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December 27, 2014 / 5 Tevet, 5775
 
At a Glance

Posts Tagged ‘BHI’

A Sweet Sales Agent

Wednesday, February 15th, 2012

Purim was less than a month away. Advertisements for Mishloach Manos baskets sprouted on the shul bulletin board. The most prominent ad depicted various mouthwatering baskets, with prices to match:

“Make Purim Memorable! Manny’s Magnificent Mehadrin Mishloach Manos offers a range of baskets to suit every taste and budget. Your shul representative is Mr. Jerry Lewis. Please place orders by Rosh Chodesh Adar to ensure timely delivery.”

A week before Purim, Manny brought 250 baskets of Mishloach Manos to Jerry’s house. “We’ll put them over there in the corner of the living room,” Jerry said. The two men unloaded the baskets into the house.

“Manny’s Mishloach Manos baskets have arrived,” Jerry announced in shul. “Orders can be picked up from me 7-10 p.m.”

During the following days most of the baskets were collected. Jerry looked forward to receiving 20 percent of the sales profits from Manny in payment for his efforts.

Three days before Purim, Jerry came home from work in the afternoon. He grew concerned when he saw one of the windows was open. He entered the house and saw that the remaining Mishloach Manos baskets were gone.

Jerry called Manny to inform him of the theft. “Our house was broken into,” he said. “Fifty baskets of Mishloach Manos were stolen!”

“I can’t believe it!” exclaimed Manny. “That’s a thousand dollars’ worth of baskets. Did you keep the house locked?”

“Yes, the door and windows were locked,” said Jerry. “The thief pried open a window.”

“It’s a shame there weren’t window gates,” replied Manny. “Who’s going to pay for this?”

“I suggest we let Rabbi Dayan work this one out for us,” replied Jerry.

The two came before Rabbi Dayan. “We have an unfortunate case to discuss,” Manny said. “Mr. Lewis agreed to sell Mishloach Manos baskets for 20 percent profit, but some baskets were stolen from his house. Is he responsible for them?”

“Was the house properly locked?” asked Rabbi Dayan.

“Of course,” said Jerry. “The thief pried open one of the windows.”

Rabbi Dayan turned to Manny: “Were you aware that the baskets were being kept in the living room?”

“Yes,” answered Manny. “I unloaded the baskets there.”

“It might seem, at first glance, that Mr. Lewis is responsible,” said Rabbi Dayan, “but there are two reasons to exempt him.”

“Can you please explain?” asked Manny.

“A sales agent is considered a shomer sachar [paid guardian] on the merchandise he holds,” said Rabbi Dayan. “Therefore, in principle, he is responsible for theft and loss of the merchandise. This is true even if he hasn’t earned any profit yet, since he has the potential of profit from the sales.” (C.M. 185:7; 186:2; Pischei Choshen, Pikakon 1:5)

“But I kept the baskets in my house like the rest of my possessions,” said Jerry. “We’ve never had a break-in before.”

“A shomer sachar is obligated in theft even if he guards the entrusted item the same as his own property,” replied Rabbi Dayan. “He is being paid to watch extra carefully.” (303:10-11)

“Why, then, should Jerry be exempt?” asked Manny with surprise. “This seems a classic case of theft.”

“Although a shomer sachar is generally obligated in theft and is expected to watch extra carefully, he can stipulate with the owner for a lower level of responsibility,” said Rabbi Dayan. (296:5) “A number of authorities maintain that when the owner was aware of the conditions in which the merchandise would be kept, it is considered as a stipulation that such guardianship suffices. Here, you knew the baskets would be kept in the house and Mr. Lewis would go to work daily. Similarly, some exempt a sales agent if he guarded the merchandise in the customary manner of such merchandise, since this is the common business practice and expectation of the supplier.” (P.C., Pikadon 3:[53]; Divrei Geonim 95:69)

“What is the other reason to exempt?” asked Jerry.

“Although a sales agent is considered a shomer sachar on account of the expected share of profits, he is not being paid explicitly to guard the merchandise, but for his efforts in selling it,” said Rabbi Dayan. “Therefore, some authorities write that he does not carry liability when he kept the merchandise the way people regularly do, unlike a true shomer sachar who is expected to be extra careful.” (Pischei Teshuvah 303:1; P.C., Pikadon 3:[54])

“If I am exempt from the theft,” said Jerry, “I suppose Manny also has to pay my share of profits?”

