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

Posts Tagged ‘Business Halacha Institute’

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)

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.

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.

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.

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