereas the Rambam rules like R. Meir, Adar II. The Rama (O.C. 427:1) and simple reading of the Shulchan Aruch (C.M. 43:28) rule Adar I, but elsewhere the Shulchan Aruch cites both opinions. (Y.D. 220:8) Later authorities also consider the issue unresolved. (Shach Y.D. 220:17)

“When there is a questionable reading in a loan document, we apply the rule, ‘Yad ba’al hashtar al hatachtona’—the owner of the document (i.e., the lender) has the lower hand. This rule is a corollary of the principle, ‘hamotzi mei’chaveiro alav ha’reaya’—the burden of the proof is on the plaintiff. Since the lender is claiming payment from the borrower, he can collect only when the loan is clearly due. (C.M. 42:8) Here, it is not clear that the loan is due until the second Adar.”

“What about the first and second day of Rosh Chodesh?” Simcha asked.

“Although the first day of Rosh Chodesh actually belongs to the previous month, people refer to both days as ‘Rosh Chodesh.’ Hence, the Shulchan Aruch (C.M. 73:9) rules that a person who swears to pay on Rosh Chodesh Adar must pay on the first day of Rosh Chodesh. However, many authorities explain that we adopt this stringent position due to the severity of swearing. (SM’A 73:27; Aruch Hashulchan C.M. 73:13) When the debt is not accompanied by an oath to repay, it would suffice to pay on the second day.”

“This dispute is also relevant for commemorating the yahrtzeit of someone who passed away during Adar of a regular year,” concluded Rabbi Tzedek. “The Shulchan Aruch rules to commemorate the yahrtzeit during Adar II, whereas the Rama writes that the primary practice is to commemorate it during Adar I. The Achronim recommend commemorating it in both. (O.C. 568:7; Mishnah Berurah 568:42) The Rama agrees, though, that a boy born in Adar will not become bar mitzvah until Adar II, when 13 full years are completed.” (O.C. 55:10)

This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’malchusa to consider in actual cases.

Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, which is headed by HaRav Chaim Kohn, shlita, a noted dayan. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, please call the confidential hotline at 877-845-8455 or e‑mail ask@businesshalacha.com. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to subscribe@businesshalacha.com.

 

LEAVE A REPLY

Please enter your comment!
Please enter your name here