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August 29, 2014 / 3 Elul, 5774
At a Glance

Posts Tagged ‘BHI’

Buy!

Thursday, June 14th, 2012

Mr. Scher had a portfolio manager for his investments, but preferred to track certain stocks himself. One was TorahTech, a start-up that specialized in harnessing new technology to disseminate Torah.

The company was intriguing and showed promise, but hadn’t succeeded yet in its marketing efforts. Mr. Scher considered the company overpriced at the current cost of $6 a share, but worth grabbing if its price dropped significantly. He instructed his portfolio manager, Mr. Gelber, to buy 10,000 shares if the price dropped to $4.

Rumors of a 2nd quarter loss, combined with a fresh product line aimed at the new Daf Yomi cycle, set the stock on a volatile course. For two weeks it oscillated between $4.50 and $7 a share. When the quarterly report was finally issued, the stock descended to $4 for a few days.

A month later, though, TorahTech’s new Daf Yomi products began selling big. The stock began a steady climb, eventually hitting $8 a share six months later.

Mr. Scher instructed Mr. Gelber to sell the 10,000 shares of TorahTech. He anticipated earning 100% profit on the sale.

Mr. Gelber checked the account. “You don’t have any shares of TorahTech,” he said to Mr. Scher.

“What do you mean?!” Mr. Scher asked. “I instructed you half a year ago to buy 10,000 shares when the price dropped to $4.”

“Let me check one moment,” said Mr. Gelber. He reviewed the account orders and acknowledged, “Somehow I missed that order.”

“That’s $40,000 lost!” exclaimed Mr. Scher. “I’ve been following that company for months.”

“I understand,” said Mr. Gelber. “At this point, though, there’s nothing to do, unless it drops again or you anticipate further growth and want to buy now.”

“I don’t want to buy now,” replied Mr. Scher. “The company is reaching a plateau. I’m really upset that you missed the order.”

“I’m sorry,” said Mr. Gelber. “I usually enter orders into the computer immediately, so that the purchase is made automatically.”

“I feel you should compensate me for the loss,” said Mr. Scher. “It was sheer negligence on your part.”

“That seems extreme,” replied Mr. Gelber. “Anyway, it’s not really a loss, just a missed opportunity for profit. I’m willing to take it up with Rabbi Dayan, though. Let’s go talk with him.”

“Mr. Scher does not have to pay for the $40,000 in this case,” ruled Rabbi Dayan. “The Tosefta teaches that if an investor gives money to an agent to buy merchandise and sell it for a shared profit but the agent didn’t buy, the investor has only a complaint against him [C.M. 183:1].

“Similarly, the Yerushalmi writes that mevatel kiso shel chaveiro – a person who restrained his friend’s money and prevented him from earning profit – has only a complaint. This is, at most, a form of potential grama.” [See Shach 61:10; 292:15; Pischei Choshen 12:36]

“Are there any cases in which a person has to cover lost profits?” asked Mr. Scher. “The Mishnah (B.M. 104a) teaches that a farmer who undertook to work another’s field and share the crop, but left the field fallow, must pay whatever the field was expected to produce,” answered Rabbi Dayan. “This was a generally stipulated condition that became standard [328:2].

“Furthermore, the Gemara [B.M. 73b] discusses the case of a person who gave money to an agent to buy wine for him during the market season. According to one opinion, if the agent neglected to buy then and the price rose, he must still provide the wine at the cheap price. Some authorities derive from this that if he certainly could have and the loss is clear, the agent has to pay [Nesivos 183:1; Chasam Sofer C.M. 178 ].”

“How is it different from the original case in the Tosefta?” asked Mr. Gelber.

“The Nesivos [306:6] explains that the Gemara refers to a contracted worker [kablan] or partner,” answered Rabbi Dayan. “We treat the negligence to buy as backing out of a davar ha’aved, so that a kablan has to pay even for lost profit opportunity [306:3]. The Tosefta refers to an agent who was not paid, or to a salaried worker [po'el] who was entitled to back out.”

“Why shouldn’t Mr. Gelber have to pay, then?” asked Mr. Scher. “He’s a contracted broker.”

