Q. I bought merchandise from a seller who has delayed delivery in the past. Before making the purchase, I insisted that he agree (in a manner that would not be an asmachta [see BHI# 599]) to pay a $500 fine if he fails to deliver the merchandise on time. As I foresaw, the delivery was delayed, and when I contacted him to collect the fine, he said he would send me a store credit for $500. I told him that I wanted it in actual money, and he said that I should ask a she’eilah whether he is obligated to pay money or he can pay with the store credit. Which is it?
A. In certain instances we say that shaveh kesef k’kesef (anything with monetary value is akin to money), and in other instances a person must pay with actual money.
In a case of nezek (damage), one may pay with shaveh kesef (Shulchan Aruch Choshen Mishpat 419:1). A borrower, on the other hand, is generally obligated to repay the loan with currency (ibid. 101:1), because it must be repaid in the form it was given. If, however, the borrower does not have money at hand, he is not obligated to sell his possessions to repay the loan; he may repay it with shaveh kesef, because the lender knew that the money was going to be used (Sma 101:1), and part of the chessed he does in extending the loan is to allow the borrower to repay with shaveh kesef if he does not have money.
In regard to someone who bought merchandise on credit, there is a dispute among the poskim. The Shulchan Aruch (101:6) writes that the buyer must sell his possessions and pay with money, because a seller sells merchandise with the intent of being paid with money, not shaveh kesef.
[There is a dispute whether a loan extended with a heter iska (i.e., it was given as a business arrangement) is considered akin to a loan or to a sale on credit, with regard to the use of shaveh kesef as repayment (see ibid. Sma 10 and Ketzos 4).]
Others argue with the Shulchan Aruch and rule that a sale on credit is the same as a loan, and the buyer may pay with shaveh kesef if he doesn’t have money (Tumim ibid. 5).
If, however, the sides agreed that payment must be rendered in actual money, then the borrower or buyer must sell his possessions to repay the loan (see Imrei Binei, Halva’ah 85 and Shu”t Avnei Neizer, Even Haezer 386 who write that this stipulation works only in the case of a sale on credit, not a loan).
The question is what the halachah would be in the case of a person who pledged to give his friend a monetary gift. It is possible that in such a case, he may pay with shaveh kesef even if he has money, since this arrangement depends entirely on what the giver had in mind when he made the pledge. This is, in fact, the ruling of many poskim (see Sefer Hamakneh 27:1[3], cited in Chiddushei Rabbi Akiva Eiger, Choshen Mishpat 241:7, and see Shach and Shaar Mishpat 101:1. Also see Pis’chei Teshuvah, Even Ha’ezer 100:2 in regard to payment of a kesubah.)
Some argue that it depends on what the average person has in mind when making such a pledge. If he usually means actual money, he must give money even if he currently has only shaveh kesef (Avnei Milu’im 27:4, and see Shu”t Avnei Nezer loc. cit.).
Applying all of the above to your case, since you had a mutual agreement regarding the fine for late delivery, it would seem that this situation should be governed by the halachah regarding a sale on credit, and if the storeowner has actual money, he should not be allowed to pay with shaveh kesef. Nevertheless, since the fine is not a payment for goods or services, but is a side obligation meant to motivate the seller to deliver the merchandise on time, it would seem that if the seller wants to pay it off with a store credit, you have no right to insist that he pay with money, because he may rely on the poskim who rule that one may pay off this type of obligation (similar to the case of a gift discussed above) with shaveh kesef.
Now, it is possible that nowadays, one cannot use shaveh kesef to dispense of a payment obligation when the recipient has no use for the item, because we are not accustomed to selling such possessions. In your case, however, since the storeowner is offering a credit with which you can buy items that are valuable to everyone, you cannot insist that he pay with money.
