Q: Last year, I had to take a $5,000 loan to pay for some simchah-related expenses. We wrote in the contract that the loan is due on Rosh Chodesh Adar 5784. When I recently received a calendar for 5784 and flipped through it, I realized that there are two Adars this year. Is the loan due on Rosh Chodesh of the first Adar or the second? Also, there are two days of Rosh Chodesh in each Adar. On which day of Rosh Chodesh is the loan due?
A: The Gemara (Nedarim 63a) records a dispute between Tanna’im regarding a person who made a neder (vow) not to drink wine until the beginning of Adar, in a year that had two Adars. Rabi Yehudah says that when someone says “Adar” without specifying which (stam), he is referring to the first Adar, so it is forbidden for him to drink wine only until the first Adar. Rabi Meir says that if the person did not know, when he made the neder, that there would be two Adars, then we assume that his intention was until the first Adar. But if he did know, then we assume his intention was until the second Adar.
The majority of Poskim rule according to Rabi Yehudah, but the Rambam (Nedarim 10:6) rules according to Rabi Meir (Shulchan Aruch Yoreh Dei’ah 220:8). Some Poskim say that it remains a safeik (uncertainty), which is why it is imperative for a person to express clearly, in any such case, whether he is referring to the first or the second Adar (Shach ibid. 17; see Shulchan Aruch, Choshen Mishpat 43:28).
The Rema (Even Ha’ezer 126:7) writes, in regard to a get (divorce document) written in the first Adar, that if the document says Adar without specifying which one, it is nevertheless valid. Other Poskim rule stringently in accordance with the Rambam who rules that stam Adar is the second one, which (assuming the get was actually written in the first Adar) makes it a get me’uchar (delayed-date get), which is not valid (Bach ibid. and Shach cited above).
Some Poskim explain that the Rema doesn’t cite this stringent view because a get me’uchar is invalid only mi’derabbanan, and we take the stringent opinion into account only in regard to vows, which are d’Oraisa (Beis Shmuel ibid. 19).
Applying these principles to your she’eilah, according to most Poskim who rule in accordance with Rabi Yehudah, you are obligated to pay in the first Adar. Even according to the Rambam, since you didn’t know, when you set the deadline, that there were two Adars, you would be obligated to pay in the first Adar. Had you known when you set the deadline that there were two Adars, then according to the Shach’s view, it would have been incumbent upon the lender to specify that he meant the first Adar, and since he failed to do so, he cannot force you to pay in the first Adar. (See Ketzos 42:2 and Nesivos 42:10 who explain that you, the borrower, are considered the muchzak, and when there is a halachic uncertainty, the lender is considered the motzi and has the burden of proof.)
Some Poskim write that nowadays, you would be obligated to pay in the first Adar regardless, because the Rambam ruled that stam Adar means the second month only if the parties knew that there were two Adars. Nowadays, since there is a well-known dispute among the Rishonim whether stam Adar refers to the first or the second, then when we know there are two Adars, we specify which one we are referring to. Therefore, if a contract was written without specification, then we assume that the parties did not know that there were two, in which case even the Rambam would agrees that stam Adar means the first (Get Pashut 126:32).
Regarding on which day of Rosh Chodesh you must pay, there is a halachah (Choshen Mishpat 73:9) that if someone swears that he will pay someone on Rosh Chodesh, he must pay on the first day of Rosh Chodesh. But some Poskim say that the reason for this ruling is that the oath makes the obligation a d’Oraisa, but without that he would be allowed to pay on the second day. Others argue that the halachah would be the same even without the oath, because when people say “Rosh Chodesh” they mean the first day (see ibid., Shach 32). Ultimately, because we are not sure, you are not obligated to pay on the first day (cf. Shaar Mishpat ibid. 11 who leans toward ruling that you are obligated to pay on the first day).