Fence Value

Friday, June 1st, 2012

Mr. Sam Braun stood at the back door of his house with another man dressed in rugged jeans and a baseball cap, surveying the back yard. The man had a tape measure in his hands, and took measurements along the length and width of the yard. The two then walked to the side of the house and again measured and talked, gesticulating with their hands.

In the adjacent yard sat Hillel Farber, reclining in a lounge chair and reading a book. He kept peeking up to see what his neighbor was doing. Finally his interest piqued him. “What’s going on, Sam?” Hillel called out. “Whom are you talking to?”

“We’re doing some renovations,” answered Sam Braun. “This is the contractor, Tom Green.”

“What are you building?” asked Hillel.

“I’m adding a sundeck in the back of the house and a wooden structure for the kids to play in,” Sam answered. “We’re also putting a wooden floor in the dining room. I’m considering building a wooden fence to separate our two properties. What do you think of that?”

“That’s a good idea,” said Hillel. “It would also give us more privacy.”

“Are you willing to split the cost of the fence?” Sam asked.

“Could be,” replied Hillel. “How much will it run?”

Sam turned to Tom. “What do you expect the fence to run?”

“In the range of $2-3,000,” said Tom. “It depends on the exact measurements and the type of wood used.”

“That sounds fair enough,” said Hillel. “I’m willing to chip in my half.”

“Great,” said Sam. “We’ll settle when the work is complete.”

Sam decided, in the end, to run the wooden fence around most of his property. When Tom finished the work a month later, Sam said to him: “You remember that our neighbor, Hillel, said he’d split the fence between the properties? How much would you reckon that part of the job was?”

“It’s worth $3,000,” Tom answered. “Let him pay $1,500.”

Sam told Hillel that the fence cost him $3,000.

“Can I see the invoice?” asked Hillel.

“The invoice is for the entire job,” said Sam. “The part of the fence that we share is not listed separately. The figure of $3,000 is what Tom told me it’s worth.”

“If you don’t mind,” said Hillel, “I’d like to double-check with another contractor about that valuation.”

“I don’t mind your checking,” replied Sam, “but I think we should follow Tom’s appraisal anyway, since he did the work.”

Hillel spoke with another contractor, who said: “That kind of fence generally runs about $40 per foot.”

Hillel calculated the shared part of the fence, which ran 60 feet, and came to a total of $2,400. “Based on what I spoke with the other contractor,” he told Sam, “the fence is worth less than $3,000.”

“Who’s to say that his appraisal is more accurate than Tom’s?” Sam replied. “Anyway, as I said before, Tom did the work.”

“But he didn’t give a clear price beforehand for the shared part of the fence,” argued Hillel. “At this point, his appraisal is no different from anybody else’s. Why should I pay more than it may be worth?”

Sam scratched his head. “Maybe that’s what he charges, but Tom charges more?” he responded. “I suggest we take this up with Rabbi Dayan.”

“Great idea!” exclaimed Hillel. “I’ve been waiting for chance to ask him a business halacha question!”

Sam and Hillel met with Rabbi Dayan, who said: “In general, when a person agrees to a job and no price is stipulated, if there is a fixed going rate he must pay that amount.” (C.M. 331:2)

“What if there is a price range?” asked Hillel.

“Then he only has to pay the lower end of the range,” answered Rabbi Dayan, “in accordance with the principle hamotzi mei’chaveiro alav ha’reaya – the burden of the proof is on the plaintiff. This is true even if most people charge a higher price.” (Ketzos 331:3)

“But I stipulated a price with the contractor,” objected Sam. “Hillel agreed to reimburse half the price that Tom charged for the fence.”

“That is correct,” said Rabbi Dayan. “Had Tom assigned a specific price for the shared fence, Hillel would have to pay whatever the cost was, even if it could have been a cheaper fence or a cheaper contractor. However, there was no explicit price for the shared fence.”

Non-Kosher!

Thursday, May 17th, 2012

“Welcome to the bar mitzvah celebration of our dear son, Eliezer,” Mr. Siegel announced to his guests. “The bar mitzvah boy will now make a siyum Mishnayos, which will be followed by the main course.”

The tasty cuisine was befitting of the se’udas mitzvah and enhanced the special aura of the evening.

Mr. Siegel returned home from the bar mitzvah elated. A week later, however, he heard that kashrus certification had been revoked from the caterer. He contacted the local va’ad hakashrus to ascertain what the issue was, and found out – to his great dismay – that non-kosher meat may have been served at his son’s affair!