“Because both reasons to exempt are subject to debate,” concluded Rabbi Dayan, “if Manny has not paid you and you do not hold any of the sales money, he can withhold payment of your profit or wages against the value of the theft.”

The two men thanked Rabbi Dayan and left the beis din.

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.

Compromise!

Thursday, February 2nd, 2012

“Fine & Feder Furniture” had been a landmark in the shopping center for decades. The two partners had opened a small store thirty years before and now ran a humongous showroom. Rumors were circulating of a breakup in the partnership, though, due to developing mistrust.

Sure enough, the bold business sign sprawled across the storefront was changed one day to read “Fine Furniture.” Shortly afterward, Mr. Fine appeared in Rabbi Dayan’s beis din with a request to summon Mr. Feder to a din Torah.

“Mr. Feder embezzled $240,000 during the last ten years of our partnership,” the claim read. “This sum needs to be factored in to the dissolution of our partnership.”

Rabbi Dayan issued a summons to Mr. Feder to appear before the beis din. Mr. Feder accepted the summons, but responded, “I did not embezzle at all. I deserve a full 50 percent share of the business.”

When the two men appeared in beis din at the outset of the litigation, Rabbi Dayan turned to them and said: “We would like to offer you the option of mediation, working toward a compromise.”

Mr. Feder was open to the idea, but Mr. Fine refused outright. “Mr. Feder embezzled $240,000 and owes me the money,” he argued. “There’s no reason for me to compromise.”

“There are often two sides to the issue,” Rabbi Dayan responded.

“As far as I’m concerned, there are no two sides,” Mr. Fine said emphatically.

“One never knows the outcome of the case,” Rabbi Dayan replied softly.

“I have no doubt in this case,” responded Mr. Fine. He demanded that the case be ruled according to the letter of the law.

The case was intricate and involved a number of sessions in the beis din. In addition to witnesses, Rabbi Dayan and his colleagues called in accountants to provide their professional perspective. Finally, Rabbi Dayan informed Mr. Fine and Mr. Feder, “We will schedule one more session for next week, in which we expect to render the final verdict.”

The following week, Mr. Fine and Mr. Feder filed into the beis din and took their seats. Mr. Fine sat upright.

Rabbi Dayan turned to him and said: “We are approaching the conclusion of the case. I would like to ask you one final time, though, if you might be open to compromise.”

“I don’t understand,” replied Mr. Fine, annoyed. “Haven’t you reached a decision already? Why are you still proposing a compromise?”

“Until the verdict is finalized, it is still proper to offer compromise,” replied Rabbi Dayan. (C.M. 12:2)

“As a beis din, I would expect you to advocate the Torah law,” said Mr. Fine. “Why do you seek compromise?”

“Mediation and compromise is also considered part of Torah law,” explained Rabbi Dayan. “There is din – the absolute legal ruling, the strict letter of the law, in the event of irreconcilable conflict. However, there is also mishpat shalom – justice that is aimed at achieving peace and reconciliation. Shalom is an ideal even loftier than din.” (Sanhedrin 6b)

“But isn’t advocating compromise unfair to the truthful party?” argued Mr. Fine. “If you already know who the winning party is, isn’t it dishonest to encourage him now to compromise?”

“Indeed, Tosfos and many other authorities maintain that once the judge knows what the ruling is, he should no longer advocate compromise,” explained Rabbi Dayan. “However, the Shulchan Aruch rules that until the verdict is issued the dayan can still advocate compromise. The Shach [12:4] supports this position, since it is a mitzvah to achieve a peaceful resolution.”

“If we’re going to compromise, though,” objected Mr. Fine, “what’s the point of getting the beis din involved? We can simply decide the split the money!”

“There are many factors to consider when mediating a compromise,” explained Rabbi Dayan. “There are often legal requirements to swear, which we try to avoid because of the severity of oaths; facts that cannot be properly verified; issues that fairness and moral responsibility may dictate, but do not carry full legal weight; issues subject to halachic dispute that are difficult to resolve completely. The compromise is meant to bring the parties to a fair, willing agreement that accounts for these factors.

“Are there guidelines regarding the amount of the compromise?” asked Mr. Fine.

