Mr. Gold lent Mr. Neuman $5,000 for a six-month period. After six months, Mr. Gold approached Mr. Neuman. “The loan is due,” he said. “Can you please repay the $5,000?”
“I’m sorry, but I had extra medical expenses this past month,” Mr. Neuman replied. “I hope to repay next month.
“All right,” replied Mr. Gold good-naturedly. “I hope you feel better.”
Month after month passed. Mr. Neuman always had some excuse why he could not pay now and pushed off Mr. Gold’s request to repay for another month.
Mr. Gold became impatient. “I don’t want any more of your excuses!” he said heatedly to Mr. Neuman. “I expect payment next month, regardless of what difficulty you have.”
Nonetheless, when Mr. Gold contacted Mr. Neuman the following month, he again evaded paying.
Mr. Gold lost his temper. “Don’t pay! I don’t need your money!” he shouted and disconnected.
The following month, Mr. Gold again approached Mr. Neuman for the money.
“What do you mean?!” asked Mr. Neuman. “You said that I don’t have to pay and that you don’t need my money. That was mechilah on your part; you relieved me of the need to pay!”
“I never intended to forgo the loan,” replied Mr. Gold. “I was just fuming after you kept pushing me off and said that I can manage without your money this month, like you refused to pay all year.”
“That’s not what it sounded like,” insisted Mr. Neuman. “When the lender tells the borrower, ‘Don’t pay! I don’t need your money!’ that means he does not require repayment.”
“Whether it sounds like that or not, I did not sincerely mean to forgo the loan,” explained Mr. Gold. “I just lost my temper.”
“Whether you lost your temper or not, you said what you said!” argued Mr. Neuman. “Once you said, ‘Don’t pay!’ you can’t take that back; the loan is gone.”
The two came before Rabbi Dayan and asked:
“Was Mr. Gold’s statement considered mechilah? Is the loan canceled?”
“The Rishonim rule unequivocally that mechilah does not require a kinyan, and a verbal statement of mechilah suffices,” replied Rabbi Dayan (C.M. 12:8).
“Nonetheless, mechilah must be stated with sincere intent, and not jokingly or sarcastically (E.H. 105:5).
“Thus, Rambam (Hil. Mechirah 5:11-13) writes that in many places the practice is to make a kinyan about the mechilah, even though it is not necessary, to indicate that it was stated sincerely.
“The poskim address the case of a person who stated mechilah in anger. Rema (C.M. 333:8) cites from Rabbeinu Yerucham (39:4) an opinion that a person who told his worker, ‘Leave!’ in anger is not considered mechilah to forgo the worker’s responsibility to him. Toras Chaim (B.B. 160b) disagrees, though, and several Acharonim understand that the Rema himself cites a dispute on this matter (Maharsham 3:31).
“Thus, when the seeming mechilah was said in anger or extreme frustration, not necessarily as sincere mechilah, several poskim consider this as invalid or questionable mechilah, which is not binding (see Mishmeres Shalom 209:11; Pischei Choshen, Halva’ah 12:2[5]).
“Although in cases of doubt we usually rule hamotzi meichaveiro alav hare’aya — the burden of proof is on the plaintiff —regarding questionable mechilah, the rule is different. Because there is a definite debt and questionable mechilah; alternatively, because the mechilah is tantamount to a gift gratis — many poskim maintain that the burden of proof is on the debtor to show that there was sincere mechilah to cancel the debt (see Rema 65:23; Shach 65:78; Nesivos, Dinei Tesifa 25:11; Mishpetei Hachoshen 333:8).
“However, when the angry statement was accompanied by an act indicating mechilah or stated before beis din, we consider the statement sincere and binding (Pischei Teshuvah 333:8).
“Moreover, Rebbe Akiva Eiger (New Responsa, C.M. #5) writes that when the lender explicitly stated mechilah, even in anger, it is binding. A person who acts in anger is legally competent and is not considered as acting in error. Other Acharonim, however, do not distinguish (Imrei Binah, Dayanim 20:5).
“Thus,” concluded Rabbi Dayan, “because Mr. Gold did not explicitly state mechilah, and he spoke in anger without any kinyan or other action, Mr. Neuman remains obligated.”
Verdict: Verbal mechilah suffices but must be stated sincerely. When the language is not explicit and stated in anger, the borrower remains obligated.
Based on writings of Harav Chaim Kohn, shlita