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September 17, 2014 / 22 Elul, 5774
At a Glance

Posts Tagged ‘Business Weekly’

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.”

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.

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