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Physics in Torah     Issue #:

1. Sound Waves and the Power of Aromatic Therapy | Besamim  | מפני שהקול יפה לבשמים Ketores Sou ...

1. Sound Waves and the Power of Aromatic Therapy | Besamim  | מפני שהקול יפה לבשמים

Ketores Sound Waves.pdf (1.99 mb)

2. Roses |  כשושנה בין החוחים

Roses.pdf (3.99 mb)

3. Honey

Honey.pdf (2.21 mb)

4. Olive Oil

Olive Oil.pdf (2.76 mb)

 

Amazing Inspiration: Rabbi Ephraim Wachsman     Issue #:

Faith Song I Believe in Hashem, I trust in Hashem   Inspirational Chanuka Song: Holocaust Inspi ...
Faith Song
 

Yoga     Issue #:

מדיני עבודה זרה.pdf (1.37 mb) מדיני יוגה.pdf (1.50 mb)  

מדיני עבודה זרה.pdf (1.37 mb)

מדיני יוגה.pdf (1.50 mb)

 

Pre-Mealtime Hand Sanctification | נטילת ידיים     Issue #:

נטילת ידים חלק א.pdf (1.12 mb) נטילת ידים חלק ב.docx.pdf (1.60 mb) נטילת ידיים חלק ג.pdf (1.18 mb) נטילת ידים חלק ד.pdf (1.81 mb)

נטילת ידים חלק א.pdf (1.12 mb)

נטילת ידים חלק ב.docx.pdf (1.60 mb)

נטילת ידיים חלק ג.pdf (1.18 mb)

נטילת ידים חלק ד.pdf (1.81 mb)

Festival Intermediate Days | חול המועד     Issue #:

tzorech hamoed hachana.pdf (917.11 kb) דבר האבד.pdf (1.25 mb)

tzorech hamoed hachana.pdf (917.11 kb)

דבר האבד.pdf (1.25 mb)

Hot Onions     Issue #: 34

Hot Onions Steve Ring, a high profile lawyer in Miami Beach, Florida, ran a tight schedule with litt ...

Hot Onions

Steve Ring, a high profile lawyer in Miami Beach, Florida, ran a tight schedule with little or no time for leisure. Nonetheless, he would volunteer twenty minutes a week to help his lonely elderly neighbors, Harriet and Sylvia.

On Thursday afternoons, Tammy, Steve's wife, would phone her elderly neighbors and take down their pre-Shabbat grocery orders. She would subsequently email their lists together with her list to Steve. On his return from work on Thursday afternoon, Steve would stop off at Shopper's Express and run the errands for his wife and elderly neighbors.

Generally, he would have the cashier ring up two separate bills, one for his neighbors and one for his own purchase. Last week, his list being rather short and only requiring a bag of six onions for Harriet, he simply had the cashier ring up Harriet's onions at the end of his own list.

Steve paid for the purchase and went to Harriet's house to deliver the onions. Being in a rush, he told her to be in touch with Tammy the next day regarding the cost. In the meantime, Harriet diced the onions and added them to her potato kugel mix.

Eager to pay her debt, Harriet called Tammy on Friday and asked how much she owed her for the onions. Tammy took out the receipt from her husbands trip to the store, but the onions were not listed. The cashier had obviously failed to scan them. Frantically, Harriet called the supermarket, but they were closing for the day and did not pick up the phone.

- May Harriet eat the kugel on Friday night?

What is the law?

The Answer

We present you here with a concise ruling. For a more intricate elucidation, please see the “detailed explanation” below.

Harriet may eat the kugel.
Harriet must return the value of the six onions to Shopper's Express.
If Harriet is unsure of the weight and cost of the onions, she may estimate and pay the ‘lowest estimated cost' of the onions (see detailed explanation below).

 

Detailed Explanation

The Torah prohibition of theft is well known [Leviticus 19:11, Choshen Mishpat 359:1]. In addition to the prohibitory commandment of “do not steal”, there also exists a positive commandment to return the object which was stolen [Choshen Mishpat 360:1].

The classic case of theft is the blatant act of taking another's property without permission, with no intention of returning it. However, also included in this prohibition are “lesser degrees” of thievery:

  1. The unauthorized taking of an object with the intention to pay for the article later. [Choshen Mishpat 359:2]
  2. “Borrowing” something without permission, even with the intention to return the “borrowed article”. [359: 5]

When a thief alters the stolen good(s) in such a way that they are no longer returnable in the original state, he or she automatically acquires legal ownership of the stolen property. In such a case, the thief is then required to return the monetary value of the property, rather than return the actual item. [Choshen Mishpat 360:1]

In a case where it is clearly obvious that the item was for sale and the original owner would undoubtedly prefer to be paid the value of the item rather than have it actually returned, the thief may then use the article before paying for it, even if no alteration was made to it [Choshen Mishpat 359:2] (however, in such a case one might still have to transfer the money to the owner via a third-party acquisition before the item may be used [Choshen Mishpat 359:2, Sha”ch 4] – a competent authority should be consulted to ascertain the details of such a procedure [see Hagahos Rabbi Akiva Eiger and Biur HaGr”a]).

Generally, when it is unclear how much one party owes another, it is incumbent on the payee to prove how much is owed to them [Bava Kama 46b]. If this is not feasible, the least possible amount owed is paid. However, in the case of a theft, the higher amount is paid [Choshen Mishpat 365:2].

Application

Although Harriet certainly did not mean to steal the onions, she may still have attained the unfortunate status of an unintentional thief [see Sha”ch and Ketzos 25: 1]. Since she diced them, the onions are no longer returnable in their original state. She acquired ownership of the diced onions and must therefore pay Shopper's Express their value.

As for the amount to be paid, even though a thief must generally pay the highest possible value of the stolen property, since a) this was an unintentional theft, and b) there was also possible negligence on the part of the store for not properly ringing up the onions, Harriet is not considered a thief in this respect and therefore pays the lowest possible estimated cost of the onions [Ketzos 365:2].

E - Commerce on Shabbat     Issue #:

Potential Issues: Sanctifying Shabbat Buying: Acquiring merchandise on Shabbat Thinking about busine ...

Potential Issues:

Sanctifying Shabbat

Buying:

Acquiring merchandise on Shabbat

Thinking about business on Shabbat

Examples: automatic bids

Selling:

Acquiring money on Shabbat

Earning money for Shabbat business

Enabling a fellow Jew to purchase on Shabbat

Desecrate the spirit of Shabbat | zilzul Shabbat

Permanent Store on Shabbat - Torah Prohibition - Chasam Sofer

Mareis Ayin

Kiddush Hashem

מסחר אלקטרוני בשבת קודש.pdf (1.04 mb)

 

www.dailyhalacha.com/m/halacha.aspx?id=3049

https://theshc.org/e-commerce-on-shabbat/#_ftnref9

https://www.torahanytime.com/#/lectures?v=38470

 

Journeys     Issue #: Speech

Journey1.docx (34.33 kb) On face value, the beginning of Parshat Masei begs for an explanation. The ...

Journey1.docx (34.33 kb)

On face value, the beginning of Parshat Masei begs for an explanation. The list of the 42 stations in transit in their sing-song tune may seem irrelevant to us and superfluous to those who experienced it.

The Hebrew word Torah emanates from the root word Hora’ah which means teaching. A teacher is called a Morah in Hebrew. All that is written in the Torah is there to teach us how to live, today; as we say daily in our pledge of allegiance[1][1] - and let these words that I command you today be on your heart (Deuteronomy 6:6).

 

Far more transpired to three million people during forty years in the desert than is redacted in the Torah. As insinuated in Numbers 28, the Sinaic revelation continued throughout the sojourn in the desert. Only the episodes that G-d mandated worthy of us learning how to live today were recorded by Moses in the Torah (Deuteronomy 31:19).

 

What then is the timeless lesson of recounting the 42 stations in the desert?  What purpose lay in reminding the desert Jews where they recently traversed?

 

“To be a light unto the Nations[2]” “A kingdom of priests and a holy nation[3]” – for this task we are the chosen People[4]

Our eternal mandate has been – is – and will be - to be the light bearer for the World, to conscientiously service them by having humanity encounter an objective barometer of ethos born out of our own proud performance of our unique Jewish duty; accentuated and expressed in its fullest grandeur when our people settled in brotherhood in the Promised Land with the Temple at its epicenter; in Jerusalem – the city of righteousness[5].

Biologically Jewish; initially ideologically heavily Egyptian; the Chosen People had to internalize their new refined calling. Simply following the rules was insufficient; they had to become innately Jewish; light bearers. Sure - The Jew had to reach the Promised Land; but more so – the Promised Land had to reach the Jew!

This metamorphosis from egoism and materialism towards selfless dedication to a vibrant life of dutiful service took exodus-Jews the forty years, two generations and forty-two stations.

Each station represented another rung in the ethical ladder.

Our sojourn on this earth is comprised of varying stations and stages. At times we must focus on the tree. But at the same time, we cannot lose our focus on the entire forest.

Moses’ time-hallowed message was that each station functioned as an integral part of one grand journey - from internal shackles to the Promised Land.

Each station functioned as a stepping stone and learning curve. Striving forward; and when mistakes were made; duly rectified them along the journey. Embracing responsibility, growing in an honest fashion from their experiences; ultimately…reaching the Promised Land…

Forever the Chosen People; forever destined to faithfully serve humanity as the light-bearers of eternal ethos; now exiled amongst them; the Jew embraces his and her central perpetual role with ever more fervor and pride; lest we deeply disappoint our host nations and the citizens who comprise them. We owe it to each human being who walks the face of this blessed planet never to eclipse the light they so deserve.

  • Discuss Relevance of Torah light: incredible story of Rav Gidel | Tortious Interference. | Here’s a remarkable and example of how deep-rooted Torah is supposed to transform us into higher ethical beings!

The Way the Rabbis Brawled[6]

 

Rabbi Gidal extended significant effort in purchasing a specific piece of real-estate. Unknowingly, Rabbi Aba went and purchased it for himself.

Rabbi Gidal submitted a complaint which reached the venerable Rabbi Yitzhak.

The next time Rabbi Yitzhak met Rabbi Aba, he posed him the following query,

“Say a poor man was pursuing a cake and meanwhile another jumped ahead of him and took it for himself. What is the law? Rabbi Aba responded, “He is wicked.”[7]

 

 “So why did you act in a similar manner,” asked Rabbi Yitzhak.  

Rabbi Aba replied, “I was unaware that my friend was pursuing this parcel”

So now that you know, why don’t you sell it to him? Asked R. Yitzhak

He responded that he had reasons as to why he did not wish to sell his first piece of owned real estate property, but he would be more than glad to give it to Rav Gidal as a gift rather than to be guilty of obtaining the real estate through wicked means..

However, Rabbi Gidal preferred not to take something for free for “he who hates gifts will live[8]” and thus abstained from using it and Rabbi Aba abstained from using it because he did not want to benefit from wicked gains. Instead, the two Rabbis decided to donate it for the Torah students to benefit from the land.

 

 

They flocked on their own towards the enlightenment we provided in the days of Solomon when we all proudly – unabashedly embraced our world duty.

But for now; we must reach out to them;

Eileh Masei Bnei Yisrael = Edom (Rome), Media, Babylon, Yavan (Greece) Yishmael = say the Hasidic Masters

Our Journey continues; our mandate never ceases. To the Promised Land we march; conscientiously enlightening all the nations with their basic human rights; the eternal brilliance they so deserve.

And dare we lose our compass; they will ultimately remind us of our identity and mandate.

An honest look at one of the most painful eras in recent world History might shock us to the core.

Law for the Protection of German Blood and German Honor, September 15, 1935

Entirely convinced that the purity of German blood is essential to the further existence of the German people, and inspired by the uncompromising determination to safeguard the future of the German nation, the Reichstag has unanimously adopted the following law, which is promulgated herewith:

  1. 1. Marriages between Jews and citizens of German or kindred blood are forbidden. Marriages concluded in defiance of this law are void, even if, for the purpose of evading this law, they were concluded abroad. 2. Proceedings for annulment may be initiated only by the Public Prosecutor.

See Maimonides: Marriages 4: 17, Forbidden Relations 12:1

 

  1. Sexual relations outside marriage between Jews and nationals of German of kindred blood are forbidden. –

See Maimonides Forbidden Relations 4: 4, 12:2, 12: 4-7

III. Jews will not be permitted to employ female citizens of German or kindred blood under 45 years of age as domestic servants.

See Maimonides Forbidden Relations 22:3

  1. 1. Jews are forbidden to display the Reich and national flag or the national colors. 2. On the other hand they are permitted to display the Jewish colors. The exercise of this right is protected by the State.

See Mitzvah of Tzitzit, Modesty for Women, and Jewish Haircut Laws –  To be recognizably Jewish, proud members of G-d’s inner circle.

  1. 1. A person who acts contrary to the prohibition of Section I will be punished with hard labor. 2. A person who acts contrary to the prohibition of Section II will be punished with imprisonment or with hard labor. 3. A person who acts contrary to the provisions of Sections III or IV will be punished with imprisonment up to a year and with a fine, or with one of these penalties.

 

 History

Ever since the Emancipation; for nearly a century and a half; too many Jewish people; first in Germany and then over into Eastern Europe; shed their Jewish identity. In Germany most of the young people were already married to Germans.

Instead of embracing the monumental blessing of Emancipation as a golden and historic opportunity to interface with the German race and uplift them by way of our example; to be that light unto the nations; we failed them by becoming one of them; embracing their set of morals which at the time seemed scintillating and refreshing only to see their weltanschauung go up in billowing smoke with Zyklon B and rumbling cattle cars.

Truth to be told, it was none other than Schiller who prophetically foresaw the inherent decadence within the age of reasoning. When reasoning is left to the individual to define his or her moral code, it’s just a matter of time until the whole thing explodes.

Look at Mengele’s reasoning:

When a Jewish child is born, or a woman comes to camp with a child already… I don’t know what to do with the child. I can’t set the child free because there are no longer any Jews who live in freedom. I can’t let the child stay in the camp because there are no facilities… that would enable the child to develop normally. It would not be humanitarian to send a child to the ovens without permitting the mother to be there to witness the child’s death… That is why I send the mother and child to the gas ovens together.

So brilliant Schiller proposed the solution; he found the alleged light so necessary to support the age of reasoning.

"a great moment has found a little people"; Schiller wrote in his Letters as a philosophical inquiry into what had gone wrong, and how to prevent such tragedies that were experienced during the French Revolution - in the future. In the Letters he asserts that it is possible to elevate the moral character of a people, by first touching their souls with beauty, an idea that is also found in his poem Die Künstler (The Artists): "Only through Beauty's morning-gate, dost thou penetrate the land of knowledge."

Schiller’s Ode to Joy and Ludwig van Beethoven’s ninth symphony was to shed the light onto Kant’s reasoning to redeem it to harmoniously perfect the human being. There will be no holocaust.

We ran like madmen embracing this newfound mirage. We memorized the ode of Joy. Youngsters reciting Schiller verbatim became our source of pride as we politely ushered Moses off the stage. Bitte Schoen…

And then, 130 years later we ravenously consumed the bitter sweat of our lice infested brow.

In the death camps, particularly Birkenau, the prisoner orchestras performed under the most inhumane of circumstances, something that caused some surviving musicians to experience feelings of guilt and depression for the rest of their lives. Some bands had to play in connection with the so-called selection process: this was supposed to deceive the newly-arriving prisoners into thinking that they did not face immediate death. A few orchestra members even had to play near the crematorium at the command of the SS.

Prison personnel abused inmate musicians for their own purposes. With forced daily musical performances they furthered the process of breaking the prisoners’ willpower and of human degradation.

While the foul stench of our mother’s and children’s burning skin amidst the aroma of human excrement waft through the meadows of hell; we were cursed to hear Beethoven’s own lifeless words playing before our tearless eyes.

"Oh friends, not these sounds! Let us instead strike up more pleasing and more joyful ones!"

Yes. We perceived the unfathomable despicable manifestation of our epic failure to shed the eternal light we once proudly bore; onto the age of reasoning; to finally uplift humanity - by proudly yet humbly embracing our noble and timeless duty – and sharing our higher ethos with them. Instead of enlightening them, we embraced their horrific darkness.

While on a national level; we failed.

But we were far from extinguished. For the Jewish spirit will always endure. Listen to this incredible documentary of Joseph Friedenson a remarkable survivor of 6 concentration camps.

The day following Liberation day in Auschwitz, the kitchens were suddenly opened for all to hoard any food available. After starving for 6 years this was an incredible moment. A moment we never thought we would behold. All left the barracks and as fast as they could, making a bee-line to the kitchen. Well almost all.

Mrs. Sorotzkin had been an obervant Jewish school teacher in Krakow. She made a pact with her surviving students in Auschwitz to join together daily to perform an act of loving kindness! To allow the spark of humanity dispel the bestial darkness.

Today was to be no different. What selfless kind act could they do today while all the emaciated inmates wobbled to sustain their wasted skeletons?

Oddly, there was one barracks where the Nazi’s allowed for some 60 mothers and children. This was used as a decoy lest the Red Cross come and inspect the camp.

Mrs. Sorotzkin reasoned that the mothers of these little children would run for the kitchen too. But who would care for the little children in the meantime?

“So what she did she took all the girls and she went into that block, that barracks where the children were and really the fact is as my wife tells me today, she remembers, there were about 50 or 60 children all of them dirty and all of them hungry and all of them crying they were looking for their mothers and their mothers were in bed. They were just alone. About 60 children and their cry was just going up to Heaven. And what she did they did they I mean instead of also going to the kitchen also organizing they also were in need, they took care of the children. They washed them and they calmed them. My to this day my wife can’t forget this this scene of these children when somebody came to them and they brought them whatever they brought them. Now this is one of the things that that that they did, I mean and it’s well very well-known, that these students distinguished themselves in the ghettos and in the camps with a love of Chessed, with the love of kindness, with the love of compassion show compassion and helping others in need and in need of help.”

So we ask the world – and we’re part of the world! Who’s light succeeded in making a better person? Schiller’s or Moses’?

_

The ecsotarians explain that each of our souls experiences 42 stations throughout our lives as well. We begin life as fetal takers with the goal of choosing to reach the Promised Land.

Of late; Mosul has filled much international news.

Over 2.5k years ago; Mosul or Nineveh, capital of the Neo Assyrian empire was at the center stage of History too.

 

Jonah the prophet, student of Elisha, student of Elijah; while rejoicing with his fellow Jews in the Temple during the festival of Sukkot; received a prophetic vision to travel to the Assyrian city of Ninveh in present day Iraq and tell them that the G-d of the Hebrews exhorts them to repent and behave honestly and benevolently.

 

 

A lover of his people; Jonah feared that the immediate penitence of the Assyrians would cast a dark shadow on his people who had stalled hearkening to the prophets exhortation to cleanse themselves from various iniquities. He feared that fulfilling his mission would place his Jewish brethren in peril as G-d might hold them ever more accountable for their failure to mend their ways.

 

And so; Jonah decided shirk his responsibility. He schemed to find a loophole. He wished to forgo any more communion with the A-lmighty if it could endanger his brethren.

 

The plan…to escape the land of Israel. He reckoned that he would only attain prophecy within the Land of Israel.

   

He was wrong. After being tossed off the ship and swallowed by the wales, G-d sends him back to dry-land and on to Ninveh he goes to prophesize. The Assryians repented.

 

Jewish law requires to feed a visitor who enters during meal time. Why then do we read the story of Jonah and the Fish on all days like Yom Kippur We’re fasting and reading about the fish’s meal?

 

Hafetz Haim, the venerated centennial Sage and Jewish Ethicist:

The Yom Kippur lesson here is that we all have a G-d given mission to fulfill and you can’t buck out. You will ultimately fulfill your role. It might even take a whale to bring you to your purpose…but it’s either this time around next time around so spare yourself the trouble and agony of coming back again here and paying taxes again… and get it right on round 1.

 

Today, the Jewish People is us. We can choose to ignore our responsibilities; but in the end we’ll get G-d’s work done.

 

On  Parshat Massaei we all take a step back together and through honest introspection ask ourselves we’re do we stand on this inevitable journey from inner slavery to The Promised Land?

 

Today, in 2018, we have been given a second chance to interface with humanity.

Our congregation stands at the epicenter of the Western World. Here in the halls of government, we will become innately Jewish; proudly maintaining our biological and ideological uniqueness; opening our minds and hearts to absorb the breadth and depth of Torah knowledge, fulfilling its timeless mandates, transforming our second nature into a shining light, sharing with humanity their basic human rights; and making G-d’s World so proud of us – never to eclipse the light they so deserve.

 

 

 

[1] The Shema

[2] Isiah 49:6, 42:6, 60:3

[3] Exodus 19:6

[4] Exodus 19: 5

[5] Isiah 1: 26

[6] Babylonian Talmud Tractate Kiddushin folio 59a

[7] Rashi: He is jeopardizing his friend’s sustenance..

[8] Proverbs 15: 27

Corporations in Halacha     Issue #: Business Structure

https://dinonline.org/2014/03/20/corporations-in-halachah/

https://dinonline.org/2014/03/20/corporations-in-halachah/

The Nuremberg Laws     Issue #: History

www.historyplace.com/worldwar2/triumph/tr-nurem-laws.htm https://www.jewishvirtuallibrary.org/backgr ...

www.historyplace.com/worldwar2/triumph/tr-nurem-laws.htm

https://www.jewishvirtuallibrary.org/background-and-overview-of-the-nuremberg-laws

עזרא פרק-ט

 

{א} וּכְכַלּוֹת אֵלֶּה נִגְּשׁוּ אֵלַי הַשָּׂרִים לֵאמֹר לֹא נִבְדְּלוּ הָעָם יִשְׂרָאֵל וְהַכֹּהֲנִים וְהַלְוִיִּם מֵעַמֵּי הָאֲרָצוֹת כְּתוֹעֲבֹתֵיהֶם לַכְּנַעֲנִי הַחִתִּי הַפְּרִזִּי הַיְבוּסִי הָעַמֹּנִי הַמֹּאָבִי הַמִּצְרִי וְהָאֱמֹרִי: {ב} כִּי נָשְׂאוּ מִבְּנֹתֵיהֶם לָהֶם וְלִבְנֵיהֶם וְהִתְעָרְבוּ זֶרַע הַקֹּדֶשׁ בְּעַמֵּי הָאֲרָצוֹת וְיַד הַשָּׂרִים וְהַסְּגָנִים הָיְתָה בַּמַּעַל הַזֶּה רִאשׁוֹנָה: (ס) {ג} וּכְשָׁמְעִי אֶת הַדָּבָר הַזֶּה קָרַעְתִּי אֶת בִּגְדִי וּמְעִילִי וָאֶמְרְטָה מִשְּׂעַר רֹאשִׁי וּזְקָנִי וָאֵשְׁבָה מְשׁוֹמֵם: {ד} וְאֵלַי יֵאָסְפוּ כֹּל חָרֵד בְּדִבְרֵי אֱלֹהֵי יִשְׂרָאֵל עַל מַעַל הַגּוֹלָה וַאֲנִי יֹשֵׁב מְשׁוֹמֵם עַד לְמִנְחַת הָעָרֶב: {ה} וּבְמִנְחַת הָעֶרֶב קַמְתִּי מִתַּעֲנִיתִי וּבְקָרְעִי בִגְדִי וּמְעִילִי וָאֶכְרְעָה עַל בִּרְכַּי וָאֶפְרְשָׂה כַפַּי אֶל יְהוָה אֱלֹהָי: {ו} וָאֹמְרָה אֱלֹהַי בֹּשְׁתִּי וְנִכְלַמְתִּי לְהָרִים אֱלֹהַי פָּנַי אֵלֶיךָ כִּי עֲוֹנֹתֵינוּ רָבוּ לְמַעְלָה רֹּאשׁ וְאַשְׁמָתֵנוּ גָדְלָה עַד לַשָּׁמָיִם: {ז} מִימֵי אֲבֹתֵינוּ אֲנַחְנוּ בְּאַשְׁמָה גְדֹלָה עַד הַיּוֹם הַזֶּה וּבַעֲוֹנֹתֵינוּ נִתַּנּוּ אֲנַחְנוּ מְלָכֵינוּ כֹהֲנֵינוּ בְּיַד מַלְכֵי הָאֲרָצוֹת בַּחֶרֶב בַּשְּׁבִי וּבַבִּזָּה וּבְבֹשֶׁת פָּנִים כְּהַיּוֹם הַזֶּה: {ח} וְעַתָּה כִּמְעַט רֶגַע הָיְתָה תְחִנָּה מֵאֵת יְהוָה אֱלֹהֵינוּ לְהַשְׁאִיר לָנוּ פְּלֵיטָה וְלָתֶת לָנוּ יָתֵד בִּמְקוֹם קָדְשׁוֹ לְהָאִיר עֵינֵינוּ אֱלֹהֵינוּ וּלְתִתֵּנוּ מִחְיָה מְעַט בְּעַבְדֻתֵנוּ: {ט} כִּי עֲבָדִים אֲנַחְנוּ וּבְעַבְדֻתֵנוּ לֹא עֲזָבָנוּ אֱלֹהֵינוּ וַיַּט עָלֵינוּ חֶסֶד לִפְנֵי מַלְכֵי פָרַס לָתֶת לָנוּ מִחְיָה לְרוֹמֵם אֶת בֵּית אֱלֹהֵינוּ וּלְהַעֲמִיד אֶת חָרְבֹתָיו וְלָתֶת לָנוּ גָדֵר בִּיהוּדָה וּבִירוּשָׁלִָם: (ס) {י} וְעַתָּה מַה נֹּאמַר אֱלֹהֵינוּ אַחֲרֵי זֹאת כִּי עָזַבְנוּ מִצְוֹתֶיךָ: {יא} אֲשֶׁר צִוִּיתָ בְּיַד עֲבָדֶיךָ הַנְּבִיאִים לֵאמֹר הָאָרֶץ אֲשֶׁר אַתֶּם בָּאִים לְרִשְׁתָּהּ אֶרֶץ נִדָּה הִיא בְּנִדַּת עַמֵּי הָאֲרָצוֹת בְּתוֹעֲבֹתֵיהֶם אֲשֶׁר מִלְאוּהָ מִפֶּה אֶל פֶּה בְּטֻמְאָתָם: {יב} וְעַתָּה בְּנוֹתֵיכֶם אַל תִּתְּנוּ לִבְנֵיהֶם וּבְנֹתֵיהֶם אַל תִּשְׂאוּ לִבְנֵיכֶם וְלֹא תִדְרְשׁוּ שְׁלֹמָם וְטוֹבָתָם עַד עוֹלָם לְמַעַן תֶּחֶזְקוּ וַאֲכַלְתֶּם אֶת טוּב הָאָרֶץ וְהוֹרַשְׁתֶּם לִבְנֵיכֶם עַד עוֹלָם: {יג} וְאַחֲרֵי כָּל הַבָּא עָלֵינוּ בְּמַעֲשֵׂינוּ הָרָעִים וּבְאַשְׁמָתֵנוּ הַגְּדֹלָה כִּי אַתָּה אֱלֹהֵינוּ חָשַׂכְתָּ לְמַטָּה מֵעֲוֹנֵנוּ וְנָתַתָּה לָּנוּ פְּלֵיטָה כָּזֹאת: {יד} הֲנָשׁוּב לְהָפֵר מִצְוֹתֶיךָ וּלְהִתְחַתֵּן בְּעַמֵּי הַתֹּעֵבוֹת הָאֵלֶּה הֲלוֹא תֶאֱנַף בָּנוּ עַד כַּלֵּה לְאֵין שְׁאֵרִית וּפְלֵיטָה: (פ) {טו} יְהוָה אֱלֹהֵי יִשְׂרָאֵל צַדִּיק אַתָּה כִּי נִשְׁאַרְנוּ פְלֵיטָה כְּהַיּוֹם הַזֶּה הִנְנוּ לְפָנֶיךָ בְּאַשְׁמָתֵינוּ כִּי אֵין לַעֲמוֹד לְפָנֶיךָ עַל זֹאת: (פ)

