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December 21, 2014 / 29 Kislev, 5775
 
At a Glance

Posts Tagged ‘BHI’

Driveway Sukkah

Thursday, October 4th, 2012

Sam Berger and Moti Farber shared a two family house, with a joint driveway in front. The Farbers had an extensive family, whereas Sam was relatively young and just recently had his fourth child.

For the past ten years, Moti had built a large sukkah that covered almost the entire driveway, whereas the Bergers would spend the holiday with their parents.

This year however, was different. As Sukkos approached, Moti saw Sam measuring the driveway with a tape measure and some wooden beams. “What are you measuring?” Moti asked.

“Our family is beginning to grow and it’s getting harder to stay at the parents for all of Yom Tov,” said Sam. “We’re planning to build a sukkah this year.”

“How big a sukkah?” asked Moti.

“Eight feet square,” said Tom.

“Is there enough room left in the driveway with our sukkah?” asked Moti.

“That’s what I was checking,” replied Sam. “Unfortunately, it doesn’t seem so.”

“So where will you build it?” asked Moti.

“That’s what I’m trying to figure out,” said Sam.

“Why don’t you build your sukkah in the back of the house?” asked Moti.

“It’s not convenient there,” replied Sam. “It means walking around the back all the time.”

“What’s the other option?” asked Moti.

“I’m going to have to ask you to make your sukkah somewhat smaller,” said Sam, “and leave me room in the driveway.”

“But I can’t do that,” protested Moti. “Even with the big sukkah we’re tight, and our married daughter and son are both coming for the first days with their seven children.

“I’m sorry about that,” replied Sam, “but I’m entitled to my share of the driveway just as you are.”

“But you allowed me years ago to build the sukkah there,” argued Moti. “I’ve been building this sukkah for ten years!”

“I never said I gave you permission forever,” answered Sam. “I was happy to allow you to build your sukkah there so long as I didn’t need the space, but not when I also need the space.”

“But I’m established there,” said Moti. “You can’t make me move!”

“The fact that we didn’t need a sukkah in previous years,” replied Sam, “doesn’t mean that we relinquished our rights!”

“If you had no other place I’d understand,” said Moti. “But just because the back is not as convenient is no reason to ruin our Sukkos plans. It’s going to be very hard to fit into a smaller sukkah.”

“You can make it a little smaller and squeeze a bit,” said Sam. “It’s not fair to expect us to use the backyard.”

“We need to discuss this with Rabbi Dayan,” said Moti.

“Agreed,” said Sam. “Let’s make an appointment with him. I’ll give him a call.”

The following evening, Sam and Moti met with Rabbi Dayan in his study and presented their case.

“Uncontested usage of a property for an extended time can indicate ownership or usage rights of that property,” said Rabbi Dayan. “This is known in halacha as chazaka. Everybody agrees that to indicate ownership of the property requires three years of steady use and a legal basis for the claim of ownership. Usage or squatting alone does not make something yours.” (C.M. 140:7)

“I am not claiming sole ownership of the driveway, though,” said Moti, “just usage rights to continue building my sukkah as is on the joint property.”

“That is true,” said Rabbi Dayan. “Typically, though, one partner does not protest if the other partner makes temporary use of the joint property. Therefore, the fact that you used the driveway for many years to set up your sukkah does not establish a chazaka of usage rights. Only if you were to build a permanent wall or affix anchors in the driveway could you possibly establish a chazaka.” (140:15; SM”A 140:22; Shach 140:20)

“There is an additional reason why building a sukkah cannot serve as a chazaka without some permanent element,” added Rabbi Dayan. “Sam continued to use the driveway for the rest of the year. Many authorities maintain that one cannot establish even a chazaka of usage rights when the other party also uses the area.” (See Ketzos 140:3; Nesivos 140:19, 153:12; Emek Hamishpat, Shechenim, p. 39.)

“There was nothing permanent put up all these years,” said Sam. “The sukkah was constructed and completely dismantled each Yom Tov, and we share the driveway the rest of the year.”

