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April 19, 2014 / 19 Nisan, 5774
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Posts Tagged ‘Rabbi Meir Orlian’

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.

The Ball Over The Wall

Thursday, December 8th, 2011

Mr. Marx was relaxing in his garden Sunday afternoon, savoring the remaining days of sunshine. At least he was trying to relax. From over the wall of his garden came the steady thump, thump and shouting of the local teenage boys playing basketball in the neighbor’s back yard.

Mr. Marx didn’t mind their playing ball, though the noise was disrupting to his “quiet” relaxation. However, he very much minded the frequent balls that made their way over the wall into his garden. The many failed attempts at three-point shots were a particularly sore issue.

Sometimes, the ball would land in Mr. Marx’s lap while he sat reading in the sun. Occasionally, it would land on a flowerpot or toy and break it.

At first, the boys would simply climb over the wall the retrieve their ball. “Excuse me,” they would say as they popped over the wall and landed in the Marxes’ garden. “I just have to get the ball…”

In the summer this had been non-stop. Mr. Marx finally put his foot down about this, especially since he liked to sit in his garden dressed casually. “If you need the ball, you come around the front and ask for it like a mensch,” he insisted.

Sometimes the boys wouldn’t bother and would continue playing with another ball, until it, too, made its way into Mr. Marx’s property.

Mr. Marx tried talking to the neighbor. “Could you get your kids to play elsewhere?” he said. “It’s annoying to us.” The neighbor apologized, but wasn’t particularly cooperative about stopping the boys.

Today, as Mr. Marx lay there with his eyes closed, enjoying the warmth, another ball flew over and landed right by his head.

“I’ve had enough of this!” Mr. Marx leaped up. He marched inside and got dressed. “I’m warning them that the next time the ball comes over the wall, they’re not getting it back!” he said to his wife. “I’ve told them over and over again to stop playing ball like this. They just don’t listen, and their parents don’t do anything about it.”

“I agree the neighbors are not acting properly,” said his wife, “but I’m not sure you’re allowed to do that. It is their ball.”

“Well, then what can I do?” asked Mr. Marx. “This is becoming crazy.”

“I don’t know,” replied his wife. “How about speaking with Rabbi Dayan,” she suggested. “Ask him if you can do this. Maybe you can even stop them from playing or require them to build a fence.”

Mr. Marx met with Rabbi Dayan and explained his predicament. “What can I do to alleviate this problem?” he asked. “Do I have a legal right to demand that the boys stop playing ball?”

“A person can restrain his neighbor from doing activities that damage, are a major nuisance, or to which he is particularly sensitive,” explained Rabbi Dayan. “However, ball playing does not seem to fall into these categories, even if the ball makes its way over the wall numerous times.” (C.M. 155:35-41)

“What about requiring the neighbor to construct a tall fence?” asked Mr. Marx.

“If the ball typically causes damage, it is possible to require them to do so, since a person has to take precautions not to damage another,” said Rabbi Dayan. (155:34) “However, if the ball rarely damages and the issue is primarily one of nuisance, it is not possible to require the neighbor to build a fence, although it would be proper from his end.”

“Can I threaten the boys to confiscate the ball if it falls into my garden?” asked Mr. Marx.

“You do not have a right to unilaterally confiscate the ball,” said Rabbi Dayan. “Although the ball is a nuisance to you, you cannot take it from them and have an obligation to return it, like any other lost item. In fact, the mitzvah of hashavas aveidah applies even if the person constantly loses the item a hundred times.” (267:2)

“What if I warn the parents also?” asked Mr. Marx

“If this is a recurrent issue, the parents could allow you, as an educational measure, not to return the ball,” answered Rabbi Dayan. “You can also insist that you will return the ball only to the parents.”

“What if the ball damages items in my yard?” asked Mr. Marx.

“In that case,” replied Rabbi Dayan, “you are allowed to withhold the ball until the damage is paid. This is true even nowadays that there are limitations on the beis din‘s ability to adjudicate cases of damage – torts.” (1:5)

“In any case, the boys do need to be more careful,” Rabbi Dayan concluded. “It is wrong to do something which disturbs the neighbor and is a lack of v’ahavta l’reiacha kamocha, Love your neighbor as yourself.”

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.

Damaged Value

Saturday, November 12th, 2011

The beis medrash of Yeshiva Toras Mishpat was packed. The sound of Torah resonated through the beis medrash as the students and avreichim argued over the pages of Gemara and Shulchan Aruch.

Most of the people learning sat at tables, which were often piled high with books. Every once in a while someone would bang on the table emphatically in the course of an argument with his chevrusa (study partner).

