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Posts Tagged ‘Rabbi Meir Orlian’

Sealed Envelope

Wednesday, June 27th, 2012

Mr. Meyers scurried around the wedding hall, making sure everything was properly in place; his son was getting married. “Could you please watch this envelope?” he asked his close friend, Mr. Koenig.

“Sure, no problem,” Mr. Koenig answered, taking the envelope.

Toward the end of the wedding, Mr. Meyers asked his friend for the envelope. Mr. Koenig reached into his shirt pocket for it but found nothing. He checked his other pockets, but still no envelope. “I know I put the envelope in my shirt pocket,” he said. “It must have fallen out during the dancing. What was in it?”

“There was over $3,000 cash to pay tips and other expenses,” Mr. Meyers said.

“You’re kidding me!” exclaimed Mr. Koenig. “You didn’t tell me there was money in the envelope.”

“I didn’t think it was necessary to tell you what it contained,” said Mr. Meyers. “Anyway, I assumed you would realize it was money.”

“I’ll check with the office whether anyone found an envelope,” said Mr. Koenig. He went to the office, but the manager said, “Nobody brought in an envelope.”

“I really had no idea what the envelope contained,” said Mr. Koenig.

“What, you don’t trust me?!” said Mr. Meyers. “I’m telling you there was over $3,000 cash in it.”

“I’m not denying what you say,” said Mr. Koenig. “However, if you want me to pay, you need some evidence. Furthermore, even if you’re right, I’m not sure I have to pay the $3,000, since you never told me there was cash in the envelope!”

“I don’t see why not,” replied Mr. Meyers. “If you agreed to watch the envelope, you are responsible for whatever it contained.”

“On the other hand, I’m a shomer chinam (unpaid guardian),” argued Mr. Koenig. “I’m not responsible for loss anyway.”

“There are different kinds of loss,” countered Mr. Meyers. “If it fell out while dancing, that seems like negligence to me. I need the money to cover the expenses of the wedding.”

“I saw Rabbi Dayan here earlier,” said Mr. Koenig. “Is he still here?”

“He’s seated at table 24, over there,” replied Mr. Meyers. “If he’s still here we can ask him.”

The two walked towards table 24. “Yes, I see he’s still there,” said Mr. Koenig. When Rabbi Dayan saw Mr. Meyers walking toward him, he greeted him. “Mazal Tov, Mr. Meyers! What a beautiful simcha,” he said. “May you be zocheh to true yiddishe nachas from the couple.”

“Amen, thank you,” replied Mr. Meyers. “I have an issue here with my friend, though, if you could help us.”

“Certainly,” offered Rabbi Dayan. “Have a seat.”

The two sat down. Mr. Meyers related what happened, and claimed Mr. Koenig owed him the $3,000 that was in the envelope. Mr. Koenig responded that he didn’t feel he needed to pay, for a number of reasons.

“What a fascinating case,” replied Rabbi Dayan. “Let’s go through the issues one by one.”

“Even an unpaid guardian is responsible if he lost the entrusted item through negligence,” said Rabbi Dayan. “Placing the envelope in a deep, secure jacket pocket would seem acceptable under the circumstances. However, in a shirt pocket, where it can easily fall out, is considered negligence.” (Pischei Teshuvah C.M. 291:5,8) “What about the fact that I had no idea what was entrusted?” asked Mr. Koenig.

“When the owner misrepresented the contents, the guardian only has to pay the value of what he agreed to watch,” answered Rabbi Dayan. (291:4) “For example, had Mr. Meyers told you it was just some receipts or a check, you would not have to pay the $3,000, even if he had evidence it contained cash. However, if the contents were not specified, you accepted responsibility for whatever was inside.”

“But how do I know what was inside?” Mr. Koenig asked. “There’s no evidence at all! Do I have to pay without evidence?”

“If you trust Mr. Meyers’s word completely, you must pay even if he does not bring evidence,” said Rabbi Dayan. “If you doubt his word, the Shulchan Aruch rules that when the guardian was negligent the owner should swear what was entrusted and collect that amount, if reasonable. This is included in takanas nigzal.” (90:10; Shach 90:16) “What if Mr. Koenig knew there was money in the envelope, but didn’t know how much?” asked Mr. Meyers.

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.”

