Mr. Levy turned to the local gmach (free loan society), run by Mr. Green, for a $6,000 loan.
“We can grant you the loan,” said Mr. Green, “payable in twelve monthly installments of $500.” Mr. Levy gave him twelve post-dated checks for the beginning of each month.
Five months later, Mr. Levy’s check bounced because of insufficient funds. The gmach was charged a $25 returned check fee.
Mr. Green called Mr. Levy. “Your check bounced this month,” he said.
“Last month was difficult,” acknowledged Mr. Levy. “I can write a new check and should be able to cover it in a week.”
“There was also a $25 fee for the returned check,” said Mr. Green. “Please add that amount to the check.”
“I also was charged a bank fee of $30!” exclaimed Mr. Levy. “It seems unfair that I should have to pay a double fee. It’s difficult enough paying the $500!”
“I understand that it’s an additional expense,” Mr. Green replied. “However, I don’t see any reason the gmach should have to absorb the loss.”
“It seems logical to me that each party should pay his own fee,” reasoned Mr. Levy. “I pay my bank fee and you pay your bank fee.”
“But it’s your fault the check bounced!” argued Mr. Green. “I deposited it on time, as per our agreement. You should have notified me, at the least.”
“I didn’t think there would be a problem,” said Mr. Levy. “The account dropped faster than I expected. If I were in a better financial state I would certainly pay your fee. However, now every dollar is critical, and I can’t afford to pay anything I’m not liable for.”
“I think it’s clear you’re liable for the fee,” replied Mr. Green. “However, if you have any doubt, I’m happy to discuss the issue together with Rabbi Dayan.”
“That’s fine with me,” said Mr. Levy.
The two went to Rabbi Dayan. “Is Mr. Levy liable for the gmach‘s $25 fee?” asked Mr. Green.
“Mr. Levy is liable for the returned check fee charged to the gmach,” answered Rabbi Dayan. “Since you deposited the check in accordance with Mr. Levy’s instructions, the loss he caused is considered garmi (directly cause damage), for which one is liable.”
“Could you please explain further?” asked Mr. Levy.
“The Mordechai writes that if two parties agreed to adjudicate at a distant beis din and one instructed the other to go ahead and he would follow but never showed up, he is liable for the travel expenses he caused the other person through his instructions,” replied Rabbi Dayan.
“Similarly, if person bought a product with the clear intention of transporting it elsewhere, and the seller knew that the product was defective, he is liable for the futile transportation expenditures that he caused the buyer.” (C.M. 14:5; 232:21)
“What if uncontrollable circumstances prevented me from covering the check?” asked Mr. Levy.
“If uncontrollable circumstances prevented you, such as illness, or you had absolutely no way of procuring money, you would not be liable for the fee. Nonetheless, if you knew that funds were missing, but hoped that it would work out, you should have expected that Mr. Green would deposit the check promptly and warned him.” (Pischei Choshen, Halva’ah 2:100; Nezikin 3:63)
“Moreover, Rabbi Y.S. Elyashiv is cited that this case is more than garmi,” added Rabbi Dayan. “He maintains that the check was given with the clear intention that it should serve as payment, and that if it is returned you will pay the associated fees. Perhaps he considered it as one who explicitly accepted liability for any damage caused even incidentally from his instructions.” (See Mishpat K’halacha, Sim Shalom p. 69; Machaneh Ephraim, Sechirus #18; Divrei Chaim C.M. 1:41.)