 

עזרא פרק-י

 

{א} וּכְהִתְפַּלֵּל עֶזְרָא וּכְהִתְוַדֹּתוֹ בֹּכֶה וּמִתְנַפֵּל לִפְנֵי בֵּית הָאֱלֹהִים נִקְבְּצוּ אֵלָיו מִיִּשְׂרָאֵל קָהָל רַב מְאֹד אֲנָשִׁים וְנָשִׁים וִילָדִים כִּי בָכוּ הָעָם הַרְבֵּה בֶכֶה: (ס) {ב} וַיַּעַן שְׁכַנְיָה בֶן יְחִיאֵל מִבְּנֵי (עולם) עֵילָם וַיֹּאמֶר לְעֶזְרָא אֲנַחְנוּ מָעַלְנוּ בֵאלֹהֵינוּ וַנֹּשֶׁב נָשִׁים נָכְרִיּוֹת מֵעַמֵּי הָאָרֶץ וְעַתָּה יֵשׁ מִקְוֶה לְיִשְׂרָאֵל עַל זֹאת: {ג} וְעַתָּה נִכְרָת בְּרִית לֵאלֹהֵינוּ לְהוֹצִיא כָל נָשִׁים וְהַנּוֹלָד מֵהֶם בַּעֲצַת אֲדֹנָי וְהַחֲרֵדִים בְּמִצְוַת אֱלֹהֵינוּ וְכַתּוֹרָה יֵעָשֶׂה: {ד} קוּם כִּי עָלֶיךָ הַדָּבָר וַאֲנַחְנוּ עִמָּךְ חֲזַק וַעֲשֵׂה: (פ) {ה} וַיָּקָם עֶזְרָא וַיַּשְׁבַּע אֶת שָׂרֵי הַכֹּהֲנִים הַלְוִיִּם וְכָל יִשְׂרָאֵל לַעֲשׂוֹת כַּדָּבָר הַזֶּה וַיִּשָּׁבֵעוּ: {ו} וַיָּקָם עֶזְרָא מִלִּפְנֵי בֵּית הָאֱלֹהִים וַיֵּלֶךְ אֶל לִשְׁכַּת יְהוֹחָנָן בֶּן אֶלְיָשִׁיב וַיֵּלֶךְ שָׁם לֶחֶם לֹא אָכַל וּמַיִם לֹא שָׁתָה כִּי מִתְאַבֵּל עַל מַעַל הַגּוֹלָה: (ס) {ז} וַיַּעֲבִירוּ קוֹל בִּיהוּדָה וִירוּשָׁלִַם לְכֹל בְּנֵי הַגּוֹלָה לְהִקָּבֵץ יְרוּשָׁלִָם: {ח} וְכֹל אֲשֶׁר לֹא יָבוֹא לִשְׁלֹשֶׁת הַיָּמִים כַּעֲצַת הַשָּׂרִים וְהַזְּקֵנִים יָחֳרַם כָּל רְכוּשׁוֹ וְהוּא יִבָּדֵל מִקְּהַל הַגּוֹלָה: (ס) {ט} וַיִּקָּבְצוּ כָל אַנְשֵׁי יְהוּדָה וּבִנְיָמִן יְרוּשָׁלִַם לִשְׁלֹשֶׁת הַיָּמִים הוּא חֹדֶשׁ הַתְּשִׁיעִי בְּעֶשְׂרִים בַּחֹדֶשׁ וַיֵּשְׁבוּ כָל הָעָם בִּרְחוֹב בֵּית הָאֱלֹהִים מַרְעִידִים עַל הַדָּבָר וּמֵהַגְּשָׁמִים: (פ) {י} וַיָּקָם עֶזְרָא הַכֹּהֵן וַיֹּאמֶר אֲלֵהֶם אַתֶּם מְעַלְתֶּם וַתֹּשִׁיבוּ נָשִׁים נָכְרִיּוֹת לְהוֹסִיף עַל אַשְׁמַת יִשְׂרָאֵל: {יא} וְעַתָּה תְּנוּ תוֹדָה לַיהוָה אֱלֹהֵי אֲבֹתֵיכֶם וַעֲשׂוּ רְצוֹנוֹ וְהִבָּדְלוּ מֵעַמֵּי הָאָרֶץ וּמִן הַנָּשִׁים הַנָּכְרִיּוֹת: {יב} וַיַּעְנוּ כָל הַקָּהָל וַיֹּאמְרוּ קוֹל גָּדוֹל כֵּן (כדבריך) כִּדְבָרְךָ עָלֵינוּ לַעֲשׂוֹת: {יג} אֲבָל הָעָם רָב וְהָעֵת גְּשָׁמִים וְאֵין כֹּחַ לַעֲמוֹד בַּחוּץ וְהַמְּלָאכָה לֹא לְיוֹם אֶחָד וְלֹא לִשְׁנַיִם כִּי הִרְבִּינוּ לִפְשֹׁעַ בַּדָּבָר הַזֶּה: {יד} יַעֲמְדוּ נָא שָׂרֵינוּ לְכָל הַקָּהָל וְכֹל אֲשֶׁר בֶּעָרֵינוּ הַהֹשִׁיב נָשִׁים נָכְרִיּוֹת יָבֹא לְעִתִּים מְזֻמָּנִים וְעִמָּהֶם זִקְנֵי עִיר וָעִיר וְשֹׁפְטֶיהָ עַד לְהָשִׁיב חֲרוֹן אַף אֱלֹהֵינוּ מִמֶּנּוּ עַד לַדָּבָר הַזֶּה: (פ) {טו} אַךְ יוֹנָתָן בֶּן עֲשָׂהאֵל וְיַחְזְיָה בֶן תִּקְוָה עָמְדוּ עַל זֹאת וּמְשֻׁלָּם וְשַׁבְּתַי הַלֵּוִי עֲזָרֻם: {טז} וַיַּעֲשׂוּ כֵן בְּנֵי הַגּוֹלָה וַיִּבָּדְלוּ עֶזְרָא הַכֹּהֵן אֲנָשִׁים רָאשֵׁי הָאָבוֹת לְבֵית אֲבֹתָם וְכֻלָּם בְּשֵׁמוֹת וַיֵּשְׁבוּ בְּיוֹם אֶחָד לַחֹדֶשׁ הָעֲשִׂירִי לְדַרְיוֹשׁ הַדָּבָר: {יז} וַיְכַלּוּ בַכֹּל אֲנָשִׁים הַהֹשִׁיבוּ נָשִׁים נָכְרִיּוֹת עַד יוֹם אֶחָד לַחֹדֶשׁ הָרִאשׁוֹן: (פ) {יח} וַיִּמָּצֵא מִבְּנֵי הַכֹּהֲנִים אֲשֶׁר הֹשִׁיבוּ נָשִׁים נָכְרִיּוֹת מִבְּנֵי יֵשׁוּעַ בֶּן יוֹצָדָק וְאֶחָיו מַעֲשֵׂיָה וֶאֱלִיעֶזֶר וְיָרִיב וּגְדַלְיָה: {יט} וַיִּתְּנוּ יָדָם לְהוֹצִיא נְשֵׁיהֶם וַאֲשֵׁמִים אֵיל צֹאן עַל אַשְׁמָתָם: (ס) {כ} וּמִבְּנֵי אִמֵּר חֲנָנִי וּזְבַדְיָה: (ס) {כא} וּמִבְּנֵי חָרִם מַעֲשֵׂיָה וְאֵלִיָּה וּשְׁמַעְיָה וִיחִיאֵל וְעֻזִיָּה: {כב} וּמִבְּנֵי פַּשְׁחוּר אֶלְיוֹעֵינַי מַעֲשֵׂיָה יִשְׁמָעֵאל נְתַנְאֵל יוֹזָבָד וְאֶלְעָשָׂה: (ס) {כג} וּמִן הַלְוִיִּם יוֹזָבָד וְשִׁמְעִי וְקֵלָיָה הוּא קְלִיטָא פְּתַחְיָה יְהוּדָה וֶאֱלִיעֶזֶר: (ס) {כד} וּמִן הַמְשֹׁרְרִים אֶלְיָשִׁיב וּמִן הַשֹּׁעֲרִים שַׁלֻּם וָטֶלֶם וְאוּרִי: (ס) {כה} וּמִיִּשְׂרָאֵל מִבְּנֵי פַרְעֹשׁ רַמְיָה וְיִזִּיָּה וּמַלְכִּיָּה וּמִיָּמִן וְאֶלְעָזָר וּמַלְכִּיָּה וּבְנָיָה: (ס) {כו} וּמִבְּנֵי עֵילָם מַתַּנְיָה זְכַרְיָה וִיחִיאֵל וְעַבְדִּי וִירֵמוֹת וְאֵלִיָּה: (ס) {כז} וּמִבְּנֵי זַתּוּא אֶלְיוֹעֵנַי אֶלְיָשִׁיב מַתַּנְיָה וִירֵמוֹת וְזָבָד וַעֲזִיזָא: (ס) {כח} וּמִבְּנֵי בֵּבָי יְהוֹחָנָן חֲנַנְיָה זַבַּי עַתְלָי: (ס) {כט} וּמִבְּנֵי בָּנִי מְשֻׁלָּם מַלּוּךְ וַעֲדָיָה יָשׁוּב וּשְׁאָל (ירמות) וְרָמוֹת: (ס) {ל} וּמִבְּנֵי פַּחַת מוֹאָב עַדְנָא וּכְלָל בְּנָיָה מַעֲשֵׂיָה מַתַּנְיָה בְצַלְאֵל וּבִנּוּי וּמְנַשֶּׁה: (ס) {לא} וּבְנֵי חָרִם אֱלִיעֶזֶר יִשִּׁיָּה מַלְכִּיָּה שְׁמַעְיָה שִׁמְעוֹן: {לב} בְּנְיָמִן מַלּוּךְ שְׁמַרְיָה: (ס) {לג} מִבְּנֵי חָשֻׁם מַתְּנַי מַתַּתָּה זָבָד אֱלִיפֶלֶט יְרֵמַי מְנַשֶּׁה שִׁמְעִי: (ס) {לד} מִבְּנֵי בָנִי מַעֲדַי עַמְרָם וְאוּאֵל: (ס) {לה} בְּנָיָה בֵדְיָה (כלהי) כְּלוּהוּ: {לו} וַנְיָה מְרֵמוֹת אֶלְיָשִׁיב: {לז} מַתַּנְיָה מַתְּנַי (ויעשו) וְיַעֲשָׂי: {לח} וּבָנִי וּבִנּוּי שִׁמְעִי: {לט} וְשֶׁלֶמְיָה וְנָתָן וַעֲדָיָה: {מ} מַכְנַדְבַי שָׁשַׁי שָׁרָי: {מא} עֲזַרְאֵל וְשֶׁלֶמְיָהוּ שְׁמַרְיָה: {מב} שַׁלּוּם אֲמַרְיָה יוֹסֵף: (ס) {מג} מִבְּנֵי נְבוֹ יְעִיאֵל מַתִּתְיָה זָבָד זְבִינָא (ידו) יַדַּי וְיוֹאֵל בְּנָיָה: {מד} כָּל אֵלֶּה (נשאו) נָשְׂאוּ נָשִׁים נָכְרִיּוֹת וְיֵשׁ מֵהֶם נָשִׁים וַיָּשִׂימוּ בָּנִים: (ס)

 

Matchmaker, Matchmaker     Issue #: 041

Matchmaker, Matchmaker! Leah Steinberg from Glenhazel, Johannesburg was not getting younger.  F ...

Matchmaker, Matchmaker!

Leah Steinberg from Glenhazel, Johannesburg was not getting younger.  Finding the suitable match was like looking for a sugar granule in a hedge of thorns. She worked hard to keep a positive attitude throughout this difficult and seemingly endless period of her life.  Leah would capitalize on her quite moments alone to think of others in need, improve her character, and strengthen her faith.  From time to time, she would reflect on how much she accomplished over six years of dating.

It seems that the challenges of life had made her in to a much more thoughtful, stronger and refined person.  These precious moments would infuse her with courage to persevere and face her challenges with a smile and determination.

Leah's next-door neighbor, Kate Hellman, ran a free food pantry from her home on the corner of Mansion St. and Carron Rd. for the neighborhood's needy.

Aaron Berger from Percelia Estates would volunteer on Monday afternoons for Kate.  Aaron was a handsome able-bodied young man with a heart of gold.  Kate knew Leah well and thought that Aaron would be a great match for Leah.

 

On February 5, 2006, Leah received a phone call from Mrs. Hellman. "I have something I think that you would enjoy, waiting for you in my pantry. Please, Leah meet me in the garage next  Monday afternoon."

Aaron and Leah's dating experience was short lived. After three dates, both seemed uninterested in continuing. Life went back to normal.

Three years later, in the summer of 2009, Aaron decided to take a well-earned vacation to Israel. He bought an El Al ticket and counted the days for his visit to the Holy Land.

Aaron arrived at Johannesburg International Airport. He approached the El Al check in counter and asked for an aisle seat so as not to bother his neighbor should he need to stretch his legs. The flight attendant graciously offered Aaron the last available aisle seat.

 

Aaron boarded the plane, approached his seat and almost fainted.  Sitting right next to him was none other than Leah Steinberg.

 

Today, Aaron and Leah Berger instill their happy marriage with all the fine qualities they developed over the years.

* As their initial matchmaker; do the Bergers have any financial responsibilities  to remunerate  Kate Hellman for having first brokered their match or do we let bygones be bygones?

 

What is the Law?

 

The Answer

Aaron and Leah must remunerate Mrs. Hellman 1/3 of the matchmaker's going rate for initially having set them up, provided their original encounter played a role in their striking up serious conversation on the flight.

 Detailed Explanation

To answer "Matchmaker, Matchmaker", it is important for us to:

  1. A) Identify the basis of the time-honored custom to remunerate matchmakers for their work
  2. B) Configure the value of the service Mrs. Hellman may have provided
  3. C) Quantify the termination of the matchmaker's service.

 

  1. Identification:

Typically, a matchmaker brings the bride and groom together by

1) The respective parties requesting the matchmaker's services, or

2) The matchmaker suggesting a prospective match and offering to render his or her services.

 

Thus, a matchmaker, [Choshen Mishpat 185: 6, Pischei Teshuva, 185:10] like any broker [Biur HaGra ibid. 13] or sales agent, can provide one of two categories of service:

1) Solicited work, or

2) Unsolicited work

 

We have noted in previous issues [See Issues 14, 19, 29, The Case of the Baffled Babysitter- Special Edition, 39] that one is generally required to pay for receiving benefit from an unsolicited service that he or she would otherwise have willingly paid a third party to perform.[Choshen Mishpat 375:1 (Note: See Issue 40 for a list of exceptions)]

 

To this date, people willingly hire matchmakers to assist them in their quest; consequently, the bride and groom must remunerate a matchmaker who initiated his or her services, just as they would owe anyone who provided them unsolicited work for which they would have been willing to pay.

 

The amount due for receiving matchmaking services is, like all employment rates, subjective to the custom of the local society [Choshen Mishpat 333:1].

[In a society where it is not customary for people to willingly hire matchmakers, then no money can be demanded for providing the couple with unsolicited beneficial information.]

 

2. Configuration:

 

Like a real estate agent, the job of a matchmaker can be multifaceted:

1) To introduce the parties

2) To aid in negotiations

3) To ensure the prospective relationship materializes [Pischei Teshuva, 185: 10]

 

Should the relationship materialize, each facet performed, earns the matchmaker one third of the going rate [ibid.]

 

Again, the amount due for receiving matchmaking services is, like all employment rates, subjective to the custom of the local society [Choshen Mishpat 333:1].

 

3. Quantification:

Undoubtedly, a matchmaker provides information, which could be of value later, whether or not he or she is involved in brokering and/or actualizing the relationship. 

The question at hand is, "Are the prospective sides forever beholden to the initial information provider?"

 

The answer is one that demands a level of personal honesty.

 

If the prospective sides close the file, they owe nothing to the initial matchmaker even if they subsequently meet again.  If, however, they never fully closed the file, or else, the first encounter nevertheless enhances the second meeting, they owe the initial matchmaker his or her share for introducing them to each other.

 

A regulation of Prague, which became the accepted custom across the Jewish spectrum, was to award the initial matchmaker should the prospective sides have met again within the same year.

 

Within the same year, we can assume that the two parties consciously or subconsciously never really parted ways. Hence, the initial matchmaker deserves his or her due share.  However, once a year elapsed we can assume that both sides have parted ways seriously, and any subsequent relationship formed is independent of the initial matchmaker's efforts.

 

Nevertheless, as inferred above, if the prospective sides know within themselves that their original encounter enhanced their subsequent meeting, they would be responsible to their initial matchmaker even after a year has passed.

 

Application:

For all intents and purposes, Aaron and Leah forgot about each other after their first dating experience.  Three years passed until they chanced upon each other in the air.

Objectively, Mrs. Hellman's services terminated with no success. They therefore must remunerate Mrs. Hellman only if their original encounter played a role in striking up serious conversation on the flight.  Should it have played a role, the Berger's would be liable to pay Mrs. Hellman 1/3 of the going matchmaker's rate, for having introduced them to each other.

Lip Liabilities: Verbal Abuse or Gossip!     Issue #: 128

Lip Liabilities: Verbal Abuse or Gossip! Many schools require the teacher to arrange for a substitu ...

Lip Liabilities: Verbal Abuse or Gossip!

Many schools require the teacher to arrange for a substitute, should the teacher need to take a leave of absence. 
 
R. Berger was an acclaimed and noteworthy educator in a prestigious Jerusalem girl’s seminary. As a world renown speaker and sought after inspirer, R. Berger would travel periodically around the globe on speaking tours. He customarily hired R. Adler to teach his classes while on leave. 
 
On Sunday January 29th, R. Berger emailed R. Adler and asked him to fill in for the two weeks of February 5th and February 12th.   Adler had an alternative option for the week of the fifth, but turned it down in favor of this two week employment. 

On Feb 1st, the principal’s neighbor told her that she is aware of a R. Cohn who is from the most dynamic teachers in the country. “Why don’t you hire R. Cohn to cover R. Berger’s classes? While R. Adler may be decent, I am sure that Cohn is far more effective. 
 
The principal agreed. He called R. Adler to tell him not to bother coming in. Too late to pursue the one week employment option, R. Adler was more than chagrined.

 


 

As a child Aviva suffered verbal abuse from her older sister which severely impaired her productivity as a teen. A caring teacher encouraged her to seek professional help.  
 

Must Mrs. Cohn, the principal, and/or R. Berger compensate R. Adler?  

Who pays for the therapy, Aviva, her teacher, or her sister?

 

What’s the Law?

The Answer:  

The principal must compensate R. Adler for one week of lost wages. Aviva’s sister must pay for the therapy (see detailed explanation). 
 

Detailed Explanation

Lip Liabilities invokes the following Halachos. 
 
Gossip
 
1. Barring unforeseen/incontrollable circumstances, if A canceled a verbal employment engagement after B turned down alternative work, A is liable to pay B for his/her loss. 
 
2. However, if A cancelled before B began working or travelling to work, A is not required to pay for B’s dashed expectations. 
 
For example:   If 1) B did not turn down alternative employment and  2) did not lose the opportunity to seek out alternative work,  A is not required to compensate  [Choshen Mishpat 333:2, 334:1]. 
 
Application:
 
R. Berger had the right to hire the R. Adler and it is as though the principal hired him.  As such, if the substitute turned down employment as a result of the responsible party’s verbal commitment, and can no longer find alternative employment, the principal must pay for the week of wages the substitute turned down. 
 
The principal is absolved though, from compensating the substitute for the wages for the second week, which amount to no more than dashed expectations.

 

◆ 
 
 

Verbal Abuse
 
3. One who physically harms his/her fellow must pay for damages and medical expenses incurred amongst other charges [Choshen Mishpat 420: 3, 13].
 
4. Intentional damage requires the aggressor to compensate the victim for the embarrassment suffered as well [Choshen Mishpat 420: 3, Sm"a ibid. 44, Choshen Mishpat 421: 1].
 
5. The authority to enforce the numerous charges depends upon the rank of the particular Beit Din. See Choshen Mishpat §1 for detailed discussion.
 
6. In lieu of medical expenses, even a lower ranking Beit Din retains the authority to compel the aggressor to appease the victim financially compensate him/her in accordance with their evaluation [Choshen Mishpat §1:2 Rema].
 
7. Verbally abusing a victim who is unable to protect him/herself [See Choshen Mishpat 420:32]  from becoming emotionally scarred whereby resulting in the victim’s compromised productivity is viewed in the eyes of Dayanim  as a clear present and visible damage for which the aggressor should pay.  
 
8. The medical expenses would be the cost of therapy. However, Beit Din will assess how much the therapy should cost and levy a one time fee, rather than send a bill after every visit.
 
Application:
 
As Aviva was unable to protect herself from the verbal abuse to which her sister subjected her, Aviva’s sister is required to pay for her therapy.

 


 
Dayan Chaim Kohn, Dayan K’hal Adath Yeshurn NYC, Gerrer Shtiebel Flatbush, Dean of Business Halacha Institute

DSL’s About-Faced Moving Sale     Issue #: 249

Choshen Mishpat 207 DSL’s About-Faced Moving Sale “Moving Sale, Moving Sale, Unbeatable ...

Choshen Mishpat 207

DSL’s About-Faced Moving Sale

“Moving Sale, Moving Sale, Unbeatable Prices…Everything must go…”

DSL’s (David & Shani Levi’s) ten-year tenure in Israel was coming to a close. Financial considerations played a major factor in their deliberate decision. Furious and Frenzied arrangements and tying up of many loose ends filled their last few days. Balancing selling off of their movables, maneuvering through seemingly endless bureaucratic red-tape and running the household was a class juggling act of skillful precision.   

Thank G-d, the moving sale beginning on Wednesday July 25th 2017; one week before their scheduled departure, was a relative success. Most of the bulky sale items went pretty fast. By the end of the two-day sale, the apartment looked eerily empty…

*

Rubin purchased the one- year old Hisense 495 liter, frost-free stainless-steel two-door refrigerator but was told that he could pick it up midday on July 22nd, after Levi left.

*

Stern eyed the six-year old Sauter 50 cm, 65 liter oven/stove. The price was just right. He reached in to his pocket to pull out 600NIS.  As he handed Levi the money, Levi noticed Stern’s facial expression suddenly conveyed apprehension.

“What’s the matter Stern?” Asked Levi with his characteristically warm smile.  

“Everybody loves the Sauter! The thermostat never failed me. I’m sure it won’t fail you. Money back if it fails within the next 30 days!  You surely won’t find a better price.” Stern was convinced and felt assured. He too was told to pick it up on the 22nd.

*

Then came Sunday the 18th when two sudden unforeseen flabbergasting game-changing calls upended weeks of laborious and painstaking work.

David’s future employer’s business folded and Shani’s father received an unexpected promotion and offered to finance the DSL’s in Israel for another two years.

With financial prospects in Israel now looking more promising for the DSL’s than in the States, reconsidering was a foregone conclusion.

May they demand the buyers to return their purchases?

Assuming that the DSL’s actually relocated, what would be in if Stern subsequently discovered that the price – could be beat, or the thermostat failed on him – does he have recourse, can he demand his money back?

 

What's the Law?

Drafted n' Duped!     Issue #: 099

Drafted n' Duped!   With apartments in high demand, Ray Field saw the following advertisement i ...

Drafted n' Duped!

 

With apartments in high demand, Ray Field saw the following advertisement in the DC area Classifieds. "Airy, comfortable, spacious apt. contact present tenant Joe Berger ... must buy existing used furniture.

 

September 14th 1969... drafted! Dr. Ray Field, a young cardiologist in  NY Beth Israel Medical was summoned to provide ongoing care to US army veterans in the Armed Forces Retirement Home Washington Campus.

 

Incredibly, Ray and his wife Carol received permission to live off campus, in walking distance from the nearby fledgling Summit Hill Ahavas Torah Synagogue.

 

Desperate for a place to live, Ray agreed to purchase the existing furniture from Joe Berger for $2,000 (buying power of $12,314.11 in 2011 see CPI Inflation calculator) . Berger then put Ray in contact with the landlord.

 

Ray forwarded 12 head checks to the landlord and intended to meet Berger as they pulled in to their new home.

 

Excited, though apprehensive about their new beginnings, Ray and Carol pulled up to their new home in Summit Hill, knocked on the door and were warmly greeted by Berger.

 

Carol took one look at the furniture and almost fainted! "Joe!  This furniture is ten years old!  It's not worth more than $500! We're taking the apartment and here's $500 for the furniture."

 

"Mrs. Field, Indeed this furniture is ten years old. But, I moved in here a year ago and the previous tenant forced me to purchase this furniture from him for $2000. I'm just passing down the rip off  to you..."

                                                    

 

 

 What's the Law? 

  

 

 

The Answer

 

The Fields may take the apartment and do not have to uphold their verbal commitment with the previous tenant regarding the furniture (see detailed explanation).

 

 

Detailed Explanation

  

Joe Berger overcharged the Field's four times the market value simply because he was ripped off last year. 

This episode transpired in 1969. There were no digital imaging, e-mail, etc. There was no way for the Fields to have "seen" the merchandise before their consent. Instead, the Field's reasonably assumed that while the furniture was advertised as used, the $2000 was a fair market value for the quality they were to receive .

 

In addition, the difference in price and true value was so immense that it could be viewed as though the Field's did not receive the type of merchandise they agreed to purchase. As such, the Field's need not "keep their end of the deal either" [Choshen Mishpat 233: 1].

 

Joe Berger wished to monopolize on the  opportunity. He was not appointed as an agent for his landlord. Instead, the Field's ultimately dealt directly with their landlord.

