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September 18, 2014 / 23 Elul, 5774
At a Glance

Posts Tagged ‘Rabbi Dayan’

Laptop Liability

Friday, November 30th, 2012

“Hi, Levi,” said his friend Moshe. “I’ve got a project to work on for the next two months. By any chance, do you have a spare laptop you’re willing to lend for the duration?”

“Funny that you’re asking,” replied Levi. “I just bought a new laptop but am planning to keep the old one as a spare. If you want to borrow it for two months, that’s fine.”

“Great!” exclaimed Moshe appreciatively. “When can I come by for it?’

“I’m not home today,” said Levi, “but any time tomorrow would be fine.”

The following day, Moshe came by and picked up the laptop.

A week later, while Moshe was working in the library, Baruch came by to visit. “I see you got yourself a laptop,” Baruch said. “When did you buy it?”

“Actually it belongs to Levi, a friend of mine,” said Moshe. “I borrowed it for two months to work on the project.”

While they were talking, Baruch accidentally knocked the laptop off the table. It fell to the floor and cracked.

Moshe picked up the laptop and examined it. “It’s ruined,” he said to Baruch. “The laptop is smashed and cannot be repaired. You’ll have to pay me for the laptop.”

“It wasn’t your laptop,” said Baruch. “I don’t owe you anything. When Levi asks for his money, I’ll pay him. For all I know, he’s not going to ask you to pay, anyway.”

Moshe called Levi. “A friend of mine, Baruch, broke the laptop you loaned me,” he said.

“Although I bought a new laptop, I still want the old one,” said Levi. “You’ll have to pay for it.”

“Baruch ruined the laptop, though,” Moshe said to him. “Ask him for the money.”

“I don’t know Baruch; I have nothing to do with him,” replied Levi emphatically. “You borrowed the laptop, you are liable for it. Either pay or get the money from Baruch and give it to me.”

Levi contacted Baruch, “Levi said that I should get the money from you,” he said.

“You’re responsible for the laptop,” said Baruch. “After you pay Levi, I’ll pay you, not beforehand!”

Frustrated, Moshe went back to Levi. “Baruch refuses to pay me until I pay you,” he said, “but why I should pay if he damaged the laptop? I don’t have the money to lay out.”

“It’s not fair that you push me from one to the other,” said Levi. “My head is spinning! Let’s take it up with Rabbi Dayan.”

Levi and Moshe went to Rabbi Dayan. “Who is liable for the laptop?” asked Levi. “Moshe, who borrowed the laptop, or Baruch, who damaged it?”

“The Gemara (B.K. 111b) addresses a similar case,” replied Rabbi Dayan. “If someone steals an item and then another person comes along and consumes it, both are accountable to the owner. The thief is liable because he stole the item. Nonetheless, the item still belongs to its owner, so that the one who consumed it damaged his property. Therefore, the owner can collect from either party, or even partial payment from one and partial payment from the other. The same is true in your case.” (C.M. 361:5)

“But I didn’t steal anything here,” objected Moshe. “I didn’t do anything wrong.”

“True, but a borrower is accountable to the owner for his item, even if lost through uncontrollable circumstances (oness),” replied Rabbi Dayan. (C.M. 340:1) “Thus, you owe Levi. Still, since the laptop was Levi’s property, Baruch is also liable toward him, so that Levi can collect from either of you.”

“Can I demand payment of the laptop from Baruch now, or only Levi?” asked Moshe. “Does Levi owe me anything?”

“Because you are responsible to pay for the laptop, and Baruch caused you a direct loss (garmi) by breaking it, he has accountability to you also,” answered Rabbi Dayan. “On the other hand, let’s say Levi were to forgo payment, you would not be able to demand payment from Baruch, since he did not damage your laptop and did not cause you any loss.” (See Pischei Choshen, Geneivah 4:34)

“What about the fact that I don’t have use of the laptop to finish the project?” asked Moshe.