Mr. Siegel immediately called the caterer. “I heard that your kashrus certification was revoked,” he said. “I understand that it may relate to non-kosher meat served at our bar mitzvah.”

“There were such allegations, which we deny,” said the caterer. “We are working towards resolving the issue with the va’ad hakashrus to restore the certification.”

“I hope that is true,” said Mr. Siegel. “We are very concerned about the possible breach of kashrus that you caused us.”

“Nothing has been proven meanwhile,” replied the caterer. “There is no point in discussing it now.”

Two weeks later, though, Mr. Siegel received confirmation from the va’ad kashrus that non-kosher meat had been used at his son’s bar mitzvah. The caterer’s kashrus certification would not be restored in the near future.

Mr. Siegel called the caterer back. “The va’ad kashrus has confirmed that non-kosher meat was served at the bar mitzvah,” he said. “We demand a refund of the catering cost and compensation for the anguish that you caused us.”

“The bar mitzvah is already a past issue,” replied the caterer. “You were served the menu that you ordered, so that I don’t see any reason to refund the money.”

“We absolutely did not get the food we ordered!” responded Mr. Siegel forcefully. “Non-kosher food is worth much less than the kosher food. Anyway, that’s not the issue; we absolutely will not pay for a non-kosher affair. The whole booking was a mistake; it’s a mekach ta’us.”

“Whether it was a mistake or not, you have nothing to return,” said the caterer. “You ate the food already and benefited from it. At most we are willing to refund the differential in cost between the kosher and non-kosher meat.”

“That will not do,” said Mr. Siegel. “If you are not willing to refund the full amount, we will have to summon you to a din Torah.”

A week later, the caterer received a summons to Rabbi Dayan’s beis din.

“Non-kosher meat was served at our son’s bar-mitzvah,” Mr. Siegel said. “We demand reimbursement for the event.”

“The food was already eaten and enjoyed,” replied the caterer. “Why should I return the money?”

“Serving non-kosher food is a grave sin,” replied Rabbi Dayan. “Whether the seller must reimburse the customer for food that was already eaten depends on the severity of the kashrus prohibition.”

“What do you mean by that?” asked the caterer.

“If the food was non-kosher because of a biblical prohibition – e.g., certain tereifahs, improper slaughtering, meat and milk cooked together – then the seller must refund the full amount of the money, even if the food was already eaten,” explained Rabbi Dayan. “If the prohibition was rabbinic – e.g., certain other tereifahs, cooking by non-Jews, chicken and milk – the seller does not have to reimburse the customer for what he already ate [C.M. 234:3-4]. There are, however, kosher fraud laws that allow penalties and legal remedies for kashrus violation.”

“What difference does it make whether the prohibition is biblical or rabbinic?” asked Mr. Siegel. “Either way it’s not kosher!”

“There are two reasons for this distinction,” answered Rabbi Dayan. “First, on account of the greater severity of a biblical prohibition we penalize the seller for having caused the buyer to sin. Second, even though the buyer ate the food accidentally, if it entailed a biblical prohibition we don’t consider him as having benefited from the food, but rather assume he was repulsed by the thought.” (SM”A 234:4)

“What about an additional compensation for the embarrassment the caterer caused us?” asked Mr. Siegel.

“The Gemara (B.B. 93b) mentions a practice in Yerushalayim that a caterer who ruined the meal paid the owner for his embarrassment,” replied Rabbi Dayan. “The Tur (O.C. 170) cites this Gemara, but it is not recorded by other authorities, and is not accepted as the halacha.” (Pischei Choshen, Nezikin 11:50)

Father’s Pledge

Thursday, May 3rd, 2012

Mr. Gottlieb, though not wealthy, was known for his generosity. He scrupulously gave 10 percent of his earnings to charity, and often much more. Among his regular charities was Yeshivas Ohr Israel. At the recent Dinner, Mr. Gottlieb pledged $10,000 toward the Yeshiva’s scholarship fund.

Two weeks later, Mr. Gottlieb passed away, before he had a chance to honor his pledge. His inheritance went to his only child, Dovi. After the shiva was concluded, Dovi received a visit from the financial administrator of Ohr Israel, Mr. Goldin.