Paying a Professional, And For His Courtesy Too

Wednesday, February 29th, 2012

Harry called Sholom’s Car Service. “I’ve got a flight tonight at 11:30 p.m.,” he said to Sholom. “Can you take me to the airport?”

“Yes,” said Sholom. “When should I pick you up?”

“Eight-thirty should be fine,” Harry said. “The drive is under an hour, and figure two hours before the flight.”

“Let’s make it eight to leave extra time,” suggested Sholom.

“Fine,” agreed Harry.

At 8 p.m. Sholom arrived. Harry loaded his suitcases, wished his family, “Good bye,” and got in the car.

As Sholom headed toward the airport, he listened to the traffic report. “No particular problems,” he said to Harry.

On the entrance ramp for the bridge, however, traffic suddenly came to a total standstill.

“You spoke too soon,” said Harry. “What happened?”

Sholom turned the news on. “The bridge was just closed due to a fatal accident involving four cars,” the reporter announced.

“It’s good we built in extra time,” Harry said to Sholom.

It took a full hour before traffic started moving. Even so, traffic crawled slowly through one lane. Harry looked at his watch nervously. “I hope I can still make the flight,” he said.

It took almost another hour until they passed the accident and traffic began flowing smoothly. Sholom raced to the airport and got there at 10:45. “There’s still a chance I can catch the flight,” Harry said.

Sholom helped Harry unload his luggage. “I’ll wait here half-an-hour,” he said. “If you missed the flight, call me and I’ll drive you home.”

Harry went made his way to the departures area. He located his flight, but the check-in desk was already closed.

“I’m scheduled for the 11:30 flight,” he told one of the security personnel. “Is there a way to get inside?”

“I’m sorry,” he replied, “but they closed check-in fifteen ago,” he replied.

Harry tried speaking to one of the airline representatives. “I’m sorry,” she said. “Boarding is underway, and the flight was already filled. You’ll have to reschedule.”

Harry called Sholom. “I missed the flight,” he said. “I’ll have to head home with you.” “I’ll be back around in two minutes,” Sholom said.

Sholom pulled up. He loaded the bags back into the car and drove back. When they arrived, Sholom said: “That will be another fifty dollars for the return drive.”

Harry looked up, surprised. “You didn’t tell me that this would also cost.”

“You paid me just for the drive there, which took much longer than expected,” Sholom said. “Wouldn’t you have to pay for a taxi home?”

“But you had to return anyway,” said Harry irately. “If anything, you should refund the money for the ride to the airport; you didn’t get me there in time for the flight!”

“It’s not my fault that the bridge got closed,” said Sholom. “I picked you up on time and drove as best I could.”

“Well, it’s not my fault either,” said Harry. “I’m not paying another penny without consulting Rabbi Dayan about both rides tomorrow.”

The following day, Harry and Sholom went to Rabbi Dayan and asked about payment for the rides.

“When someone completes his job faithfully you must pay him fully, even if no benefit comes from the work,” Rabbi Dayan said. “For example, if a person ordered a delivery of medicine for a critically ill patient, and the person died or recovered meanwhile, the driver must be paid. Therefore, Harry must pay for the ride to the airport even though he missed the flight.” (C.M. 335:3)

“What about payment for the return ride?” asked Harry. “Sholom offered to drive me back and never said he would charge me. I assumed he meant to drive me as a courtesy.”

“When a person, especially a professional, offers his services to another we do not assume he meant to do it for free, unless circumstances clearly indicate so,” said Rabbi Dayan. (Rama 264:4) “Therefore, if Sholom did not indicate that he intended to drive you as a courtesy, he can charge you for the return trip.”

“But Sholom had to return anyway; it cost him nothing,” argued Harry. “Isn’t this a case of zeh neheneh v’zeh lo cha’ser (this one gained and the other didn’t lose), for which one is exempt?”

“The exemption of zeh neheneh v’zeh lo cha’ser doesn’t apply here for a few reasons,” explained Rabbi Dayan. “First of all, Sholom drove you with the intention of getting paid. Second, he could have picked up another passenger on the way home, were you not with him. Third, he had to wait for half-an-hour and also drove you to your door; if there is even a small additional loss or cost, you have to pay the full amount for the benefit you received.” (363:6-7)

Harry took out $50 and gave it to Shalom.