Over the Range!     Issue #: 098

Over the Range!    "Your fresh-cooked vegetables shouldn't come out of the microwave soft ...

Over the Range!

  

"Your fresh-cooked vegetables shouldn't come out of the microwave soft and mushy. Our sensor-equipped models take the guesswork out of cooking many common foods by using built-in sensors to automatically set power and time based on food moisture levels." [GE Website]

"Convection oven cooking combined with microwave power produces beautifully baked and roasted foods fast. The convection fan is mounted on the right side of the oven and is surrounded by a 1550-watt heating element, allowing you to convection bake in your microwave oven at any temperature between 225 and 450 degrees." [GE Website]

*

Anita Gross drove by  David's Appliance Depot on Reisterstown Rd. in Baltimore, MD and saw her to dream GE Profile 1790 sensor technology Convection over-the range Microwave oven featured in the storefront window.

"We have one left. We'll give it to you at our bargain giveaway price of $950. We offer optional payment plans as well with no extra fees! You won't find a better deal anywhere in town...Don't give up this once in a lifetime opportunity. By the next shipment, we're raising the price to $1050", pressed the salesman... Persuaded...though a bit wary...Anita handed the salesman three hundred fifty dollars cash and two post dated checks for three hundred dollars each.

Driving home with her prize in her trunk, Anita stopped off for a pizza at a local Kosher Pizza Shop when she eyed an advertisement in the "Where What When" Jewish Monthly on one of the tables. Abe's Appliances featured her dream 1790 for $694. Mortified, she went home, did some homework and found that she was duly ripped off - over the range! GE's suggested retail price was indeed $694. Incensed, Anita returned the next day to David's Appliance Depot and demanded a sale reversal. "It's a done deal Madam..."

 

May David's Appliance Depot charge $950 for merchandise valued at $694?

 

Does Anita have any recourse on the day of purchase?

 

Does Anita have any recourse the next day?

 

                                                     

What's the Law?

 

The Answer

Generally, David's may not charge $950.  If Anita discovers that she was overcharged 16% of the going rate, she may have recourse (see detailed explanation).

 

Detailed Explanation

 

Over the Range! Implicates the following four laws.

Taking advantage of an individual by overcharging or underpaying is generally prohibited [Choshen Mishpat 227: 1].

 

A customer who discovers, within the timespan necessary to ascertain the true value of the article (and return to the proprietor), that he or she paid more than 16% of the going rate, may generally rescind on the sale and demand his/her money back  [Choshen Mishpat 227: 2].

 

After the timespan necessary to ascertain the true value of the article (and return to the proprietor, the customer forfeits this right to retract on the deal. We assume that the customer ascertained the value, pardons the proprietor and consents to having been overcharged [Choshen Mishpat 227: 7].

 

Is a consumer who has not yet paid in full likely to consent to the degree of overcharge after the timespan necessary to ascertain the true value of the article, or does he/she view their holding on the money as leverage through which he/she can use to ensure a fair price as long as he/she still is in possession of the money?   [Ketzos HaChoshen 227: 3]

 

As valid arguments can be made to both sides, we would leave the status quo, and would not obligate the consumer to continue paying the full agreed upon price.

 

Are head-checks considered having paid for the article in full?

 

This depends upon the society. Generally in America one cannot receive cash for head-checks. Additionally, the issuer retains the right to cancel the check. A check is simply an IOU.

 

However, in Israel it is common to be able to redeem third party head checks for cash. In addition, in Israel, like in Old British Law, it is a felony to indiscriminately cancel a check.

 

Thus, in an American style society, having given head checks is deemed as though the merchandise has yet to be paid for in full.  Whereas, there is strong reason to believe that in an Israeli style society, forwarding head-checks is as though the merchandise is paid for in full.

 

Application

 

David's Appliance Depot overcharged Anita more than 16% of the going rate. Anita did not notify David's or return until the next day which was after the timespan necessary to ascertain the true value of the article. Thus, she theoretically, forfeited her opportunity for recourse. However, two thirds of the payment were in head checks. In America, we will assume that full payment was yet to be paid. We would therefore, allow Anita more time to rescind on the deal.

Dollar Ditch!     Issue #: 097

Dollar Ditch!    After marrying off their youngest daughter, the Fischer's from Lawrence f ...

Dollar Ditch!

  

After marrying off their youngest daughter, the Fischer's from Lawrence focused on actualizing their life-long dream of emigrating to Israel. Dr. Arnold Fischer planned to continue his practice on a part-time basis as a diagnostic radiologist for Beth Israel Medical Center, while Mrs. Fischer was set on volunteering as a social worker for terror victim families.

The two decided to take a pilot trip for year and rent a studio apartment on Shimshon Street in Ramat Beit Shemesh, as they shopped around for a suitable neighborhood and villa to purchase.

While planning to move in on August 19th , 2009, the Fischer's signed a lease with Doron Nadlan for $1,000 a month. They signed three months in advance on May 18th , 2009 and forwarded a security check in dollars as well. On May 18th , 2009 the shekel -dollar exchange rate was 4.169 NIS to the dollar.

As scheduled, the Fischer's moved in on August 19th , and while overcoming numerous initial challenges began to acclimate to their new environment.

On Oct. 15th, 2009 Dr. Fischer received the following shocking email from Nadlan.

 

" Dear Dr. and Mrs. Fischer


 As the shekel-dollar exchange rate unexpectedly plummeted to 3.69 NIS to the dollar, be informed that I am switching your rent over to shekels and expect 4169 NIS a month."


 Doron Nadlan

 

What's the Law? 

 

 

The Answer

 

Nadlan may not change the rental terms in midst of the contract.

 

Detailed Explanation

 

Dollar Ditch! Implicates the following four laws.

1. Land is legally acquired via four mediums; three of which are the transfer of money or effecting a contract or beginning of usage.

2. Real-Estate rentals and real-estate loans are like a temporary sale and are secured through the same mediums [Choshen Mishpat 190: 1, 195: 9].

3. After the prescribed legal acquisition means is met, a party may generally not reverse on the deal [Choshen Mishpat 189: 1].

4. When a real-estate rental has been legally secured for a defined period of time, a landlord may not adjust the terms of the lease during the tenure of the contract even if the price fluctuates drastically [Choshen Mishpat 312: 9, 10].

Application

 

The Fischer's secured their apartment rental or temporary sale by signing a contract. In fact, they even paid money and began using the apartment. The contract required the Fischer's to pay their rent in dollars. Nadlan may not adjust the terms of the contract on the Fischer's even if the shekel-dollar exchange plummeted in the interim.

 

It's A Boy     Issue #: 096

  Its a Boy!     Mrs. Greenfield hired Doula Fried, to assist her in delivering her n ...

 

Its a Boy!

 

 

Mrs. Greenfield hired Doula Fried, to assist her in delivering her newborn. Early, Tuesday morning, Mrs. Greenfield sensed that the awaited time was imminently approaching. In general though, Mrs. Greenfield upheld a history of elongated ordeals.

In contact throughout the morning with Duola Fried; she was assured that history was repeating itself and time was on her side. The thought of hours of work simply tired her out. ...when suddenly her room was filled with the delightful charm of promising life. Doula Fried missed the birth!

Is Mrs. Greenfield required to pay Duola Fried?

What is the Law?

The Answer

Unless Duola Fried has a specific policy, Mrs. Greenfield is exempt from paying Fried (see detailed explanation).

 

Detailed Explanation

 

Background

 

Mrs. Greenfield hired Duola Fried to perform a service. Although Duolas often provide guidance to their clients far before rendering the actual service, Duolas generally charge only for aiding the delivery. In Mrs. Greenfield's case, Duola Fried did not even begin providing her "chargeable" services nor did she begin traveling to the "work site". Secondly, there is a calculated risk in the field, that the Duola may well miss the birth.

 

*

 

It's a Boy implicates the following four laws.

1. An employer who irresponsibly cancels the post after a laborer either turned down alternative work (and can no longer find replacement work) or else, began working or traveling to the job site (even if he/she did not turn down alternative employment) is required to compensate the laborer for the wages he/she expected to earn [Choshen Mishpat 333: 2; 334:1].

2. An employee who prefers to earn reduced wages and remain idle, rather than work hard and earn more, can only claim that "reduced fair" from the employer [Choshen Mishpat 333: 2; 334:1].  

3. When new circumstances render the job unnecessary, an employer is absolved from compensating a laborer for services not received, if the laborer could have responsibly foreseen  such occurrences [Choshen Mishpat 334: 1].

4. An employer who must cancel the post due to unexpected circumstances need not pay for services not received (though must reimburse him/her for expenditures invested by the employee en route to the work site) [Nesivos Hamishpat 333:5].  

 Application

Doula Fried did not invest expenditures, begin traveling, or begin rendering services. Most of all, Doula could have foreseen the eventuality of missing the birth. Mrs. Greenfield is absolved from paying her for her services unless there is a predetermined protocol for such eventualities.

 

Of Spectacles and Sofas     Issue #: 095

Of Spectacles and Sofas     Spectacles: Her shopping cart piled high with groceries galore ...

Of Spectacles and Sofas

 

 

Spectacles: Her shopping cart piled high with groceries galore, Mrs. Else Wagner slowly edged her way through the Wednesday afternoon mayhem in Sandor's Supermarket with her charming great-grandson Marty at her side. Her energetic and positive demeanor served as a remarkable lesson for little Marty.

All of a sudden, a clique of hyperactive teenagers came barging in to the store while tossing their basketballs to and fro. Caught between the crossfire, Marty's inimitable glasses were knocked off his face and came crashing down to the floor splitting in two.

Marty's Mom had obtained his blue glasses two years ago at a 50% off sale and paid $50 for them. Though the prescription was still good, the frames by now bore witness to two years of football in the playground. Nonetheless, Mom had no intention of replacing them anytime in the near future. Yet, by now the market for glasses had sharply increased and he cost of replacing them would run about $300.

How much should the teenager who threw the ball pay?

 

 

*

 

Sofa: Carry's designer sofa was one of a kind. She purchased it for $1500 at The Furniture Fellows in Bergen County and brought the sofa from America on her lift to Beit Shemesh, Israel. Spring cleaning in the air, Carry hired Simon The Sofa Sweeper to clean her couch. Sofa Sweepers brought down their equipment and dutifully tended to the job at hand.

Looking over their work as they were readying to leave, Simon became horrified! Across the seat were black streaks! The color of the material had run. Looking on the bottom of the couch, Simon detected a warning notice with the words, "Do not use water."

Carry was far from excited. "Please remove this couch immediately and replace it with one exactly the same." Simon researched for the couch and found only one store in Haifa which sold that couch...but for 15,000 NIS (equivalent to roughly $4,451).

What does Simon owe Carry?

 

 

What is the Law?

The Answer

Of Spectacles and Sofas implicates the following laws.

1.      An article's value is figured at its fare local and present market value irrespective of the initial purchase price [Mishna 6:5, Tosefta 4:3 Maseches Erachin].

2.      Unless local custom differs (e.g. insurance policies), damages of used items are assessed by the depreciation of the entire article [Minchas Yitzchak 3: Responsa 126]. When the damage is normally repaired, the damage value is the cost of the repair [Chazon Ish: Maseches: Bava Kama 6:3].

 3.      Used personal objects often lack a market value (i.e. people do not buy used  spectacles).  How do we figure damage  assessment?   Jewish Courts consider the market value at purchase time,  and subtract a percentage per year of usage, while attributing a higher percentage to the earlier years of usage. For argument's sake; a new pair of glasses are valued at $325. If the owner would generally wear them for three years, at the end of a year; the glasses might depreciate $125 and $100 each subsequent year [Imrei Yaakov: Nezikin 8].

 

Application

Although, the used  glasses have no market value; Jewish courts would ignore the replacement value and rather consider the pair's purchase value (not sale price) and subtract a percentage per year used,

If in Israel, the sofa sells for 15,000NIS, ($4,450) new; the damage assessment for this sofa will be based upon the value in Israel.

Seem Stressed or Seamstress?     Issue #: 094

  Seem Stressed or Seamstress?   Aviva purchased a dress for $50.00 which needed alteratio ...

 

Seem Stressed or Seamstress?

 

Aviva purchased a dress for $50.00 which needed alterations. She took it to Mrs. Adler the local seamstress. Mrs. Adler altered the dress appropriately and Aviva wore it twice thereafter.

Subsequently, Aviva realized that she needed the dress to be let out by the seams. She purchased material for $14.00 and returned to Mrs. Adler one Tuesday.

Aviva explained to her that she needed the dress on Thursday of that week, as she wanted to wear it for an occasion out of town on Sunday night (her engagement party). Aviva described to her exactly what she wanted done to the dress and how she wanted it to look. She asked her not to add any flares but to make sure that the dress was straight. The two agreed on a price ($85.00) and Mrs. Adler gave her word that although it would be a difficult task, she would have it ready for Thursday.

Aviva called Mrs. Adler on Thursday afternoon to see if it was a good time to pick up the dress. Mrs. Adler responded that quite frankly it would be an unfruitful excursion on Aviva's part as she had not started working on it.

Aviva was outraged! She reminded Mrs. Adler that they agreed that she would have it ready for her by Thursday because she needed it for an event...

Mrs. Adler apologized but reassured Aviva that she can have it ready for Sunday noon, and that she should stop by on Friday to try on the dress.

Aviva came in on Friday intending to try on the dress.

Horrified was an understatement!

The seamstress had cut the dress to add the material, but she had not followed Aviva's directives! She added three flares instead of making it straight. And the hem...it was atrocious!

To make things better, Mrs. Adler was not in. Her worker was there in her stead. Aviva told her worker that the repair was not what she asked for and that she would never wear the dress like this. "Something has to be done." Aviva pinched the excess material and told her "I want this out!" The worker shook her head and responded that she will try her best to fix what she can and that Aviva should come back on Sunday morning.

Aviva returned to Mrs. Adler with her Mom on Sunday morning to try on the dress. It was still far from Aviva's liking. It was not straight, and it looked like patch work...but nothing more could be done..

Aviva was minus the material she bought and minus the dress- "It is absolutely not wearable like this", complained Aviva and her Mom.

Mrs. Adler told Aviva that the dress looked beautiful on her, handed Aviva the altered dress and told her that she would have to charge her an additional thirty dollars because she had to pay her worker extra for staying longer and working on the dress.

"What audacity!" Aviva adamantly refused to pay her an extra thirty and even wondered whether she should pay her at all.

 

She set forth four arguments.

1) They agreed upon an $85 cost in the beginning,

2) The worker only put in extra work because things were not done right the first time,

3) The style of the alterations were not what Aviva had requested and

4) Mrs. Adler did not have the dress ready on Thursday as originally promised. 

 

*

 

1) Was Aviva obligated to pay her the $85 for the work that was done, even though it was not what we agreed she would do, and it was not ready in time?

2) Is Mrs. Adler responsible to pay Aviva back for the material that she bought to add to the dress? ($14.00)

3) Is Mrs. Adler responsible to pay for part of the cost of the dress since she rendered it not wearable anymore? 

 

 

What is the Law?

 

 

The Answer

 

As Mrs. Adler ruined the dress, Aviva is absolved from paying the initial $85 as well as the additional thirty. Mrs. Adler must pay for the material and the value of the used dress. 

 

Detailed Explanation

 

We may divide this episode into two different phases. 1) from Tuesday till Friday 2) from Friday till Sunday.

 

Phase 1: Tuesday till Friday: $85, $14, Dress Value

Aviva requested the dress repaired without flares and that the job should be completed by Thursday.  Mrs. Adler failed on two accounts. She did not complete the job at the prescribed time and ruined the dress by adding flares instead of making the dress straight.

 

A service provider who is tardy is guilty of causing anguish to his/her customer.  Nevertheless, while tardiness gives the customer a right to have hard feelings against the service provider, tardiness alone does not warrant  withholding payment, so long as the service remains beneficial. Generally, a dress retains the same value whether or not it was ready at the prescribed time. (Parenthetically, there comes a point in time when tardiness is above and beyond the norm that the customer may rescind on the transaction.)

 

However, payment may be withheld when the service provider ruins the merchandise.  A used dress is hardly worth anything to anyone other than to the initial owner.  If the dress is not to the owner's liking anymore, it becomes virtually valueless. Thus, Mrs. Adler ruined the dress.  As such, Aviva would be absolved from paying for the addition of the flares.

 

Similarly, as Mrs. Adler ruined the dress, she is required to compensate Aviva for the material as well as for the value of such a dress which had already been worn twice beforehand. 

 

Phase 2: Friday till Sunday: Additional work

If on Friday, Aviva would have agreed that if they fix it up she would accept it, even though it was already obvious that they couldn't make it 100% as she was hoping for, (it already had flares and it was not going to become 100% straight anymore) and they claim that they did make it acceptable then there is room for discussion, and the other side's story has to be heard also.

 

However, Aviva was quite clear what she wanted. She wanted it straight. If it was impossible to do, the seamstress should have been upfront with her. An attempt to make it "acceptable" would not warrant payment for an unsolicited job from which the customer has no benefit. Thus, Aviva is absolved from paying for the additional service rendered.

The Baffled Teacher     Issue #: 093

The Baffled Teacher.pdf (1.28 mb) The Baffled Teacher   Experienta Docet! (Experience teac ...

The Baffled Teacher.pdf (1.28 mb)

The Baffled Teacher

 

Experienta Docet! (Experience teaches! )

As the eagerly awaited Passover season was rapidly arriving, students and teachers alike, seemed to have been counting down the hours towards liberation. The finale of the wait was topped with a virtual mini-course in janitorial skills, as the student body and teachers staff avidly cleaned through their cubbies, lockers, and desks.

Going through her desk drawers, Mrs. Linda Gold, the highly acclaimed A-Track sixth grade boys Latin roots teacher was confronted with confiscated symbolisms of her annus mirabulis (wonderful year) .

A ping pong racket, a water blaster, a car magazine, a heavy duty flashlight, a megaphone, a GPS, a hardball, some darts, a blackberry, some rather dangerous vestiges of the beginnings of an armamentarium (arsenal), and - an unfamiliar bottle of lighter fluid apparently confiscated by Mrs. Perns, her beloved substitute
.

 

1. Is a teacher permitted to temporarily confiscate tools of obstructions to the classroom?

2. Is a teacher permitted to confiscate tools of obstructions ad infinitum?

3. Is there a difference between a regular teacher and a substitute?

4. What should they do with dangerous substances?  

 

 

What is the Law?

 

 

The Baffled Teacher implicates the following six laws.

1.       It is forbidden to steal temporarily with the intention of subsequently returning the article [Choshen Mishpat 346: 1]

 2.       It is forbidden to steal from a minor [Choshen Mishpat 346: 2]

3.       A parent, teacher, or person of authority may not use their position of power to indiscriminately inflict unnecessary pain on a child [Devarim 25: 3].

4.       One who is entrusted with the discipline of a child may not shirk his or her responsibilities [Mishlei 22: 6].  

5.       So long as the pedagogue tactic is effective, a parent or one who is responsible for the development of a child may  (and at times should) cause the child pain while disciplining him or her [Rambam Hilchos De'os 6: 10].

6.       Similarly, one who is responsible for the child's development may confiscate articles obstructing the child's development [Pischei Choshen Hilchos Gezeilah 1: 17]

       

 Application

As individuals responsible for the child's development, a teacher or substitute may in good-faith confiscate from their students tools of obstruction. They may only keep them ad infinitum if returning them would be destructive to their students' development. Otherwise, they would be required to return the belongings to their due owners after the "lesson is learned." Similarly, dangerous articles should not be returned to the children.

Another thought to consider is that when parents send their children to school, they understand that the staff needs to keep control of the classroom and school and in their effort will remove tools of obstruction. Obviously, this does not give staff members to irresponsibly and indiscriminately confiscate belongings of children as long as Mrs. Green or adult members of her household are home, she is permitted to allow others to use items which she borrowed.

It is an act of negligence to vacuum without picking up articles from the floor which could damage the machine.

If however, the articles which caused damage were in an unexpected place, and could not have been seen, the damage ensued is viewed as damages incurred in the course of normal use. Consequently, the borrower is absolved from paying for such damages.

Facebook or Face Off!     Issue #: 060

FACEBOOK or FACE OFF.pdf (1.44 mb) Facebook or Face Off!   Consider this public news story:"The ...

FACEBOOK or FACE OFF.pdf (1.44 mb)

Facebook or Face Off!

 

Consider this public news story:

"The personal details of 100 million Facebook users have been collected and published online in a downloadable file, meaning they will now be unable to make their publicly available information private.

An online security consultant used code to scan the 500 million Facebook profiles for information not hidden by privacy settings. The file allows people to perform searches of various different types and several thousand people by now downloaded it.

This means that if any of those on the list decide to change their privacy settings on Facebook, anyone who has the file will still be able to access information that was public when it was compiled.

The consultant's actions also mean people who had set their privacy settings so their names did not appear in Facebook's search system can now be found if they were friends with anyone whose name was searchable.

The consultant wrote, "Facebook helpfully informs you "[a]nyone can opt out of appearing here by changing their Search privacy settings" - but that doesn't help much anymore considering I already have them all (and you will too, when you download the torrent).

Once I have the name and URL of a user, I can view, by default, their picture, friends, information about them, and some other details. If the user has set their privacy higher, at the very least I can view their name and picture. Therefore, if any searchable user has friends that are non-searchable, those friends just opted into being searched, like it or not! Oops"
(Source: MSNBC)


1.      Was it permissible for the consultant to scan the 500 million profiles not hidden by privacy settings?
2.      Was it permissible to post it?
3.      Was it permissible for the initial individuals to download the information?
4.      Now that the information is publicly available, is it permissible to download the information and to figure out the names of those who hid their information by setting their privacy settings high? Is it ethical?

 

 

What is the Law?

Detailed Explanation

Facebook or Face Off implicates an innumerable amount of laws.

We will discuss a few of them below.

1.       Do not spread bad or damaging reports about your fellow (Leviticus 19: 17) (Deuteronomy 24: 8, 27: 24) 

2.       Do not spread information that can cause enmity and hatred between two people (Leviticus 19: 17)
3.      Do not spread false rumors (Deuteronomy 22: 19)
4.      Do not fan disputes (Numbers 17:5)
5.      Do not insult, pain, humiliate your fellow (Leviticus 19: 17, 25: 17)
6.      Do not pain widows and orphans (Exodus 22: 21, 23)
7.      Do not remind a penitent of previous sins thereby insulting him/her (Leviticus 25: 17, Maseches Bava Metzia 58b)
8.      Do not do to your friend that which you would not want others to do to you (Leviticus 19; 18)
9.      Do not bend an ear listen/read to bad or damaging reports about your fellow (Exodus 23:1)
10.      Do not believe bad/damaging reports about your fellow (Exodus 23:1)
11.  Do not create a stumbling block or incite/cause your fellow to sin (Leviticus 19, 14)
12.  Do not garner honor as a result of your fellow's humiliation (Deuteronomy 6:12, Yerushalmi Maseches Chagiga 2:1)
13.  Do not corroborate with sinners (Exodus 23: 2)
14.  Do not divulge classified information with which your friend entrusted you.  (Proverbs 11: 13, 20: 19)
15.  Do not fool another individual (Leviticus 19: 11, Sma"g 154)

 

Application:

The millions of Facebook walls include an immeasurable amount of gossip, damaging information, and information if made public can cause the breakdown of relationships, marriages, partnerships, fan disputes, humiliate people and pain widows, orphans etc.

Spreading, listening, reading, and accepting this information is evil and is counted amongst the gravest sins. Posting and indiscriminately viewing the forbidden information, one transgresses an innumerable amount of such sins.

[In fact, before going on anyone's Facebook wall or reading a news clip for that matter; one must realize that there is a risk of transgressing many such colossal sins should one read the wrong type of information.]

One may not remind a penitent of original bad deeds. Take for example a sinner who had a low privacy setting. Years later she repents and raises her setting. The consultant continues to avail the original information to the public is guilty of gossip and insulting a penitent.

Posting the information lures downloaders to sin. Downloading the information gives credence and is like corroborating with a sinner.  Becoming a hero over a fellow's downfall is forbidden.

It would appear as though the consultant however did not transgress the prohibition to disclose secrets.

"It is forbidden to disclose information that a person told you about himself/herself in confidence." A person is the "owner" of his or her private information [Chofetz Chaim Hilchos Rechilus 8: 5].

However, once information is not a secret, disclosing it to others would not be a transgression of this prohibition.  One has to understand that any information he or she posts on Facebook, even with the highest privacy settings are not "told in confidence."

As such, while the consultant made the information more readily available, at least he is not guilty of disclosing private information.

Nevertheless, as delineated above, the consultant transgressed numerous grave sins and anyone who downloads the file, indiscriminately searches the pages and views the information risks transgressing these sins as well.

If Facebook led you to buy into the fact that no "security consultant" would act in such a manner, they could be guilty of fooling their clients.

 

Banana Split!     Issue #: 061

Banana Split!   After returning from an enjoyable outing and a shopping spree in the heat of th ...

Banana Split!

 

After returning from an enjoyable outing and a shopping spree in the heat of the summer at a popular Supermarket, our family sat around the dining room table enjoying ice cream sundaes.

Believe it or not, we let the kids enjoy "dessert" before settling down for lunch.  My wife preferred the yogurts and fruit cocktail for lunch.  She opened her yogurt, took her spoon to her palate when suddenly she stopped in her tracks.

"The lightly sweetened yogurts were on sale four for the price of two. We paid for the lightly sweetened, yet someone accidentally took banana flavor which were more expensive."                     

1. May the H. family simply pay for the eaten banana flavored yogurts, return the other banana flavored yogurts to the refrigerator in the store and switch them for lightly sweetened or do they have to tell the cashier and go through an entire run around?    

 

What is the Law?

The Answer

If the storekeeper discovered the loss, the H. family must notify the supermarket upon returning the yogurts. (see detailed explanation)

 

Detailed Explanation

Banana Split!  implicates the following two laws.     

1. A victim will no longer look after an article that he or she has learned of its theft. For example, if one notices that his or her bicycle has been stolen, while he or she might not despair from retrieving it, in the interim, he/she will no longer safeguard it from suffering subsequent theft or damage. He or she will only begin protecting the bicycle again upon learning that it was returned to his/her charge.

A thief is liable for damages incurred to the stolen goods.  The liability continues until the victim knows to look once again after the stolen goods.

Thus, if the victim noticed the goods were missing, the thief is obligated to notify the victim of its return. Nevertheless, if the victim will easily realize its return it is not necessary to notify him or her of its return. Similarly, if the victim never knew the goods were missing, there is no need to notify him or her of the article's return [Choshen Mishpat 355:1].

Note: One who returns a lost object need not notify the owner. Instead, it is sufficient to return it to the owner's protected area or to a place where the owner will see it soon thereafter [Choshen Mishpat 267: 1].

2. One must make sure that his/her actions are transparent and that they do not give over a suspicious impression [Numbers 32: 22].