“The Nesivos (341:11) suggests a novel idea regarding this,” said Rabbi Dayan. “Since you borrowed the laptop for two months, you have a legal right to use the item for that time; Moshe could not demand it back until the two months were up. Therefore, the Nesivos maintains that the value of that usage, the laptop’s depreciation, is owed to you, the borrower – not Levi, the owner. This only applies, though, if the item’s nature and the duration of the loan are such that the usage entails an accruable depreciation of the item. (See Chukei Chaim – Hichos She’eilah 2:12; P.C., Pikadon 9:14)

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.

Bumped!

Friday, November 2nd, 2012

Rabbi Feld headed out to the airport early in the morning. He was flying to the wedding of one of his congregants, Mr. Krauss, who had purchased him a complimentary ticket. Although the wedding was scheduled for late afternoon, they had booked an early flight to allow ample time.

After checking in, Rabbi Feld sat in the boarding lounge, learning his Daf. Across the lounge, he noticed Rabbi Dayan waiting for the same flight. Rabbi Feld went over and introduced himself.

“I’m heading to a wedding in Chicago,” said Rabbi Feld. “By any chance, are you also attending?”

“No,” replied Rabbi Dayan. “I was invited to give a shiur.”

As the talked, an announcement came over the loudspeaker: “Continental flight 473 to Chicago is overbooked. There is an additional flight at 12 p.m. Passengers willing to be rescheduled to that flight will be granted a free round-trip ticket to anywhere that Continental flies. Please approach one of the Continental representatives near the boarding gate.”

Rabbi Feld couldn’t believe his ears. A free ticket to anywhere Continental flies! He could get a free round-trip ticket to Israel in exchange for a few hours’ delay. He looked at his watch. Even with the later flight, he should arrive at 3 p.m., just in time to make the wedding. “Should I risk it?” he thought to himself.

While he considered the issue, he further questioned: Since the family sponsored the ticket, perhaps they would be entitled to the bonus ticket? It was their money, after all.

A few people started heading over to the flight representatives. Rabbi Feld needed to make a quick decision. He turned to Rabbi Dayan and explained the situation. “Can I take the later flight?” he asked. “If I do, who gets the ticket?”

“Whether you can take the later flight depends on what you expect Mr. Krauss would want,” said Rabbi Dayan. “The bonus ticket would certainly belong to you, though.”

Rabbi Feld decided that it would be irresponsible to risk arriving late for the wedding, despite the potential gain.

“Thank you; I’ll keep the flight,” he said to Rabbi Dayan. “Now that we have some time, though, could you please explain the reason for what you said?”

“When a person gives a gift, we evaluate his intention in giving it,” said Rabbi Dayan. “Mr. Krauss clearly bought you a ticket so that you could participate in his simcha. Therefore, you should act with it in accordance with his intention. Presumably, he would not want you to arrive late for the wedding.” (See 241:5; 246:1)

“I probably would just be able to make it, unless there were unexpected delays,” said Rabbi Feld. “Is that acceptable?”

“The same principle applies,” replied Rabbi Dayan. “If Mr. Krauss would be willing for you to take the risk in light of the tremendous gain, it would be permitted. This would likely depend on whether you were asked to be the mesader kiddushin. If you were meant to lead the wedding or take an important role in the chuppah, presumably he would not be willing to have you take any risk; if you were just a guest – albeit an important one – he would probably concede.”

“What about the bonus ticket?” asked Rabbi Feld. “I know that in some cases an agent who bought something and received a bonus must share it with the sender who paid the money [C.M. 183:6]. Here, Mr. Krauss paid for the ticket.”

“Correct, but this does not apply here for a number of reasons,” said Rabbi Dayan. “First, the bonus ticket would be issued under your name. Rashi explains that the bonus is shared because we are unsure to whom the seller intended to give it, the sender who paid the money or the agent who executed the purchase. Accordingly, when the bonus is explicitly designated to the agent, he is entitled to it.” (Rama 183:6)

“But don’t some later authorities question this ruling?” said Rabbi Feld.

“Yes, and some suggest that an agent should share the bonus with the sender even if explicitly given to him,” said Rabbi Dayan. (See Be’er Heiteiv 183:21; S.A. Harav, Mechira #11) “However, the Rashba writes that if the agent received the bonus because he benefited the seller, everyone would agree that it belongs completely to the agent [Ketzos 183:7]. Here, the bonus ticket is not because of the initial purchase, but because you were willing to be bumped from the early flight.”