Between the tables, a number of shtenders (book stands) dotted the beis medrash. One large shtender belonged to Avrumi Klein, who would rock back and forth on it while involved in enthusiastic debate. The shtender, which was beautiful when new, was already a number of years old and had seen better days. It was still fully functional, but some of the pieces of wood were developing cracks and there were gouge marks on it from numerous falls. The colorful painting that adorned it on top was partially faded.

Mendy Blum sat at his table engrossed in a difficult sugya (topic) about which he was preparing a shiur. He jotted down a few sources and then went over to the library room to pull a few more books off the shelf. He carried the load of sefarim back to his desk.

As Mendy hurried back to his desk, he bumped with force into Avrumi’s shtender, hurling it into the sharp metal legs of the table behind. The shtender hit the legs at an angle and broke.

Mendy righted the shtender and looked at the broken pieces. The wood had splintered badly in a number of places and didn’t look like it could be reasonably fixed.

“What happened?” asked Avrumi.

“I was carrying too many books and wasn’t watching where I was going,” said Mendy. “Definitely my fault. I’ll pay you for it.”

“The question is, how much?” said Avrumi. “A new shtender like this costs $150, but it was already five years old. It doesn’t seem fair that you should pay the full amount.”

“On the other hand, you were using it fine,” said Mendy. “You could have used it many more years and wouldn’t have had to pay anything. Now you have to go buy a new one.”

“It’s still  not right to accept full price,” said Avrumi. “It’s not exactly in perfect condition. There should be some guidelines in halacha how to evaluate the damage.”

“Rabbi Dayan is sitting at his table,” said Mendy. “We can ask him; he should know.”

Mendy and Avrumi took the broken shtender over to Rabbi Dayan.

Rabbi Dayan saw them coming with the broken pieces. “Looks like there’s a case of damage here,” said Rabbi Dayan. “What happened?”

“I knocked it over,” said Mendy.” It’s clearly my fault, but the question is: How much to pay?”

“A person who damages an item is responsible to repair it, if typically repaired,” said Rabbi Dayan, “or to pay the value of the damage, if not typically repaired.” (C.M. 387:1; Shach 387:1)

“How do we evaluate the value of the damage?” asked Mendy.

“If the item was new and the damage was a total loss, it is easy to ascertain the value,” said Rabbi Dayan. “However, it is difficult to ascertain the value of a used item. Classically, the value was the item’s worth on the used-item market. The Nesivos [148:1] even suggests that a person who damages something that cannot be sold is exempt, even if of monetary worth to the owner. Others dispute this.” (Kehilos Ya’akov, B.K. #39)]

“But second-hand items are usually sold nowadays at far less than their actual value,” argued Avrumi. “People are used to buying from stores, so that even brand new, unopened items sold on eBay run at only 80 percent of their cost, and slightly used items lose significant value.”

“That is true,” said Rabbi Dayan. “Therefore, most batei din rule nowadays that we should estimate the item’s true monetary worth to its owner.”

“How can this be evaluated?” asked Mendy.

“One way is to amortize the item’s cost over time,” said Rabbi Dayan. “Thus, if the expected lifetime of an item is ten years and five years passed, it would be evaluated at roughly half its cost. [Mishpetai HaTorah I:24]. Of course, there are additional factors to consider, such as the condition of the item and the depreciation curve of this particular item.”

“What if the damaged item is not a total loss?” asked Mendy.

“Halachically, the damaged item remains property of its owner and the one who damaged is responsible only to pay the differential,” said Rabbi Dayan. “He is not required take the damaged item and replace it for the owner with a new one. This applies whether the item is still usable for its initial purpose or valuable only for its parts.”  (403:1)

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 Shoe, Handkerchief, and Pen

Wednesday, June 17th, 2009

What do a shoe, handkerchief, and pen have in common? For English buffs, they all contain an “e.”

Let’s try in Hebrew: What do na’al, sudar, andeit have in common? They all begin in alphabetical order: Nun, Samach, and Ayin. OK, but better…. in Choshen Mishpat, these are the classic items for “Kinyan Chalipin.”

A fundamental principle of Jewish monetary law is that a transaction must be accompanied by kinyan, an act of acquisitionto be valid. Verbal arrangements, while they should be upheld, are usually not enforceable as binding transactions. (There are a few exceptions, most notably charity pledges.) Even payment does not always make a transaction legally enforceable if not accompanied by an appropriate kinyan.