“A compromise should reflect the legal ruling,” added Rabbi Dayan. “This is referred to as p’shara krova l’din, a compromise that approaches the law. Generally, this means a variance of up to one-third from the letter of the law. For example, in our dispute of $240,000, if the law leans towards the plaintiff, the suggested compromise would be to pay a sum of $160,000 or more. If the law leans in favor of the defendant, the suggested compromise would be to pay a sum of $80,000 or less.” (Pischei Teshuvah 12:3)

Bike Theft!

Friday, January 20th, 2012

“Yosef, congratulations on your graduation!” said Uncle Sam. “I want to buy you a new bike as a present.”

“Oh, thank you!” exclaimed Yosef. “The chain on my old bike keeps slipping and the brakes are going.”

Yosef and his uncle went to the bike store and chose a Schwinn 21-speed hybrid bike. “You also need a lock,” said Uncle Sam. “Get a Kryptonite U-lock.”

Yosef brought the bike home and showed it to his parents. “That was very generous of Uncle Sam,” said his mother. “You should write him a nice thank-you note.”

“Make sure to keep it locked,” said his father. “New bikes have a habit of growing feet and ‘walking’ away.’”

“I know,” laughed Yosef. “Uncle Sam also bought me a lock.”

The following day, Yosef arranged with his friend Dovid to go bike riding together. He stood his bike at the entrance to Dovid’s house and rang the bell. “I’ll be out in a minute,” said Dovid. “Come in and close the door while I put on my coat.”

Three minutes later, the two boys walked out. Yosef stopped in his tracks, pale. “What’s the matter?” Dovid asked with alarm.

“I left my bike outside your door!” exclaimed Yosef. “It’s gone! Someone stole it!” “You didn’t lock it?” asked Dovid.

“I always do,” Yosef replied. “But I didn’t think I needed to for the three minutes. What am I going to tell Uncle Sam?”

“I feel really bad,” said Dovid. “We’ll post ‘Missing’ signs around the neighborhood; maybe the bike will turn up. Meanwhile, I have an extra bike you can borrow. ”

A week later, Dovid and another friend spotted Yosef’s bike locked outside a store. They waited a few minutes and saw Jake come and unlock the bike.

Dovid walked over and grabbed the handle bar. “Hi Jake, where’d you get this new bike?” he asked.

“I…. I… I got it two weeks ago,” Jake stammered. “Why do you ask?”

“This looks like Yosef’s new bike,” Dovid said. “Someone stole it from my house a week ago.” He glared at Jake piercingly.

Jake looked down uncomfortably. “I took it from there,” he admitted quietly. “I’ll return it now. Please don’t tell Yosef.”

Dovid walked with Jake back to Yosef’s house. Jake put the bike quietly in the backyard.

A half hour later, Yosef heard a sharp “Crack!” from outside and then a bang. He looked out his window and saw that a tree had fallen down. Underneath, he spotted his new bike… mangled beyond repair. “How did the bike get here?” he cried out. Yosef called Dovid immediately. “You’ll never believe what happed!” he said excitedly. “Someone returned the bike to my backyard, but our tree broke and fell on it. It’s ruined now! I wonder who took it.”

“I have a clue,” said Dovid, “but I have to speak with Rabbi Dayan first.”

“All right,” said Yosef with a puzzled tone. “But let me know as soon as you can.”

Yosef walked over to Rabbi Dayan’s beis medrash. “Someone stole my friend’s bike,” he told Rabbi Dayan. “He returned the bike to my friend’s backyard, but a tree fell down and broke it. Is there a point in telling him who the thief was?”

“A person who steals something becomes fully responsible for it,” said Rabbi Dayan, “even if lost due to uncontrollable circumstances [ones]. The thief continues to be responsible until the item is safely returned to its owner.” (C.M. 355:1)

“Does the owner have to know it was returned?” asked Dovid.

“That depends on whether the owner knew the item was stolen,” answered Rabbi Dayan. “If the owner did not know the item was stolen, the thief is exempt once he returns the item to its place. However, if the owner knew the item was stolen, the thief remains responsible until the owner knows that the item was returned.”

“Why is there this difference?” asked Jake.

“The primary reason,” explained Rabbi Dayan, “is that the owner has to know to look after his item. If the owner was not aware of the theft, he will watch it now just as he did before the item was stolen. If he knew that it was stolen, though, he has to be made aware that the item was returned, so that he will resume looking after it [SM"A 354:1]. For example, had your friend known the bike was returned, he might have brought it inside his house.”