(Example: The one who handled public funds in the Temple did not enter the secluded vault wearing a garment with cuffs etc. so that no one could accuse him of pilfering public coins for his own use [Shekalim 3:2].)

 

Application:

The H. family told the cashier to ring up numerous vanilla yogurts. Inadvertently, they took banana flavor instead. They must return the banana flavored yogurts. Yet, they are not simply "returning a lost object". Instead, they were inadvertent thieves. 
 
Therefore, if sufficient time elapsed over which the owner realized an inconsistency in his/her books, or else the storekeeper noticed the discrepancy through an accurate up to date tracking system, through which he/she can monitor every item in the store, the "accidental thief" would be required to notify the store of the yogurts' return.
 
If however, we can safely assume that in a large supermarket, the storekeeper never knew that the banana yogurts were missing, the "accidental thief" need not notify the storekeeper of its return. The H family may pay for the eaten banana flavor and simply do a switch without going through the run around. [This is all assuming that the yogurts did not go bad in the interim].
 
However, before opting to do such a switch, one must be wary of onlookers. Even if permissible according to the letter of the law, one must be careful that his/her actions to not create misgivings. The H's must be careful and super sensitive that their actions will not raise eyebrows and give an impression as though they are taking merchandise (vanilla yogurts) from the supermarket without paying for them. If they cannot accomplish this, they must reconsider their plan of action.

 

Social Media or the Lincoln Road Mall!     Issue #: 062

Social Media or the Lincoln Road Mall!   1. Miami Florida: home of the flamingos, hurricanes an ...

Social Media or the Lincoln Road Mall!

 

1. Miami Florida: home of the flamingos, hurricanes and orthotics!

Kate Erwin recently earned her certification as a certified orthotist.  She began servicing her Coconut Grove neighborhood with quality workmanship from her basement laboratory. Kate though wanted to appeal to Miami Beach residents as well.
 
Oren's Orthotics ran a successful business in Lincoln Road Mall. Kate hired some neighborhood friends to advertise her smaller business. They staged themselves in Oren's store, engaged potential customers in conversation and attempted to convince them to buy from Kate.

*

 

2. Harvey Ross opened an online photography business. The cheapest and most effective way for him to gain name recognition was to make use of the numerous social media networks.

The issue of targeted marketing vexed Ross. Facebook would advertise his wares specifically on walls of fans of his competitors. On the one hand, objectively the concept seemed unethical. Fans of his competitors would instantly see adverts from his company. On the other hand, this was the name of the game.

 

1. May Kate lure away Oren's customers?
2. May Ross advertise on Facebook?

 

What is the Law?

   

The Answer

Kate may not lure away Oren's customers. Ross may advertise on Facebook.(see detailed explanation)

 

Detailed Explanation

 

Social Media or the Lincoln Road Mall!  implicates the following three laws.     

1. If fisherman A set up nets in the water to catch fish, B may not set up a second net to intercept the fish that otherwise would inevitably have swam into A's nets [Bava Basra 21b].

Similarly, customers in a store ready to purchase are like fish that will most probably end up in the net. Thus, B may not lure away customers who are about to purchase merchandise by A.
 
2. Otherwise, it is generally permissible to open even fierce competition to a pre-existing establishment. [Choshen Mishpat 156 Pischei Teshuva 3.]
 
[Note: as there are instances when one definitely may not open a competition to a local establishment, as well as instances when such practice is simply to be discouraged, it is strongly advisable to consult a competent Business Halacha authority before considering doing so.]
 
3. Alliances are subject to stipulations mutually agreed upon at the onset of the relationship [Choshen Mishpat 176: 3 Rema].

 

Application:

Customers in Oren's store who are ready to purchase merchandise from him are like the fish ready to be entrapped by Fisherman A's net. Luring them away is like setting up a net to intercept the fish that were en route into A's net.

Merely opening a competition and informing the public thereof, especially when selling slightly different items is generally permissible.

Whether targeted advertising to fans and clients of Ross' competitors is similar to setting out a competitive fishing net, or else is rather similar to simply advertising the opening of a competition, is irrelevant to this particular issue.

Advertising on Facebook is permissible, simply because when A opened a wall, he/she agreed to Facebook's terms and conditions, of which include the calculated risk of competitors' ads appearing on fan's walls. Thus, Ross may advertise on Facebook and need not worry about entering his competitors' turf as his competitors agreed to the terms and conditions of Facebook upon opening their own wall.

  

Busted Refrigerator & Cold Feet!     Issue #: 141b

Issue 141b.pdf (1.30 mb) Busted Refrigerator & Cold Feet!   Refrigerator Their lifelong dre ...

Issue 141b.pdf (1.30 mb)

Busted Refrigerator & Cold Feet!

 

Refrigerator Their lifelong dream was slowly becoming a reality.  Dr. and Mrs. Jerome Adler (see Issues 107, 108) were relocating from Flatbush to a mountain view apartment on Rechov Nachal Dolev  st. in Ramat Beit Shemesh. 

 

To ease her transition, Mrs. Adler included American style appliances with 220 voltage in her lift;  a new stainless steal double sided LG Ultra-Capacity 3 Door French Door Refrigerator with Smart Cooling, a matching Over The Range Microwave, and large Whirlpool washing machine. David’s  Appliances on   13th Ave in Boro Park benefitted from her shopping spree.

 

Mrs. Adler fell in love with the refrigerator. So much so, that she designed her kitchen to fit and match her silver colored cooling treasure.

 

While keeping their eyes on the prize, their excitement in setting up their kitchen was challenged upon discovering that their refrigerator was a lemon. 

 

Chagrined, Mrs. Adler complained to David. “We’re presently out of stock of this model. Send it back and we’ll give you a refund,” David generously replied.”

 

“David! Who’s paying for the space on the lift to and from Israel? If I can’t get this model anymore, what’s with the expenses of reconfiguring my counter space and color scheme?

 *

Cold Feet Meira’s commitment challenges became apparent only after a modest engagement party was held in the local High School’s Auditorium.

 

Moshe demanded she reimburse his family for the expenses for the party.

 

 

What’s the Law?

 

The Answers

 

Refrigerator: Purchasing 220 voltage appliances, David knew that the Adlers intended on exporting them abroad. As such, in addition to refunding the value of the refrigerator, David assumes the responsibility and liability for the shipping of the defective refrigerator back to the store.

 

Unless David knew of the defect before the sale, he is absolved from paying for the costs the Adlers incurred by shipping it to Israel as well as from the costs to reconfigure the kitchen.

*

 

Cold Feet: Assuming Moshe followed the prevalent custom to throw a party, Meira must compensate him for the financial loss she consciously caused him to lose.


 

 Detailed Explanation

Busted Refrigerator & Cold Feet invokes the following laws:

  1. A merchant must stand behind his/her product even if he/she did not know that the sold merchandise was faulty [Choshen Mishpat 232: 18].
  2. It is the merchant’s responsibility to retrieve the defective merchandise. The merchant assumes retrieval costs which should be expected and may not coerce the consumer into paying for its return. As costs for international shipping can be reasonably unexpected, they are assumed by the merchant only if he/she knew at the time of sale that the consumer intended on exporting the merchandise [Choshen Mishpat 232:21, Nesivos 10].
  3. The consumer’s ultimate useless secondary outlays as a result of having assumed that the merchandise was sound is considered a grama, an indirect damage, for which Beit Din will generally not obligate the merchant to reimburse, unless the merchant intentionally sold the defective merchandise to the consumer, whereby the merchant would have a moral obligation to pay for intentional indirect damages which he/she caused [Choshen Mishpat 232: 21].
  4. If the accepted custom is for the groom to sponsor an engagement party, he may demand reimbursement from the girl if she subsequently got cold feet [Shulchan Aruch Even Ezer 50: 3].

Although, one might argue that the outlay for the engagement party seems comparable to Mrs. Adler’s secondary outlays resulting from her assuming that the refrigerator was sound, a number of distinctions can be made.

a) David’s selling of a defective product was unintentional. As such, secondary costs are viewed as grama,

    Consciously breaking off an engagement after expected expenditures were spent is a direct act of damage [ Taz ibid.]

b) Mrs. Adler’s secondary expenditures were voluntary and not part of the essential purchase. When the accepted custom is for the groom to foot the bill of the engagement party, the bride may compel him to do so through a Beit Din order. As such, upon betrothal, she “forces him to pay for the party”. Hence, if she dissolved the engagement, she must compensate him for the loss she perpetrated against him [Magid Mishna].

 

Application

Refigerator  David is required to reimburse the Adler’s for their defective refrigerator. As they purchased 220 voltage appliances, he knew that they were intending to export them abroad and cannot claim that the reshipping costs are unexpected. David is thus required to arrange for the refrigerator to be returned and must reimburse the Adlers regardless if he succeeds in doing so.

The costs of bringing the refrigerator to Israel and of the kitchen configuration are secondary. David is absolved from paying for them unless he intentionally sold them defective merchandise.

Cold Feet  Assuming Moshe followed the prevalent custom to throw a party, Meira must compensate him for the financial loss she consciously  caused him to lose. ◆

Cancelled Commitments!     Issue #: 127

Cancelled Commitments!   Mark was looking to advance his administrative career.  He and hi ...

Cancelled Commitments!

 

Mark was looking to advance his administrative career.  He and his potential employer, Bestride Rehabilitation Center made up to meet at 11:30 A.M. for an interview in a gourmet cafe on seventy-second street in midtown Manhattan. 

 

Mark drove down from Stamford, Connecticut and parked his car in a nearby lot. Bestride’s administrator did not show up. The next day, he called Mark and apologetically asked to reschedule the meeting.

After a drawn out courtship, on Feb 9th Rina said yes.  Dave arranged for a gala party to celebrate on Sunday the 11th .Dave called the party for 2 PM.

 

Rina had been on an emotional rollercoaster ever since she said yes. Uncertainties and commitment fears escalated. At 1:30, she called Dave and told him that she was not showing up

 

Does Bestride have to pay for Mark’s travel expenses? Does Rina have to pay for the party?

 

What’s the Law?

 

The Answer:                                                      

Bestride must pay for Mark’s reasonable expenditures.

Rina must pay for the party.

 

Detailed Explanation

 

Cancelled Commitments invokes the following halachos.

 

  1. Beit Din generally lacks authority to collect for indirect damages resulting from the aggressor's actions. Nevertheless, the aggressor has a moral obligation to pay for intentional indirect damages, while is absolved from paying for unintentional indirect damages [Choshen Mishpat 386, Imrei Yosher].

 

  1. At times, Beit Din even has the authority to collect for indirect natural progressions of the aggressor’s action or inaction if the damages are due to a clear and imminent result of the aggressor’s action, provided the prescribed indirect damages is of common occurrence [Sha”ch ibid.]

 

Consider the following three scenarios:

 

  1. 3. A verbally committed to meet B in court on a particular day. B paid out money to get there. A was negligent and did not show. A must compensate B for the reasonable and foreseeable expenditures he/she spent as a result of relying on A’s word [Choshen Mishpat §14: 5 Rema].

 

  1. A verbally committed to participate in the wedding B was arranging. B relied upon A’s commitment and duly paid out fair money to accommodate A. A was negligent and did not show. A must compensate B for his/her expenses.

 

  1. Sara and Avi agreed to become engaged. Avi relied on Sara’s commitment and bought gifts, threw a party etc. Sara did not subsequently find out critical information about Avi that should warrant her to break the engagement. Instead, she backed out due to commitment issues, Sara must compensate Avi for the expenses deemed within the norm, that he spent as a result of relying upon her verbal commitment [Shulchan Aruch Even Ha’Ezer §50]

 

Explanation: In the three scenarios, the incurred costs are natural progressions of the verbal commitments.  By backing out or failing to show, the aggressors knew that the prior expenditures would automatically go to waste. We view their action or inaction as though they intentionally caused clear and imminent financial losses [ibid. Taz 5].

 

Breach of verbal contracts is categorized as a common occurrence, the likes of which Beit Din has the right to demand payment from the offender [Choshen Mishpat §14: 5 Biur HaGra 30].

 

Consider the following scenario:

 

  1. A purchased seeds from B. A subsequently paid workers to sow them. They turned out to be infertile.  As B did not know that the seeds were defective at the sale-time, A’s loss is viewed as unintentional and indirectly resulting from B.

 

A may demand compensation for the seeds but may not demand compensation from B for his/her workers [Choshen Mishpat 232: 34, Even Ha’Ezer §50Taz 5]

 

Explanation: As the seller was unaware that the seeds were infertile, when he sold them, the futile money paid to the workers was not clear and imminent.

 

Application

 

Mark relied on Bestride’s verbal commitment. The natural progression after the commitment was to travel to Manhattan. Mark spent due and reasonable money as a result.  By not showing up, Bestride caused Mark a clear and imminent financial loss. Breached verbal commitments like these fall in the category of common occurrences the likes of which Beit Din has the authority to collect compensation from the offender, who in this case is Bestride.

 

Dave relied on Rina’s verbal commitment. The natural progression after the commitment was to through a party. Dave spent due and reasonable money as a result.  Unless Rina backed out because of newfound significant information, calling up and cancelling immediately before the party is viewed as an act of direct and intentional damage, for which she must compensate Dave. ◆

Sour Milk!     Issue #: 139, 140

Sour Milk!   Gliding on her easy chair in her air conditioned salon overlooking Jerusalem's bib ...

Sour Milk!

 

Gliding on her easy chair in her air conditioned salon overlooking Jerusalem's biblical zoo, Emily Fried reminisced to her grandchildren about her scores of summers spent in the Borscht Belt.

Her animated legends of dessert sales, one public phone for fifty seven families, three washing machines for 400 children ¼ mile from the closest hamper and happy go lucky primitive wholesome lifestyle kept her brood spellbound for hours.

Emily vividly recalled some sensational shopping scenarios; surprisingly contemporary experiences.

Thursday night lines at Shop n Kosher Market were no sneezing matter. After waiting on line for an hour, the cashier began ringing Emily's bill when she realized that she forgot to pick up the family magazine from the front of the store. "Please do me a favor and bill me for the magazine. I'll pick it up on the way out."

Pushing her towering shopping cart, Emily reached the magazine stand...but none were left. Trying to push her ways through the crowd, Emily hollered to the cashier and asked for a refund. "I'm sorry Ma'am but you've got to take this up with the manager. She's the one who can issue you store credit."

 

The thought of going upstairs and working through all the red tape to get her $3.00 refund or credit was less than appealing to her. "That's it, I'm just going over to the shelves and taking three dollars worth of chocolate bars," she told herself.

Emily returned to her bungalow, unloaded her groceries, poured herself a bowl of cornflakes and milk.

 

"Aw!' this milk is sour!" Emily ran back to the store, saw the line and reckoned, "They owe me a container of milk. I'll simply pull a new one of the shelf instead of standing on line for another hour."

 

 

 

What’s the Law?

 The Answer

Objectively, if Emily feels honestly vindicated by her position, she may take the merchandise on her own, with three important provisios 

1) her actions do not appear to onlookers as theft and

2) it is not performed in front of two  witnesses who can otherwise testify against her in Court

3) she is willing to allow Shop n' Kosher to take her to a Torah court if an argument ensues. see detailed explanation.

 

IT GOES WITHOUT SAYING THAT IT IS FORBIDDEN DESECRATE HASHEM'S NAME; TO ACT IN A MANNER WHICH CAUSES OTHERS TO ASSOCIATE DISHONESTY WITH HASHEM, HIS TORAH, and HIS PEOPLE.

 

Detailed Explanation    

 

Sour Milk invokes the following laws.

 

We discussed in Issue 138  that upon the consumer's discovery of a defect, the consumer would generally have to prove that the defective article was defective prior to the moment of purchase, before Beit Din can compel the seller to annul the sale. In other words, we will respect the status quo of the money as the halacha says:

  

 When the plaintiff is rationally convinced of his/her claim, we apply the following theorem: 

   

  1. "The onus of proof lies upon the party interested in altering the fund's status quo" [Bava Kama 46, Shev Shmatza 2].

 

Consequently, if the consumer already paid for the merchandise, the onus of proof would lie upon the consumer. If the consumer had yet to pay for the merchandise, the onus of proof would lie upon the merchant.  

 

However, in Sour Milk, Emily may lack proof that the milk spoiled before she bought it. Similarly, she may lack proof that she did not receive a magazine.

 

Is there recourse for a plaintiff who knows he/she is right but lacks the ability in Beit Din to retrieve her money?

 

Yes. The plaintiff can often alter the status quo of the money.

 

By what means?

 

  1. With the exception of forcefully taking a collateral for an outstanding loan which is a biblical prohibition to  do so; [Choshen Mishpat 97:6] a plaintiff who is certain about his/her claim may grab the defendant's article provided that by doing so, the plaintiff can prevail in Beit Din [Choshen Mishpat 4: 1].

 

Once the article is in Emily's domain, she can prevail in Beit Din by compelling the other party to prove that she is wrong and that she did not purchase the article. Her right to grab the article(s) are due to the fact that were the articles in her domain, Beit Din would award them to her anyway.

 

Consequently, Emily may not grab the articles/merchandise in front of two witnesses.

 

Why not?

 

If two witnesses testify that they  saw her grabbing an article from the defendant, Beit Din must deal with her as though she were a thief even if she claims she took the articles rightfully. 

 

Two more considerations must be weighed before deciding to grab the due merchandise in front of people (or a closed circuit TV - for that matter).

 

  1. It is forbidden to behave in a manner by which people will view you as a thief or sinner [Bamidbar 32: 22, ].   

 

  1. It is absolutely forbidden to behave in a manner which will cause others to have disrespect towards Hashem, His Torah, and associate dishonesty with Jews. The Heavenly punishment for such behavior is grave [Maseches Yoma 86a].

 

 

Application  

Emily may take $3.00 worth of merchandise and a fresh milk if she is certain that the milk spoiled before she left the store. Emily may not do so if people will misunderstand her behavior as shoplifting. Emily may not do so in front of two people who can testify in Beit Din that she took merchandise from the store without paying as she no longer will prevail in Court.  

Doubtful Digital Defects     Issue #: 138

Issue 138.pdf (801.28 kb) Doubtful Digital Defects   Renee Berger purchased a 12.0-Megapixel Di ...

Issue 138.pdf (801.28 kb)

Doubtful Digital Defects

 

Renee Berger purchased a 12.0-Megapixel Digital Camera on Cyber Monday 2012, (November 26, 2012) on her Visa Card.  She received the camera on Dec. 3rd. 

On December 6th, she submitted the following complaint to the manufacturer.

“My camera worked well the first time I turned it on. The second time I turned it on, the lens extended, the icons appeared on the screen, but the screen itself was black. I went to take a photograph to see what the issue was, but the photograph came out black as well. I am demanding that you accept my return and refund my purchase.” 

Renee received the following response.

 “No product leaves our factory without passing due inspection. We assume the malfunction was due to a mishandling on your end. As such we will not honor your request.”

 

 

What’s the Law?

 

The Answer:

 

The onus of proof lies upon Renee unless local business practices determine otherwise.

 


Detailed Explanation

 


Doubtful Digital Defects invokes the following laws

 

Renee’s claim and the manufacturer’s counter claim raises an uncertainty appertaining to the condition of an article.

 

Did the camera malfunction due to an inherent defect or due to the consumer’s mishandling?

 

The issue on the table is:

 

Q, On whom lies the onus of proof? Does it matter if Renee paid for the product or purchased it on credit?

 

  1. Halacha provides two approaches contingent on the degree of rational conviction of the plaintiffs claim.

 

  1. When the plaintiff is rationally convinced of his/her claim, we apply the following theorem:

 

“The onus of proof lies upon the party interested in altering the fund’s status quo” [Bava Kama 46, Shev Shamtza 2].

 

Consequently, if the consumer already paid for the merchandise, the onus of proof would lie upon the consumer. If the consumer had yet to pay for the merchandise, the onus of proof would lie upon the merchant.

 

  1. When the plaintiff cannot propose a rational claim with conviction, we apply an alternative theorem:

 

The onus of proof lies upon the party within who’s territory the uncertainty appertaining to the article’s condition unexpectedly  surfaced” [Choshen Mishpat  224, 232:11].

 

Our scenario meets both interpretations of this law [Rif and Rosh]. The camera is both in Renee’s physical domain and legal authority.

 

Renee would thus have to prove that the defect occurred prior to the sale whereby invalidating the sale irrespective of whether or not she paid for the article.

 

Unless otherwise stipulated, transaction terms are subject to local accepted custom.

 

  1. Unless otherwise stipulated, transaction terms are subject to local accepted custom [Choshen Mishpat 232:6].

 

Application

 

Even assuming Renee was absolutely certain that she did not mishandle the article, the burden of proof lies upon her because she already paid for the camera.

 

If Renee could not have proposed a rational claim with conviction, the onus of proof would lie upon Renee even if she did not pay for the camera as of yet, as the unexpected uncertainty  surfaced when the camera was both in Renee’s legal and physical domain, the onus of proof lies upon Renee.

 

If however, local business practices favor the consumer, the merchant must comply accordingly. ◆

Uninsured     Issue #: 131

Responsum 232]. Issue 131.pdf (1,022.26 kb) UninsuredNew England: Maine, New Hampshire, Vermont, Mas ...

Responsum 232]. Issue 131.pdf (1,022.26 kb)

Uninsured
New England: Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and Connecticut, used to be known as the insurance capital of the world. 
 
Israel Izkowitz,  owner of New England Independent Insurers managed one of the most reliable and successful Independent Insurance Agencies in the region.  His firm offered impressive and affordable coverage policies from a range of nearly twenty assorted providers. His unfailing dependability earned him a matchless reputation in the competitive market.
 
After years of searching, Jonathan Adams found his dream vacation home, perched atop a rolling mountain in The Berkshires. Adams contacted Izkowitz, and discussed with the CSR (customer service representative) various home insurance options. After downloading the appropriate forms from Izkowitz’ website, Adams submitted his application online for an HO-3 provided by The Berkshire Insurance Group, and authorized an automatic online monthly payment from his South Shore Savings Bank Account. A confirmation number was received.  
 
Two months later, Adams wished to upgrade his policy to include coverage on all of the home’s contents. Izkowitz’s CSR told him she’d take care of his account immediately. Shortly thereafter, a horrific fire raged over the mountain, engulfed Adams home and left a pile of ash in its track.  
 
When Adams submitted his claim, Berkshire denied coverage on all the home’s contents. Izkowitz’ CSR had forgotten to fill out the necessary paperwork for Adams’ policy.
 
According to Halacha, what are Izkowitz’ CSR’s liabilities towards Adams?

 

What’s the Law?

 

The Answer:  
 
Izkowitz’ CSR is absolved from compensating Jonathan Adams.   

 

Detailed Explanation

 

Uninsured invokes the following few Halachos. 
 
1. Beit Din commonly lacks authority to demand payment for grama or indirect damages resulting from the defendant’s actions or inactions (see 4. below for exceptions). 
 
2. Nevertheless, the defendant carries a personal moral responsibility lotzeis yedei shamayim, to compensate the victim for (a) intentional indirect damages (b) and/or indirect damages as a result of his/her legal negligence; though is generally absolved from such compensation for (c) unintentional/accidental indirect damages due to his/her action or inaction [Choshen Mishpat 386, Imrei Yosher].
 
3. Merely preventing a second party from accruing potential earnings is by and large categorized as no more severe than an indirect damage and absolved from legal consequences [Bava Metzia 73b, Talmud Yerushalmi Bava Metzia 5: 3], and according to Imrei Binah (see Responsum at end of Sefer on Choshen Mishpat) categorically lacks even the responsibility lotzeis yedei shomayim .
 
4.Nonetheless, a caretaker / custodian / shomer / bailee accepts upon him/herself a superior responsibility grade and is liable for indirect damages to the bailment resulting from his/her custodial negligence. (A borrower even pays for accidental damages thereof.) [Shemos 22: 6 - 13]   

5. An employee is  required to provide a duty of care to the employer similar to that of a paid custodian. 
 
As such, Nesivos opines that an employee would be legally accountable for indirect damages resulting from a careless failure to effectively execute his/her prescribed duties. Chazon Ish however, limits such accountability towards articles of custody.  

6. Whether to classify the phenomenon of forgetting to carry out a task as (a) legal carelessness/negligence or (b) accidental by nature is a point of consideration with sweeping Halachic consequences [see Orach Chaim 108: Magen Avraham 10, Yoreh Deah 232:12, Choshen Mishpat 291: 7].   

(7. For our purposes, we will assume  a CSR is an employee of the insurance firm, while an insurance broker at times functioning as an employee of the client and at times of the firm.) 
 
Application
 
Jonathan Adams lost his home and belongings to a fire.  Were his insurance policy in order, as a result of the fire, he could have earned money from Izkowitz commensurate with the sum of the fire damage. 
 
Izkowitz’s CSR forgot to carry out her prescribed task. As a result of her forgetfulness, Adams lost the opportunity to earn money commensurate with his loss from a potential fire; ostensibly an indirect damage lacking even the moral compensation requirement.
 
Presumably, the CSR functions as Izkowitz’ employee as opposed to Adams’ employee. Thus, any discussion (point 5) of accountability for lost potential gains resulting from employee’s failure to execute prescribed tasks is relevant between the CSR and the firm, not between the CSR and Adams [See Divrei Malkiel Vol. 5 Responsum 232].

Hence,  Izkowitz’ CSR is not responsible for Adams loss. ◆

 

Three Terribly Tragic Tips     Issue #: 130

Three Terribly Tragic Tips   Shana Rubinstein from Los Angeles was dating a fellow, Paul B. fro ...

Three Terribly Tragic Tips

 

Shana Rubinstein from Los Angeles was dating a fellow, Paul B. from Johannesburg, South Africa. Shana had one South African acquaintance, a former schoolmate, Rina S. ; from whom she inquired much about the guy. Providence had it that, Paul and Rina’s families immigrated together from Holland in the early 19th century and trustingly involved each other in numerous joint business ventures throughout the generations. Shana trusted that Rina would not steer her in the wrong direction.

 

Shana asked Rina if she knew if Paul ever had a history of drinking and smoking. Rina knew that Paul had a childhood history of alcohol addiction, but concerned for Paul’s future told Shana that Paul was clean.

 

Months later, Shana and Paul announced their engagement. Yet their costly engagement was short lived after Shana discovered a current news clip reporting Paul being apprehended for driving while intoxicated.

 *

Dr. Stern was interested in purchasing a home in South Australia. He hired a professed professional building inspector to inspect its roofing, structural engineering, plumbing and electrical systems, termite inspection and if there was salt damp – a real concern for South Australian homeowners. The inspector printed out a positive report for Stern. Shortly after Stern purchased the home, he discovered a white blanket of roof fungus across some shingles and a termite infestation to boot.

 *

“You’ve still got some space to back up. You’re clear. Steer a little left, back in…crash…” Don’t you visualize this recurring scene, while you’re behind the wheel trying to parallel park heeding the directive assistance of a local with compromised spatial assessment abilities walking his Dalmatian puppy at midnight in Flatbush?