There are many different acts of kinyan that relate to different kinds of transactions, as described in the first chapter of Maseches Kiddushin. For example, small movable items, such as books, are acquired by raising (Hagba’ha), large items such as furniture by dragging (Meshichah), and real estate through payment, contract or taking possession (Kesef, Sh’tar or Chazakah). Perhaps the most versatile kinyan, which works for both movable items and real estate, and also to create personal obligations and debt, is Kinyan Chalipin.

Towards the end of Megillas Ruth, which we read on Shavuos, Boaz took off his shoe to acquire rights to Ruth. This act smacks of Yibbum, particularly in the context of reestablishing the household of the deceased relative. However the verse clearly is not dealing with Yibbum, but rather with the transfer of legal rights: “Formerly this was done in Israel in cases of … exchange transactions to validate any matter: One would draw off his shoe and give it to the other” (Ruth 4:7).

Handing over a shoe or other functional item (k’li) symbolizes an exchange, chalipin, and expresses full intention of the parties for the transaction. Boaz handed over his shoe to Ploni Almoni (usually understood as Mr. So-and-so), and received from him, in exchange, the legal rights to redeem the fields and take Ruth.

This was commonly done to validate any transaction; the buyer would hand the seller an item as chalipin, a symbolic exchange. It was a quick and easy means of making transactions and agreements immediately enforceable and legally binding.

Consider the following scenario: Shmuel and Rina were engaged and shopping for furniture to outfit their apartment. Some stores were too expensive and others weren’t quite their taste. At Frankel’s Furniture they finally found a bedroom set that was just what they wanted. Because it was a display item they received a 35% discount, making it affordable. They paid for the item and received a sales invoice, with delivery slated for three days, and went happily along their way.

According to the classic rules of Kinyan this sale is not yet finalized! Neither payment nor a contract is a valid act of kinyan for movable items, only picking up or dragging them. Both sides still have the legal right to renege, although they are strongly discouraged from doing so. However, if Shmuel were to hand his pen to Mr. Frankel as Kinyan Chalipin, the sale would be finalized and the bedroom set would be theirs, with no possibility of reneging.

In practice, Halachah validates sales completed in the prevailing customary business manner, based on Kinyan Situmta (to be discussed at some later date, IY”H). Thus, nowadays, after paying and completing the sales invoice in the customary manner, it would not be possible to renege, unless the prevalent practice allows returns.

During the time of Ruth, the favored item of chalipin was a shoe. In the Gemara, the shoe gave way to the sudar, a cloth or handkerchief. It is not even necessary for the seller to take the entire cloth from the buyer, but to grasp a significant portion of it (3×3 inches) and then return it. In recent decades, as handkerchiefs gave way to insignificant paper tissues, the ever-available pen is typically used to perform Kinyan Chalipin.

With decreased awareness of Jewish monetary law and the standardization of commercial practices, Kinyan Chalipin is rarely used in day-to-day business transactions and is mostly utilized in halachic transactions. Thus, we usually encounter Kinyan Chalipin when selling chametz, writing the kesubah at weddings, accepting binding arbitration in beis din, and preparing a halachically valid will (to be discussed next month, IY”H). The concept of Kinyan and the effectiveness of Kinyan Chalipin are also important foundations for future discussions.

With the world going paperless, pens are also going out of vogue. The up-and-coming item for Chalipin is … a cell phone. English buffs – no worry; it also has an “e.” Hebrew lovers, no worry – it also begins with the next letter, peh – pelephone!

Rabbi Meir Orlian is a halachah writer for Machon L’Choshen Mishpat. The Machon, which is headed by HaRav Chaim Kohn, is committed to providing awareness, education and services in all areas of monetary issues that arise in our daily lives. For more information visit www.machonmishpat.com

Yizkor – Remember Your Pledge

Wednesday, April 22nd, 2009

    The shul was packed for Yizkor service. For Mr. Reuven Black this year was particularly poignant; it marked the tenth Yahrzeit of his father, who had passed away shortly after Pesach. He had decided to do something special in memory of his father.

   People began calling out their Yizkor pledges, which were being dedicated to the shul: “Twice chai! Five hundred dollars! Ten times chai!” Mr. Black straightened his tie and cleared his throat: “Ten thousand dollars to the shul in memory of the tenth yahrzeit of my father, z”l.” The astonished gabbai beamed with delight and wished him a hearty “Yashar koach.”