All In The Mind

Thursday, September 20th, 2012

It was Yom Kippur eve. The shul began filling rapidly as the time approached for Kol Nidrei. Herzl Machlis sat in his seat, cloaked in his tallis and kittel, quietly reciting Tefillah Zakkah, composed by the Chayei Adam 150 years ago.

This emotional prayer ushers in Yom Kippur with an admission of our spiritual inadequacies and a supplication that the afflictions and prayers of the day should atone for our sins. It includes a declaration of forgiveness and forgoing bygones to those who have wronged us, and a request that others may forgive us, as well.

“I forgive completely to anyone who sinned against me, whether physically, monetarily, or verbally …. except for money that I [intend to and] can collect in beis din … Everyone else I forgive completely, so that no one should be punished on my account. Just as I forgive every person, so, too, give my favor in the eyes of other people that they should forgive me fully.”

Mr. Machlis paused to think about Mr. Schor. Earlier in the year, Mr. Schor had borrowed money from him to marry off a child. As the months wore on, it became clear the money would not be returned quickly. Mr. Machlis had decided in his mind to forgo the loan as an additional “wedding gift,” but had never said anything to Mr. Schor.

A month ago, though, the two had gotten into a dispute. Mr. Machlis changed his mind and was no longer was willing to forgo the debt; he had asked for the money back.

As Mr. Machlis stood there just before Kol Nidrei, he reflected about this incident. He wondered whether it was correct to demand the loan back after having decided to forgo it.

Mr. Machlis decided to speak with Rabbi Dayan after davening.

G’mar chasimah tovah,” he wished Rabbi Dayan. “Tefillah Zakkah made me think about an incident that happened this past year.”

“Indeed, Yom Kippur is a day to reflect on the past year,” said Rabbi Dayan. “What happened?”

“I loaned somebody money and decided to forego the loan, but we got into a dispute and I changed my mind,” Mr. Machlis said. “After I intended to forgo the loan, am I still allowed to demand the money?”

“The primary intent of Tefillah Zakkah is to exempt the debtor from heavenly punishment,” replied Rabbi Dayan. “Although is uses the term “mechila gemura” (forgoing completely) it likely does not express intent to forgo legal rights. Nonetheless, the issue you raised is a fascinating one, known in halacha as ‘mechila balev’ – forgoing in one’s mind.”

“Oh, really?!” exclaimed Mr. “Who addresses this issue?”

Ketzos Hachoshen [12:1] cites a statement of the Maharshal that a person who decided to forgo his loan and now wants to take revenge and collect it may no longer do so,” replied Rabbi Dayan, “since mechila in the mind is considered mechila.”

“The proof is from a Gemara [Kesubos 104a] that a widow who did not claim her kesuba for twenty-five years can no longer do so,” explained Rabbi Dayan. “One explanation is that, in the context of kesuba, her extended silence indicates intention to forgo the kesuba. Although she never said anything, her intention to forgo is valid.”

“Does the Ketzos accept this view?” asked Mr. Machlis.

“The Ketzos is troubled by the principle, ‘devarim shebalev ainam devarim,’” said Rabbi Dayan. Thoughts alone are not of legal consequence, with the exception of sacred donations.

“But what about the proof from the case of the widow?” asked Mr. Machlis.

“The Ketzos, citing the Maharit, differentiates between that case and the average case of mechila balev,” answered Rabbi Dayan. “When the intention is clearly evident to all, as in the case of the widow, we attribute significance to thoughts. However, when the intention is not clearly evident, as in the average case of mechila balev, it is not of significance.”

“What is the accepted ruling?” asked Mr. Machlis.

“Most authorities agree with the Ketzos that thought alone is insufficient,” said Rabbi Dayan. “There are some, though, who concur with the Maharshal.” (See Nesivos 12:5; Aruch Hashulchan 12:8; Yabia Omer C.M. 3:3)

“So what do I do?” asked Mr. Machlis.

“You are certainly entitled to demand your money, in accordance with the majority opinion,” said Rabbi Dayan. “If it were to become known to the beis din, though, that you initially decided in your mind to forgo the loan, they would likely not enforce payment, in deference to the minority opinion and the principle of hamotzi mei’chaveiro alav hare’aya – the burden of the proof in on the plaintiff.”

