Question
I own a store that sells paper goods. I sold goods to one customer who paid with cash and left with his merchandise. Before I had a chance to put his money in the cash register and record the sale another customer came and handed me money to pay for the goods he selected. Before I gave him his goods, I noticed that one of the bills that I had in my hand looked suspicious so I checked it and indeed it was counterfeit. However, I do not know that the money this customer paid was counterfeit because perhaps I had counterfeit money in my hand from the previous customer. The customer never checked his bills and just assumed they were all genuine. Am I obligated to give him the goods or can I refuse since perhaps he did not pay?
Answer
There are a number of sheilos that were discussed by poskim concerning counterfeit money that was discovered after it was accepted by another party. While each one is different and must be carefully considered on its own, the basic issue that must be considered first is who is the muchzak—i.e., what is the status quo. The basic issue results from the fact that the forgery was only discovered after it changed hands with the tacit assumption that the money was genuine.
We will therefore, devote this article to clarifying who is the muchzak. This topic is very important on its own because it involves basic principles in Choshen Mishpot.
In order to address your question, we have to first study a central principle governing how to resolve factual disputes.
Based on the Gemara (BK 118A), SA rules (75, 9) that if A claims that B owes him money since he borrowed money from him or received money to watch for him and B replies that he does not know if he ever received any money from A (einei yode'a im nischayavti), beis din cannot obligate B to pay but if B wishes to fulfill his heavenly obligation he should pay. However, if B agrees that he did originally receive money from A but perhaps he already repaid (einei yode'a im pratecho), and A is certain that he did not repay, beis din will force B to repay. Thus, we see that even though A cannot obligate B to give him money just because he is certain that B owes him money, nevertheless, if at some point B certainly owed money and the only issue is whether B repaid, A can force B to pay merely because he is certain that B still owes him money.
The commentaries offer various explanations why in one case A's certainty suffices to obligate B and in one situation it does not. The Taz (end siman 75) explains that the reason is because only in the latter case there was a chazoko (the status quo) that B was obligated to repay A and the only question is whether the status quo changed and the Gemoro (Kesubos 12B) rules that when the status quo supports a claim that is made with certainty the claim suffices to force the claimant to surrender his money. However, in the first case the status quo does not support A's claim.
The Shev Shmatzo (2, 7) offers a different explanation. He explains that really a certain claim suffices to obligate the uncertain defendant to pay. However, it does not obligate the defendant to pay when has the support of a chezkas momon—he possessed the money like in the former case. However, when his ownership of the money is questionable as it is in the latter case, since he certainly owed money, then the certain claim suffices to require the uncertain defendant to surrender the money he owed.
The above is necessary to understand a major controversy that concerns counterfeit money. The controversy began as a dispute among the dayanim how to rule in a case where B repaid his loan to A and after a few days A brought a counterfeit coin and claimed that he received the coin from B. B countered that he had no idea that he gave the counterfeit coin to A and since he already repaid his loan, A is now the claimant and he has to prove his claim because this is like the former case above. Some of the dayanim agreed with the borrower's contention and some countered that since originally the defendant definitely owed money this was really similar to the latter case above and since the defendant was uncertain if he ever repaid the loan he is obligated to pay.
The dayanim could not bring proof to resolve their disagreement and turned to the Taz (end of siman 75) to decide.
The Taz offered two proofs to support the defendant's argument. One proof was from the Rambam's (Mechero 12, 12) ruling in case a person paid for a purchase with a coin which the seller claimed was counterfeit. The Rambam rules that if the customer knows that he is the one who gave the coin then he must exchange the coin. The Taz deduces that if he is uncertain whether he is the source of the counterfeit coin he is not required to exchange the coin. The Taz explains that the rationale is that since at the time when the customer gave the coin it was assumed by everyone to be genuine that became the new state of affairs. Therefore, it is the recipient who wishes to change the status quo and therefore, he is suing to exchange the money that he received. Since he is the one who is suing, he must prove that he received the counterfeit coin from this customer. The second proof of the Taz is a ruling of the Ramo (232, 18), whose source is the Mordechai, that if a person sold a gold ring and later the customer claims that the ring was lead-filled and the seller says he does not know but does not believe the customer he does not have to refund the customer.
Many later poskim discuss this ruling of the Taz. Among them is the Tumim ((75, 22 beg. wo. ach kol) who agrees with the proofs of the Taz but claims that they are only relevant to cases of sales which is what the Rambam and Ramo were discussing but not to issues of repayment of a loan which was the issue that the Taz asked to decide. The difference is that in the case of a loan, since initially the borrower certainly owed money to his lender, it is like the latter case above and the borrower must be certain that he repaid his loan in order to end his obligation to repay. However, in the case of a sale which is just an exchange between the two parties the one who gave the money never had a previous obligation and therefore, it is like the first case and even if the customer cannot claim with certainty that he only gave genuine money he may keep the goods which he received in exchange for his money. Only in case the seller claims with certainty that the customer was the source of the counterfeit money and the customer (who is uncertain) wishes to fulfill his heavenly duty (as he should do) is the customer obligated to pay. Other major poskim who agree with the Tumim are the Panim Me'eros (1, 60) and the Beis Meir (EH 178, 15 be. wo. omnom) who claims that the Shach as well agrees.
The Maharshdam (CM 80) was asked to rule in the case of a sale. He writes that in Salonica where he lived (16 century) it was an every day issue that people would buy goods and after a few days the seller would claim that the money was counterfeit. Unlike the Taz and Tumim, he ruled that if the customer cannot claim with certainty that he was not the source of the counterfeit coins he is obligated to replace the counterfeit coins with genuine coins. His rationale is that when the customer received the goods, he became obligated to pay just like if he would have taken a loan and therefore the customer is like the second case above and he is obligated to repay i.e., exchange the counterfeit coins.
The ruling of the Maharshdam was cited briefly by the Shach (232, 15). However, the Shach brings him as ruling in case a person was obligated to pay because he originally bought something which is similar to one who repaid a loan since before his payment the customer was obligated to pay. Therefore, it is difficult (This point was made by the Beis Meir.) to claim that the Shach agrees with the Maharshdam in case the customer paid at the time when he received the goods which included in the Maharshdam's ruling.
The Chasam Sofer (CM 187) was asked to decide a similar dispute. In the case he was asked to decide one merchant exchanged with another merchant a larger bill for several smaller bills and the question concerned whether the one who gave the smaller bills ever received the larger bill (In his case it was not counterfeit but was stolen.). Even though the bills were exchanged, nevertheless he ruled that if the one who gave the large bill first received the smaller bills it is like the second case above but if he gave the bills first it is like the first case. This ruling is opposed by the Tumim, Panim Me'eros and Beis Meir who did not understand an exchange as creating a debt and even the Maharshdam disagrees because he did not differentiate based on who gave first.
Thus, we have learned that in case a person sold goods and received money as payment for the goods that he already received, the Taz who is supported by the Tumim etc. rules that even though the customer is uncertain if the money he gave was genuine he is not obligated to pay anything. However, the Maharshdam, perhaps without the support of the Shach and the Chasam Sofer maintain that he is obligated to pay.
Your case is in a sense the opposite of the case that these gedolim discussed since in your case the customer paid in advance for goods that he did not yet receive. A second difference is that in your case you are not certain that this customer gave you the counterfeit money, whereas in the case they discussed he made his claim with certainty. In part we will BH deal with your particular case in light of this article.