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

A Sweet Sales Agent

Wednesday, February 15th, 2012

Purim was less than a month away. Advertisements for Mishloach Manos baskets sprouted on the shul bulletin board. The most prominent ad depicted various mouthwatering baskets, with prices to match:

“Make Purim Memorable! Manny’s Magnificent Mehadrin Mishloach Manos offers a range of baskets to suit every taste and budget. Your shul representative is Mr. Jerry Lewis. Please place orders by Rosh Chodesh Adar to ensure timely delivery.”

A week before Purim, Manny brought 250 baskets of Mishloach Manos to Jerry’s house. “We’ll put them over there in the corner of the living room,” Jerry said. The two men unloaded the baskets into the house.

“Manny’s Mishloach Manos baskets have arrived,” Jerry announced in shul. “Orders can be picked up from me 7-10 p.m.”

During the following days most of the baskets were collected. Jerry looked forward to receiving 20 percent of the sales profits from Manny in payment for his efforts.

Three days before Purim, Jerry came home from work in the afternoon. He grew concerned when he saw one of the windows was open. He entered the house and saw that the remaining Mishloach Manos baskets were gone.

Jerry called Manny to inform him of the theft. “Our house was broken into,” he said. “Fifty baskets of Mishloach Manos were stolen!”

“I can’t believe it!” exclaimed Manny. “That’s a thousand dollars’ worth of baskets. Did you keep the house locked?”

“Yes, the door and windows were locked,” said Jerry. “The thief pried open a window.”

“It’s a shame there weren’t window gates,” replied Manny. “Who’s going to pay for this?”

“I suggest we let Rabbi Dayan work this one out for us,” replied Jerry.

The two came before Rabbi Dayan. “We have an unfortunate case to discuss,” Manny said. “Mr. Lewis agreed to sell Mishloach Manos baskets for 20 percent profit, but some baskets were stolen from his house. Is he responsible for them?”

“Was the house properly locked?” asked Rabbi Dayan.

“Of course,” said Jerry. “The thief pried open one of the windows.”

Rabbi Dayan turned to Manny: “Were you aware that the baskets were being kept in the living room?”

“Yes,” answered Manny. “I unloaded the baskets there.”

“It might seem, at first glance, that Mr. Lewis is responsible,” said Rabbi Dayan, “but there are two reasons to exempt him.”

“Can you please explain?” asked Manny.

“A sales agent is considered a shomer sachar [paid guardian] on the merchandise he holds,” said Rabbi Dayan. “Therefore, in principle, he is responsible for theft and loss of the merchandise. This is true even if he hasn’t earned any profit yet, since he has the potential of profit from the sales.” (C.M. 185:7; 186:2; Pischei Choshen, Pikakon 1:5)

“But I kept the baskets in my house like the rest of my possessions,” said Jerry. “We’ve never had a break-in before.”

“A shomer sachar is obligated in theft even if he guards the entrusted item the same as his own property,” replied Rabbi Dayan. “He is being paid to watch extra carefully.” (303:10-11)

“Why, then, should Jerry be exempt?” asked Manny with surprise. “This seems a classic case of theft.”

“Although a shomer sachar is generally obligated in theft and is expected to watch extra carefully, he can stipulate with the owner for a lower level of responsibility,” said Rabbi Dayan. (296:5) “A number of authorities maintain that when the owner was aware of the conditions in which the merchandise would be kept, it is considered as a stipulation that such guardianship suffices. Here, you knew the baskets would be kept in the house and Mr. Lewis would go to work daily. Similarly, some exempt a sales agent if he guarded the merchandise in the customary manner of such merchandise, since this is the common business practice and expectation of the supplier.” (P.C., Pikadon 3:[53]; Divrei Geonim 95:69)

“What is the other reason to exempt?” asked Jerry.

“Although a sales agent is considered a shomer sachar on account of the expected share of profits, he is not being paid explicitly to guard the merchandise, but for his efforts in selling it,” said Rabbi Dayan. “Therefore, some authorities write that he does not carry liability when he kept the merchandise the way people regularly do, unlike a true shomer sachar who is expected to be extra careful.” (Pischei Teshuvah 303:1; P.C., Pikadon 3:[54])

“If I am exempt from the theft,” said Jerry, “I suppose Manny also has to pay my share of profits?”

“Because both reasons to exempt are subject to debate,” concluded Rabbi Dayan, “if Manny has not paid you and you do not hold any of the sales money, he can withhold payment of your profit or wages against the value of the theft.”

The two men thanked Rabbi Dayan and left the beis din.