 


  • Must Rina compensate Shana for her engagement expenditures on account of her bad advice? 
  • Local regulations and disclaimers aside, can Stern sue the inspector for  his losses due to the flawed advice?
  • Is the dog walker liable for the damages to both cars?
 

What’s the Law?

 

The Answer:                                                      

Rina was wrong for misleading Shana but is not responsible to pay Shana for her losses.

Stern may sue the inspector for his losses due to the flawed advice.

The dog walker is liable only if it was clear that the driver was compelled to rely solely upon the dog walker’s directives (i.e. the driver could not see and the dog walker was cognitively involved in directing the driver).

  

Detailed Explanation


Background

One is morally bound to uphold a reasonable commitment (one which an honest man in his capacity can practically fulfill). Should the situation unforeseeably change to the extent where it would be commonly understood that the commitment was in error, one cannot be bound to the commitment [Choshen Mishpat § 204:7-8; Rema ibid.].

 

Nevertheless, it is noble to uphold a verbal commitment- reasonable or unreasonable (whether or not people actually depended on the commitment), even if the circumstances change drastically [Aruch Hashulchan § 204:8].            

 

Congruously, breaching a verbal commitment generally carries fewer legal implications than would breaching a written commitment or a promise bolstered by a legally binding “kinyan” or prescribed physical act implicating obligation.

 

Below however, are some examples verbal commitments lacking the bolster of a conventional “kinyan” which are nevertheless legally binding [See Issue 25].  

---

  1. A verbally commissioned B to manufacture a defined item with the expressed intent of purchasing it from the manufacturer upon its completion. B duly relied on A and manufactured it. A reneged on the commitment. If B is unable to sell the item immediately and will suffer a financial loss, A must compensate B for the financial loss he/she caused him/her [Choshen Mishpat § 333: 8].
  2. A verbally hired B to manufacture a defined item with the expressed understanding of owning the item from the onset. B duly relied on A and manufactured it. A reneged on the commitment. A must pay B for the provided services whether he/she wishes to accept the finished product or not [Nesivos Hamishpat ibid. 15].
  3. A verbally asked B to present money to C with the expressed intent of paying B. The benefit C receives as a result of B honoring A’s request functions as would a legally binding “kinyan” whereby lawfully obligating A to unconditionally uphold his/her commitment [Ran Maseches Kiddushin 4b].
  4. A verbally asked B to discard money with the expressed intent of paying B. As no one benefited from the money which B discarded, A’s request lacks a legally binding “kinyan”. A cannot be lawfully bound to pay B [Aruch Hashulchan § 380: 4, Shulchan Aruch Even Ha’Ezer §30: 33].

 

Shoprite®

 

If protocol would have been that Wakefern would order based upon a verbal discussion, then although Bernstein could legally have backed out upon finding a considerably better deal, he would be liable to compensate Wakefern if they would be unable to sell the produce and whereby incur a loss on his account. However, since protocol was to submit a monthly order form, Bernstein did not have to expect Wakefern to order produce based upon their initial conversation. Bernstein would therefore be absolved from compensating Wakefern for any resultant subsequent loss.

 

Pedal to the Metal

 

The livery driver ultimately chose to speed on his own accord. Even if Barry would have told him to speed and he would pay for any ticket, Barry would be absolved from paying.

Why?

Barry made a verbal commitment which lacked a legally binding kinyan. Even if it would have been certain that the driver would have gotten caught, one cannot argue that the ticket money the driver paid as a result of Barry's request would function as a legally binding kinyan to obligate Barry to honor his commitment because no one benefited from the ticket money. It would be similar to A asking B to discard money rather than to honor his request by presenting money to C.

The Baffled Babysitter Part IV: A Succos Festival     Issue #: Special Class 05

The Baffled Babysitter Part IV: A Succos Festival The yellow Mediterranean Wednesday - morning sun s ...


The Baffled Babysitter Part IV: A Succos Festival

The yellow Mediterranean Wednesday - morning sun spanned its love and warming embrace across the blue domelike Jerusalem firmament, as the jovial populace frolicked festively back and forth fervently carrying out their pre-holiday errands.
 
Busying themselves with untold details and preparations, the Berman’s enlisted Sara their favorite babysitter to care for Meira, Yair and Yonatan, and tie up some loose Succah ends.  Mrs. Berman handed Sara a plastic container of dried sweetened fruit, should she deem it fit to treat her adorable saplings; consciously deciding the chocolate was just not the way to go…   The foursome made their ways joyfully down the two flights of white stairs to examine their lovely wooden holiday structure and to add their own unique decorative flavors to enhance their makeshift seven-day abode.  The background music in the air only added to the emotionally charged atmosphere swelling with smiles and good will.   Four Succahs bejeweled the Jerusalem cobblestone courtyard in front of the Berman residence; belonging to the Fried, the Gold, the Hartman, and the Berman families respectively.    In general, the longtime neighbors were on favorable terms with one another, though unfortunately, affairs with Mrs. Berman and Mrs. Hartman had recently been somewhat strained and severely compromised.  

Quite handy and creative herself: Sara and the children began to hang some beautiful photos and ornaments along the lightly colored wooden Succah wall when they suddenly ran out of hooks.  
 
Meira skipped outside and found a jar of metal hooks alongside the Gold Succah.  Without thinking too much, Meira took some hooks from the jar to "borrow" for the holiday.  Enthusiastically, Meira handed them to Sara and told her to remember to tell daddy to return them to the Gold’s after the holiday.   Meanwhile, fifteen-year-old Danny Gold came racing downstairs to lay some more support beams across the top of his Succah. His electricity yet to be connected, he figured the Fried’s would not mind if he used their outlet and extension cord for a half hour to complete the job. Nor for that matter would they mind if he charged his cell phone in their outlet.  “After all,” he thought “I am involved in a virtuous undertaking”.   In the Hartman Succah, Mr. Hartman and his four children were installing their light fixtures, when their electric drill ran out of power. Mr. Hartman went next store to the Berman's to ask Sara if he could borrow the Berman’s drill for two hours, to which Sara graciously consented.    Shortly thereafter, the twins came barging into the Berman Succah laughing hysterically. Sara and Meira turned around and their mouths dropped wide open. 
 
The twins' faces were adorned in chocolate (again!).  Some rudimentary investigation led to the discovery of an empty jar of dried fruit and a depletion of Hartman's chocolate bar stash. Apparently, Yair and Yonatan had usurped the jar of dried fruit, and convinced the Hartman kids to barter their Torino bars for a stash of sugared pineapple. (They did it again!) 
 
After Mr. Hartman finished installing his light fixtures, he sat down on the courtyard bench to reply to some last minute emails before the holiday borrowing or rather making use of the Gold's WiFi.
 

The Dilemmas:

I. Meira Berman borrowed Gold's hooks without permission for use during the holiday.

II. Danny Gold used the Fried's extension cord and electricity to power his drill and recharge his cell phone without permission.

III. Sara the babysitter lent Berman’s drill to Mr. Hartman without receiving permission from the Berman's to do so.

IV. Mrs. Berman entrusted Sara with the sugared pineapples to keep the twins in line. The twins however, got hold of the fruit and used it for mischief.

V. Mr. Hartman made use of Gold's Wifi without permission. 

 

What's the Law?

The Baffled Babysitter Part IV implicates the following Halachos:
 
1.      One who borrows an article without receiving permission from the owner is a thief.  As a thief, he or she is required to return the object to the owner and is liable for any damages in the interim [Choshen Mishpat 359:5].  

2.  Generally, observant Jews permit others to perform  "mitzvos" to be performed with their belongings provided they incur no (or minimal) loss or no inconvenience. 
 
3. Even so, if the owner is accessible, the owner must be contacted before using the article.
 
Thus, if one is unable to contact the owner, one may generally assume the right to use another fellow's possessions for mitzvah performance.
 Example A: 
 
If Rabbi A is delivering a shiur and cannot be disturbed, Rabbi B may use Rabbi A’s talis without receiving permission.
Example B: 
 
If Ariella is sleeping, Atara may use Ariella’s Chumash to look up a source for her report, without receiving permission.
 
4. Nevertheless, when it is apparent that the owner would object to usage of the article without receiving permission, doing so would be deemed thievery.

Similarly, such sanction ought not to be assumed if the consequences would generate a significant loss or inconvenience on the owner's part.

Example A:  

Rabbi B may NOT use Rabbi A's talis without permission:
 
1) During communal prayer services (when Rabbi A might need the talis for his personal use), 
 
2) During the summer when people sweat, or if Rabbi A stores the talis in his private cubby, whereby indicating that he does not wish anyone to use it without express permission [Shulchan Aruch Orach Chaim 14: 4, Aruch Hashulchan Orach Chaim 14: 11, 12].

Example B
 
1) Atara may not indiscriminately use Ariella’s Chumash during class time when it is possible that Ariella would need the Chumash herself.
 
2) Atara may not indiscriminately use Ariella’s Chumash while brushing her teeth or eating a sloppy Joe sandwich. Atara may not indiscriminately open Ariella’s drawer, and take out her Chumash

5. A paid trustee or a shomeres sachar is liable for theft of the entrusted article [Shemos 22:9-11].

Example:  
 Naomi left her pearls by Jewel the Jeweler to repair her clasp. 
 
Jewel step out of the store for a few minutes to service a customer. Meanwhile, a thief jumped behind the counter and fled with Naomi’s necklace. 
 
As the Jeweler gets paid for repairing and guarding Naomi’s pearls, he is liable to pay Naomi for her stolen pearls.
 
6. One who borrows, rents, or is entrusted with a movable object, may not lend or rent it to another individual. 
 
Nevertheless, the primary trustee may allow for the people whom the owner generally permits to use the object, to become "secondary users", if the level of trust is uncompromised.   

For instance, a borrower assumes greater liability for the article than a unpaid trustee a shomeres chinam,  (A shomeres chinam pays for negligence. A borrower even pays for unforeseen accidents) [Shemos 22:13]. 

A borrower may therefore not deposit the article by a shomeres chinam, even if the shomeres chinam is a good friend of the owner. [Rambam Hilchos Sechirus 1:4, 5:5 See  Maggid Mishnah].

Example: 
 
Shani borrowed an mp3 player from Aviva. Shani must  return Aviva her mp3. Even if an accident occurs, Shani must pay Aviva for her loss. If Shani wants to play tennis, she may not ask Shira to do her a favor and watch Aviva’s mp3 player.
 
Why not?  ___________________________________________________________ 
 
 
 
7.   One who loses an article to a lion, bear, and gales of a sea, rush of the river or similar circumstance of almost sure defeat despairs from ever retrieving it. Protesting the contrary is like crying over a collapsed home. As such, consciously or subconsciously the initial owner allows another party to pick up the article and keep it [Choshen Mishpat 259: 7].

Application:  
 
I. The usage of hooks during the Succos holiday may be comparable to Rabbi B using Rabbi A’s talis during communal prayer service or Atara using Ariella’s Chumash during class. 
 
Therefore, even if the Gold’s and the Berman’s are generally accustomed to lending each other small items, Meira Berman may only use Gold's hooks if she is certain that the Gold’s do not need them for their own Succah.
 
II. The usage of an extension cord in this setting for a half hour does not generate a risk of damage nor any noticeable loss. Danny Gold could therefore assume that the Fried’s would permit him to use their extension cord which was lying on the ground in order to fulfill a mitzvah and complete the construction of his Succah.
 
III. However, the usage of  electricity for a half hour to power a drill and to recharge a cell phone generates a financial loss of halachic significance (More than the value of a prutah.)
 
Rav Moshe Feinstein zt”l and Rav Yosef Shalom Elyashiv zt”l explain that in Choshen Mishpat a prutah is the contemporary lowest denomination coin that can be used to purchase different individual items. 
 
[Note: Regarding certain Halachic concerns, a prutah is calculated at the value of 1/40 of a gram of silver.]

Thus, Danny may not  simply assume the right to use Fried's electricity without having received permission to do so.  
 
[Note: A pattern of giving and taking of sorts would be considered receiving  permission.]
 
IV. The Berman's entrusted Sara with the drill. As a shomeres, Sara generally has no right to allow anyone else to use it.
 
V. Exception
 
While a trustee may permit one whom the owner generally allows to use their article, to become a secondary trustee; and as such babysitters may generally lend objects in their trust to neighbors, 
 
Application: -

There are two grounds to forbid Sara to permit Mr. Hartman to use the drill without explicit permission from the Berman’s.
 
 
1) Electrical appliances are delicate and it is common for people to be particular about passing them from hand to hand. 
 
2) Mrs. Hartman and Mrs. Berman's relationship was strained. It is possible that even if the Bermans would allow the Gold's or the Fried's to use their drill they would not want the Hartmans to do so.

V.  Mrs. Berman entrusted the sugared pineapples with Sara, a shomeres sachar for a specific purpose. She failed to safeguard them for their appropriate use. Instead, the pineapples were "stolen". 
 
While practically, we can assume that Mrs. Berman would not hold her to task and will understand that such occurrences happen, according to the letter of the law, Sara would be responsible to pay Mrs. Berman for the "stolen" sugared pineapples.
 
VI.  Gold could have blocked access to his WiFi. Gold knows that by not blocking his WiFi anyone can exploit the available service. He figuratively left it to the "gales of the sea".  As he relinquishes control over who makes use of his WiFi, Hartman may use it to check his email without worry. Nevertheless, he should not use Gold's WiFi for watching videos without receiving permission to do so, as watching videos slows down Gold's service and would cause Gold a loss.

 

The Dilemmas:

1. May Meira use Gold’s hooks?

2. May Danny Gold use Fried’s extension cord and electricity?

3. May Sara lend Mr. Hartman the Berman drill?

4. According to the letter of the law is Sara responsible for the sugared pineapples?

5. May Mr. Hartman use Gold’s WiFi
 

♦ 

The Answers:
 
1. Meira  should ask the Golds for permission. If the Gold's are unavailable she may only use the hooks if she is certain that they do not need it over Succos.

2. If the Fried's are unavailable, Danny Gold may use the extension cord but may not make use of the Fried's electricity without receiving permission to do so. 

3. Sara may not lend the drill to Mr. Hartman without receiving permission to do so from the Berman's. 

4. Although, Mrs. Berman would most probably look the other way, according to the letter of the law, Sara is required to pay Mrs. Berman for the value of the sugared pineapples. 

5. Mr. Hartman may use Gold's open WiFi to check his emails 
 

Biblical & Talmudic Measurements     Issue #: Useful Tools 01

Rabbi Chaim Na"ah's Measuremet Guide Thumbwidth | about 6 barley widths | 2 CM Handbreadth | 4 thum ...

Rabbi Chaim Na"ah's Measuremet Guide

Thumbwidth | about 6 barley widths | 2 CM

Handbreadth | 4 thumbwidth | 8 CM

Amah | Elbow to end of middle finger | 2 zeres | 6 handbreadths

* 

Rav Moshe Feinstein

Thumbwidth | 2.25 CM

Handbreadth | 9 CM

Amah | 53.98 CM

*

Chazon Ish

Thumbwidth | 1 inch

Handbreadth | 4 inches

Amah | 24 inches

*

Contemporary Halachic Times

https://www.myzmanim.com/search.aspx

City Parking Laws     Issue #: Textbook 03

monkeyparking1expanded.pdf (2.77 mb)

monkeyparking1expanded.pdf (2.77 mb)

My Skin or My Kin?     Issue #: 126

My Skin or My Kin?“The living room needs some tidying up, darlings. Please make mommy a pleasa ...

My Skin or My Kin?
“The living room needs some tidying up, darlings. Please make mommy a pleasant surprise. I’ve got to fold the laundry. I’ll be back downstairs in seven minutes, boys.” 
 
“Sure thing Mommy,” chanted the precocious Berman twins, Yair and Yonatan with a foreboding ringing intone in their somewhat innocent voices.
 
“It’s awfully quiet down there boys: Is everything all right?” The stern and inquisitive voice emanating from the upstairs was met with a deafening silence.  
 
Ten minutes later, Mrs. Berman returned. Her mouth dropped wide open in shock but not disbelief! Yair carefully held a scissors in hand and was studiously cutting an M for mommy from a paper. Between Yair and Yonatan lay a freshly cut apron identically matching her designer curtains. Her eyes glanced hard at the curtains and discerned a gouging hole on the bottom of the curtains…Yair! How dare you! “Mommy. It was not me!”
 
A similar question has tragically surfaced in almost every generation throughout the long Jewish exile in numerous different forms. One such heart-wrenching and difficult to write about example follows.
 
The ghettos were run by Jewish councils, (Judenrat) who were responsible for carrying out Nazi orders.
 
The transports bound for Auschwitz and other concentration camps would come, and the Nazis would ask for 1,000 Jews. The Council's rationalization was, "If we did not send off the one thousand, they would ask for two thousand." Avi was chosen by the Judenrat. He reckoned that he could bribe a council member...but that meant someone else would have to take his place...?
 
History proved however, that not only the one thousand went, but ultimately the two thousand went, too. And not only the two thousand, but the council members went and their entire families went also. By the end of the war, almost all from the ghettos were swept away. May Yair say that it was not him, whereby Mommy would know that it was Yonatan? May the council hand over 1000 to save 2000? May Avi bribe the council members to save him, knowing that another would have to take his place?
 

What’s the Law?
 

The Answer:  
 
Yair may tell Mommy he did not do it.  

The council may not hand 1000 over. 

Avi may not bribe his way out knowing that another would have to take his place. 
 
 

Detailed Explanation

My Skin or My Kin? invokes the following halachos.
 
1. If A notices an overflowing river nearing his field, he may divert the water even if by doing so, the water will overflow towards B’s field. 
 
2. Once the water entered A’s field, A may not divert the flow into B’s field [Yerushalmi Bava Kama 3: 1].
 
3. The duke decreed that two of the townspeople should be taxed. Each townsperson may individually try to absolve him/herself from the tax, knowing that someone else will probably end up having to foot the bill. Once the duke chooses A to pay the tax; A may NOT persuade the duke to absolve him/her from the tax, knowing that someone else will have to pay in his/her stead [Choshen Mishpat 163, Sha”ch 18].
 
4. False accusations were directed at A A may not deflect them if B will automatically be incriminated.
 
5. However, if B is in fact the culprit, while A may not say that B is guilty, he/she is permitted to say, “it was not me” [Sefer Chofetz Chaim: Hilchos Lashon Hara chapter 10, Be’er Mayim Chaim 43].
 
6. It is forbidden to hand a fellow Jew over to the enemy, even in order to save many other lives (unless the first Jew is otherwise deserving of death by a Beis Din).  [Rambam Hilchos Yesodei Hatorah 5: 5 See also, Sefer Alei Meroros from Rav Yehoshua Moshe Aharonson pub. 1996].
 
Application
 
If Yonatan was deserving of reprimand, Yair does not need to take the blame. He may not say that Yonatan cut the curtain but may say that he did not.  The Council may not hand over their brethren.  The same dilemma was posed in July 1942. Rav Aharonson ruled that the council should abstain and so they did.
 
Avi was selected. As Avi’s brethren are not deserving of such treatment, Avi may not save his skin by means of causing another to be put on death row.

To Save A Life!     Issue #: 122

Issue 122.pdf (1.20 mb) To Save A Life! On a class trip to a New York school, seven year old Aaron f ...

Issue 122.pdf (1.20 mb)

To Save A Life!

On a class trip to a New York school, seven year old Aaron from Chicago suddenly began wheezing and could not open his eyes. His teacher, Mrs. Rhine instantly scrambled for his epi-pen but could not find it.

In lightening speed, with a metal chair she pulled the locked medicine cabinet off the wall, found a pen and saved Aaron’s life. Medical assistance was swift to follow.  Mrs. Rhine broke the school chair and  medicine cabinet.

Thousands were being deported by the day. Hundreds of thousands of Jewish lives could have been saved for ransom.

While many tragically ignored their plight, Rav Shlomo Halberstam, Grand Rabbi of Bobov extended every effort he could to save his brethren. Unable to secure significant donations for the cause; by the end of the War, he had accrued staggering debts. [A True Story].

 

Must Mrs. Rhine compensate the host school for the damage?

Did Rav Halberstam have to repay his loans? 



What’s the Law?

 

The Answer:                                           

Mrs. Rhine does not need to compensate the host school.

Rabbi Halberstam must pay his debts.

 

Detailed Explanation

 

 To Save A Life invokes the following halachos

 

  1. To ensure that the common folk would not fear endeavoring saving a third party in mortal distress, the sages instituted a special dispensation from paying for collateral damages the savior may cause en route to saving a victim’s life [Maseches Bava Kama 117b, Choshen Mishpat 380: 3]. (See further issues as per the liabilities of a paid practitioner, and one saving him/herself; both of whom do not generally need an additional incentive to involve themselves in the rescue efforts. They must subsequently compensate the third party.)

 

  1. Though R’ Yaakov ben Yaakov Moshe Lorberbaum of Lissa (1760-1832) in his Nesivos Hamishpat (340: 6) understands this collateral liability dispensation to incorporate liabilities stemming from contractual law (i.e. borrowing ammunition to protect a third party from an offender and losing it during the clash), as well as from collateral damages; Rav Moshe Feinstein dictated unequivocally that the Talmud’s dispensation is restricted to collateral damages [Igros Moshe C.M. II 63].
  2. However, any liabilities incurred during the rescue efforts resulting from theft, contractual (i.e. loans) or property (bailment’s, or shmira) law remains in effect.

 

Application

Rav Feinstein ruled that Rav Halberstam determination to pay his creditors was not an act of piety but in-fact was required by law, regardless of his original humanitarian motives.

 

Mrs. Rhine damaged the medicine cabinet and chair. As she was endeavoring to save Aaron’s life, she is absolved. 

 

Theoretically, in-line with R. Feinstein’s verdict, she would be have been required to repay the host school for using the epi-pen, if not for the fact that the epi-pen was obviously earmarked for such usage.

Up Up & Away: Kiddy Litter or Kitty Litter     Issue #: 121

Issue 121.pdf (853.71 kb) Up Up & Away: Kiddy Litter or Kitty LitterAs the charming Jerusalem ch ...

Issue 121.pdf (853.71 kb)

Up Up & Away: Kiddy Litter or Kitty Litter
As the charming Jerusalem children cheerfully capered in the long awaited rain, Grandma Bertha Braun slowly made her way up the hill, while bracing herself against the powerfully wet winter winds. Suddenly, she observed two brimming grey 95 liter garbage bags dart down the drenched stairway of the adjacent building, bouncing upon the backs of the Berger boys.

The boys dashed towards the giant green dumpster, swung their bags over their shoulders and readied themselves for the twenty yard  toss.
“Ah Ah” they yelled on the top of their lungs. Before they could release their hand ammo, a hungry litter of unruly kittens impudently poked their heads out of the dumpster, eyed the Berger boys and leaped forward. The Berger boys dropped their projectiles on the ground near the bin and ran.  
Bertha did not see the cats. She did see the Berger Boys leave the trash on the ground and run though. Bertha became incensed.

“Who raised these kids?

How insensitive to litter the trash out on the sidewalk instead of placing it in the dumpster!”

As these aggravating thoughts began to overtake her mind; suddenly a mighty gust of wind  shook her up and threatened to blow her umbrella inside out. 

Up Up and Away! As Bertha tried to hold on tightly and maneuver her umbrella so; the wind prevailed. Her umbrella blown inside out and across the street., Bertha reluctantly continued on, unshielded from the elements, leaving her umbrella shards as a lasting public evidence of Bertha’s capitulation to a Greater Force.

May the Berger Boys leave the trash outside near the dumpster or should they bring it back home and wait for a more opportune time to discard their bags?
Must Bertha chase her shards and toss them in the public trash or may she have the wind “pick up the pieces”? 

 

What’s the Law?
 

 

The Answer:  

The Berger Boys may temporarily leave the trash on the side of the dumpster, but should return to place the bags inside as soon as the “coast is clear”.
 
If Grandma Bertha is able to, she must pick the shards up. Nevertheless, if she does not do so, Beit Din will not hold her liable for damages incurred by a stumbler, though she’ll have an account to clear with Heaven. If she is unable to chase after the shards, she is absolved. 
 

 


 
Detailed Explanation

Background:
 
A. Prior to the advent of plastics and disposable cans, waste was typically organic, and after drying or biodegrading could be used effectively as compost, a key ingredient in organic farming.  
 
B. After the waste dries, worms and fungi further break up the material. Aerobic bacteria manage the chemical process by converting the inputs into heat, carbon dioxide and ammonium. The ammonium is further converted by bacteria into plant-nourishing nitrites through the process of nitrification.
 
Traditionally, composting was to pile organic materials until the next planting season, at which time the materials would have decayed enough to be ready for use in the soil. The advantage of this method is that little working time or effort is required from the composter and it fits in naturally with agricultural practices in temperate climates.
 
There are numerous ways to create compost though. For our purposes, we will highlight the “heating process, block system” which is effective in creating large quantities of compost; a practice prevalent in Talmudic times.
 
“The heating process is based on a continuous block system. That is, new blocks are being made all the time and piled up. On the first day, a block is made by building up layers of materials collected for composting. After two days, when the block has started to decompose, the air is forced out of the block by trampling over it. On days two and three, new blocks are built next to the first block. On day four, a new block should be built on top of the original block, cutting it off from the outside air totally etc.” Farmers commonly piled the compost blocks in public property which allowed for ample trampling [Bava Metzia 118, Rambam Nizkei Mammon 13: 15, Composting in the Tropics II].
 
C. Plumbing was extremely rare until the development of modern cities in the 19th centuries. At about the same time, public health authorities began pressing for better waste disposal systems to be installed. Earlier, waste disposal systems merely consisted of collecting waste and dumping it on ground or into a river. 
 
Up Up & Away: Kiddy Litter or Kitty Litter invokes the following five halachos
 
1. One may not discard his/her broken wares in public property. Doing so, he/she has illegally created a stumbling block and is liable for physical damages incurred by a stumbler (or his/her livestock) [Choshen Mishpat 410: 20, 21, 417].
 
2. If one’s wrecked wares land in public property inadvertently, he/she must pick it up - irrespective of whether he/she wants to retain ownership on the shards. After ample time to pick it up has passed, the shards become a stumbling block.  Beit Din can hold the owner liable for physical damages incurred by a stumbler (or his/her livestock) as long as the owner retains ownership thereof. 
 
Were the owner to relinquish ownership thereof; no one owns the stumbling block or intentionally placed it illegally in public property. Beit Din cannot hold the original owner liable.  The Heavenly Court will prosecute the issue [Choshen Mishpat 410: 20, 21, 412:2].
 
3. Was one permitted to pile his/her organic waste outside his/her home in public property? 
 
It depended. During the season, typically a month or so before the planting season, it was permissible to so and even allow for the public to trample on the compost. Other times during the year, it was forbidden to store waste in the street. Nevertheless, during the “off season”, one is permitted to remove the refuse from his home to the street temporarily, with the intention to transfer it to a landfill immediately [Bava Metzia 118, Rambam Nizkei Mammon 13: 15, Choshen Mishpat 414:2].
 