“So the thief remains obligated to pay for the bike?” asked Dovid.

“Yes,” said Rabbi Dayan. “If the thief doesn’t pay willingly, you should tell your friend who it was. Ideally, the thief should ask the owner for mechila, anyway.” (Rambam Hil. Teshuvah 2:5)

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.

Missing Necklace

Wednesday, January 4th, 2012

“Do you realize that it’s Shaindy’s 30th birthday in a month?” Sara asked Penina. “It’s amazing how time flies!”

“I would like to get her something special,” Penina said. “It’s not common that high-school friends are close for so long. We still talk on the phone once a week.”

“Great idea,” said Sara. “We should also include Bracha. She was her closest neighbor before Shaindy moved away.”

“What should we should get?” asked Penina.

“We could get Shaindy a set of dishes,” suggested Sara.

“I don’t know,” hesitated Penina. “I’d like something special just for her!”

“I know!” Sara’s face lit up. “My neighbor Mrs. Diamond makes jewelry. We can buy Shaindy a nice necklace.”

“Fantastic!” exclaimed Penina. “I’ll call Bracha and ask if she’s OK with the idea.”

The following day, Penina met Sara outside in the park. “I spoke with Bracha and she was eager to participate in the gift. She also said she can get the gift over to Shaindy.”

“Excellent,” replied Sara. “We’ll meet tomorrow afternoon at Mrs. Diamond and choose the necklace.”

The following day, Sara and Penina bought a necklace at Mrs. Diamond. “Shaindy will just love it,” Sara said. “It’s just her taste!”

“I’ll see Bracha next week,” said Penina. “I’ll her give the necklace so that she can get it to Shaindy.”

Penina brought the necklace over to Bracha and showed it to her. “Oh, it’s lovely,” said Bracha. “I’ll get it over to Shaindy for her birthday.”

A few weeks later, Sara and Penina were talking. “You know, it’s strange,” Sara said. “Shaindy never said anything about the necklace.”

“I know,” Penina replied. “I also spoke with Shaindy and she didn’t say anything. I finally asked if she got the necklace, and she said that she didn’t. I’ll ask Bracha what happened.”

Penina called Bracha. “Oh! I sent the gift with my neighbor, who teaches with Shaindy,” Bracha said. “I’ll check what happened.”

Bracha called her neighbor. “Did you ever give that necklace to Shaindy?” she asked. “I remember that you asked me about bringing it,” answered her friend, “but you never gave it to me in the end.”

Bracha called Penina. “My neighbor doesn’t recall that I gave her the gift to deliver to Shaindy,” she said. “I’m really sorry about the mix-up.”

Penina called Sara. “Bad news,” she said. “Bracha says she gave the necklace to her neighbor who works with Shaindy, but the neighbor claims she never received it.”

“What do we do now,” said Sara. “That necklace cost a lot of money! Bracha should have been on top of things.”

“I know,” replied Penina. “But she says she sent it to Shaindy with her neighbor.”

“Well, then, it’s her neighbor’s fault,” said Sara. “Maybe she lost it, or even worse…”

“I don’t think Bracha would give the necklace to someone who would steal it,” said Penina. “But her neighbor said that she doesn’t even recall getting the necklace. It’s very strange.”

“Someone’s got to take responsibility for the necklace,” said Sara. “The question is: Who?”

“Maybe Rabbi Dayan can help,” suggested Penina. “My husband will ask if we can meet with him in his house.”

Sara, Penina and Bracha met with Rabbi Dayan. Penina related what happened and asked, “Who is responsible for the missing necklace?”

“If Bracha informed you and Sara that she was going to send the necklace with someone,” said Rabbi Dayan, “she is not responsible for it, since she followed the arrangement and you trusted that her neighbor was reliable.” (C.M. 121:1)

“What about the neighbor?” asked Sara.

“The neighbor also cannot be held responsible,” said Rabbi Dayan, “since she denies ever having received the necklace.” (121:8)

“I have to acknowledge, though,” Bracha said with a sigh, “that I never told Sara and Penina that I was planning to deliver the necklace through my neighbor.” “In that case, you are responsible for the necklace if you cannot ascertain what happened to it,” said Rabbi Dayan. “A person who is entrusted with an item, and certainly one who is asked to deliver it, should not give it over to another, unless the other person is implicitly trusted by the owner. If he does, he carries liability if the item is lost.” (291:26; see Pischei Choshen, Pikadon 4:ftnt. 8)

“What if we trusted the neighbor?” asked Penina.