“Your father pledged $10,000 to the yeshiva’s scholarship fund two weeks before his death,” Mr. Goldin said. “Honoring your father’s pledge promptly would be a great merit for his memory.”

Dovi, however, was hesitant. He did not particularly identify with Ohr Israel; his attitude toward it had always been somewhat distant. In addition, Dovi’s own financial situation was not stable.

“I affiliate myself with other Torah institutions and am experiencing my own financial issues at the moment,” replied Dovi. “I don’t see myself donating to Ohr Israel.”

“But your father already pledged that amount,” Mr. Goldin said. “You owe us the money.” “Did my father sign any agreement with the yeshiva or make any other binding commitment?” asked Dovi.

“It was a verbal pledge,” acknowledged Mr. Goldin. “But verbal commitments also have to be honored, particularly charity pledges.”

“My father pledged that amount,” said Dovi. “I never pledged it to you.”

“But when he made the pledge, he committed his money to the yeshiva,” said Mr. Goldin. “We’re not asking you to donate your own money, only from your father’s estate.”

“That money is now mine,” responded Dovi. “There’s no difference between my money from before and what I inherited from my father. If nothing was committed in writing, his pledge doesn’t obligate me to donate.”

“Perhaps you don’t share your father’s enthusiasm for Ohr Israel,” said Mr. Goldin. “But it still seems to me that, as his heir, you are obligated to honor also his verbal pledges.”

“I am not convinced,” said Dovi. “I will verify the matter and get back to you in a week.”

“Thank you for your time,” said Mr. Goldin. “We hope that you will decide to honor your father’s pledge as a merit to his soul, regardless.”

Dovi called Rabbi Dayan and asked if he could advise him on the matter: “Am I required to honor my father’s verbal pledge?”

“Whether an heir is obligated to honor his inheritor’s verbal pledge is the subject of an intricate dispute,” said Rabbi Dayan.

“Oh, really?” exclaimed Dovi. “Who discusses the issue?”

“This case was disputed outright by the mechaber, Rav Yosef Karo, and the Rama,” said Rabbi Dayan. “A person pledged a sum of money to the poor of Eretz Yisrael in his will. The heirs challenged the will, claiming it was not drafted properly. Rav Karo upheld the will for a number of reasons. One was that even if the will was not drafted properly, a verbal pledge to charity is also fully binding. The Rama [Responsa #47-48:3] disagreed with him, arguing that a charity pledge is considered a vow a person must fulfill, but does not obligate the heirs if not contractually binding through a properly drafted will or another form of kinyan. Interestingly, in that particular case the Rama enforced the ruling of Rav Karo anyway, out of his great respect for him.”

“Is this dispute reflected in Shulchan Aruch?” asked Dovi.

“Yes,” replied Rabbi Dayan. “The Shulchan Aruch [C.M. 212:7] writes that if someone pledged to charity before his death future income from his real estate, it must be given to the poor, even though such a future agreement is not contractually binding. The Rama comments that only the person himself must fulfill his pledge as a vow, but not if he died already. Ketzos Hachoshen [290:3] explains that the crux of the issue is whether the requirement to honor one’s charity pledge generates a legal obligation, a lien, on the money.”

“So I don’t have to honor my father’s verbal pledge according to the Rama?” said Dovi.

“You cannot be forced, though the issue is not simple,” replied Rabbi Dayan. “A number of authorities maintain that even the Rama concedes that the vow creates a legal obligation when the assets are already in existence. [See SM"A 212:21; Pischei Teshuvah 212:9 citing Chasam Sofer.] Furthermore, if the father already set aside the money before he died, the heirs are required to give it.” (Nesivos 250:4; Tzedaka U’Mishpat 4:28-29)

“What about the issue of honoring my father?” asked Dovi.

“If a person instructed his children to give the money, there is kibbud av in fulfilling his words,” replied Rabbi Dayan. (Pischei Teshuva 252:3) “There is also no doubt that fulfilling his charity pledge is a way of bringing him great merit and serves as a proper tribute to his neshamah.”

Parking Spot

Thursday, April 12th, 2012

Yankel drove with his wife to the yeshiva’s annual dinner. “I hope we’ll be able to find parking,” she said.