Missing Payment

Thursday, September 6th, 2012

Dr. Oren had a small psychology practice and rented office space from his colleague, Dr. Wieder, on Thursday afternoons. The rent amounted to $500 for the month. Since the two usually did not see each other, the arrangement was that Dr. Oren would leave the rent money in the top drawer of the desk.

One Thursday afternoon toward the end of the month, Dr. Oren brought the rent money with him. He counted the bills twice: “100, 200, 300, 400, 500 dollars.” He poked around his attaché case for an envelope to put the money in, but couldn’t find one, so he left the stack of bills loose in the drawer.

The following day, Dr. Wieder called. “Did you leave me cash?” he asked Dr. Oren.

“Yes, I did,” replied Dr. Oren. “I didn’t have an envelope, so I left the money in the drawer. I hope you got it.”

“How much did you leave there?” asked Dr. Wieder.

“I left the full amount for the month, $500,” replied Dr. Oren.

“Are you sure of the amount?” asked Dr. Wieder.

“Absolutely; I counted it twice,” answered Dr. Oren. “How much did you find?”

“Only $300,” said Dr. Wieder. “$200 is missing!”

“Do you doubt I left $500?” asked Dr. Oren, slightly offended.

“No, I don’t doubt you,” answered Dr. Wieder. “I’m concerned, though, since I suspect a certain patient of poking around the office. It would have been better had you sealed the money in an envelope.”

“I’m really sorry,” apologized Dr. Oren. “I usually try to leave the money in an envelope. There have been a few times, though, that I left cash loose in the drawer. There was never a problem and you never said anything.”

“I’m not accusing you of doing wrong, but you could have been more careful,” said Dr. Wider. “In any case, you still owe me $200 rent, since I never ended up receiving the money you left.”

“I feel bad,” replied Dr. Oren, “but I shouldn’t have to carry the loss, since I followed our arrangement to leave the money in the drawer. I’d be happy to discuss the issue, though, with Rabbi Dayan.”

“Fine with me,” said Dr. Wieder.

The two met with Rabbi Dayan, and asked: “Who is responsible for the missing $200?”

“There are two issues to consider here,” replied Rabbi Dayan. “One, whether placing money in the drawer is the same as handing it to Dr. Wieder. Two, whether the fact that this was the prearranged agreement is sufficient reason to exempt Dr. Oren.”

“Regarding the first issue,” Rabbi Dayan continued, “a person who owes money remains liable until he hands it over to the lender or his agent [C.M. 120:1]. Here, although the money was not handed directly to Dr. Wieder, placing it in the lender’s house in his presence is like handing it to him.” (Aruch Hashulchan 120:2)

“But I wasn’t present when the money was placed in the drawer,” argued Dr. Wieder. “In fact, I didn’t even find out until after the $200 was taken!”

“When the lender was not aware that the money was placed in his property, there is a question,” explained Rabbi Dayan, “since a person’s property acquires on his behalf even without his awareness [243:20]. Nonetheless, when returning a theft, the owner has to be made aware, so that he knows to guard the stolen object again [355:1]. This likely does not apply here, though, so long as the money was placed in a secure location.” (Pischei Choshen, Halva’ah 5:2)

“Regardless of whether or not Dr. Wieder knew I left the money, how about the second issue?” asked Dr. Oren. “Since our arrangement was to leave the money in the drawer, I don’t see any reason I should remain responsible!”

“Even if the lender instructs the borrower to throw the money to him, the borrower remains responsible if it gets lost, unless the lender explicitly said that the borrower would be exempt,” replied Rabbi Dayan. “This is because the lender presumably meant: ‘Throw the money, but continue watching it.’ However, if the lender said, ‘Give the money to someone specific,’ or, ‘Leave it in a certain secure place,’ the borrower is exempt even if the lender didn’t explicitly exempt him.” (SM”A, Nesivos 120:1)

Never Borrowed!

Thursday, August 23rd, 2012

Mr. Morris was home one evening, when an acquaintance, Mr. Roth, knocked at his door. “May I have a word with you?” Mr. Roth asked.