  Two weeks later, Mr. Black served as chazan on occasion of his father’s yahrzeit. Towards the end of leining, he prepared himself for Maftir. He expectantly listened to the gabbai, “Ya’amod Shimon ben Moshe – Maftir.” “Shimon ben Moshe?” Could he have heard wrong? Then he saw his neighbor, Shimon Katz, who also had yahrzeit that week, walking to the Torah

    Mr. Black was crestfallen; his face turned white. After such a donation to the shul, why had they not given him Maftir? What a disgrace to his father’s memory! Immediately after davening, he confronted the gabbai: “Don’t you remember my Yizkor pledge? Doesn’t my father’s memory deserve Maftir for that?”

   The gabbai stammered, “I apologize. You had Maftir last year, and I had written down that this year Shimon should get Maftir.” “Who cares!” protested Reuven. “I made a special donation to the shul this year on occasion of the tenth yahrzeit.” He raised his voice, “If the shul doesn’t properly appreciate the donation, I’m going to give the money to a different charity!” He turned around and left the shul.

   The gabbai tried to compose himself. Perhaps he should have given Mr. Black Maftir again, but he didn’t expect such a response. He waited a month, but no check was forthcoming…

   Gingerly, the gabbai approached Reuven: “I apologize if you feel slighted,” he said. “Nonetheless, you are required to honor your pledge to the shul.”

   Mr. Black paused for a moment. “I intend to honor the pledge in my father’s memory – but not to this shul!   It says in Gemara Arachin (6a) that if a person pledges money to charity – until it is handed over to the gabbai, it is permissible to change it.” The gabbai was baffled; he would have to leave this for the Rabbi to deal with.

   Later that evening, Rabbi Dayan invited Mr. Black to his office. “The Shulchan Aruch (C.M. 204:7) writes that it is proper for a person to honor his verbal commitments to another, even if not legally binding, and you pledged to our shul.” Reuven, however, wouldn’t hear. “I feel no moral obligation to the shul after the disgrace to my father’s memory by ‘cheating’ him of Maftir.”

    Rabbi Dayan calmly explained that Maftir is a merit to the deceased because the son leads the community in the blessing and reading of Maftir. “You served as chazan, and saying Kaddish additional times was also a tremendous merit.” Mr. Black, however, remained unimpressed: “I have already made up my mind. And since the money hasn’t been given to the gabbai yet, I am legally allowed to change it to another shul.”

   “Not so simple,” responded Rabbi Dayan. “Although Tosfos in Arachin first explains that before reaching the gabbai’s hand it is permissible to ‘change’ the pledge completely to a different purpose, they conclude that it is only permissible to ‘exchange’ the actual coins and use them until the charity is needed. The Shulchan Aruch (Y.D. 259:1) cites the second interpretation.”

   Mr. Black remained adamant. “But what’s the difference whether I give to this shul or another; either way I’m giving the same amount and kind of charity?”

  Rabbi Dayan smiled. “You’re raising a fascinating issue, one that poskim wrestled with through the generations. Machaneh Ephraim (Tzedakah #7) and Ketzos HaChoshen (212:4) suggest that it should be possible to give the charity to someone else. However, Radbaz (IV: 1204) and Shach (C.M. 87:51) insist that you are required to give it to the person or shul to which you pledged. This is based on the principle of Amiraso LaGavohah k’amsiraso l’hedyot – A pledge to the Almighty is tantamount to an act of transaction with a person, and is legally binding.”

   “Bottom line, can I still do what I want?” asked Mr. Black.

   “Well,” concluded Rabbi Dayan, “the Chasam Sofer (Y.D. #237) and Beis Yitzchak (Y.D. 82:13) rule that the majority of poskim require you to fulfill your pledge to the designated recipient. Therefore, you should give the money to the shul.”

    Mr. Black remained silent. Rabbi Dayan escorted him to the door and added softly, “Reuven, consider also that one of the greatest merits you can give your father is to follow in the footsteps of Aharon and avoid dispute.” “I’ll think about it,” said Mr. Black.

  A week later, Mr. Black handed the gabbai a sealed envelope. Inside was a check for $10,000 and a note: “In true merit for my father, I am enclosing my pledge and also ask forgiveness for having gotten angry at you.”

 

   Rabbi Meir Orlian is a halachah writer for Machon L’Choshen Mishpat. The Machon, which is headed by HaRav Chaim Kohn, is committed to providing awareness, education and services in all areas of monetary issues that arise in our daily lives. For general questions, comments, or additional information, please call (877) MISHPAT (647-4728) or email info@machonmishpat.com. For questions regarding a halachic monetary issue, please call (877) 845-8455 or email  halachahotline@machonmishpat.com

Printed from: http://www.jewishpress.com/sections/community//2009/04/22/

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