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April 20, 2014 / 20 Nisan, 5774
At a Glance

Posts Tagged ‘Pischei Choshen’

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.

Forgotten Fill-Up

Thursday, November 24th, 2011

“We are pleased to announce we have been donated a car for communal use,” read the sign in Kollel Mishpat. “Members of the Kollel can use the car g’mach, as available, in coordination with Dani.”

“Wow!” said Yossi. “How much is usage?”

“The charge is 50 cents per mile, to cover gasoline and wear and tear,” said Dani. “Payment is due immediately upon returning the car. If you fill up with gas, the g’mach will refund you that amount.”

“I have an appointment next Tuesday afternoon,” said Yossi. “Is the car available then?”

“Yes,” said Dani. “I’ll write you down.”

Yossi picked up the keys on Tuesday afternoon. “I should be back in about five hours,” he said.

“There’s not much gas in the car,” said Dani. “You’ll probably have to add gas on the way home.”

Yossi drove to his appointment 30 miles away. On the way home, he pulled into the gas station.

“How much gas should I put in?” Yossi thought to himself. He checked his wallet. “I’ve only got $40 cash. Should I put in $10, $20, or $30?” After deliberating a moment, he paid the attendant and proceeded to the pump.

When Yossi came home, his wife said, “While you have the car, there are a few more errands to do.”

Yossi returned just before Minchah. He gave the keys to Dani, and said, “I’ve got to run to minchah now! We’ll settle later.”

A month later, Dani gave Yossi a call. “I was reviewing the car log,” he said. “You drove 60 miles, which is $30, but no payment was listed.”

“You’re right,” Yossi apologized, “I forgot to take care of it, but I purchased gas.”

“That’s fine,” said Dani. “We reimburse for that. How much did you put in?”

“It’s funny, but I don’t remember anymore,” said Yossi. “I remember debating, though, whether to put in 10, 20, or 30 dollars.” He tried very hard to jar his memory, but couldn’t.

“It’s a pity you didn’t pay on time, like you were supposed to,” said Dani. “Then we wouldn’t have had this problem. Ask Rabbi Dayan how to deal with this.”

Yossi called Rabbi Dayan. “I owe the car g’mach $30, but purchased gas on the way home,” he said. “I don’t remember, though, whether I added $10, $20 or $30. Should I assume the least, most, or middle amount?”

“This issue seems to be an intricate dispute between the Ketzos Hachoshen and the Nesivos Hamishpat,” said Rabbi Dayan, “although there is an additional factor here.”

“Oh?” said Yossi. “I didn’t think it would be so complicated.”

“In general, when neither the lender nor the borrower remembers whether the loan was repaid,” explained Rabbi Dayan, “the person cannot be made to pay in beis din, and there is even a dispute whether he has a moral obligation to pay, latzeis yedei shamayim.” (See Taz 75:10; Shach 75:65-67; Pischei Teshuvah 75:21)

“This seems to be our case,” said Yossi. “Neither of us knows whether I repaid the loan by purchasing the gasoline.”

“It seems so at first,” said Rabbi Dayan, “but our case is somewhat different.”

“In what way?” asked Yossi.

“In our case, you have a definite obligation of $30 for using the car, which you did not repay, and there is a possible counter obligation of $10-30 for the gas you bought,” said Rabbi Dayan. “The Ketzos Hachosen [75:5] differentiates between a possible repayment and a counter obligation. When there are two counterclaims, the Ketzos reasons that we treat each obligation independently. The obligation of $30 is clear, whereas the counter obligation for the gasoline is questionable, so that we have to assume the minimal amount of $10. As such you remain obligated for $20.”

“You mentioned that the Nesivos argues,” said Yossi.

“Yes. The Nesivos Hamishpat [75:5] reasons that the counter obligation is considered a form of repayment,” said Rabbi Dayan. “As such, this case is also considered one of possible repayment where neither party knows, so that there remains, at most, a moral obligation.”

“Nonetheless, in this particular case, there is an additional reason to obligate you,” concluded Rabbi Dayan. “This is because the uncertainty arose because of your negligence. In a normal situation where neither the borrower nor the lender remembers whether the loan was repaid, both parties are equally at fault. Furthermore, it is understandable that people sometimes forget.

“Here, however, had you paid in a timely manner according to the rules, you would have known how much you spent on gas. Only because you delayed so much did the doubt arise, so that you cannot hide behind the veil of forgetfulness. Therefore, you can assume only the lower amount of $10, and must repay the remaining $20.” (See Pischei Choshen, Halva’ah, ch. 2, note 78; Nesivos 75:5)

Printed from: http://www.jewishpress.com/judaism/halacha-hashkafa/forgotten-fill-up/2011/11/24/

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