Just One Tile!

Thursday, July 12th, 2012

The Alperts needed some work done around their house. The contracted Mr. Fixler, a general handyman, to do the job.

While working on one of the fixtures, Mr. Fixler accidentally knocked his drill off the ladder. It landed with a thud on the floor of the entranceway, cracking a tile.

Mr. Fixler apologized profusely for the incident. “Obviously, I will replace the tile,” he said. “Do you have any spare tiles?”

Mr. Alpert looked around his basement for remaining tiles, but could not find any. He took the broken tile to the store from where he had purchased the tiles seven years earlier. “Do you have any of these tiles left?’ he asked. “One of ours cracked and needs to be replaced.”

“We don’t carry that style anymore,” said the salesman.

“Perhaps you have an odd box left in the warehouse?” suggested Mr. Alpert.

“I’ll check with inventory,” said the salesman, “if you can wait here fifteen minutes.”

“I’ll wait,” said Mr. Alpert.

The salesman went away and returned fifteen minutes later. “There are no more of those tiles in inventory,” he said. “That style was discontinued five years ago. I checked with some other vendors that we work with; they also don’t have any left.”

Mr. Alpert returned home. “There’s no point in having one tile that doesn’t match,” Mr. Alpert said to his wife. “We’re going to have to retile the whole entranceway.”

“If we redo a strip of complementing tiles, that should suffice,” Mrs. Alpert said. “I’ll come with you.” They went to the store and chose a box of fancy, decorative tiles. They gave the tiles to Mr. Fixler to install, along with a bill for $109.

When Mr. Fixler saw the bill for the tiles, he felt that the amount was exaggerated. “You have very expensive taste,” he commented. “I don’t need to cover that.”

“How much do you think is fair?” asked Mr. Alpert.

“I cracked just one tile,” said Mr. Fixler. “I don’t owe you more than that. I’m willing to go beyond the letter of the law and replace additional tiles, but not to pay for them.”

“We would have been very happy had you not damaged any tiles,” replied Mr. Alpert. “Consider that the broken tile was also expensive.”

“It certainly wasn’t that expensive,” argued Mr. Fixler. “Anyway, the tiles were seven years old. It also was an accident.”

“The tiles were in fine condition, though,” said Mr. Alpert. “The new tiles are only needed because of your damage. It’s not fair that we should have to pay.”

“How about letting Rabbi Dayan settle this?” suggested Mr. Fixler.

“Great idea!” responded Mr. Alpert. “Let’s do that!”

The two met with Rabbi Dayan. “A worker who damages in the course of his work, even unintentionally, is required to repair or compensate for the damage, like any other person,” said Rabbi Dayan. “Therefore, you are certainly liable for the damaged tile.” (C.M. 378:1; 306:4)

“I understand, but does that require me to pay anything beyond the one cracked tile?” asked Mr. Fixler. “To replace this one tile we are installing a whole strip.”

“It can, since the primary obligation of damage is to restore the item to its former use,” answered Rabbi Dayan. “Therefore, if replacing the damaged tile requires uprooting and replacing a few additional, adjacent tiles – they are also included in the liability. Also, tiles are sold as a whole box, not singly.” (See Shach 387:1; Chazon Ish, B.K. 6:3)

“What about the fact that the tiles were old, though?” asked Mr. Fixler. “Also, the decorative strip looks nicer than the original simple flooring. The original box of tiles would cost no more than $50 had it been available!”

“If the repair adds value, the owner needs to absorb part of the cost,” replied Rabbi Dayan. “For example, if a worker broke an old sink and it was replaced with a new one, he is liable for the cost of installation and the proportional worth of the old sink; the owner is responsible for the differential in worth between the new sink and the old one.” (See Mishpetai HaTorah I:24)

“But we cannot restore the actual damage here,” said Mr. Alpert. “The original tiles are not available. The only way to make it aesthetically pleasing was by adding decorative tiles.”

Unauthorized Repair

Thursday, December 22nd, 2011

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Printed from: http://www.jewishpress.com/judaism/halacha-hashkafa/unauthorized-repair/2011/12/22/

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