“Bracha is responsible for the necklace in our case even if you trusted her neighbor,” concluded Rabbi, “since she denies having received the necklace and Bracha cannot account for it.”

A week later, Bracha called Penina. “Guess what happened!” she said excitedly. “My cousin, who also works with Shaindy, returned the necklace to me. I must have given it to her instead and she forgot whom she was supposed to give it to!”

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.

Unauthorized Repair

Thursday, December 22nd, 2011

As Yisrael opened his garage on Friday morning, Eli was already waiting there. “I’m driving to Baltimore for Shabbos,” Eli said, “but funny things have been happening with the car recently. Can you check the battery and brakes?”

“I’ll check it first thing,” Yisrael told him. “Come back in two hours.”

Yisrael examined the car. The battery and brakes were fine, but there was a problem with the alternator. He tried calling Eli to ask whether to replace the alternator, but Eli was unavailable.

“The alternator needs to be replaced,” Yisrael reasoned. “It’s dangerous to drive to Baltimore like this, but if I wait till Eli returns it will already be too late to order the part and install it.”

Yisrael ordered the part and began working. As he was finishing the job, Eli returned. “I’m just about finished,” Yisrael told Eli. “The battery and brakes were fine, but I had to replace the alternator. I tried reaching you, but you were not available.”

Eli looked uncomfortable. “Thank you for fixing the alternator,” he said, “but I didn’t want that work done!”

“But you needed it replaced,” said Yisrael. “It wasn’t safe to drive to Baltimore like this.”

“I only asked you to check the battery and brakes,” Eli insisted. “I didn’t ask for any other work and do not want to pay. If you want, you can put the old alternator back in.”

Yisrael rolled his eyes. “At this point, I don’t have anything to do with the new alternator,” he said. “It’s not worth my time taking it out. But it’s not fair of you not to pay; the part was faulty and had to be replaced.”

“How you can do work without authorization and expect to be paid?” said Eli. “You know to call before working.”

“I always do, and did try reaching you,” Yisrael replied. “You were in such a rush this morning, though, that I thought you would want me to fix whatever was needed for you to get to Baltimore.”

“I don’t have time now,” said Eli, “but I’m willing to discuss this with Rabbi Dayan after Shabbos.”

“Agreed!” said Yisrael. “We can see him Sunday evening.”

Yisrael and Eli met with Rabbi Dayan. “I replaced a faulty alternator in Eli’s car before I had a chance to contact him,” Yisrael said. “He refuses to pay for the repair.”

“Why should I pay for work that I didn’t authorize?!” responded Eli.

“This case relates to an intricate topic called ‘yored l’sedei chaveiro shelo bir’shus,’ one who plants trees in another person’s field without authorization,” said Rabbi Dayan. “The Gemara [B.M. 101a] teaches that the owner has to pay if the work was beneficial. If the field was intended for trees, the owner has to pay the going rate for such work; if the field was not intended for trees, the owner pays a lesser amount.” (C.M. 375:1; SM”A 375:2)

“What if the owner of the field says he did not want the trees planted?” asked Eli.

“The gaonim rule that owner can say he does not want the trees,” replied Rabbi Dayan. “He can tell the planter to remove them and does not have to pay. There is a dispute, however, as to whether this applies also to a field intended for trees. The Shulchan Aruch indicates that he can say so even if the field was intended for trees, whereas the opinion of the Rama is unclear.” (C.M. 375:2,7; SM”A 375:4,14; and GR”A 375:2,17)

Rabbi Dayan continued: “The Chazon Ish [B.B. 2:3] explains that, in principle, everyone agrees the owner does not have to pay if he truly does not want the trees. The dispute exists when the owner does not seem to have a valid reason: Is he simply looking for an excuse to evade fair payment for the benefit he received? The Aruch Hashulchan (375:11) suggests a similar rationale to explain the opinion of the Rama; it depends on whether he has a valid reason for not wanting the work.”

“But if it was dangerous to drive with the faulty alternator and it needed to be replaced,” asked Yisrael, “shouldn’t Eli have to pay for it?”