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

Compromise!

Thursday, February 2nd, 2012

“Fine & Feder Furniture” had been a landmark in the shopping center for decades. The two partners had opened a small store thirty years before and now ran a humongous showroom. Rumors were circulating of a breakup in the partnership, though, due to developing mistrust.

Sure enough, the bold business sign sprawled across the storefront was changed one day to read “Fine Furniture.” Shortly afterward, Mr. Fine appeared in Rabbi Dayan’s beis din with a request to summon Mr. Feder to a din Torah.

“Mr. Feder embezzled $240,000 during the last ten years of our partnership,” the claim read. “This sum needs to be factored in to the dissolution of our partnership.”

Rabbi Dayan issued a summons to Mr. Feder to appear before the beis din. Mr. Feder accepted the summons, but responded, “I did not embezzle at all. I deserve a full 50 percent share of the business.”

When the two men appeared in beis din at the outset of the litigation, Rabbi Dayan turned to them and said: “We would like to offer you the option of mediation, working toward a compromise.”

Mr. Feder was open to the idea, but Mr. Fine refused outright. “Mr. Feder embezzled $240,000 and owes me the money,” he argued. “There’s no reason for me to compromise.”

“There are often two sides to the issue,” Rabbi Dayan responded.

“As far as I’m concerned, there are no two sides,” Mr. Fine said emphatically.

“One never knows the outcome of the case,” Rabbi Dayan replied softly.

“I have no doubt in this case,” responded Mr. Fine. He demanded that the case be ruled according to the letter of the law.

The case was intricate and involved a number of sessions in the beis din. In addition to witnesses, Rabbi Dayan and his colleagues called in accountants to provide their professional perspective. Finally, Rabbi Dayan informed Mr. Fine and Mr. Feder, “We will schedule one more session for next week, in which we expect to render the final verdict.”

The following week, Mr. Fine and Mr. Feder filed into the beis din and took their seats. Mr. Fine sat upright.

Rabbi Dayan turned to him and said: “We are approaching the conclusion of the case. I would like to ask you one final time, though, if you might be open to compromise.”

“I don’t understand,” replied Mr. Fine, annoyed. “Haven’t you reached a decision already? Why are you still proposing a compromise?”

“Until the verdict is finalized, it is still proper to offer compromise,” replied Rabbi Dayan. (C.M. 12:2)

“As a beis din, I would expect you to advocate the Torah law,” said Mr. Fine. “Why do you seek compromise?”

“Mediation and compromise is also considered part of Torah law,” explained Rabbi Dayan. “There is din – the absolute legal ruling, the strict letter of the law, in the event of irreconcilable conflict. However, there is also mishpat shalom – justice that is aimed at achieving peace and reconciliation. Shalom is an ideal even loftier than din.” (Sanhedrin 6b)

“But isn’t advocating compromise unfair to the truthful party?” argued Mr. Fine. “If you already know who the winning party is, isn’t it dishonest to encourage him now to compromise?”

“Indeed, Tosfos and many other authorities maintain that once the judge knows what the ruling is, he should no longer advocate compromise,” explained Rabbi Dayan. “However, the Shulchan Aruch rules that until the verdict is issued the dayan can still advocate compromise. The Shach [12:4] supports this position, since it is a mitzvah to achieve a peaceful resolution.”

“If we’re going to compromise, though,” objected Mr. Fine, “what’s the point of getting the beis din involved? We can simply decide the split the money!”

“There are many factors to consider when mediating a compromise,” explained Rabbi Dayan. “There are often legal requirements to swear, which we try to avoid because of the severity of oaths; facts that cannot be properly verified; issues that fairness and moral responsibility may dictate, but do not carry full legal weight; issues subject to halachic dispute that are difficult to resolve completely. The compromise is meant to bring the parties to a fair, willing agreement that accounts for these factors.

“Are there guidelines regarding the amount of the compromise?” asked Mr. Fine.

“A compromise should reflect the legal ruling,” added Rabbi Dayan. “This is referred to as p’shara krova l’din, a compromise that approaches the law. Generally, this means a variance of up to one-third from the letter of the law. For example, in our dispute of $240,000, if the law leans towards the plaintiff, the suggested compromise would be to pay a sum of $160,000 or more. If the law leans in favor of the defendant, the suggested compromise would be to pay a sum of $80,000 or less.” (Pischei Teshuvah 12:3)

Bike Theft!