When they arrived, Yankel circled the block twice looking for parking, but had no luck. “I’ll wait on the block until a spot opens,” he said. He pulled up by a driveway in the middle of the block and waited there.

Ten minutes later, a car toward the front of the block started to pull out. “There’s a spot!” his wife said excitedly.

Yankel waited for the car to pass and then began backing up to the spot. While he was reversing, he saw another car round the corner. The other car stopped at the vacated spot and started parking.

Yankel got out. “I already claimed that spot,” he said to the driver.

“What do you mean you claimed the spot?” the man responded. “I got here first.”

“I’ve been waiting on the block for ten minutes for a spot to vacate,” Yankel said to the man. “I claimed the spot when I saw the car pulling out.”

“I’m also looking for a spot,” said the man. “What makes this spot yours more than mine?”

“I’ve been waiting on this block the whole time,” said Yankel, “You weren’t here and just came.”

“What’s the difference?” said the man, unimpressed. “Since when can you lay a claim to an entire block? You don’t own the street!”

“I saw the car pulling out first, though,” said Yankel. “I had my eyes on the spot before you.”

“That’s your tough luck,” said the man. “Sometimes, sitting on the block works better; sometimes, circling works better. I got to the spot first.”

“But I was already backing up the block and heading to the spot,” Yankel protested, “even before you turned the corner into the street!”

“Backing up toward the spot doesn’t make it yours,” said the man. “I don’t see why I should move.”

Just then, Yankel noticed Rabbi Dayan walking by with his family. “That’s Rabbi Dayan,” he said to the man. “Let’s ask him!”

“Hello, Rabbi Dayan,” Yankel said. “I’m glad you chanced by. We’re having a disagreement over this parking spot.”

“What about it?” asked Rabbi Dayan.

“I was waiting on the block for ten minutes for a spot to open,” Yankel told Rabbi Dayan. “I was already backing up to the spot when this man turned the corner and started pulling in. Who’s entitled to the spot?”

“This relates to a concept known as ani hamehapech bachara,” replied Rabbi Dayan. “If a person is scavenging for a loaf of bread and someone else comes and grabs it – the intruder is called a rasha, wicked.” (Kiddushin 59a)

“So it seems that I’m entitled to the spot,” said Yankel.

“There is a well-known dispute between Rashi and Rabbeinu Tam regarding this concept,” continued Rabbi Dayan. “Rashi explains that it applies also when the person was scavenging after a loaf that was ownerless [hefker]. Rabbeinu Tam, however, cites a number of sources indicating that ani hamehapech does not apply to something hefker, but only to something offered for sale or rent.”

“Why should there be a difference?” asked the man.

“A rental or sale item can be acquired elsewhere, as well,” explained Rabbi Dayan, “Therefore it is immoral for the second person to intrude upon the efforts of the first person. However, he may not be able to find a hefker item elsewhere, so he does not have to forego this opportunity in deference to the first person.”

“Whom do we rule like?” asked Yankel.

“The Shulchan Aruch cites both opinions,” answered Rabbi Dayan. “The Rama sides with the opinion of Rabbeinu Tam that ani hamehapech does not apply to a hefker item.” (C.M. 237:1)

“Is a parking spot considered hefker or a rental?” asked the other man.

“If parking is readily available on a nearby street, it is similar to rental,” replied Rabbi Dayan. However, if parking is difficult to find, it is comparable to hefker, even if there is a parking meter or charge. Therefore, although Yankel waited on the block and was heading toward the spot, he cannot repel the intruder.”

“Nonetheless, a God-fearing person should consider Rashi’s opinion,” Rabbi Dayan said to the other man. “There is also common decency, v’asisa hayashar v’hatov – you should do what is proper and good, even if not legally required.” (Igros Moshe, E.H. 1:91; Pischei Choshen, Geneivah 9:30)

“What if I had already positioned myself adjacent to the spot while the parked car pulled out?” asked Yankel.

“Then presumably you would have rights to the spot even according to Rabbeinu Tam,” Rabbi Dayan concluded. “Since you made a concerted effort to claim the spot, the practice is to respect this to avoid fights.” (See P.C., 9:13 [30]; 268:2)

Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.

Caught On Camera!

Thursday, March 29th, 2012

On the bima of the beis medrash stood a maos chittimpushka” (collection box) on behalf of “Matzos Chesed Organization.” The gabbai emptied the box every few days, typically finding $200-$500.

