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October 21, 2014 / 27 Tishri, 5775
At a Glance

Posts Tagged ‘Pischei Choshen’

Overpriced!

Thursday, November 22nd, 2012

A week after Hurricane Sandy, the Blums still had no electricity. They had run extension cords to a neighbor’s house to power some basic items, like the fridge and telephone, but the protracted living without power was taking its toll on the family.

“I’ve just about had it,” Mrs. Blum said to her husband. “We need to buy a generator! I saw them in the store two weeks ago for about $750.”

Mr. Blum drove to the store but couldn’t find any generators. He inquired with the manager, who said: “I’m sorry, but we sold out last week.”

Mr. Blum tried a second and third store, but everywhere he went, the answer was the same: “We sold out last week, and won’t get restocked for at least another week.”

“We can’t keep going on like this,” Mrs. Blum said to her husband. “We’ve got to do something!”

That afternoon, Mr. Blum saw in an advertisement that someone had procured a limited stock of generators and was selling them. He immediately drove over to the address listed.

As he entered, Mr. Blum saw a sign: “The generators are being sold for $1,500 each. We apologize for the high price. No returns.”

“What?!” exclaimed Mr. Blum to the seller. “That’s twice the cost of local stores. Why so much?”

“It is much more than the stores here, but I can’t sell for the regular price,” said the seller. “I had to buy these from a store very far away and transport them here. That added a lot to my cost and labor.”

“That may account for adding 50 percent to the price,” said Mr. Blum, “but it doesn’t justify charging double!”

“I’m not interested in bargaining,” said the seller. “This is the price that I’m charging. You want to buy for $1,500, fine; you don’t want to, don’t.”

“But overcharging like that is a violation of the prohibition against ona’ah (price cheating),” argued Mr. Blum. “It even jeopardizes the validity of the sale!”

“How am I cheating you?” asked the seller. “I’m not deceiving you about the cost; I acknowledge the price is high.”

Feeling he had no choice, Mr. Blum bought the generator. On Shabbos, he met Rabbi Dayan and related what happened. “Was the seller permitted to charge way more than the generators were worth?” asked Mr. Blum.

“In general, there is a prohibition of ona’ah to overcharge an unknowing customer,” replied Rabbi Dayan. “Depending on the amount overcharged, the customer may be entitled to a refund or to cancel the purchase.” (See C.M. 247:2-4)

“What if the seller stipulates ‘No return’?” asked Mr. Blum.

“Even if the seller stipulates that the customer should have no ona’ah claim, the customer does not relinquish his legal redress if the seller did not state he is overcharging,” replied Rabbi Dayan. “However, if the seller states he is overcharging and says: ‘This item that I’m selling for 200 is worth only 100; I am selling on condition that you have no ona’ah claim’ – then the customer has no redress.” (227:21)

“Does the seller have to specify the true cost?” asked Mr. Blum. “What if he just states that he is charging more than the item is worth, on condition that there is no ona’ah claim?”

“This seems dependent on whether a person can forgo an undefined sum,” said Rabbi Dayan. “According to the Rambam one cannot, so it is necessary to specify the amounts; according to the Tur one can, so it is not necessary to specify.” (See SM”A 227:39, 232:16; P.C., Ona’ah 10:35)

“But still, is stating that the price is high sufficient to permit the seller to overcharge?” asked Mr. Blum. “What about the prohibition of ‘lo tonu‘ – do not aggrieve?”

“If the seller specifies the amount he is overcharging there is no prohibition,” answered Rabbi Dayan. “It also seems that there is no need to formally stipulate, ‘on condition…’ since the customer is clearly agreeing to forgo the amount overcharged. Since the seller is transparent about overcharging, but only willing to sell for this price, and the customer decides that it’s worthwhile for him to buy nonetheless – the seller has not cheated him.” (See Nesivos 264:8; Pischei Choshen, Ona’ah 10:34)

Price Freeze!

Wednesday, November 14th, 2012

Hurricane Sandy had knocked down the power lines to Noach’s house. After three days with no electricity, he heard that a neighbor had a spare generator.

“I’m happy to lend the generator to you, but it has no gas,” said his neighbor. “I have jerry-cans for you to fill; you’ll have to wait in line to buy gas.”

Noach had seen the lines at the gas station. The hurricane had severely disrupted fuel distribution and very few stations were open. The line of cars waiting for gas stretched many blocks. Even the line of people with jerry-cans stretched all the way around the corner.

After Noach waited five hours, it was finally his turn to fill up. He was pleasantly surprised to see that the price of gasoline was the same as before the hurricane, even though this was the only gas station operational for miles around. The government had imposed controls to prevent price gouging, requiring the stations to maintain their former prices.

Later in the week, Noach met Mr. Gassner, who operated the gas station. The storm had been a boom for his business. His team had worked hard, dispensing gas non-stop, 24 hours a day, for three days, until other stations reopened.

“It was considerate of the government to freeze the gasoline prices,” Noach commented.

Mr. Gassner, however, was furious about the price control. “It wasn’t fair that the government required us to keep regular prices,” he complained. “People were crazy to buy even a small amount of gas, and the supply was so limited. By market theory of supply and demand, I could have easily charged three times the price. People would have walked away happy that they got anything!”

Noach was surprised to hear this opposing perspective. “It would be interesting to hear what halacha has to say about this issue,” he said to Mr. Gassner.

“Do you really think halacha has what to say about this?” asked Mr. Gassner.

“I’m sure it has something to say,” said Noach. “Let’s go ask Rabbi Dayan!”

The two went over to Rabbi Dayan. “Is there any source in halacha for government regulation of prices?” Mr. Gassner asked.

“This case is reminiscent of a fascinating halacha,” said Rabbi Dayan, “which emphasizes the need for control of the market on critical items.