Friday, January 20th, 2012

“Yosef, congratulations on your graduation!” said Uncle Sam. “I want to buy you a new bike as a present.”

“Oh, thank you!” exclaimed Yosef. “The chain on my old bike keeps slipping and the brakes are going.”

Yosef and his uncle went to the bike store and chose a Schwinn 21-speed hybrid bike. “You also need a lock,” said Uncle Sam. “Get a Kryptonite U-lock.”

Yosef brought the bike home and showed it to his parents. “That was very generous of Uncle Sam,” said his mother. “You should write him a nice thank-you note.”

“Make sure to keep it locked,” said his father. “New bikes have a habit of growing feet and ‘walking’ away.’”

“I know,” laughed Yosef. “Uncle Sam also bought me a lock.”

The following day, Yosef arranged with his friend Dovid to go bike riding together. He stood his bike at the entrance to Dovid’s house and rang the bell. “I’ll be out in a minute,” said Dovid. “Come in and close the door while I put on my coat.”

Three minutes later, the two boys walked out. Yosef stopped in his tracks, pale. “What’s the matter?” Dovid asked with alarm.

“I left my bike outside your door!” exclaimed Yosef. “It’s gone! Someone stole it!” “You didn’t lock it?” asked Dovid.

“I always do,” Yosef replied. “But I didn’t think I needed to for the three minutes. What am I going to tell Uncle Sam?”

“I feel really bad,” said Dovid. “We’ll post ‘Missing’ signs around the neighborhood; maybe the bike will turn up. Meanwhile, I have an extra bike you can borrow. ”

A week later, Dovid and another friend spotted Yosef’s bike locked outside a store. They waited a few minutes and saw Jake come and unlock the bike.

Dovid walked over and grabbed the handle bar. “Hi Jake, where’d you get this new bike?” he asked.

“I…. I… I got it two weeks ago,” Jake stammered. “Why do you ask?”

“This looks like Yosef’s new bike,” Dovid said. “Someone stole it from my house a week ago.” He glared at Jake piercingly.

Jake looked down uncomfortably. “I took it from there,” he admitted quietly. “I’ll return it now. Please don’t tell Yosef.”

Dovid walked with Jake back to Yosef’s house. Jake put the bike quietly in the backyard.

A half hour later, Yosef heard a sharp “Crack!” from outside and then a bang. He looked out his window and saw that a tree had fallen down. Underneath, he spotted his new bike… mangled beyond repair. “How did the bike get here?” he cried out. Yosef called Dovid immediately. “You’ll never believe what happed!” he said excitedly. “Someone returned the bike to my backyard, but our tree broke and fell on it. It’s ruined now! I wonder who took it.”

“I have a clue,” said Dovid, “but I have to speak with Rabbi Dayan first.”

“All right,” said Yosef with a puzzled tone. “But let me know as soon as you can.”

Yosef walked over to Rabbi Dayan’s beis medrash. “Someone stole my friend’s bike,” he told Rabbi Dayan. “He returned the bike to my friend’s backyard, but a tree fell down and broke it. Is there a point in telling him who the thief was?”

“A person who steals something becomes fully responsible for it,” said Rabbi Dayan, “even if lost due to uncontrollable circumstances [ones]. The thief continues to be responsible until the item is safely returned to its owner.” (C.M. 355:1)

“Does the owner have to know it was returned?” asked Dovid.

“That depends on whether the owner knew the item was stolen,” answered Rabbi Dayan. “If the owner did not know the item was stolen, the thief is exempt once he returns the item to its place. However, if the owner knew the item was stolen, the thief remains responsible until the owner knows that the item was returned.”

“Why is there this difference?” asked Jake.

“The primary reason,” explained Rabbi Dayan, “is that the owner has to know to look after his item. If the owner was not aware of the theft, he will watch it now just as he did before the item was stolen. If he knew that it was stolen, though, he has to be made aware that the item was returned, so that he will resume looking after it [SM"A 354:1]. For example, had your friend known the bike was returned, he might have brought it inside his house.”

“So the thief remains obligated to pay for the bike?” asked Dovid.

“Yes,” said Rabbi Dayan. “If the thief doesn’t pay willingly, you should tell your friend who it was. Ideally, the thief should ask the owner for mechila, anyway.” (Rambam Hil. Teshuvah 2:5)

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

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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