4. When permitted to place waste in public property, is the owner liable for damages incurred by a stumbler? 
 
The right to place his/her compost in public property does not absolve the owner from liabilities for damages. As with general stumbling blocks, Beit Din may collect for damages incurred to the stumbling person or livestock, yet, in a special dispensation, the Torah does not vest Beit Din the authority to collect payment for damages incurred by another's inanimate property resulting from the obstacle. 
 
A Halachic authority should be consulted with regards to one’s moral obligation nevertheless [Choshen Mishpat 410: 21 see also Ketzos HaChoshen]. 
 
5. May one store compost in the street of a modern city with a built-in plumbing infrastructure?
 
No. In modern city’s it is generally always “off season”. (One must follow the accepted local custom) [Aruch Hashulchan 414].
 
Application
 
Unless there is no room in the dumpster ( as often happens during garbage strikes) it is unacceptable to leave trash in the street. 
 
The Berger Boys predicament allowed them to do so “temporarily” though until they can dispose of their ammo properly. Similarly, one may leave the bags on the side, if the garbage collectors will pick it up immediately (provided this complies with local law). Were one to inadvertently hurt themselves on the bags, the boys would be liable if they were not minors (younger than thirteen years old).
 
If Grandma is able to do so, she must not leave her broken wares in public property. [It is probable though, that Grandma would not be in a physical position to chase after the umbrella].
 
Grandma Bertha did not intentionally create a stumbling block. Additionally, she relinquished ownership of the shards. Beit Din therefore has no premise to hold her liable for physical damages incurred by a stumbler. Nevertheless, as she indirectly caused damage to someone else (if she was able to pick it up), she has an account to clear with Heaven.

Downtown Dentures & Rolex or Buick     Issue #: Special Class 01

Downtown Dentures Class Handout with Source Material Downtown Dentures Esophagogastroduodenoscopy (E ...

Downtown Dentures Class Handout with Source Material

Downtown Dentures


Esophagogastroduodenoscopy (EGD) is a test to examine the lining of the esophagus stomach, and first part of the small intestine. It is done with a small camera (flexible endoscope) that is inserted down the throat.

The patient receives a sedative and a painkiller. A local anesthetic may be sprayed into the mouth to prevent coughing or gagging when the endoscope is inserted. Dentures must be removed."

Grandma was sent home after the procedure, and her health slowly began to improve. However, the hospital sent her home without her dentures. The hospital verbally agreed to pay for new ones.

The family commissioned their dentist to begin constructing new ones; projecting to complete the job in a week in a half.

In the middle of the week, the hospital called Grandma's home and told her that her teeth were located in a nursing home, downtown. "The nurse inadvertently sent them home with another patient. You'll receive your old teeth in two days, but we refuse to pay for the construction of the new ones."

 

Who pays the dentist?

Rolex or Buick!


Few would imagine that the 1989 graduating class of Harvard Business School would develop into one of the most celebrated graduating classes of the era. As exemplary role models, who positively influenced both business and society; the class of 1989 already boasted numerous Alumni Achievement Awardees.

 Today's leading executives and activists were yesterday's determined neophytes. Brian Green, a leading executive of Morgan Stanley and an 1989 graduate, remembers his first interview and its aftermath. 

"Forever a genuine comrade, my fellow classmate Fred Bernstein, prayed hard that I would get the job.  A selfless young man - he would rejoice when his peers succeeded.

 Determined but equally nervous, I wished to make a striking impression... Fred looked me over and exclaimed, 'Brian, your presentation is great, but you will steal the show if you came in wearing a gold watch. Here, take my Rolex for the interview. I will be out of town for the next few days. Give it back to me when I return. 

Thank G-d I got the job. The supervisor told me that I made an outstanding impression and would begin my career in but one month's time.  I felt sincerely indebted to Bernstein.

Throughout my college tenure, I had been saving up for my first Buick. I was eager to make my purchase in time for my first job. Bernstein returned a week later, but to my misfortune, I could not locate the watch. As much as I searched through my belongings, the Rolex did not appear.

 My dream was dashed! Painfully, I dug into my purse, liquidated my savings and issued  to Bernstein two checks for $3000.

 Fred cashed the checks and purchased a similar model from Tourneau.

 As I cycled on my Schwinn each day to work, my mind soared back to my dream Buick.

 Four months later, when relocating to a new apartment, the Rolex appeared. "Eureka! My Buick may be a reality soon after all", I thought.  Excited to return the watch and reclaim my cash, I contacted Bernstein and told him, I'll be over in ten minutes...'Not so fast replied Fred..

 

Must Fred accept the watch and return Brian's cash?

May Brian appear to an interview wearing Fred's Rolex?

 

 What’s the Halacha?

Downtown Dentures

Downtown Dentures invokes the following laws:

1)      A paid trustee (shomer sachar) is liable for negligence, losses or theft which he/she could have prevented [Choshen Mishpat 303:2].

 

2)     "A depositor delivered jewelry to a trustee (shomer) for safekeeping. Upon the depositor’s return, the shomer fails to locate the jewelry. The court requires the shomer to compensate the depositor for the value of the jewelry. The shomer defaulted and the court mortgaged the shomer’s real-estate to the depositor. Subsequently, the shomer found the jewelry in his possession.

 

We deem the compensation a faux - pas (blunder) and the shomer retains the right to return the jewelry and retrieve his or her real-estate from the depositor" [Bava Metzia 35a, Choshen Mishpat 103: 11].

 

3)     Generally, once an employee begins the commissioned work, the employer may not cancel the job without compensating the employee. However, as a result of an unforeseeable happenstance, where the work serves no function, an employer may cancel the commissioned work midway. The employer though, is required to pay for the work that was performed [Choshen Mishpat 335: 2].

 

4)      If B crafted a product under commission from A, A must pay for the product regardless of whether he/she subsequently needs it (unless b can easily sell it to someone else) [Nesivos 333: 15].

 

5)     A verbally committed to meet B in court on a particular day.  B paid out money to get there. A was negligent and did not show.  A must compensate B for the reasonable and foreseeable expenditures he/she spent as a result of relying on A’s word [Choshen Mishpat §14: 5 Rema].

 

Application

The hospital assumed the responsibilities of a paid trustee. They were negligent with the dentures and inadvertently sent them elsewhere. While they would be required to replace the dentures; subsequently returning the actual ones suffices.

Grandma commissioned the dentist to craft new dentures. The fact that she does not need them anymore is inconsequential. She would be required to pay the dentist for his work. (Parenthetically, having a spare pair of dentures is not uncommon. It is difficult to argue that making a second pair serves no function. )

Nonetheless, Grandma commissioned the dentist after responsibly relying on the hospital’s verbal commitment to pay.

As a result; says Dayan Chaim Kohn, the hospital becomes obligated to pay, even if the family would have decided to commission new ones regardless of the hospital’s promise.

The Answer: Downtown Dentures

Grandma must pay the dentist, but the hospital is required to pay Grandma.

 

 *

The Halachos: Rolex or Buick

Rolex or Buick! implicates two distinct issues

 

v  Is Brian entitled to a recourse to reclaim his money?

v  Is Brian guilty of "stealing" the heart of his prospective supervisor?

 

 

Let us focus on each issue independently.

I. Is Brian entitled to a recourse to reclaim his money?

Introduction: Here is a quote from Britannica Encyclopedia (Mortgage Law).

"If the mortgagor failed to repay the debt by the time that was specified in the mortgage, the land became the mortgagee's absolutely....In the 16th and 17th centuries, however, the English equity courts intervened on the side of the mortgagor. Equity first gave the mortgagor a right to redeem the land by paying the amount that was owing, even after he had defaulted on the debt..."

Consider the following albeit different, yet similar Talmudic scenario.

"A depositor delivered jewelry to a shomer (custodian) for safekeeping. Upon the depositor’s  return, the shomer fails to locate the jewelry. The court requires the shomer to compensate the depositor for the value of the jewelry. The shomer defaulted and the court mortgaged the shomer ‘s real-estate to the depositor.  Subsequently, the shomer found the jewelry in his possession. We deem the compensation a faux - pas (blunder) and the shomer retains the right to redeem his or her real estate from the depositor." [Bava Metzia 35a, Choshen Mishpat 103: 11]

So, the progressiveness of sixteenth and seventeenth century English Equity courts, was in fact a rediscovery of sorts of a theory directly reflecting the age-old Talmudic concept.

"Although a debtor compensated the creditor with alternative means, he or she does not necessarily lose the right to reclaim the "alternative compensation" with due payment at a later date."

Now, while generally, Talmudic Law only obligates the creditor/ depositor  to comply with such compulsory recourse in an instance of faux - pas, and not in an instance of blatant default of payment, we will allow for history play out its course and see if Anglo-American Law progresses further in the direction it seems to be taking.

Application

Must Fred accept the watch and return Brian's cash?

 

As a shomer, Brian was responsible to return the goods Fred deposited by him. Monetary compensation as a form of alternative compensation is due should Brian not produce the deposit. In our faux - pas situation, where Brian subsequently discovered the deposit amongst his belongings, he may return it to Fred and require Fred to return to him his cash.

 

The Answer:

Fred must accept the watch and return Brian's cash. Rolex or Buick? Buick!

II Is Brian guilty of "stealing" the heart of his prospective supervisor?

Background: 1. Deceiving any human being, or Geneivas Da’as, is a form of theft and is a biblical prohibition [Maseches Chulin 93b].

  1. Additionally, tricking any human being even without causing him or her a financial loss or damage is a rabbinical prohibition.

This includes garnering undeserved praise or feelings of gratitude through feigning a false impression of benevolence and virtue.

Explanation:

Just as one may not steal another's money one may not manipulate another's feelings of gratitude and steal his or her heart [Shulchan Aruch HaRav: Hilchos Ona'ah U'Genevah 11, 12].

Exception:

Creating an atmosphere within which the victim is to blame for not thinking responsibly is not included in these prohibitions [Maseches Chulin 93b].

Application

May Brian appear to an interview wearing Fred's Rolex?

While "dressing the part" clearly makes a striking impression, which might positively influence the outcome of an interview, it is widely accepted for a prospective candidate to groom himself or herself fashionably for such a meeting. A supervisor's responsibility is to appreciate that candidates portray themselves in a superior manner within reason of their means and see beyond the outside trimmings.

Consequently, sporting finer wear for an interview does not convey a false impression of the manner in which the candidate appears on a day-to-day basis.

Instead, the supervisor suffers the consequences of his or her failure to consider these factors accordingly.

Hence, as a Rolex was within reason of Brian's means, although he did not own one, he may appear to his interview sporting Fred's Rolex.

The Answer

Yes, if wearing it is “within his means”.

Timely Payments     Issue #: Textbook: Timely Payments

The Laws of Paying Your Workers On Time Timely Payments Textbook

The Laws of Paying Your Workers On Time

Timely Payments Textbook

Oil Surge     Issue #: 161b

Oil Surge The landlord promised to cover heating expenses for the duration of the three year contrac ...

Oil Surge

The landlord promised to cover heating expenses for the duration of the three year contract. During the first winter, the price of oil increased to exceed the fixed rental fee.

 

Ø  Does the landlord have recourse?

What's the Law?

The Answer

Both parties may reconsider the rental contract.

 

Detailed Explanation


Oil Surge invokes the following laws.

 

1)      A defined-time contract empowers a tenant to purchase the apartment’s usage rights for the duration of the contract.

 

Accordingly, the subsequent increase in market value of the apartment’s utility cannot benefit the landlord while the tenant temporarily owns the apartment’s utility [Teshuvos HaRosh 1: 6].

 

2)       Hence, the increase of rental market rates or the apartment’s value during a defined-time rental term does not permit the landlord to breach the contract and raise the rent [Choshen Mishpat 312: 10].

The tenant however, does not own the promised fuel. Should the cost of the promised fuel increase dramatically, we must determine whether the landlord meant to provide fuel regardless of the price.

3)      A landowner sold a field and stipulated that he/she will stand behind the sale if anything happens to the purchased land, whereby making it a bad investment.

If a gangster who was pursuing the seller seized it from the buyer, the seller must compensate the buyer. However, if a hurricane uncharacteristically destroyed the field, the seller is absolved from compensating the buyer. Such improbable occurrences did not enter the mind of the seller when he/she promised to stand behind his/her sale [Choshen Mishpat 225:3].

 

4)      One is not required to support the children his wife brings in to the marriage. Nonetheless, if a man promises to feed his wife’s daughter for five years, he is required to do so even if the cost of food increases during the interim [Even Ha’Ezer 114:1].

 

5)      What if the price of food uncharacteristically increased during the five year interim?

 

 Taz rules that the husband may reconsider his commitment.

 

While food is expected to increase in price over time, the husband may claim that he never meant to accept the responsibility for an uncharacteristic increase of food prices; [similar to the aforementioned land owner].

 

6)      Beis Meir contends with Taz.

Indeed, when a landowner makes a broad commitment (accepting upon him/herself to stand behind the sale, “should anything” happen), we assume the landowner did not take all possible variables into consideration, but instead we view his/her commitment to be limited to happenstances that one normally expects.

 

However, when the husband made a specific commitment i.e. to feed his wife’s daughter for five years, we assume that he considered all eventualities in his commitment. As such, he would be required to feed her even if the costs of food dramatically increased [Sh”ut Beis Meir Even Ha’Ezer 114:1].

 

7)      Nachlas Tzvi wonders if when a landlord made a specific commitment to provide fuel, if he considered to do so under all eventualities (like Beis Meir) or not (like Taz) [Choshen Mishpat 312:10].

 

8)      It is clear that the tenant would not agree to pay the initially agreed upon rent if the landlord fails to provide the fuel [Nachlas Tzvi Choshen Mishpat 312:10].

Application

Nachlas Tzvi rules that while we cannot compel the landlord to continue providing fuel if fuel prices unexpectedly surge, we equally cannot compel the tenant to continue paying rent under such conditions.  Should the landlord wish to begin charging the tenant for fuel, the tenant is permitted to leave the apartment or else the tenant may remain in the apartment without receiving fuel for a fare discounted price [Nachlas Tzvi 312: 10].

The Gown Gaffe     Issue #: 162

The Gown Gaffe  With a family of seven daughters, preparations for the eldest’s wedding w ...

The Gown Gaffe

 With a family of seven daughters, preparations for the eldest’s wedding was a holiday of its own. Rather than have her daughter’s spend the next few months combing through gown rentals, Mrs. Gold decided to commission a dressmaker to come to their home. Three local dressmakers came highly recommended.

 

At 8:30 A.M. on Tuesday, January 22nd, Mrs. Gold phoned The Dress Shop and asked if they could send someone over during the afternoon. The Dress Shop told Mrs. Gold that they were not sure they could make it and they would call her back at 2:00 PM to confirm.

 

At 2:00, The Dress Shop duly phoned. “Hello Mrs. Gold, Should we come over?” “Sure! All my daughters will be waiting patiently for you.” “O.K. we’ll be over before 4 PM.”

 

Dina from The Dress Shop showed up at the door only to find that her competitor, Gail from The Gown Gallery had already began to work.

 

Not knowing if The Dress Shop would pull through, Mrs. Gold had subsequently called The Gown Gallery at 9 AM. When The Dress Shop called at 2, Mrs. Gold thought she was speaking with The Gallery and told The Dress Shop to come...

 

"Do you realize, Mrs. Gold that I opted for your family of seven over another job? Now, I'm out both.”

 

 


Ø  Diane demanded compensation for her trip and missed opportunity.

 

What's the Law?

 

The Answer

Mrs. Gold is liable to pay Dina. (see below for compensation rate).

 

Detailed Explanation


Cancelled Employment Compensation

A negligently cancelled his/her employment commitment with B after B could no longer find any previously available work.  B’s reliance on A’s commitment caused him to lose alternative wages. While A is not required to pay B for the service that he did not receive, A is required to compensate B for the financial loss incurred as a result of responsibly relying on A’s word.

 

However, once B begins or sets out for the job, the commitment was further solidified. By beginning the work, the employee earned his/her legal right to force the employer to uphold his/her side of the verbal commitment.

 

Where A to then cancel the employment, A is required to compensate B even if B did not forfeit alternative employment as a result of relying upon A’s word.

Subjective Compensation Rate

Does the employer have to pay the employee for the full wages he/she expected to earn?

 

While on one hand, the worker lost the job opportunity, on the other hand, he/she did not have to work. The employer is liable to pay for the loss the employee suffered as a result of the employer’s negligence in upholding the commitment. If the employee would be willing to accept less money for vacationing, then the employer need not pay the employee the full expected wages.

 

The degree of liability (i.e. the amount the specific worker would honestly agree to take in order not to have to work) is subjective to both the nature of the job, the worker, and the worker's financial situation.

 

For example, some workers would agree to take less money if it meant not having to work, while others would rather work hard and receive their full pay.

Exception

If A was not negligent or irresponsible, but cancelled due to an unforeseeable accident A is absolved.

Explanation

Indirect Damage (grama) 

  1. 1. Beis Din generally lacks authority to collect for indirect damages resulting from the aggressor's actions. Nevertheless, the aggressor has a moral obligation to pay for intentional indirect damages, while is absolved from paying for unintentional indirect damages [Choshen Mishpat 386, Imrei Yosher].

Intentional Indirect Clear and Present Damage (garmi b’pshia)

  1. At times, Beis Din even has the authority to collect for indirect natural progressions of the aggressor’s action or inaction if the damages are due to a clear and imminent result of the aggressor’s irresponsible action, provided the prescribed indirect damages is of common occurrence [Sha”ch ibid.]

 

Consider the following scenario:

 

 A verbally committed to meet B in court on a particular day.  B spent money to get there. A was negligent and did not show.  A must compensate B for the reasonable and foreseeable expenditures he/she spent as a result of relying on A’s word [Choshen Mishpat §14: 5 Rema].

 

Application

Mrs. Gold knew that there was a chance that Dianne would call to confirm.  Telling the caller to show up without clarifying to whom she was speaking  was irresponsible.  

Irresponsibly calling the wrong service provider to come purposelessly; Mrs. Gold would be liable for the traveling expenses and clear and present indirect losses she caused to Dianne.

As Mrs. Gold “cancelled” Dina’s job after Dina already set out to the job, she would be required to configure her degree of liability based upon the travel expenses and an expected job of seven dresses, subtracting the discounted amount Dina would willingly accept for not having to actually work.  

Kraus’ Colossal Chulent Cooker     Issue #: 248

  Issue 248.pdf (1.12 mb) Kraus’ Colossal Chulent Cooker Celebrating the Bar Mitzvah of t ...

 

Issue 248.pdf (1.12 mb)

Kraus’ Colossal Chulent Cooker

Celebrating the Bar Mitzvah of their son Yitz; the Sterns enlisted the services of Kraus’ Food and Catering.  The no-frills option of ordering the food alone for Shabbos minus the waiters and catering was far more economical. But no-frills meant that Kraus arrived on Friday morning to Stern’s home and emptied the prepared food into the Sterns’ pots, pans and containers.

All went well until Kraus pulled out the colossal 45 kilo chulent pot (about 99.208 lbs.) from their truck. For the life of them; the Sterns could not come up with enough pots or pans to contain the massive stew. Protocol aside, Stern implored Kraus’ compassion to leave them their colossal chulent pot for Shabbos.

After considerable begging, Kraus agreed under the following condition; that Stern return the pot immediately after Shabbos to Kraus’ garden apartment in Rechavia on Azza Street. “You might have trouble finding the specific apartment; so call me beforehand. I’ll direct you and just leave it in front of my door,” said Kraus.

Saturday night was busier than Stern foresaw; so he publicly asked if any of his capable guests were driving by Rechavia. Bloomberg gladly volunteered to drop off the pot for Stern. At 10 PM, Bloomberg arrived at Kraus’ building looked for the garden apartment and left the pot in front of the steps. No call!

Sunday morning, Stern receives a vociferous call from an irate Kraus. “Where’s the pot?” “Bloomberg dropped it off in front of your steps…” after a bit of investigative prowess, it was discovered that Bloomberg dropped it off in front of Kraus’ next door neighbor’s steps; the Levis.

Levi and Kraus were not on talking terms and when Levi found Kraus’ filthy chulent pot on his front steps, he wrathfully tossed it out into the giant green public garbage dumpster.

Who pays for the pot?

What’s the Law?

 

The Answer:

Kraus can choose to prosecute Stern or Levi. If Kraus prosecutes Stern, Stern can in turn prosecute Levi. See detailed explanation regarding Bloomberg’s possible responsibilities.

 

Detailed Explanation

Kraus’ Colossal Chulent Cooker invokes the following Halachos.

  1. A renter, like a paid trustee is liable for any avoidable losses [Choshen Mishpat 307: 1].

 

  1. A entrusts his/her article under B’s watch. A generally assumes that B’s spouse and adult children who live at home will also watch it [Choshen Mishpat 291: 21].

 

  1. Otherwise, B may not compromise the security of the article entrusted under his/her watch by entrusting it under the watch of a third party whom A is not accustomed to trust with watching the article.

 

  1. Abrogating his/her responsibility in such an unauthorized fashion, obligates B to compensate A for any incurred losses to the article as a result of the article’s new location [Choshen Mishpat 291: 26, 307:1] .

 

  1. Similarly, even if A generally trusts C with the article, B may not entrust it with C, if doing so undermines specific conditions A made with B or if C’s level of required liability is less stringent than A requested from B as apparent from the gradient chart below [Choshen Mishpat 291: 26].

 

*

 

  1. A maliciously placed his/her belongings without receiving permission to do so in B’s property. B may move it into a precarious place. Though it is an act of piety to inform A or Beis Din before doing so [Choshen Mishpat 319: 1].

 

  1. B may not do so, if A accidentally or inadvertently placed his/her belongings in B’s property [Choshen Mishpat 319: 1].

 

  1. Instead, B has a mitzvah of Hashavas Aveidah to inform A of the article’s whereabouts and give A ample time to retrieve it [Rav Moshe Feinstein]. B may return it to a secure place in which A will find the article. B may not discard of the article, but may store it in a secure place and subtract the storage cost from the article [Choshen Mishpat 319: 1].

 

*

 

  1. When a victim can independently hold multiple parties responsible for the damage or loss of an item, the victim can choose whom to prosecute [Choshen Mishpat 291: 26 Nesivos 41].

T.L.C. Trustee Liability Chart

 

 

Negligence

Avoidable Theft/Loss but not due to negligence

Unforeseen/incontrollable accidents

Damage in course of normal use

1.

Unpaid trustee (Shomer Chinam)

Liable

Absolved

Absolved

Liable (may not use it)

2a.

Paid trustee

(Shomer Sachar)

Liable

Liable

Absolved

Liable (may not use it)

2b.

Renter

(Socher)

Liable

Liable

Absolved

Absolved

3.

Borrower

(Sho’el)

Liable

Liable

Liable

Absolved

 

Application:

Kraus entrusted their colossal chulent pot with Stern because Stern was their customer and paid for the food. As such, Stern is a “renter” on the pot. Stern is held responsible for any loss or damage that he could have prevented with a little more care.

He rented it on condition that he contact Kraus to ensure exact delivery. He may not compromise his responsibilities by sending Bloomberg to deliver the pot.

Levi has a responsibility to inform Kraus of the pot’s whereabouts and cannot discard of it. Levi destroyed Kraus’ pot and is liable to compensate Kraus as well as is Stern for failing in his renter’s duty. Kraus can choose to either prosecute Stern or Levi.

If Kraus chooses to prosecute Stern, Stern can in turn prosecute Levi for compensation.

In truth, Bloomberg was Stern’s unpaid trustee. He is liable for damages or losses due to negligence. If we can establish that Bloomberg was negligent, then Kraus can also choose to prosecute Bloomberg instead of Stern or Levi if he so chooses. Bloomberg can then prosecute Levi to recoup his losses.

 

Contingent Commitments?     Issue #: 160

Issue 160.pdf (1.11 mb) Contingent Commitments? Alexander Klein owned numerous high-end apartment bu ...

Issue 160.pdf (1.11 mb)

Contingent Commitments?

Alexander Klein owned numerous high-end apartment buildings on Ft. Washington Avenue in Upper Manhattan. A two-bedroom apartment averaged at $1800 a month. 
 
Klein though, signed a discounted three-year lease with Moshe Morrison; his grandson-in-law, for a nominal charge of $200 a month. 
 
Two months later; Klein began upgrading the kitchens in Moshe's building. He planned on raising rents for apartments with new kitchens by $100 a month. 
 
The granite countertops and stainless steel appliances greatly enhanced Moshe and Daniella's steal-of -a-deal. The lease unfortunately, outlived their marriage. When Klein's granddaughter returned to her parent's home after ten months, Alex made three demands on Moshe: 1) to meet market value and pay $1600 more a month till the remainder of the three-year lease. 2) to pay $1600 retroactively from the first month 3) to pay an additional $100 a month for the months he benefitted from a new kitchen.
 
Moshe argued that the contract fixed the lease at $200 a month.
 

What's the Law?

 

The Answer

Alex may not retroactively charge Moshe for the true market value, but henceforth, according to Torah Law - barring local custom - may null the lease. 

 

Detailed Explanation

 

Contingent Commitments invokes the following Halachos.

In order to Halachically condition the effectiveness of a valid transaction unto a defined factor, the conditioning party needs to clarify beyond reasonable doubt that the effectiveness thereof is strictly contingent upon the prescribed factor and will be conversely ineffective if the factor is not duly met. 

Otherwise; simply mentioning a factor at the time of negotiation, merely indicates the party's preference, but lacks the legal ability to influence the effectiveness of the transaction if the factor is not met.

The Torah's prototype for a transaction's condition influencing its effectiveness is the double- ended deal which Moshe struck with the Tribes of Reuben and Gad who requested their inheritance in Transjordan instead of within Israel's mainland. 

 וַיֹּאמֶר מֹשֶׁה אֲלֵהֶם אִם יַעַבְרוּ בְנֵי גָד וּבְנֵי רְאוּבֵן אִתְּכֶם אֶת הַיַּרְדֵּן כָּל חָלוּץ לַמִּלְחָמָה לִפְנֵי יְ-הֹ-וָ-ה וְנִכְבְּשָׁה הָאָרֶץ לִפְנֵיכֶם וּנְתַתֶּם לָהֶם אֶת אֶרֶץ הַגִּלְעָד לַאֲחֻזָּה:  וְאִם לֹא יַעַבְרוּ חֲלוּצִים אִתְּכֶם וְנֹאחֲזוּ בְתֹכְכֶם בְּאֶרֶץ כְּנָעַן

"If the children of Gad and Reuven will cross the Jordan before you - everyone armed for battle...you shall give them the land of Gilead as a heritage. 

But if they do not cross over armed with you...they will take their heritage among you in the land of Canaan" [Bamidbar 32: 29, 30]. 