“The Gemara [B.B. 90a] states that a person should not earn a profit margin of more than 1/6,” explained Rabbi Dayan. “This means that if the item cost him $100, he should not sell for more than $120, which would provide a profit greater than one-sixth of the sale. This regulation is limited by the Rambam and Shulchan Aruch to items that entail chayei nefesh – staple food items – such as wine, oil, and flour.” (C.M. 231:20; Pischei Choshen, Ona’ah 14:8)

“But what about the store’s overhead and labor costs?” asked Noach. “If a store were to charge only 20 percent above its purchase cost from the supplier, it would never break even, forget about a profit!”

“The overhead is added to the cost, as well as basic consideration for time and labor,” explained Rabbi Dayan. “Thus, if the food itself cost $100, the proportional share of overhead is $20, and basic time and labor amounts to another $5 – the base cost is $125 and the store would be entitled to sell for $150.”

“But if other, non-Jewish, stores do not follow this halacha, it’s unfair to limit the individual’s profit,” argued Mr. Gassner. “They may easily mark-up 70-100 percent.”

“This halacha applies only when a beis din has control over the entire market and can force all the sellers to follow suit,” said Rabbi Dayan. “However, if the other stores sell as they please, an individual store owner is not required to curtail his profit margin.”

“What about other items?” asked Mr. Gassner. “Is there any profit limitation for gasoline?”

“The SM”A [231:36] explains that staple food items have a one-sixth limitation, as mentioned,” said Rabbi Dayan. “For items related to food preparation it is permissible to charge double the cost, and for items unrelated to food the store can charge whatever mark-up it wants.”

“So where does this leave us about the price freeze imposed on the gas?” asked Mr. Gassner. “Would halacha view this a fair regulation?”

Sandy!

Thursday, November 8th, 2012

Hurricane Sandy ploughed through the eastern seaboard, leaving devastation in its wake: mandated evacuation, flooded houses, power outages, uprooted trees, and smashed cars. The storm also raised serious questions regarded rented properties: Does a tenant have to pay rent for the time his house was affected by the storm?

Rabbi Dayan’s yeshiva was forced to remain closed for a few days due to lack of electric power. When it reopened, the students were bursting with questions, sharing the experiences of their families, spread across the affected region.

Some felt tenants should not have to pay for the time they were unable to use the house and should even get a refund if they prepaid. Others thought they should still have to pay. The dispute raged vehemently in the class.

Rabbi Dayan quieted the students. “Circumstances vary, so that it is impossible to provide a single ruling on this complex question,” he said. “The answer depends on whether the premises were unusable because of evacuation guidelines, actual damage due to water, loss of electricity due to major shutdowns, or trees falling on individual wires. If the house was rendered completely unlivable, the tenant likely does not have to continue paying rent [C.M. 312:17]. However, even if not so, it is important to introduce the concept of makkas medina, a calamity of widespread damage.”

“Where is this concept found?” asked Aryeh.

“The Mishnah [B.M. 105b] addresses the case of a person who leased a field and the grain was devoured by locust or shriveled by an intense heat wave,” answered Rabbi Dayan. “If the devastation was makkas medina, widespread devastation, he is entitled to a deduction from the rent. However, if the plague was not widespread, he must pay the full amount.”

“What constitutes a makkas medina?” asked David.

“The Gemara defines makkas medina when the majority of fields in that plain were damaged,” replied Rabbi Dayan. “The Shulchan Aruch, citing the Rambam, writes, ‘The majority of the fields of that city’ [322:1]. The rationale appears to be that if the majority of the region was affected, we cannot attribute the loss to an individual’s misfortune; otherwise, we attribute the loss to the misfortune of the renter. In a vast city, such as New York, we might treat individual neighborhoods separately.” (See also Aruch Hashulchan 312:36: “If the whole city was burned, not literally, but there was a great fire, Heaven forbid…”)

“How much of the rent can be deducted?” asked Shlomo.

“The Mishnah does not specify,” replied Rabbi Dayan. Rama [312:17] indicates that the loss is borne completely by the landlord; some suggest that it should be shared between landlord and tenant [See SM"A 321:6]. Regardless, if one person’s fields were damaged more severely than most others, we deduct more from his rent, since the event, as a whole, is determined a makkas medina.” (SM”A 322:3)

“What about fact that the tenant didn’t cancel his rental and continued to keep his possessions there?” asked Moshe.

“This is subject to a dispute between Maharam Padua and the Rama,” said Rabbi Dayan. “Maharam Padua limits the application of makkas medina to situations where the loss is already done, such as locust. However, regarding future inability to use, the renter has the right to retract; if he doesn’t, he cannot demand to retroactively deduct from his rent. The Rama, however, disagrees. He maintains that in a makkas medina the tenant is entitled to a reduction retroactively, even if did not retract [321:1]. A number of later authorities, though, side with Maharam Padua’s opinion.” (See Pischei Choshen, Sechirus 6: 29 at length.)

“What about people who evacuated, but no actual damage occurred to the houses?” asked Ephraim.

“Ketzos [322:1] cites the case of people who fled from a city because of danger but the houses were left intact,” said Rabbi Dayan. “Maharam rules that the landlord does not have to return the full amount since the house is intact and another tenant may have chosen not to evacuate. Machaneh Ephraim also rules that in such a situation, if the rent was prepaid, the tenant is not entitled to a refund. Others dispute this point.” (See P.C., Sechirus 6: 30.)

“And what about workers who were unable to work during this time?” asked Yigal.

Summer Weekend

Friday, July 27th, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Buy!

Thursday, June 14th, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Caught On Camera!

Thursday, March 29th, 2012

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

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

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

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

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

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

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

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

“How much was there?” asked the gabbai.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Screen Smasher

Wednesday, March 14th, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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