One morning the gabbai came to empty the collection box and found the lock broken and the money gone. He approached Mr. Taub, who was in charge of maintenance and related what happened.

“We recently installed surveillance cameras,” said Mr. Taub, “so I might be able to identify the thief.”

Mr. Taub viewed a playback of the night’s recording. Toward 3 a.m. a figure had entered the building. Mr. Taub slowed the playback and followed the man over to the pushka and watched him open it. He zoomed in and identified the thief as a neighborhood person who had declined morally and recently fallen on hard times.

Mr. Taub decided to confront the thief. “I have a surveillance camera recording of you stealing from the Matzos Chesed pushka,” he said to the thief. “Return $400 now or we’re going to prosecute.”

“It wasn’t that much,” said the thief. He pulled out $250 and gave it to Mr. Taub. “That’s all there was.”

“I don’t trust you,” said Mr. Taub menacingly. “I’m giving you two days to bring the remaining $150 or else…”

Mr. Taub returned to the gabbai. “I was able to recover the money!” he exclaimed happily and handed him the money.

“How much was there?” asked the gabbai.

“The thief gave me $250,” replied Mr. Taub. “I threatened that if he doesn’t give another $150 in the next two days we would prosecute.”

“But if he didn’t take $400, is it fair to make him pay that much?” asked the gabbai.

“How do I know how much he took?” answered Mr. Taub. “For all I know, he took even more!”

“Or, he could have taken less,” said the gabbai.

“Don’t you think we should penalize him anyway?” said Mr. Taub. “Let it be a donation to tzedakah!”

“I’m not sure this can be called a donation,” said the gabbai. “If you force him to give more than he took, it might be considered theft on your part.”

“I’m guilty of theft?!” replied Mr. Taub indignantly. “You should thank me for catching the thief and recovering the money!”

“I appreciate what you did and don’t mean to accuse you,” said the gabbai apologetically. “I’m just not sure that what you’re doing is correct.”

“If you want, I’ll discuss the issue with Rabbi Dayan,” said Mr. Taub. He called Rabbi Dayan and asked: “Can I demand that the thief pay me the amount I estimate?”

Rabbi Dayan answered: “If you cannot clearly state the amount the thief stole, it is not possible to obligate him in more than he admits.”

Rabbi Dayan then explained: “In most charges, if there isn’t clear evidence and the defendant denies the charge, he can swear he does not owe the amount in dispute and is exempt. However, when there is evidence that someone stole, but the witnesses do not know the amount of the theft, Chazal instituted that the victim can swear how much the thief stole and collect that amount from him. This is known as shevuas hanigzal [the oath of a robbery victim].” (C.M. 90:1)

“However,” continued Rabbi Dayan, “if the victim cannot definitively claim how much was stolen, he is not able to swear. Nor can we impose an oath upon the thief, since he is suspected of swearing falsely. Even if the thief admits to having stolen a certain amount, he has to pay only what he admits; it is not possible to obligate him in any greater amount because there is no definitive claim.” (90:5)

“What if a suspected thief refuses to admit or admits to an amount that seems unreasonably low?” asked Mr. Taub. “Is there anything that can be done?”

“Unfortunately, there is not much that can be done nowadays,” said Rabbi Dayan. “The only legal recourse of beis din is to impose a cherem, a curse, upon one who stole and does not admit. [90:5] In previous generations, when beis din had more power, if there was strong basis that a person stole but he denied it, the beis din could consider using certain coercive measures to ascertain the truth.” (See Pischei Choshen, Geneivah 1:13)

“What about reporting the incident to the police?” asked Mr. Taub, “Is there a problem if they might end up punishing the thief beyond what halacha requires?”

“When someone is breaking in it is permissible to call the police,” said Rabbi Dayan. “Even after the theft, if there is reasonable concern that the thief will repeat the crime of the thief being a repeat offender it is permitted to report the incident to ensure law and order.” (Pischei Choshen, Nezikin 2:49; 4:11)

Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.

Screen Smasher

Wednesday, March 14th, 2012

Shmuel Bender and Asher Beckerman were study partners (chevrusas). They also sat next to each other in shiur. Shmuel felt fortunate to have the privilege of learning with Asher, whom he admired greatly.