“The Rama rules that if someone repaired an abandoned house the owner must pay him for essential repairs,” said Rabbi Dayan. “However, he can refuse to pay for repairs that were not essential and that he doesn’t want.” (375:7)

Rabbi Dayan concluded: “Therefore, if the repair was essential for the car, Eli has to pay the going rate even if he did not ask for it to be done. If the repair was not essential, but appropriate, it would be comparable to a field intended for trees that he can refuse to pay if he offers a valid reason.”

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.

The Ball Over The Wall

Thursday, December 8th, 2011

Mr. Marx was relaxing in his garden Sunday afternoon, savoring the remaining days of sunshine. At least he was trying to relax. From over the wall of his garden came the steady thump, thump and shouting of the local teenage boys playing basketball in the neighbor’s back yard.

Mr. Marx didn’t mind their playing ball, though the noise was disrupting to his “quiet” relaxation. However, he very much minded the frequent balls that made their way over the wall into his garden. The many failed attempts at three-point shots were a particularly sore issue.

Sometimes, the ball would land in Mr. Marx’s lap while he sat reading in the sun. Occasionally, it would land on a flowerpot or toy and break it.

At first, the boys would simply climb over the wall the retrieve their ball. “Excuse me,” they would say as they popped over the wall and landed in the Marxes’ garden. “I just have to get the ball…”

In the summer this had been non-stop. Mr. Marx finally put his foot down about this, especially since he liked to sit in his garden dressed casually. “If you need the ball, you come around the front and ask for it like a mensch,” he insisted.

Sometimes the boys wouldn’t bother and would continue playing with another ball, until it, too, made its way into Mr. Marx’s property.

Mr. Marx tried talking to the neighbor. “Could you get your kids to play elsewhere?” he said. “It’s annoying to us.” The neighbor apologized, but wasn’t particularly cooperative about stopping the boys.

Today, as Mr. Marx lay there with his eyes closed, enjoying the warmth, another ball flew over and landed right by his head.

“I’ve had enough of this!” Mr. Marx leaped up. He marched inside and got dressed. “I’m warning them that the next time the ball comes over the wall, they’re not getting it back!” he said to his wife. “I’ve told them over and over again to stop playing ball like this. They just don’t listen, and their parents don’t do anything about it.”

“I agree the neighbors are not acting properly,” said his wife, “but I’m not sure you’re allowed to do that. It is their ball.”

“Well, then what can I do?” asked Mr. Marx. “This is becoming crazy.”

“I don’t know,” replied his wife. “How about speaking with Rabbi Dayan,” she suggested. “Ask him if you can do this. Maybe you can even stop them from playing or require them to build a fence.”

Mr. Marx met with Rabbi Dayan and explained his predicament. “What can I do to alleviate this problem?” he asked. “Do I have a legal right to demand that the boys stop playing ball?”

“A person can restrain his neighbor from doing activities that damage, are a major nuisance, or to which he is particularly sensitive,” explained Rabbi Dayan. “However, ball playing does not seem to fall into these categories, even if the ball makes its way over the wall numerous times.” (C.M. 155:35-41)

“What about requiring the neighbor to construct a tall fence?” asked Mr. Marx.

“If the ball typically causes damage, it is possible to require them to do so, since a person has to take precautions not to damage another,” said Rabbi Dayan. (155:34) “However, if the ball rarely damages and the issue is primarily one of nuisance, it is not possible to require the neighbor to build a fence, although it would be proper from his end.”

“Can I threaten the boys to confiscate the ball if it falls into my garden?” asked Mr. Marx.

“You do not have a right to unilaterally confiscate the ball,” said Rabbi Dayan. “Although the ball is a nuisance to you, you cannot take it from them and have an obligation to return it, like any other lost item. In fact, the mitzvah of hashavas aveidah applies even if the person constantly loses the item a hundred times.” (267:2)

“What if I warn the parents also?” asked Mr. Marx

“If this is a recurrent issue, the parents could allow you, as an educational measure, not to return the ball,” answered Rabbi Dayan. “You can also insist that you will return the ball only to the parents.”

“What if the ball damages items in my yard?” asked Mr. Marx.

“In that case,” replied Rabbi Dayan, “you are allowed to withhold the ball until the damage is paid. This is true even nowadays that there are limitations on the beis din‘s ability to adjudicate cases of damage – torts.” (1:5)

“In any case, the boys do need to be more careful,” Rabbi Dayan concluded. “It is wrong to do something which disturbs the neighbor and is a lack of v’ahavta l’reiacha kamocha, Love your neighbor as yourself.”