By clearly clarifying the converse as well; that the transaction would be ineffective if the condition was not met; Moshe left no room for misunderstanding that his condition to their receiving their inheritance in Transjordan was more than a preference; it was vital to the effectiveness of the deal.

Accordingly, verbal transaction stipulations must generally mimic this double-ended deal to be effective. Nonetheless, such a double-ended deal is unnecessary, when surrounding circumstances unquestionably explain the full intent of the stipulating party.

A case in point:

Background

While people sell moveable objects for a myriad of reasons; unless someone is in the real estate business; people generally do not sell their real-estate if not for extreme circumstances.
 
A sold his real- estate while informing his/her buyer that the sale was motivated by his/her intention to relocate to Israel. Compelling circumstances caused him/her to cancel his/her plans to relocate.

As it was clear beyond questionable doubt that he/she sold the real-estate due to move to Israel, if the plans fall through - barring local custom -, Torah law permits A to repossess his/her real estate, although he/she did not express the converse "If I do not make Aliya, the sale is invalid."

Ketzos Hachoshen [Choshen Mishpat 319: 1] points out that real-estate rentals are similar to the sale of moveable objects. As it is customary for people to rent out their premises for a myriad of reasons; in order to pin the effectiveness of the rental agreement on a specific factor (i.e. making Aliya) the landlord would need to express the converse as well, ( i.e. if I fail to make Aliya, the rental is invalid).

Otherwise, whether or not the landlord succeeds in making Aliya, the rental agreement could not be revoked.

Nesivos [Choshen Mishpat 312: Rema 9: Nesivos 7] points out however, that renting out real-estate which is not on the rental market is similar to the sale of real estate; only done for extreme purposes.

As such, barring local custom- if plans to relocate to Israel would motivate a homeowner to rent out his personal home, he/she can reposes the home should the plans fail, even if the nature of the stipulation did not mimic Reuben and Gad's.

Application:
While it is not uncommon for landlords to give reductions for a myriad of reasons, it was clear beyond reasonable doubt that the drastic reduction in rental price was due to Moshe's relationship with Alex.

In light of the aforementioned Nesivos, Alex would not need to have expressed the converse to Moshe (i.e. should the marriage fail; I will charge you in full.) Instead, should the marriage fail, Alex may null the agreement henceforth, and approach Moshe with an ultimatum, "Pay from now on like market value including for the kitchen upgrade, or leave." Alex may not however, charge Moshe retroactively.

Heads You Win, Tails I Lose?     Issue #: 159

Issue 159.pdf (726.17 kb) Heads You Win, Tails I Lose? Settling in a cozy two-bedroom apartment in t ...

Issue 159.pdf (726.17 kb)

Heads You Win, Tails I Lose?

Settling in a cozy two-bedroom apartment in the close-knit Anglo-Saxon Jerusalem community in Sanhedria Murchevet, the Werner's signed a three year contract with their landlord Natan Katz for $850 a month. Three months later, the Werner's receive a call from Katz that their rental fee is changing. 

Katz claimed that the agreement was signed when the shekel dollar rate was 4.2 shekels to the dollar.

Now that the dollar dropped drastically to 3.2, he has no choice but demand 3570 NIS a month (850x4.2) ($1115.62) . When he committed for $850, there was no way he could have anticipated such a drastic drop. 

Werner argued that if the dollar had surged to 4.7, Katz would not have called him to give him a discount...   
 

What's the Law?

The Answer

Katz may not raise the rent during the defined term of the contract

 

Detailed Explanation

Heads You Win, Tails I Lose? invokes the following four Halachos. 

Background

The tenant acquires the usage rights under the terms of the contract for the duration of the interval written in the contract.

Rate Increase During the Defined Term Contract

If the rate of local rental prices increased during the duration of the defined-term contract, the landlord may not raise the prices accordingly. Similarly, if the local rental prices fell during the duration of the defined term contract, the tenant may not compel the landlord to readjust the prices, accordingly [Choshen Mishpat 312: 9 Rema, 312: 10].

Rate Increase During the Due Consideration Term [1] 

While the landlord must give the tenant due consideration and warn him/her at least thirty days before wishing to terminate an undefined-term contract, (or thirty days before the season when alternative apartments are difficult to find [see below and Issue 157]); the landlord may raise the rent in accordance with rising rental rates during the “consideration time” [Choshen Mishpat 312: 9]. 

Henceforth: Not Retroactive; While the landlord may raise the rent in accordance with the rising rate during the “consideration time,” he/she may not do so retroactively from the commencement of the compelled “consideration time.” Instead, tenancy is assumed to remain in accordance with the prior terms until specified otherwise [Choshen Mishpat 312: 9].

Application

Katz signed a three-year contract with the Werner’s. Even if the apartment prices increase dramatically during the interim, Katz is bound to uphold the terms of the written agreement. 
                                                          
 [1] Due Consideration for the Tenant
In order to avail the tenant reasonable time to attempt to find alternative housing, when a tenant lives in an apartment without a formal lease, (i.e. there is no defined termination date) the landlord must generally notify the tenant with ample time before wishing to evict him/her from the home.


As such, the Talmud explains that during the summer months when it is customary for people to relocate, whereby creating a market of vacant apartments, the landlord need not inform the tenant more than a month before wishing to terminate the relationship. A month's time during a season where apartments are available is deemed availing sufficient time.


However, the landlord may not evict the tenant in the midst of a season when alternative housing is presumably difficult to find.

As such, the Talmud generally prohibits evicting a tenant in the middle of the rainy season when people do not move, and vacant apartments are difficult to obtain - even if the landlord gives the tenant thirty days warning. By warning the tenant thirty days before wishing to evict him/her during the rainy season, the landlord still failed to provide the tenant with a fair opportunity to seek alternative places to live.


Instead, a landlord who wishes to terminate the undefined lease term during the rainy season must avail the tenant the opportunity to look for new alternatives for one month before the onset of the rainy season [Choshen Mishpat 312: 5].

 

Miriam and the Whispering Water Lilies     Issue #: 158

Issue 158.pdf (1.22 mb) Miriam and the Whispering Water Lilies Florida’s Ocala National Forest ...

Issue 158.pdf (1.22 mb)

Miriam and the Whispering Water Lilies

Florida’s Ocala National Forest is riddled with slow-moving rivers and wet "prairies". There are sunny, shallow expanses of water, usually ringed by cypress trees and filled water lilies and other with aquatic plants. Between the river boundaries of the Ocala lie central highlands, coastal lowlands, swamps, springs and hundreds of lakes and ponds.

Miriam and Ahuva were off to the Ocala for a much needed winter vacation! The trip availed the two and opportunity to rejuvenate, connect with nature and one another. 

As they walked along the refreshing waters, and whispered about many issues under the sun, inadvertent anecdotes appertaining to the nature and working conditions of their respective jobs peppered their conversations. 

Rather an astute entrepreneur by nature, Ahuva gathered  sufficient information about Miriam’s job, uncovered a slew of her boss’ business secrets, and silently endeavored to open a competing  company with the hope of bringing Miriam in as a partner.

Was Miriam guilty of gossip for divulging her boss’ trade secrets in course of conversation?

 

What’s the Law? 

The Answer: 

Miriam’s negligent speech caused her to be guilty of revealing secrets as well as lashon hara.

Ahuva should not use someone else's original business secrets.

It is questionable whether Ahuva may convince Miriam to switch jobs. See below for more details.

 

Detailed Explanation
 

Miriam and The Whispering Water Lilies invokes the following laws.


1. הוֹלֵךְ רָכִיל מְגַלֶּה סּוֹד וְנֶאֱמַן רוּחַ מְכַסֶּה דָבָר Holech rachil megaleh sod, veneman ruach mechaseh davar “He who goes about as a talebearer reveals secrets, but one who is trustworthy in spirit conceals a matter” [Proverbs 11: 13].

2. גּוֹלֶה סּוֹד הוֹלֵךְ רָכִיל וּלְפֹתֶה שְׂפָתָיו לֹא תִתְעָרָב Goleh sod holech rachil ulfoseh sefasav lo tisarev “He who goes about as a talebearer reveals secrets; do not meddle then with one who sets his lips prating foolishly” [Proverbs 20: 19].

3. If you are told secret, it is forbidden for you to disclose the information even if the information is seemingly benign. Aside from breaching the boundaries of decency and violating the rights of the ‘owner of the information’; disclosing classified information can be damaging to the ‘owner of the information’ as well [Chofetz Chaim: Hilchos Rechilus 5: 7].

4. The prohibition of lashon hara includes spreading damaging information about an individual even if it is not inherently bad [Rambam Hilchos De’os 7: 5].

5. If the ideas were original and creative, Ahuva runs the risk of hijacking Miriam’s company’s IP which according to the Shoel Umeishiv 1: 44 is included in the biblical prohibition of thievery.

[According to Teshuvos Beis Yitzchak, hijacking IP is prohibited because of the law of the land. For more information regarding Halacha and Intellectual Property, see Chasam Sofer Choshen Mishpat 49, 69, 79, Noda Biy'hudah, Choshen Mishpat 2:24, Igros Moshe, Orach Chayim 4:40:19.]

6. If the market can handle it, a local entrepreneur may open a competing establishment [Darchei Moshe 156].

7. Generally, while an employee is under contract with employer A; potential employer B may not convince the employee to consider terminating the contract to change employers.

8. If the employee has unique qualities which are difficult to find; there are those who would permit employer B may attempt to offer him/her incentives to change over. Other's limit this dispensation only to poaching of a Torah teacher [Choshen Mishpat 237: 2 Sm"a 8, Nesivos 2, See Minchas Pitim]. 

Exceptions include:
8.1 Darchei Moshe [156] forbids it if doing so will compel the original enterprise to fold . 
8.2 If employer A extended extreme  effort/investment to obtain this unique employee, employer B may not attempt to convince the employee to switch over to his/her firm [Nachalas  Tzvi 237: 2].

[See Nachlas Tzvi when an employee is permitted to do his own investigation to seek more promising opportunities].

Application

Miriam should have used more discretion when discussing her work with Ahuva. If she indeed revealed secrets; aside from breaching possible contractual agreements, she could be guilty of spreading both damaging lashon hara and revealing secrets.

If the secrets were not original, Ahuva is not guilty of stealing Miriam’s employer’s intellectual property. While there are instances when opening up a competition to a local business is prohibited, generally it is permitted to do so if the market can handle it.  

In terms of Ahuva endeavoring to hire Miriam, if Miriam had unique skills/personality and Miriam's initial employer did not invest extreme measures in hiring her, Nesivos would permit Ahuva to approach her even while she was under contract with her initial employer and try to convince her to switch, provided that Ahuva does not severely jeopardize the survival of her competitor's business. Other authorities would only permit the poaching of a Torah teacher under such conditions, but would prohibit poaching employees in any other field of work.

Foreclosure and Expulsion     Issue #: 157

Issue 157.pdf (1.23 mb) Foreclosure and Expulsion On a serene and stunning tree-lined Jerusalem bloc ...

Issue 157.pdf (1.23 mb)

Foreclosure and Expulsion

On a serene and stunning tree-lined Jerusalem block; a cohesive cross-sectional community began to blossom.

Two immigrant cousins; Aviva Goldstein from Forest Hills and Meira Steinberg from Los Angeles, enjoyed raising their young budding families alongside one another in Ramat HaGolan 16. Their husbands studied together in a vibrant Yeshiva in the Old-City.

After three-and-a-half wholesome years of comradery and caring, new emerging circumstances threatened their continued neighborly co-existence.

Both Goldstein’s and Steinberg’s respective landlords were experiencing financial upheavals and on December 23rd conveyed their mutual interests in terminating both rental agreements abruptly, come January 15th 2006.

  1. Goldstein initially signed a one-year contract and upon completing the initial signed agreement, continued paying rent every three months for two-and-a-half years and counting.

All of that seemed to be coming to an unfortunate end as Goldstein’s landlord Gadi Kahn; an expatriate from a cherry-tomato farm in Gush Katif slowly came to grips with the fact that his family was left tragically homeless itself.   

Though Jerusalem city-life was far different than growing up amidst the Rafiach-Yam vines; living quarters were still a place to call home …

  1. The Steinberg’s signed a new contract year after year on August 15th.

Strapped for cash due to a series of business failures, Steinberg’s landlord was compelled to put his Jerusalem rental apartment up for an immediate sale to prevent the bank from foreclosing on his Kiryat Ono villa.

Notwithstanding  Steinberg’s lease; their landlord could only find a buyer who agreed to purchase the apartment on condition that the Steinberg’s vacate it immediately.

 

 

Ø  May the Goldstein’s landlord kick them out on January 15th?

Ø  Pressed for cash, may Steinberg’s landlord sell the apartment to a buyer who refuses to respect the standing rental agreement?

 

What’s the Law?

 

The Answer:

Barring local custom, according to Torah Law, Goldstein’s landlord may not evict them on January 15th. Steinberg’s landlord may not sell his rental apartment under such terms. If he did do so, we could not force him to annul the sale.

 

Detailed Explanation

 

 

Foreclosure and Expulsion invokes the following laws.

Background:

  1. A landlord may generally not breach a lease contract and evict the tenant during the defined duration of the lease [Choshen Mishpat 312:1]. (See below for possible exception.)

 

  1. Once the defined-time lease terminates, the landlord can legally expect the tenant to vacate the premises, {regardless of whether the tenant can find alternative housing, as the tenant had ample time to prepare for the eventual need to find alternative living quarters} [Choshen Mishpat 312: 8].

 

  1. If the landlord sells the rental apartment during the interim of the lease, the buyer must respect the terms of the contract originally signed between the seller and the present tenant [Choshen Mishpat 312: 12].

 

  1. If the landlord destroys or sells the rental apartment to a scofflaw who will not respect the terms of the seller’s contract with the present tenant, the seller must provide the tenant with an alternative similar living quarters [Choshen Mishpat 312: 17].

Due Consideration for the Tenant

In order to avail the tenant reasonable time to attempt to find alternative housing, when a tenant lives in an apartment without a formal lease, (i.e. there is no defined termination date) the landlord must generally notify the tenant with ample time before wishing to evict him/her from the home.

As such, the Talmud explains that during the summer months when it is customary for people to relocate, whereby creating a market of vacant apartments, the landlord need not inform the tenant more than a month before wishing to terminate the relationship.  A month’s time during a season where apartments are available is deemed availing sufficient time.

However, the landlord may not evict the tenant in the midst of a season when alternative housing is presumably difficult to find. As such, the Talmud generally prohibits evicting a tenant in the middle of the rainy season when people do not move, and vacant apartments are difficult to obtain - even if the landlord gives the tenant thirty days warning. By warning the tenant thirty days before wishing to evict him/her during the rainy season, the landlord still failed to provide the tenant with a fair opportunity to seek alternative places to live.

Instead, a  landlord who wishes to terminate the undefined lease term during the rainy season  must avail the tenant the opportunity to look for new alternatives for one month before the onset of the rainy season [Choshen Mishpat 312: 5]. 

Due Consideration for the Landlord

Undefined Contract: Consideration 1

Just as the landlord must display due consideration to a tenant dwelling with an undefined contract term; the tenant is expected to display due consideration to the landlord when appropriate.

Thus, the tenant must give the landlord thirty days notice before wishing to leave in a season when new tenants are easy to find.  If the tenant wishes to terminate the stay in the middle of a season when alternative tenants are difficult to find, the tenant must notify the landlord of his/her intentions thirty days before the onset of the difficult season [Choshen Mishpat 312: 7].

 

Undefined Contract: Consideration 2

If the landlord’s own home collapses, whereby leaving the landlord homeless; were he/she not to use the rental apartment for his/her personal use; while the landlord may not evict a tenant who holds a time-defined lease in the middle of the rental term – he/she may evict a tenant who holds an undefined lease without forewarning in order to prevent him/herself from becoming homeless [Choshen Mishpat 312: 11].     

 

Does a situation exist which could conceivably permit a landlord to terminate a time-defined contract mid-term?

 

Rema maintains that while it is true that once a landlord loses his/her home, he/she may not evict a tenant who is protected by a time-defined lease; there is one example of a situation where the landlord can evict the tenant even in the midst of a time-defined contract.

If the landlord is about to lose his own residence i.e. due to a pending foreclosure, and could prevent such a devastating phenomenon from occurring through one option i.e. selling the rental apartment to a buyer who will not respect the rental agreement, he/she may do so to prevent himself/herself from losing his/her home [Rema 312: 1, see Aruch Hashulchan 312: 3 for rationalization and qualification of Rema’s ruling].

Nesivos disagrees and maintains that the landlord must uphold the contract even at the expense of foreclosing on his/her own home [Nesivos 312: 1].

Practically, in light of the two aforementioned views, we would prohibit the landlord from evicting the tenant to protect him/herself from suffering a foreclosure on his/her own residence; but if the landlord did do so, we would not be able to compel him/her to bring the evicted tenant back in.

A tenant continues living and paying the original rental fee after the written time-defined lease terminates without having signed a new lease.

Do we view the subsequent months henceforth, as though the tenant is living without a time-defined lease or do the terms of the original lease automatically renew themselves?

 

Aruch Hashulchan generally views such a phenomenon as though there is no time-defined lease. As such, the landlord may evict the tenant in the middle of the subsequent term provided that he/she gives the tenant thirty days warning during a season when vacant apartments are available and thirty days prior to the season when vacancies are difficult to find [Aruch Hashulchan 312: 24, see ibid 23 for situations when Aruch Hashulchan views the subsequent undefined term as though there was an automatic renewal of the contract and as such would prohibit the landlord from evicting the tenant during the second interim.]

Chochmas Shlomo however maintains that if the landlord permitted the tenant to remain in the apartment after the termination of the time-defined lease without conferring with him/her, the contract automatically renews itself in accordance for the same duration of time. As such, if the initial contract was for a year; by allowing the tenant to remain after the culmination of the first year without conferring with him/her; the landlord forfeits his/her right to evict the tenant until the culmination of the second year.

Application:

Goldstein: While Goldstein’s landlord was left homeless, evicting the Goldstein’s would not have prevented the colossal loss of their home in Rafiach-Yam. Goldstein’s landlord’s home already fell. Thus, Goldstein’s landlord cannot use the “ tragedy card” to evict the Goldstein’s before their time was up.

The question is simply when was their time up? Chochmas Shlomo views them as though they were locked in until the end of the third subsequent year, while Aruch Hashulchan views them as though they were under an undefined-time contract. Though they could be evicted before the end of the year, the landlord must give them ample warning time i.e. a month during a season where apartments are readily available or a month before the commencement of a season when apartments are difficult to find.

Goldstein was warned three weeks before the eviction date that he had to vacate the apartment; an insufficient amount of time on all accounts. Unless local custom permits a shorter warning time, Goldstein’s landlord may not evict them on January 15th.

Steinberg: Steinberg maintained a time-defined lease. Steinberg’s landlord was faced with a pending foreclosure and only preventative recourse was to sell his Jerusalem rental apartment to the first buyer whether or not the buyer would respect the standing rental contract with Steinberg. Rema would permit Steinberg’s landlord to go through with the deal and leave Steinberg homeless suddenly, while Nesivos would prohibit him from doing so.

As such we would not allow Steinberg’s landlord to abrogate their rental agreement with Steinberg in order to protect his own foreclosure. However, if he carried through with the deal Steinberg would not be able to force himself back into the apartment.

From Lakewood to Flatbush     Issue #: 156

Issue 156 new.pdf (947.81 kb) From Lakewood to Flatbush Aaron Friedman and his four friends' special ...

Issue 156 new.pdf (947.81 kb)

From Lakewood to Flatbush

Aaron Friedman and his four friends' special relationships began years ago while playing stickball on Friday afternoons on a quiet side street in Flatbush.

Now, twenty years later, they studied Talmud together in the Lakewood Yeshiva. However, Friday afternoons still retained its unique comradery hours, as the young men would often rent a car and cross the Verrazano together to spend Shabbat in Flatbush.

One frigid Friday morning, Aaron rented a dyno blue pearl Honda Civic from Enterprise for $60 for the weekend. Each friend paid him $12 for their part.  Gas and tolls, they'd split as well.

Friedman and friends intended to head back to Lakewood at 7:00 AM on Sunday morning.

On Saturday night, Yona and Levi called Friedman and told him that they found a ride back that night and as such would not be traveling back with the Friedman crew.

Two seats now remained vacant.

Mr. Cook heard about the vacant seats to Lakewood at a local Chinese Auction, contacted Friedman and requested to send his six year old grandson Eli Cook back to NJ with them, willing to pay for his seat.

One seat remained vacant.

Yona and Levi each paid $12 and earned a right to ride both ways. Eli sat in one seat.


Ø  Whose seat did Eli sit in; Yona's, Levi's, or Aaron Friedman's? 

Ø  Does Eli pay Yona, Levi, both or Aaron?

 

The Answer:

Rav Moshe Feinstein ruled that Aaron should take half and Yona and Levi should each take a quarter.

 

Detailed Explanation:


From Lakewood to Flatbush invokes the following Halachos:

  1. A hired a ship from B to transport merchandise from Point 1 to Point 3 for an agreed upon price. Midway; at Point 2, A found a customer to purchase the merchandise and consequently unloaded the ship. A wishes to pay a reduced price commensurate with the distance traveled. Unless B is able to find another fare to pick up the tabs, A must pay the full from Point 1 to Point 3. (If B gains financially from not having to travel all the way to Point 3, A may deduct appropriately.) [Choshen Mishpat 311: 6]
  2. A rented an apartment for a year from B, then vacated in the midst of the year with no intention to return. Even if A is willing to pay for the entire term of the lease, B need not keep the apartment vacant until the end of A’s rental contract. Instead, B, as the owner of the property, may rent it out to C and charge A the appropriate reduced price. Similarly, if A did not yet pay for the months he/she did not live in the apartment, B may not require him to do so, if B found new tenants to take over the remainder of the lease; as B did not lose as a result of A vacating early.

However,  a scenario where a) A paid for the entire term of the lease, vacated the apartment mid-term b) with no intention to return and c) did not expect someone to take over the lease, raises a fundamental dilemma:

Who now owns the usage rights?

This dilemma implicates four questions.

1) Even though B cannot charge A to pay for months he did not use the apartment when B finds replacement tenants, need the landlord return the rent money A already forwarded for the months A will no longer dwell in the apartment?

2) May the landlord rent the apartment to C after A vacates the premises?

3) Are 1 and 2 contingent on each other? Meaning’; may B rent the apartment to C, only if he/she returns the rental money to A, or may B “double dip” by renting the apartment to C even if B is permitted to keep A’s money?

4) Does A still retain the right to sublease the apartment to a third party even though A left without knowing that someone in fact would do so?

Sm”a [Choshen Mishpat 316:3] rules that B may keep the A’s rental money as well as rent it out to C.

Why should it remain empty?

Pischei Teshuva [Choshen Mishpat 316: 3] brings dissenting opinions including Ketzos [ibid. 2, see Igros Moshe C.M. I 74 for more] who argues that the usage right still belongs to B and as such A lacks the authority to earn money by marketing the usage rights which belong to A [Choshen Mishpat 316:1].

Application:

From Lakewood to Flatbush may be comparable to a scenario where A paid for the entire term of the lease, yet vacated the apartment mid-term with no intention to return.  In addition, it is unclear whose seat Eli took. In light of the dissenting opinions, Rav Moshe Feinstein [Igros Moshe Choshen Mishpat I: 74] ruled that the inquirers should split little Eli’s fare between Aaron the “landlord” and the “renter”.

Additionally, Rav Moshe viewed Yona and Levi as partners in Eli’s seat and as such, should split the “renters” portion. In terms of dollars and cents, barring the costs of tolls and gas; of the remaining six dollars for one fare from Flatbush to Lakewood, Aaron would take three dollars and Yona and Levi would each take $1.50. (See Pischei Choshen 2:57 for further discussion on this topic.)

Rental Return?     Issue #: 154

Issue 154.pdf (645.26 kb) Rental Return?  The Friedman's two week vacation in the Golan Heights ...

Issue 154.pdf (645.26 kb)

Rental Return?
 

The Friedman's two week vacation in the Golan Heights  came to an abrupt end, one week in - after the IDF insisted that they vacate their rental cottage. Security conditions warranted a military outpost on its roof.
 
The Friedman's refused to pay the landlord for the week that they were unable to live inside.
 

What's the Law?
 

The Answer:
If the army took over numerous homes in the area in a manner which made it uninhabitable, the Friedman’s need not pay for the second week. 

If this was the only home in the area which the army took over, if the Friedman’s already paid for the second week, Beit Din could not require the lessor to return the money.

 

Detailed Explanation:

Rental Return invokes the following laws. 

A (leasee, שוכר) rented an animal from B (lessor, משכיר) to perform a specified task. Due to an unforeseen occurrence, the animal's functionality, became temporarily severely compromised. 

B ( lessor, משכיר) can require A (leasee, שוכר ) to wait until the animal regains its full functionality, allow the service to be rendered, and then bill A (leasee, שוכר) accordingly, for the postponed service [Choshen Mishpat 310:1, Sm"a 2].

*

A (leasee, שוכר) rented an animal from B (lessor, משכיר) to perform a specified task. Due to no irresponsibility on A or B's part, the animal died while performing the task. 

If the first part of the job is financially beneficial to A, A pays for the first part of the job. 

With regards to the half of the intended service never rendered, no one was at fault. It was rather a result of a fateful mishap.

But to who’s “fate, or mazal” do we attribute this mishap?

As the animal’s death will affect B, the lessor beyond the termination of the rental interval, we attribute the mishap to B’s “fate”. 

As such, A is absolved from paying for the non rendered service.

[Note 1: Under certain conditions, (see subsequent issues,) A (leasee, שוכר) can require B (lessor, משכיר) to provide him/her with a fair replacement.] 

*

A (leasee, שוכר) rented an animal from B (lessor, משכיר) for a specified interval. The animal did not die, but its functionality became temporarily severely compromised and would recover only after the prescribed time. 

B will be able to benefit from the animal after the termination of the rental. However, for A's purposes, the animal “figuratively died".

No one was at fault. It was rather a fateful mishap.

But to who’s “fate, or mazal” do we attribute the mishap?

If the nature of the unforeseen “death-like mishap” was such, that it would have occurred equally under B’s (lessor, משכיר) watch, we attribute the mishap to B’s fate.

As such, B must absorb the loss (i.e. the regime searched the homes to impound the animals temporarily and would have found the animal in B’s home as well).

*

If the nature of the unforeseen “death-like mishap” was such, that A (leasee, שוכר) indirectly facilitated the phenomenon (i.e. the regime searched the roadways on which A traveled to impound the animals), we attribute the mishap to A’s (leasee, שוכר) fate.

Hence, A (leasee, שוכר) must pay for the agreed rental price irrespective of whether he/she benefitted from the animal or not [Nesivos Choshen Mishpat 310: 2, 3].

