David and a group of nine other friends wanted to get together for Shabbos. After some discussion, they decided to buy the food and eat at someone’s house.
“Who’s willing to host?” they asked.
“I can host,” David said. “There’s a catering place nearby where I can buy the food.”
“Great,” said his friends. “Find out how much it will cost, and we’ll split it!”
David priced the food, adding in challah and cake, drinks and nice disposable dishes and utensils.
“All together, I expect it will cost about $80 a person,” David wrote to his friends. “Please get the money to me by Wednesday evening.”
Each of the friends Zelled David $80.
David bought the food and other items necessary for Shabbos, keeping all the receipts. The total cost came out significantly less than projected — only $600.
After Shabbos, while David was outside, his friends discussed what to do with the extra money.
“Each of us should be getting $20 back,” said Reuven.
“I’m not asking for the money!” exclaimed Shimon. “It was nice of David to host the Shabbos, so he can keep my $20.”
“I don’t agree,” insisted Reuven. “We agreed to split the cost. It’s true that David was gracious to host us, but he shouldn’t get $200 because he initially overestimated the cost.”
After some discussion, the group decided that they would each ask for $10 to be returned.
“You should also ask for $10 back,” Reuven said to Shimon. “It will make us look bad if you let David keep all your extra money.”
“But I already said that he could keep it,” replied Shimon. “Once I decided to forgo the money – mechilah — I can’t demand it back.”
“You never told David, though, that you’re forgoing the money,” argued Reuven.
Shimon called Rabbi Dayan and asked:
“Am I allowed to demand the $10 back?”
“When the lender has full intent to forgo the loan but does not express so verbally — mechilah balev — the Acharonim dispute whether the mechilah is valid,” replied Rabbi Dayan. “Most Acharonim maintain that mechilah balev is not valid, so the lender can retract and demand the loan” (see Ketzos 12:1; Nesivos 12:5).
“There is a further question regarding mechilah expressed verbally, but not in the presence of the borrower, or against his will — whether it is valid, or can the lender still retract?” (Kiryas Melech Rav, Vol. II, Question 11; Pischei Choshen, Halva’ah 12:8[13]).
Some Acharonim link this to a dispute between the Rishonim whether mechilah is merely a withdrawal of the lender’s rights — siluk — in which case there is no need for the awareness or agreement of the borrower. Alternatively, is mechilah a form transfer to the borrower — hakna’ah, in which case it requires his awareness and agreement (see Machaneh Ephraim, Zechiya MeiHefker #11; Erech Hashulchan 12:5)?
However, some conclude that such mechilah is valid even if mechilah is hakna’ah, because the transfer requires no further action and is automatic so that the loan is cancelled, and the lender may not retract (ibid.)
Aruch Hashulchan (C.M. 241:4) maintains that mechilah balev is not binding but rules that mechilah not in the borrower’s presence is binding. Nonetheless, he qualifies that this is only if the lender became aware of the mechilah before the lender retracted so that he possessed the money; otherwise, the mechilah did not take force yet, although expressed verbally, and the lender may retract.
The other Acharonim, though, do not make this distinction. Moreover, some reject this distinction explicitly and maintain that the lender’s mechilah is valid even before the borrower becomes aware of it, because the borrower holds the money and a person can acquire what is in his possession even without his awareness (Teshuras Shai 1:406, 408).
“Thus,” concluded Rabbi Dayan, “according to most Acharonim (other than Aruch Hashulchan) your mechilah is already binding, even though stated not in David’s presence, so you may not demand the $10 without alerting him that he no longer owes you. Otherwise, he is paying only because he thinks that he still owes you, so there is concern of dishonesty on your part.”
Verdict
Almost all Acharonim maintain that even mechilah stated not in the presence of the borrower is valid, so the lender may not retract. Aruch Hashulchan requires that the borrower be aware of the mechilah, but other Acharonim do not distinguish.
Based on writings of Harav Chaim Kohn, shlita