“Certainly, come in,” Mr. Morris said, welcoming him into the living room.

“Perhaps you’ve forgotten,” Mr. Roth began, “but last year I lent you $500, which you never repaid.”

Mr. Morris scratched his head and thought for a moment. “I never borrowed from you,” he replied.

“You definitely did,” Mr. Roth insisted. “And you never repaid.”

“Do you have any written evidence?” asked Mr. Morris.

“No I don’t,” acknowledged Mr. Roth.

“That just proves I never borrowed,” said Mr. Morris, emphatically.

“No, it doesn’t,” retorted Mr. Roth. “It just proves that I was a fool for not insisting on a written document!” He stood up and left.

Two weeks later, Mr. Morris was summoned to Rabbi Dayan’s bet din. Mr. Roth was asked to present his claim.

“I lent Mr. Morris $500 a year ago, which he hasn’t repaid,” claimed Mr. Roth.

“And what do you say about this?” Rabbi Dayan asked Mr. Morris.

“I never borrowed from Mr. Roth,” claimed Mr. Morris.

Rabbi Dayan turned to Mr. Roth: “Do you have any evidence?” he asked.

“I have two witnesses to the loan,” replied Mr. Roth. Rabbi Dayan called upon the witnesses to present their testimony. Each testified that Mr. Roth lent Mr. Morris $500 in his presence.

Rabbi Dayan asked the witnesses a few basic questions. When he was satisfied with the testimony, he turned to Mr. Morris. “Witnesses have attested to the loan,” he said. “Do you have anything further to say?”

“I would like a month to seek counter-evidence,” requested Mr. Morris. Rabbi Dayan consented to delay the final verdict for a month.

At the second hearing, Rabbi Dayan asked Mr. Morris: “Have you found any evidence to counter the testimony presented last time?”

“Yes, I also have witnesses,” replied Mr. Morris. “They will prove I don’t owe Mr. Roth any money.”

The witnesses testified that Mr. Morris repaid the $500 loan to Mr. Roth four months earlier.

“See, I don’t owe Mr. Roth any money,” Mr. Morris said. “Even if I borrowed, I paid back what I borrowed.” He sat down with a triumphant smile.

Rabbi Dayan requested that Mr. Roth and Mr. Morris exit for a few moments, while the dayanim convened. The two were called in shortly for the ruling:

“Mr. Morris is liable, and must pay the $500,” ruled Rabbi Dayan.

What?!” asked Mr. Morris, shocked. “How can you hold me liable when witnesses state that I already repaid?”

“I will explain the reason,” replied Rabbi Dayan. “There is an important, well-know concept: ‘hoda’as ba’al hadin k’meiah eidim dami’ – the admission of a litigant is like the testimony of a hundred witnesses. In actuality, his admission is believed – to his detriment – more than witnesses! If a person admits he owes, even if witnesses testify that he doesn’t, he remains legally liable.”

“But I didn’t admit anything,” said Mr. Morris. “I deny the charge completely! The witnesses also say I’m exempt!”

“That is correct,” replied Rabbi Dayan. “However, realize that there are two parts to this case: one, whether you borrowed; two, whether you repaid.”

“You initially claimed in court that you never borrowed the money,” continued Rabbi Dayan. “A person who never borrowed doesn’t pay! Thus, implicit in your claim that you didn’t borrow is an admission that you didn’t repay. This is expressed in the Gemara [B.B. 6a] as: kol ha’omer lo lavisi k’omer lo parati dami ­– whoever says, ‘I didn’t borrow,’ is like saying, ‘I didn’t repay.’ ”

“But since there are witnesses to both parts of the case,” reasoned Mr. Morris, “shouldn’t we follow them?”

“In regards to the loan, obviously we accept the witnesses’ testimony that you borrowed, despite your denial otherwise,” explained Rabbi Dayan. “However, regarding repayment, we accept your implicit admission, even against the testimony of the witnesses. Thus, on the one hand, we believe the witnesses that you borrowed. On the other hand, we believe your implicit admission that you didn’t repay.” (79:1,6)

“I don’t understand, though,” insisted Mr. Morris. “All the time, people initially deny outright all kinds of claim, and then come to bet din and adjust their claim and bring witnesses. Are you saying these witnesses are all rendered meaningless?”

