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 had 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
We saw in part 1 that there is a major dispute among the poskim if a person bought something and after he received the merchandise the seller claimed that the money that the customer gave was counterfeit and the customer did not know if that was correct or not. The Taz ruled that the customer can keep the goods. His rationale was that since, when the customer paid and received his purchase it was assumed that the money was genuine, this created a new state of affairs in which the customer owned the goods and the seller had received payment for the goods he sold. When the seller later claimed that the money he received was counterfeit, he was making a new claim (that the seller must pay him genuine money to replace the counterfeit money). Since this is a new claim in which the claimant is certain but the counter-party is uncertain, the counter-party is not liable in beis din. He may be liable in the heavenly court.
Question in Choshen Mishpot
By Rabbi Yosef Fleischman
Tetsave 5786
The fact that there was another customer in your case who may have been the source of the counterfeit money is irrelevant, since the first customer received his goods and you do not know his identity. Therefore, your issue is only between you and the second customer. Your situation is different from the case of the Taz in two critical ways. The first difference is that in your case you, the seller, did not yet give anything to the second customer. You are the one who is holding both the goods and the money. The claimant is your customer who wishes to receive the goods or at worst his money. If you refuse to give him the goods, he is the claimant and you are the counter-party according to everyone. Second, in your case the customer, who is the claimant, is not certain that he gave you genuine money. Thus, he is not certain that you owe him anything, except counterfeit money.
In your situation you, the counter-party, are also uncertain. We saw that in general there are two types of situations where the counter-party is uncertain and the claimant is certain. One is where the issue is if the defendant ever became liable (einei yodei'a im nischayavti) and the other is where the defendant certainly was once liable and the issue is only if the defendant paid (einei yode'a im praticho).
You received something from the customer that is now considered questionable. If all the money you received was genuine you are obligated to give your customer the goods that he paid for. Generally, when a seller receives money, he becomes obligated to give his customer the goods he paid for in order to avoid a mi shepora (a curse of beis din). However, if some of the money you received was counterfeit you did not receive full payment and therefore, are not obligated to give your customer the goods he wished to purchase. Thus, in your case the type of uncertainty that you have is that you are uncertain if you ever became obligated (einei yodei'a im nischayavti).
We saw that if the defendant is uncertain if he ever became obligated, beis din cannot obligate him to pay even if the claimant is certain. Therefore, we can certainly rule that you are not liable in beis din. However, even though beis din cannot force him to pay, nevertheless, SA (75, 9), based on the Gemara, rules that when the claimant is certain the defendant is chayav bedinei shomayim (obligated to pay by the heavenly court).
Thus, we must consider if you are chayav bedinei shomayim (we will abbreviate this as cbs). The reason this is questionable is because the Gemara only rules that the defendant is cbs where the claimant is certain that the is owed money. However, in your situation the claimant himself is uncertain.
SA (75, 10), based on the Rosh (BK 10, 32), rules that when the claimant is uncertain the counter-party is not cbs. However, we have to consider whether SA's ruling applies in your case since your counter-party was not negligent in not knowing if the money he gave you was counterfeit, since people usually do not check the bills that they have. Some stores have a device that allows them to determine if the bills they receive are counterfeit but customers do not normally carry around such a device. We have to consider if the ruling of SA applies even when the claimant's lack of knowledge is justified. We find in other cases of uncertainty that there is a significant difference if a lack of knowledge is justified or not.
For example, in part 1 we saw that if someone is certain that he once owed money and is only in doubt if he repaid, he is liable. However, the Rishonim dispute (See Tumim 75, 22) whether this is true even if his lack of knowledge is justified. The Nesivos (75, 5) for example, rules that such a person is not liable if his lack of knowledge is justified.
In your case where neither party knows, it is not clear if there is a difference if your customer's lack of knowledge is justified or not. The Darkei Mishpot (page 662) proves that the Sema (75, 8) and others who write that this rule applies even if someone is uncertain if he borrowed from the claimant's father, maintains that the defendant is not cbs even if the claimant's uncertainty is justified since a person is not expected to be aware of his father's financial dealings. However, he brings that it follows from the Oruch Hashulchan's words (CM 75, 15) that the latter maintains that in this case the defendant is cbs.
Another reason to think that perhaps you are cbs is a dispute that is cited in SA (75, 18) if both a lender and a borrower agree that there was a loan but are uncertain how much was lent. One opinion is that the borrower is not liable but the other opinion is that he is liable. This seems to apply to your case since your customer certainly gave you some money and the question is how much of that money was genuine.
In order to decide whether this applies to your situation it is important to understand the rationale for the two opinions.
The source of these two opinions is the Sefer Haterumo (36, 3, 3) that is cited by the Tur. The Sefer Haterumo explains that the reason to maintain that the borrower is cbs is that he should have known and remembered how much he borrowed. The reason to maintain he is not cbs is that he can argue that he relied on the lender to remember the amount.
Based on this, in your situation it depends on how we view the fact that you only checked the bills after you mixed the customer's money with your money. If we consider this to be proper, then according to both opinions you are not cbs. But if it was improper (because you should have looked at what you received and checked the money before you mixed it with the previous customer's money) then, according to all opinions you are cbs.
Furthermore, if the fact that you noticed that the bill did not seem genuine is something that the customer should have noticed as well, then it depends on the dispute in SA. But if it is something that only a storekeeper would notice then you would be cbs according to both opinions.
This ruling is similar to a ruling of the Noda Beyehuda (Tinyono YD 155 be. wo. avol). In his case a gabbai tsedoko commissioned someone to collect the money from the pushkas in town, which he did. When the collector brought the money to the gabbai he did not hand the money to the gabbai but mixed it together with the gabbai's personal money. The Noda Biyehuda said that the gabbai is responsible for his appointed collector's actions. Therefore, since the collector’s action was improper, the gabbai is cbs, he must determine how much money is generally collected from the pushkas and give this amount to tsedoko.
In conclusion: Beis din cannot force you to give anything to your customer. However, depending on the exact circumstances, you might be obligated in the heavenly court to give your customer the merchandise he intended to purchase.