One day in shiur, Rabbi Nussbaum posed a difficult question to the students. Asher raised his hand and provided the answer.

“Excellent!” exclaimed Rabbi Nussbaum. “Let’s now explain in detail what Asher answered.” He then proceeded to elaborate upon the idea for the students.

Asher typed away on his notepad, taking notes as Rabbi Nussbaum talked. Shmuel reached over good-naturedly and slowly began to shut the screen of Asher’s computer. “You don’t need to take any notes,” he said. “You already know the whole shiur!”

Asher instinctively shot his hand out to keep the screen open. His hand accidentally hit the left side of the screen with force. The edge of the screen blackened and lost its display.

“Look what you did!” Asher complained to Shmuel. “You ruined the screen!”

“Shake the screen,” someone suggested. Asher shook the computer, to no avail.

“Sorry, I didn’t mean to do that,” Shmuel said. “Try shutting the computer and starting it again; maybe it will come back.”

Asher shut his notepad and restarted it. The screen flickered to life, but the left third remained damaged with black and white lines running from top to bottom.

Shmuel peered over at the screen. “Maybe I can adjust the screen window,” Asher said. He adjusted the window of his Word program and was able to move it into the usable part of the screen.

Shmuel’s mind wandered regretfully for the remainder of shiur. When shiur was over, he meekly asked Asher, “Is the computer usable?”

“I can use the computer like this for programs and dialogue boxes,” Asher said. “But it cuts down the window size significantly and is very inconvenient to use.”

“Can you get the screen fixed?” Shmuel asked.

“I suppose I can replace the screen,” said Asher. “l’ll have to bring it in.”

“Do you know how much it costs?” asked Shmuel.

“About $100,” said Asher. “It also means that I don’t have the computer for a week; that’s also a problem.”

“It really was an accident,” said Shmuel. “I wasn’t trying to do any damage.”

“I don’t know think that makes a difference,” said Asher. “You had no right to touch my computer.”

“True,” replied Shmuel, “but I didn’t damage the screen; you did when you hit it!”

“But you made me hit it,” responded Asher. “It’s clearly your fault that I damaged the screen!”

“I acknowledge that it was wrong of me to touch your computer,” said Shmuel, “but that alone doesn’t make me liable for damage that you did.”

“It’s not just that you touched my computer,” argued Asher. “You startled me and caused me to shoot my hand out instinctively.”

Later that week they saw Rabbi Dayan in the beis midrash. “Here’s our chance to resolve our issue,” Shmuel said to Asher. “Let’s ask Rabbi Dayan!”

Shmuel and Asher sat down with Rabbi Dayan and related what happened.

“It is important to distinguish between actively damaging,” replied Rabbi Dayan, “and causing damage.”

“A person who actively damages another’s property is liable even if the damage was unintended and not willful,” explained Rabbi Dayan. “He is even liable if the situation was not completely under his control.” (C.M. 378:1)

“On the other hand, a person who did not actively damage, but only caused damage indirectly, is not legally liable according to most authorities,” continued Rabbi Dayan. “This is called grama, causation. Frightening someone without physical contact and causing him to become sick or injure himself is considered grama.” (420:32; Rama 386:3; Shach 386:24)

“It seems strange that there is never legal liability for causing damage,” said Asher.

“A person is liable for inevitable, immediate causation or for certain common cases,” replied Rabbi Dayan. “This is called garmi, but it requires a separate, extensive, discussion.” (386:1)

“So then I don’t have to pay for the screen?” asked Shmuel.

“Although grama is not legally obligated, the Gemara (B.K. 56a) notes that there is a strong moral responsibility to pay, chayav b’dinei shamayim,” replied Rabbi Dayan. “According to some authorities the person is considered wicked if he doesn’t pay. However, this applies only when he intended to damage or should have considered the outcome, not when unexpected damage occurred accidentally.” (Shach 32:2; Pischei Choshen, Nezikin 3:39)

“Thus, although Shmuel had no right to touch Asher’s computer, he did not intend to damage nor did he have reason to expect damage to ensue to the screen,” concluded Rabbi Dayan. “Therefore, he does not have to pay Asher for the screen. Nonetheless, it is derech eretz to chip in partially for the repair as a means of appeasing Asher.”

Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.

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