Profitable Ticket

Thursday, August 9th, 2012

Excitement was in the air as the 12th Siyum HaShas of the Daf Yomi cycle approached. Mendy, who had joined the Daf seven and-a-half years earlier, eagerly anticipated taking part in this major event at MetLife Stadium along with 93,000 other participants.

Mendy’s wife was due the following week, but he didn’t expect this would affect the Siyum. That morning, however, as Mendy got ready to go to shul, his wife said: “Things have been happeningI’ve been having a lot of contractions throughout during the night. I know you hoped to be at the Siyum this evening, but plan to go to the hospital laterI’d like you to be available today.”

In shul, at the Daf group, Mendy told his neighbor, Ezra: “I bought a yellow $180 ticket to the Siyum tonight, but will not be able to make it. Do you know of anyone who is still looking for a ticket?”

“I have a business associate who is looking for an extra ticket,” said Ezra. “He might be happy to buy it from you.”

“If you can sell it for me, I would very much appreciate it,” said Mendy, “It cost $180, but I’ll sell it for $150, or even $120.”

Ezra called his associate, Mr. Kurz. “Someone in our Daf group has a $180 ticket available ticket,” he said. “Are you interested?”

“Absolutley!” exclaimed Mr. Kurz. “Bring the ticket to the office and I’ll give you the $180.” Ezra decided not to mention that Mendy had only asked for $150.

Ezra took the ticket to work and received the $180. He put aside $150 for Mendy and kept $30 for himself.

“All’s well that ends well,” thought Ezra with satisfaction. “Mr. Kurz got his ticket to the Siyum; Mendy recouped the $150 he wanted; and I earned $30 in the process!”

While driving to the Siyum, Ezra told his chavrusah, who learned regularly in a Business Halacha shiur, what happened with the ticket. “I’m not sure that what you did was right,” said his chavrusah. “Mendy told you to sell the ticket for $150. You had no right to charge Mr. Kurz the extra $30 and should return it to him!”

A lively discussion erupted in the car. Another person said: “Since you sold the ticket for Mendy, whatever you got for it is his! You have to give him the full $180.”

A third passenger said: “I don’t see any problem in what you did. Mendy got his price, and the rest was given to you. You earned it!”

A fourth person suggested: “You and Mendy should split the $30, since you both had a share in it.”

For twenty minutes, they debated the issue back and forth. Finally, Ezra said: “Why don’t we ask Rabbi Dayan at tomorrow’s Daf?”

The following morning, the Daf group assembled, with strengthened numbers, to begin learning Maseches Berachos. Everyone was red-eyed from the previous night’s Siyum but exhilarated from the experience.

When the shiur finished, Ezra said: “A fascinating monetary case came up yesterday, which we debated in the car on the way to the Siyum.” He related the story to Rabbi Dayan.

“What happens with the extra $30?” Ezra asked.

“This question was posed to the Rosh 700 years ago,” Rabbi Dayan replied. “The Rosh [Responsa 105:1], cited by the Tur and Shulchan Aruch [C.M. 185:1], ruled that if the seller stated a certain price and the agent sold for more, the additional money belongs to the seller. Thus, you should give the remaining $30 to Mendy.”

“But why?” asked Ezra. “How is this different from any other business, where the middleman buys and sells for a profit?”

“The reason is because Mendy never sold you the ticket,” explained Rabbi Dayan. “You were simply his agent, or representative to sell. When Mr. Kurz gave you the $180 for the ticket, it was on behalf of Mendy.”

“And why not give the $30 back to Mr. Kurz?” asked Ezra.

“There was no mistake on his part,” said Rabbi Dayan. “He was aware of the item he was buying and of the price he was paying. You were a diligent agent in getting the full price for the seller.”

“But why shouldn’t I be entitled to the $30 difference as a brokerage fee?” asked Ezra.