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.

Damaged Value

Saturday, November 12th, 2011

The beis medrash of Yeshiva Toras Mishpat was packed. The sound of Torah resonated through the beis medrash as the students and avreichim argued over the pages of Gemara and Shulchan Aruch.

Most of the people learning sat at tables, which were often piled high with books. Every once in a while someone would bang on the table emphatically in the course of an argument with his chevrusa (study partner).

Between the tables, a number of shtenders (book stands) dotted the beis medrash. One large shtender belonged to Avrumi Klein, who would rock back and forth on it while involved in enthusiastic debate. The shtender, which was beautiful when new, was already a number of years old and had seen better days. It was still fully functional, but some of the pieces of wood were developing cracks and there were gouge marks on it from numerous falls. The colorful painting that adorned it on top was partially faded.

Mendy Blum sat at his table engrossed in a difficult sugya (topic) about which he was preparing a shiur. He jotted down a few sources and then went over to the library room to pull a few more books off the shelf. He carried the load of sefarim back to his desk.

As Mendy hurried back to his desk, he bumped with force into Avrumi’s shtender, hurling it into the sharp metal legs of the table behind. The shtender hit the legs at an angle and broke.

Mendy righted the shtender and looked at the broken pieces. The wood had splintered badly in a number of places and didn’t look like it could be reasonably fixed.

“What happened?” asked Avrumi.

“I was carrying too many books and wasn’t watching where I was going,” said Mendy. “Definitely my fault. I’ll pay you for it.”

“The question is, how much?” said Avrumi. “A new shtender like this costs $150, but it was already five years old. It doesn’t seem fair that you should pay the full amount.”

“On the other hand, you were using it fine,” said Mendy. “You could have used it many more years and wouldn’t have had to pay anything. Now you have to go buy a new one.”

“It’s still  not right to accept full price,” said Avrumi. “It’s not exactly in perfect condition. There should be some guidelines in halacha how to evaluate the damage.”

“Rabbi Dayan is sitting at his table,” said Mendy. “We can ask him; he should know.”

Mendy and Avrumi took the broken shtender over to Rabbi Dayan.

Rabbi Dayan saw them coming with the broken pieces. “Looks like there’s a case of damage here,” said Rabbi Dayan. “What happened?”

“I knocked it over,” said Mendy.” It’s clearly my fault, but the question is: How much to pay?”

“A person who damages an item is responsible to repair it, if typically repaired,” said Rabbi Dayan, “or to pay the value of the damage, if not typically repaired.” (C.M. 387:1; Shach 387:1)

“How do we evaluate the value of the damage?” asked Mendy.

“If the item was new and the damage was a total loss, it is easy to ascertain the value,” said Rabbi Dayan. “However, it is difficult to ascertain the value of a used item. Classically, the value was the item’s worth on the used-item market. The Nesivos [148:1] even suggests that a person who damages something that cannot be sold is exempt, even if of monetary worth to the owner. Others dispute this.” (Kehilos Ya’akov, B.K. #39)]

“But second-hand items are usually sold nowadays at far less than their actual value,” argued Avrumi. “People are used to buying from stores, so that even brand new, unopened items sold on eBay run at only 80 percent of their cost, and slightly used items lose significant value.”

“That is true,” said Rabbi Dayan. “Therefore, most batei din rule nowadays that we should estimate the item’s true monetary worth to its owner.”

“How can this be evaluated?” asked Mendy.

“One way is to amortize the item’s cost over time,” said Rabbi Dayan. “Thus, if the expected lifetime of an item is ten years and five years passed, it would be evaluated at roughly half its cost. [Mishpetai HaTorah I:24]. Of course, there are additional factors to consider, such as the condition of the item and the depreciation curve of this particular item.”

“What if the damaged item is not a total loss?” asked Mendy.

“Halachically, the damaged item remains property of its owner and the one who damaged is responsible only to pay the differential,” said Rabbi Dayan. “He is not required take the damaged item and replace it for the owner with a new one. This applies whether the item is still usable for its initial purpose or valuable only for its parts.”  (403:1)

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.

Printed from: http://www.jewishpress.com/judaism/halacha-hashkafa/damaged-value/2011/11/12/

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