Summer Weekend

Friday, July 27th, 2012

Mr. Blank worked through the summer, so his family stayed in the city. “It would be nice to get away to the country for a weekend,” his wife suggested.

“Great idea!” Mr. Blank replied. “If we can find a place, it would be nice to go away for Shabbos Nachamu weekend.”

Mrs. Blank searched the classifieds for summer home rentals. “Here’s one,” she said to her husband. “Summer home available for weekends. Reasonable rent. Call Mr. Zimmer for details.”

Mr. Blank called Mr. Zimmer. “We saw your ad for the summer home in the newspaper,” he said. “Is it available for Shabbos Nachamu? How much is it?”

“It is available and costs $400 for the weekend,” replied Mr. Zimmer. “You’re welcome to come already Thursday evening.”

“I’ll discuss with my wife and confirm with you tomorrow,” said Mr. Blank.

The following day, Mr. Blank called Mr. Zimmer again. “Yes, we are interested in reserving the house for the weekend,” he said.

“Excellent,” said Mr. Zimmer. “Payment is due when you arrive. I’ll see you in a week.”

A few days later, Mrs. Blank received a call from her sister, who was spending the summer in their summer home. “We have a bar mitzvah back in the city on Shabbos Nachamu,” she said. “Our house is available that weekend if you’d like to use it.”

“That’s so nice of you,” said Mrs. Blank. “We actually are planning on going away that Shabbos. We reserved a summer home, but if yours in available that would save us the expense. Thanks a lot!”

“Guess what?” Mrs. Blank said to her husband. “My sister just offered us her summer home for Shabbos Nachamu. Can you call Mr. Zimmer and cancel the reservation?”

Mr. Blank called Mr. Zimmer. “This is Mr. Blank speaking,” he said. “We reserved the summer home for Shabbos Nachamu. In the end, we do not need it and would like to cancel the reservation.”

“But we already confirmed the reservation,” said Mr. Zimmer. “You can’t just back out now; that’s dishonest.”

“We just received an offer from my sister-in-law to use her house,” explained Mr. Blank.

“You’re still breaking you reservation,” objected Mr. Blank, “but there’s nothing I can do about it.”

Mr. Blank was troubled. He saw Rabbi Dayan in shul that evening and asked: “Is it acceptable to cancel the reservation?

“Just as a sale requires an act of acquisition, a kinyan, to make it legally binding, so, too, a rental agreement requires a kinyan to make it legally binding,” said Rabbi Dayan. “A verbal agreement alone does not carry legal responsibility. Therefore, although you reserved the bungalow over the phone, since no kinyan or payment was made you have the legal ability to cancel the reservation. To prevent this, it is wise for landlords to demand a deposit payment.” (195:9; 315:1)

“The words alone mean nothing?!” Mr. Blank asked astounded.

“Words are meaningful, and a person has a moral obligation to honor his verbal commitments,” replied Rabbi Dayan. “One who does not uphold his words is called lacking trustworthiness (mechusa amana) and, possibly, even wicked.” (204:7)

“So then it is wrong to cancel the reservation?” asked Mr. Blank.

“It would be if you hadn’t received the offer from your sister-in-law,” replied Rabbi Dayan. “There is a dispute between the authorities if a verbal commitment is morally binding when there was a change in market conditions. The Rama [204:11] cites both opinions, and sides that one should not retract even in this case. However, later authorities lean towards the lenient opinion [Pischei Choshen, Kinyanim, 1:5].

“When the rental is no longer needed because another unit was received for free, the Chasam Sofer [C.M. #102] writes that this is certainly like a change in market conditions, so that it is not considered a breach of integrity.”

“What if I wasn’t offered the other bungalow for free, but found a better deal?” asked Mr. Blank. “Would that also be considered a change in market conditions?”

“The SM”A [333:1] indicates so,” answered Rabbi Dayan, “but this is questionable unless there was some new development in the market, so that one who is scrupulous should be careful.” (Emek Hamishpat, Sechirus Batim, #8)

“What if Mr. Zimmer had turned away other potential renters meanwhile?” asked Mr. Blank. “Perhaps he might not be able to find other renters now?”

Just One Tile!

Thursday, July 12th, 2012

The Alperts needed some work done around their house. The contracted Mr. Fixler, a general handyman, to do the job.

While working on one of the fixtures, Mr. Fixler accidentally knocked his drill off the ladder. It landed with a thud on the floor of the entranceway, cracking a tile.

Mr. Fixler apologized profusely for the incident. “Obviously, I will replace the tile,” he said. “Do you have any spare tiles?”

Mr. Alpert looked around his basement for remaining tiles, but could not find any. He took the broken tile to the store from where he had purchased the tiles seven years earlier. “Do you have any of these tiles left?’ he asked. “One of ours cracked and needs to be replaced.”

“We don’t carry that style anymore,” said the salesman.

“Perhaps you have an odd box left in the warehouse?” suggested Mr. Alpert.

“I’ll check with inventory,” said the salesman, “if you can wait here fifteen minutes.”

“I’ll wait,” said Mr. Alpert.

The salesman went away and returned fifteen minutes later. “There are no more of those tiles in inventory,” he said. “That style was discontinued five years ago. I checked with some other vendors that we work with; they also don’t have any left.”

Mr. Alpert returned home. “There’s no point in having one tile that doesn’t match,” Mr. Alpert said to his wife. “We’re going to have to retile the whole entranceway.”

“If we redo a strip of complementing tiles, that should suffice,” Mrs. Alpert said. “I’ll come with you.” They went to the store and chose a box of fancy, decorative tiles. They gave the tiles to Mr. Fixler to install, along with a bill for $109.

When Mr. Fixler saw the bill for the tiles, he felt that the amount was exaggerated. “You have very expensive taste,” he commented. “I don’t need to cover that.”

“How much do you think is fair?” asked Mr. Alpert.

“I cracked just one tile,” said Mr. Fixler. “I don’t owe you more than that. I’m willing to go beyond the letter of the law and replace additional tiles, but not to pay for them.”

“We would have been very happy had you not damaged any tiles,” replied Mr. Alpert. “Consider that the broken tile was also expensive.”

“It certainly wasn’t that expensive,” argued Mr. Fixler. “Anyway, the tiles were seven years old. It also was an accident.”

“The tiles were in fine condition, though,” said Mr. Alpert. “The new tiles are only needed because of your damage. It’s not fair that we should have to pay.”

“How about letting Rabbi Dayan settle this?” suggested Mr. Fixler.

“Great idea!” responded Mr. Alpert. “Let’s do that!”

The two met with Rabbi Dayan. “A worker who damages in the course of his work, even unintentionally, is required to repair or compensate for the damage, like any other person,” said Rabbi Dayan. “Therefore, you are certainly liable for the damaged tile.” (C.M. 378:1; 306:4)

“I understand, but does that require me to pay anything beyond the one cracked tile?” asked Mr. Fixler. “To replace this one tile we are installing a whole strip.”

“It can, since the primary obligation of damage is to restore the item to its former use,” answered Rabbi Dayan. “Therefore, if replacing the damaged tile requires uprooting and replacing a few additional, adjacent tiles – they are also included in the liability. Also, tiles are sold as a whole box, not singly.” (See Shach 387:1; Chazon Ish, B.K. 6:3)

“What about the fact that the tiles were old, though?” asked Mr. Fixler. “Also, the decorative strip looks nicer than the original simple flooring. The original box of tiles would cost no more than $50 had it been available!”

“If the repair adds value, the owner needs to absorb part of the cost,” replied Rabbi Dayan. “For example, if a worker broke an old sink and it was replaced with a new one, he is liable for the cost of installation and the proportional worth of the old sink; the owner is responsible for the differential in worth between the new sink and the old one.” (See Mishpetai HaTorah I:24)

“But we cannot restore the actual damage here,” said Mr. Alpert. “The original tiles are not available. The only way to make it aesthetically pleasing was by adding decorative tiles.”

Printed from: http://www.jewishpress.com/judaism/halacha-hashkafa/just-one-tile/2012/07/12/

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