*

Q. Should an army temporarily and unforeseeably take over the rented home for the duration of the rental period, in a manner which makes the home unlivable; to whose fate do we attribute the phenomenon?

Nesivos [ibid.] understands this phenomenon as such, that it would have occurred irrespective of whether A was renting the home; very similar to a situation where the regime was searching through the homes to impound animals. Accordingly, Nesivos attributes this phenomenon to the B (lessor, משכיר)’s fate, and thus absolves A (leasee, שוכר) from paying for the time he/she was unable to live in the home. 

Machane Efraim [Hilchos Sechirus 6] agrees with Nesivos, if the army were to overtake numerous homes. However, if the army only took over the rental home, and no other home in the area; Machane Efraim attributes the phenomenon to both A’s and B’s fate.

As such, Machane Efraim compromises and rules that while A need not pay for the time he/she was unable to live in the home; if A already paid for the time he/she was unable to live in the home, we would not compel B to return the money.

Conclusion:

When two valid conflicting Halachic views exist, the Lower Court employs the formula of hamotzi mechaveiro alav harayah המוציא מחבירו עליו הראיה (leaving the Heavenly Court to set the record straight) and permits the status quo to continue.

As such, practically, though we would not compel A to pay for the time he/she was unable to live in the home; if A already paid for the time he/she was unable to live in the home, we would not compel B to return the money. 

If however, the army took over numerous homes in the area in a manner which made it uninhabitable, the Friedman’s may even demand a refund for the second week, as all authorities attribute this phenomenon to the fate of the lessor. 

P.A. Malpractice! Vicarious Liability?     Issue #: 153

Issue 153.pdf (544.85 kb) P.A. Malpractice! Vicarious Liability? Lisa’s last visit to Amfield ...

Issue 153.pdf (544.85 kb)

P.A. Malpractice! Vicarious Liability?

Lisa’s last visit to Amfield County Medical Center unfortunately turned out to be disastrous. While presumably a generally healthy woman, Lisa came down with a cold and an earache on Monday Sept 3rd. After a few days of unrelenting suffering, compounded with neck pain and dizziness, Lisa’s friend Minna drove her to Amfield County Medical Center to have her condition checked out. 
 
They were finally seen by a man, whom they presumed was a medical doctor. In fact, the man was not a medical doctor, but a physician’s assistant, employed by the Coastal Physician group which was contracted by Amfield medical center. Lisa was discharged with a diagnosis of a sore throat and ear infection. The physician’s assistant prescribed due medication and a treatment plan. 
 
Two days later, the situation worsened drastically and Lisa began to become disoriented and soon lost consciousness. Minna immediately called 911. The ambulance brought her to the emergency room. Lisa was immediately transported to the South Georgia Medical Center in Valdosta, Ga. 
 
A spinal tap showed that Lisa was suffering from bacterial meningitis. She slipped into a coma and Minna was told that Lisa might not survive. However, a week later, Lisa came out of the coma.
 
Unfortunately, as a result of the untimely diagnosis of bacterial meningitis, Lisa suffered near blindness, balance and ambulating deficiencies, as well as severe damage to her inner ear. As a result, Lisa, who was declared totally disabled by the Social Security Administration, must use a walker to ambulate.  
 
According to Torah law, is a doctor liable for sicknesses which could have been averted with proper and timely diagnosis? 

According to Torah law, who is liable for a Physician’s Assistant’s malpractice – the PA, the physician who employed her, or the medical facility which contracted with the physician?  

What's the Law?

The Answer:

1) See Detailed Explanation

2) Barring contractual agreements, the physician and medical facility are absolved unless they appointed an employee with reason to assume that he/she would harm their patients. 
 

Detailed Explanation
 

Vicarious Liability invokes the following Halachos.
 
1.While the Medical profession is not an exact science, and is fraught with risks, the Torah gives specific   permission for a doctor to take suitable  action and administer due care [Shemos 21: 19, Bava Kama 85a]. 
 
2. Moreover, it is mitzvah for a doctor to  administer care to the best of his/her ability [ibid.] 
 
3. However, only a competent professional of the is permitted to do so. 
 
In times of yore, Beit Din issued medical licenses. Nowadays, governments do.
 
4. An unlicensed practitioner who administers care and harms a patient, even inadvertently, can be sued for  malpractice. 
 
5. A licensed practitioner who intentionally harmed a patient can be sued. 
 
6. A licensed practitioner who inadvertently harmed a patient due to his/her inattention will have to take it up with the Heavenly Court. 
 
7. A licensed practitioner who inadvertently caused the patient to pass away deserves to go to exile. 
 
8. A licensed practitioner who administered appropriate care, but nevertheless was unsuccessful and inadvertently harmed the patient or caused him to pass away is not liable for damages [Aruch Hashulchan 336:1,2].
 
9. A licensed practitioner who did not actively harm a patient, but instead, failed to notice warning signs, albeit due to know irresponsibility on his/her part, and as a result failed to diagnose an illness in a timely fashion, cannot be sued and need not take his/her account up with Heaven [Shevet HaLevy 7:271].
 
10. Barring contractual agreements, unless  an employer had reason to assume that his/her employee is likely to harm patients , he/she is not liable for the damages his/her employee affects. In Talmudic terms we refer to this tenet as   ain shliech ledvar aviara [Kiddushin 42-43, Choshen Mishpat 388: 15 Rema].
 
Application:
 
Barring contractual agreements, according to Torah Law, an adult an employer has no vicarious liability for the damages affected by his/her employer except if there was reason to assume that that the employee would cause harm or damage. Instead, the employee, (the PA) would be liable. 
 

Election Breakdown!     Issue #: 152

Issue 152.pdf (557.96 kb) Election Breakdown!  If one New Hampshire region is synonymous w ...

Issue 152.pdf (557.96 kb)

Election Breakdown! 
 
If one New Hampshire region is synonymous with recreation, it's the White Mountains. 48 4,000 foot peaks are found here, along with the highest mountain in the Northeast, 6,288-foot Mt. Washington; but it is the 800,000-acre White Mountain National Forest, that truly shapes the region.  The Kancamagus Scenic Byway offers one of the most beautiful routes through New Hampshire's White Mountains, especially during the fall foliage season.  A trip across the "Kanc" is a highlight for most visitors to the 800,000-acre White Mountain National Forest. Rushing rivers, a covered bridge, breathtaking vistas and

possibly a glimpse of an elusive moose are some of the cherished memories. Kalman Klein and his adventurous high school roommates planned a weekend getaway to the Kanc; renting a 2001 white Subaru Forester   from patriotic Grandpa Erich, the school’s cook; on condition they hang a flag supporting incumbent A on the vehicle’s antenna.  Driving under normal conditions; their Forester broke down on route 302. The roadside mechanic was rather infuriated to discover an enormous promotional roof bag supporting incumbent B.
 
The Forester broke down under normal usage conditions. The Klein crew altered the rental conditions, yet the mishap occurred irrespective of which promotional material they hung from the vehicle.
 
Who is responsible for the repair?

What's the Law?
 

The Answer

Grandpa Erich pays for the repair. 
 

Detailed Explanation


 
1. While a borrower is liable even for unforeseen damages (אונסים), A renter is usually absolved from paying for unforeseen damages and damages due to normal usage [Choshen Mishpat § 307:1, 5 §340:1].

2. A rented a donkey on provision to trek with it up a mountain. A decided to lead it through the valley instead. The donkey inadvertently slipped and broke its leg, due to no recklessness on A’s part. As the risk for slippage while walking in the valley is less than while trekking up a mountain, A is absolved from paying for damages. 
 
3. A rented a donkey on provision to lead it trough the valley. A decided to climb with it up the mountain instead. The donkey inadvertently slipped and broke its leg. As the risk for slippage while climbing a mountain is more than while walking through a valley, A is liable to pay for damages. 
 
In other words, a renter who changes from the terms of the rental agreement is liable for any damage that ensues which can be fairly attributed to the changed conditions [Choshen Mishpat §309:1]. 
 
4. By using the article in conflict with the rental terms, the game rules change.  Liability probability increases. The payment for usage conceivably decreases.
 
Explanation:
 
By changing the terms of the rental agreement, the renter becomes liable for any damage that can be attributed to the change – even unforeseen occurrences. Liability probability increases! Yet by overstepping the rental terms, he effectively dissolves the rental agreement even if the article remains intact. Using the article beyond the rental parameters - the user pays for benefiting from the article even if the benefit value is less than the agreed upon rental fee [Ketzos HaChoshen §309:1].
 
Application:
 
The Forester broke down as a result of normal management of the vehicle. Renters (lessees) are absolved from paying for damages resulting from normal usage thereof.   While the boys may have used the vehicle outside the parameters of the rental agreement, the breakdown could have occurred irrespective of which incumbent they chose to promote. As the breakage cannot be attributed to the Klein crew’s misuse, they remain absolved from paying for its damage.

Tom the Trucker     Issue #: 155

Issue 155.pdf (890.25 kb)  Tom the Trucker   Karmin's Cleveland's Customized Kitchen Corne ...

Issue 155.pdf (890.25 kb) 

Tom the Trucker

 

Karmin's Cleveland's Customized Kitchen Corner featured a broad array of Contemporary, Country, Old World, Rustic, Traditional, and Transitional kitchen designs.

Karmin quickly earned a reputation for integrity, reliability, and exceptional workmanship.

Relocating to Serenity Lane, near the Telz Yeshiva, the Brauns ordered a long rustic table and matching chairs to suit their aged wooden kitchen decor.

At $200 for the job, Karmin commissioned Tom the Trucker to deliver the order and assemble the pieces.

Tom's prudence though, was no match for the Thanksgiving drunken driver who spun out of nowhere, and decimated Karmin's truck. Tom did not survive.

Sure, Karmin had some accounts to settle with Braun and the drunken's insurance company...but what about Tom? Tom's heirs demanded their dad's pay. Karmin argued that the job had not been completed.



Ø  According to Torah law, is Karmin required to pay Tom's heirs for the uncompleted job?

 

What's the Law?

 

The Answer

Karmin commissioned Tom to complete the job for $200. As the truck was decimated, Karmin received no benefit from any of Tom's work. Consequently, Karmin is absolved from paying Tom's heirs anything.

Two Exceptions:

 

A] Were Karmin to have hired Tom for an hourly wage, or else, benefited from an element of the service rendered, Karmin would pay the hourly wage/the value of their benefit received to Tom's heirs.

B] Were Karmin to have prepaid Tom, Karmin may not compel Tom's heirs to return any of the money exceeding the value of the service rendered.


Detailed Explanation


Tom the Trucker invokes the following laws:

  1. A commissioned B to perform a defined service. After performing part of the service, B legitimately (see Choshen Mishpat 333: 1-4) backed out of the job. A pays B for any benefit he/she received from having part of the service rendered. A is absolved from paying B if he/she  received no benefit from a partial service rendered [Choshen Mishpat 333, Nesivos 333: Biurim 9]. 
  2. A commissioned B to work for a specified time period. B fell ill; whereby becoming incapable of working. Barring contractual agreements, A is absolved for paying for the time B was unable to perform.
  3. A prepaid B. B fell ill; whereby becoming incapable of working.

3.1 Rema maintains that A assumed the calculated risk that an uncontrollable phenomenon like illness may occur and nevertheless willingly awarded the money to B.  As such,  A may not demand B to refund the money if uncontrollable circumstances indeed occurred and deemed it impossible to complete the contract. 

3.2 However, Sha”ch opines that by nature, an employer does not “purchase an employee, come what may” but merely pays for services rendered. As such, A may demand B to refund the wages forwarded for services ultimately not rendered [Choshen Mishpat 333: 5, Sha”ch 25].

  1. A prepaid B. B died.

4.1 In line with Rema’s aforementioned school of thought, Aruch Hashulchan rules that A may not compel B’s heirs to refund him/her for the part of the service not rendered [Aruch Hashulchan Choshen Mishpat 329:2]. 

4.2  In line with Sha”ch’s school of thought, Nesivos rules that A may not compel B’s heirs to refund him/her  for the part of the service not rendered if the heirs wish to complete their father’s job. Otherwise, A may compel B’s heirs to refund the wages forwarded for services ultimately not rendered [Nesivos:  Choshen Mishpat 329:1].

Application

As opposed to receiving an hourly wage, Tom was commissioned to complete a job. Karmin's truck was decimated. Tom did not survive. Karmin did not benefit from Tom’s services and as such is absolved from paying Tom or his heirs.

Were Karmin to have prepaid Tom for his services, Nesivos would rule that Karmin may not demand the heirs to refund the money if they are willing to perform the job. Aruch Hashulchan would rule that  Karmin could never compel Tom’s heirs to refund the money.

That being said, as in general with two legitimate conflicting views, we would respect the status quo and permit the heirs to keep the money without having to ship a kitchen for Karmin.◆

The PITUM Broke     Issue #: 149

Issue 149.pdf (708.94 kb) The PITUM Broke An exceptional family ritual by now, David Lewenstein from ...

Issue 149.pdf (708.94 kb)

The PITUM Broke

An exceptional family ritual by now, David Lewenstein from Los Angeles arrived in Jerusalem with his growing family a few days before Succoth. Moments after settling in their rented villa on Keren Kayemet St., David and his boys dived straight into the exciting hub of action, procuring the four species and erecting their decorative succah.

David found what seemed to be a prize etrog. In Jerusalem as well as in other cities, the consumer takes his etrog of interest to a Rabbi to ensure it is kosher. If the Rabbi disqualifies it, the dealer will allow the consumer to void the sale.

Etrog and a danish in hand, David and sons boarded the heavy populated light rail en-route to the Rabbi.

Challenged to curb his excitement, David fatefully opened the etrog box to take another look...but so did the elbow of the security guard passing through the train, inadvertently knocking the style (pitum) off the etrog, whereby rendering it non-kosher.

  
Must David pay for the etrog? If he already paid, may he void the sale?
 
What's the Law?

 

Detailed Explanation

The PITUM Broke invokes the following laws. 

 

1. A Borrower derives benefit from the borrowed property; [Sha"ch - Choshen Mishpat 340:3] without having to pay a fee. Hence, the borrower assumes complete responsibility including damages due to (a) negligence (b) theft/loss outside of the realm of negligence, c) general unforeseen accidental damages beyond his or her control.

2. A borrower is exempt from paying for damage that occurs simply as a result of using the article in its intended use [Exodus 22:13 Choshen Mishpat 340:1].

 

Application

As David derived the benefit of reserving the etrog of his choice before having to pay for it; he is deemed a borrower so long as he has yet to pay for the etrog. As such, he assumes full liability for any mishap that may occur to the etrog, spare for paying for damage that occurs simply as a result of using the article in its intended use.

David acted with negligence by taking the delicate etrog out of its box in a crowded light rail car. He is thus liable to compensate the seller for the damage that ensued.

Parenthetically, if without known mishandling, the pitum would have fallen off the etrog in the box with reason to assume that the style was simply weak, we could have viewed it as damage occurring as a result of using the article in its intended use, and absolved David.

 

The Right Meat, The Wrong Supervision!     Issue #: 148

Issue 148.pdf (614.62 kb) The Right Meat, The Wrong Supervision!   Living out of town offered M ...

Issue 148.pdf (614.62 kb)

The Right Meat, The Wrong Supervision!

 

Living out of town offered Mrs. Berman wonderful opportunities to introduce her neighbors to the beauty of Jewish living. When Mrs. Berman first moved to Anytown USA, most of her friends were unaccustomed to dining in the succah. 

 

Mrs. Berman pleasantly changed that. She invited the entire community for Kiddush on the first day of Succoth to her red wooden Succah.  The tables were typically laden with mouth-watering home-baked cookies, pastries, meat platters, kugel and chulent - and rolls for those who wished to wash.

 

Time has a way of passing on.  More and more succahs soon bejeweled the neighborhood backyards. Yes; gone were Mrs. Berman’s heavy red succah boards. Many a local day-school grad by now would return as a yeshiva boy for the festival. The seven-year-old cookie gougers were now grown adults drinking whisky. Olive oil began substituting for margarine, but the piping hot chulent and Addie’s Jelly roll kept inviting the aging community back to the Berman Succah Bash.

 

Anytown USA did not boast a kosher butcher. Instead, twice a year, Mrs. Berman would order half a cow from a particular butcher shop in the nearest large Jewish city. She liked the shop’s packaging and cuts, and their variety allowed her to choose meat from the rabbinical supervision of her preference.

 

Two and a half weeks before Succoth, she received her order. Mrs. Berman eagerly opened the first box and was rather chagrined, as she received the right cuts of meat from unfamiliar kashrut supervision.


 

 

What’s the Law?

 

 

The Answer:

It depends [See detailed explanation].

 

Detailed Explanation:



The Right Meat, The Wrong Supervision invokes the following laws.

 

  1. If a buyer intended to purchase Product 1 and received Product 2, both the seller and the buyer have a right to void the sale [Choshen Mishpat 233: 1].

 

    2a. If a buyer intended to purchase Grade A and instead received Grade C, the buyer may void the sale, while the seller may not void the sale [ibid].

 

    2b. Conversely if the seller intended to sell Grade C and instead, inadvertently delivered Grade A, the seller may void the sale, while the buyer may not do so [ibid].

 

  1. If the difference in intended quality can be effectively rectified, no one may void the sale. (The cost of rectifying the issue lies upon the seller.)

 

  1. If the difference in intended quality is nominal, Rema opines that the sale remains valid. (The cost of rectifying the issue lies upon the seller.) [Note: In practice, Nesivos rules like Rema once the consumer has paid for the article. While, if the consumer has yet to pay for the article, Nesivos rules like Ran who allows the consumer to void the sale.]

 

  1. For a pampered consumer, even a nominal deficiency in quality may be deemed significant enough to permit him/her to void the sale completely [ibid]. [See Nesivos 233:5 if it is necessary for the seller to be aware that the consumer is “pampered” or is it sufficient that the consumer specified his/her preference.]

 

  1. Even when sale may not be nullified, when appropriate, price adjustments are necessary even if the difference is less than a sixth of the market value [ibid, Pischei Teshuva 2].

 

Application

Meat under an alternative rabbinical supervision:

Is that considered as

1) A different product

2) A different grade of the same product

3) A nominal difference of quality?

 

-      Considering the two as a different product would allow both the seller and consumer to void the sale.

 

-      Considering the two as different grades of the same product will allow the consumer to void the sale.

 

-      Considering the two as a nominal difference of quality would allow the consumer to void the sale if a) he/she has yet to pay for the meat b) if the consumer can prove that he/she is a ‘pampered’ customer. Otherwise, the sale remains valid while price adjustments are in place.

 

As both meats are edible, it is difficult to view them as two different products. Instead, we could view them either as two starkly different qualities of the same product, or else nominally different, depending on the circumstances.

 

If the two supervisions were of objectively different qualities, the consumer may void the sale.

 

If the difference between the two supervisions was nominal or subjective; unless the consumer can prove that he/she was a ‘pampered consumer’, the sale may not be voided. Price adjustments, when necessary, are in place.

The Schnitzel Sham     Issue #: 146

THE SCHNITZEL SHAM   "Celebrate with The Schnitzel Place: Homemade Gourmet Meals for Less. $30 ...

THE SCHNITZEL SHAM

 

"Celebrate with The Schnitzel Place: Homemade Gourmet Meals for Less. $30 a plate. Delivery to hall and setup for an additional $2 a plate."

As the out of town guests eagerly arrived, Hyman and the bar mitzvah boy Josh's palpable excitement turned sour when they discovered a bare hall devoid of schnitzels.

The Schnitzel Place delivered the meals to the wrong hall.

 

 

Ø  The Schnitzel Place failed to deliver the meals to the appropriate location. Must Hyman pay for the meals?

 

The Answer:

Whether The Schnitzel Place provided the delivery service themselves or else they hired a third party to do so, Hyman is absolved from paying for the meals. If the third party delivery service was commissioned by Hyman, Hyman remains liable towards The Schnitzel Place.

Detailed Explanation:


The Schnitzel Sham invokes the following Halachos

  1. When a defect in a sale is easily rectifiable (i.e. adding/subtracting an additional unit) the transaction is valid but the buyer may demand reimbursement for the difference [Choshen Mishpat 232:1].
  2. A consumer whose defective merchandise is of such that when the defect is rectified it would not change or adversely affect the quality of the merchandise, may not annul the sale. Instead, he/she may require the seller to rectify the issue (and when appropriate duly deduct from the original sale price) [Choshen Mishpat 232:5, Nesivos 7].
  3. Repairing the defect is the seller’s responsibility. The consumer may annul the sale if the merchant does not fulfill his/her duty to repair the merchandise [Ulam Hamishpat Choshen Mishpat. 232].
  4. Time-sensitive defects are not considered rectifiable after the time expires [Choshen Mishpat 232: Bach 4].
  5. A merchant remains liable for merchandise en route to the consumer via the merchant’s employee or courier [Choshen Mishpat 340:6].

 

 

Application:                                                                                   

Hyman ordered schnitzels to be delivered to his bar mitzvah hall. The sale included the production of the food and the delivery. While The Schnitzel Place prepared the food, they delivered it to the wrong destination. Hyman encountered a time sensitive defect in the sale. The Schnitzel Place has a small window of opportunity to re-deliver it to the correct destination. Otherwise, Hyman may demand a full refund for the food.

This applies even if The Schnitzel Place outsourced their deliver service to a third party. If however, the delivery service were to be employed by Hyman, Hyman is not absolved from paying The Schnitzel Place for the food.

The Loan Sharks!     Issue #: 145

The Loan Sharks!   Thousands of dollars regularly passed through his able fingers.  Aaron ...

The Loan Sharks!

 

Thousands of dollars regularly passed through his able fingers.  Aaron Schmell managed a highly regarded Free Loan Society in the heart of northern Jerusalem.

 

Schmell’s integrity and responsibility earned him international trust and respect. Philanthropists and caring Jews world over comfortably deposited significant funds under his jurisdiction for extended periods of time.

 In August 2012, sixty percent of his pool belonged to Josh Adler from Atlanta.

 As a full line of potential borrowers streamed through his office nightly, Schmell held thousands of dollars in cash on hand which he stored in a secure vault obscured in his home.

 Tragically discovered by the underground; one night Aaron’s apartment was looted. Destroying the vault, the thieves made away with fifty thousand dollars cash.

 

Ø  Was Aaron responsible to repay his depositors?

Ø  To whom did the cash belong?

Ø  Do his depositors divide the loss proportionately?

Ø  Do we assume the cash belonged to Adler?

 

 

 

What’s the Law?

 

 

The Answer

  1. Aaron was absolved from paying his depositors [See detailed explanation].
  2. We assume the cash belonged to all of the depositors.
  3. The depositors divide the loss proportionately based upon their share in the Fund.

 

Detailed Explanation


 The Loan Sharks invokes the following laws:

 

Aaron

  1. Aaron’s depositors entrusted him with their money. While given jurisdiction to decide to whom to lend their money, he is required to ensure that the funds are returned. We view Aaron as a shomer, a trustee on the value of their deposits[1] [Dayan Chaim Kohn].

 

  1. Though they did not pay Aaron to manage the Free Loan Fund, the prestige and public trust that Aaron earns as a result of his position, suffices Aaron to assume the responsibilities and liabilities of a shomer sachar, a paid trustee [Choshen Mishpat 72: Pischei Teshuva 10].

 

  1. A paid trustee is liable for losses or theft which he/she could have prevented. Whereas, a paid trustee is absolved from losses due to circumstances beyond his/her control like armed robbers or circumstances of theft which he/she would have been unable to protect [Choshen Mishpat 303:2].

 

Adler and His Partners

  1. Considering that funds generally lack definitive nature, the multiple depositors inevitably form a partnership in the Fund’s assets. Losses therefore are to be divided proportionately [Choshen Mishpat 292: 10, Rema].

(In contrast; multiple depositors of definitive items retain their individual ownership over their respective belongings. They do not generally form partnerships with their co-depositors.

 For example, Ari give three suits to a tailor to alter. The three suits remain Ari’s even if David dropped off two suits that day – even if the suits were all the same model number, style, and size.

 

The question would thus arise; were armed thugs to run away with two suits; who absorbs the loss – Ari, David, Both?

 

Milk from a kosher cow is kosher. Milk from a non - kosher cow is non – kosher. How do we know if that the milk in the container in your refrigerator emanated from a cow that was Halachically healthy?

 

The Answer:

Most cows are kosher. We assume the milk emanated from the majority and need not assume the milk came from the minority of cows halachically unfit for consumption. Halachic terminology refers to this principle is referred to as Kol deparish merubah parish.

In the same vein, Kol deparish merubah parish requires Ari, the depositor of three suits, to absorb the loss [ibid.])

 

Application:

Aaron is absolved from paying for theft due to circumstances beyond his control. As Schmell is a 60% owner of the Free Loan Society’s funds, sixty percent of the $50,000 stolen belongs to Schmell who consequently absorbs sixty percent of the loss. The remaining depositors divide the remaining forty percent proportionately.

 

[1] The Torah however, absolves one who has been appointed to appropriate charity funds at his discretion. He is neither deemed a trustee for the contributors nor for the undefined recipients.

Stranded Passenger     Issue #: 151

Stranded Passenger Hungarian national airline Malev has folded after its financial situation became ...

Stranded Passenger

Hungarian national airline Malev has folded after its financial situation became unsustainable.

"After 66 years of almost continuous operation Malev will no longer take off," the report said.

Chief executive Lorant Limburger said the immediate reason for the collapse was the demand for upfront payments by its suppliers.

Prime Minister Viktor Orban said on state radio that two Malev planes were still overseas, one in Tel Aviv, the other in the Irish Republic.

The premier said those planes were not allowed to take off because of Malev's debts.

Having stopped over in Ireland, Irving was stranded (BBC).

  • According to Torah Law, what are Malev's responsibilities towards Irving.
  • May Irving demand a refund for the first leg of the trip?

 

What's the Law?
The Answer

Malev pays the expenses to get to Tel Aviv. If they do not pay, Irving may demand a refund but must pay for any benefit received by getting half-way.

 

Detailed Explanation

 

Stranded Passenger invokes the following three laws. 

 

1. A rented an animal from B to take him from point 1 to point 2. The animal died unexpectedly. Is the rented animal provided to get A to point 2 or is B required to get A to point 2?

 

It depends on the nature of the contract.

If A specifically rented a certain defined animal, the defined animal is indentured toward providing A the means to get to point 2.

Hence, B's liability towards A does not exceed the value of the animal rented. Costs incurred to A beyond the value of the defined animal need not be covered by B. As the animal died unexpectedly, B can claim that it was A's bad luck.

 

However, if the nature of the rental terms were such that B was to provide A with a medium to travel to point 2, then B obligates himself/the company/his assets to provide A with the means of to reach point 2 even beyond the value of the animal that they happened to choose [Choshen Mishpat 310:2].

2. Irrespective of the aforementioned natures of the contract terms, B may not give A an animal which he knows to be ill and at risk of dying en route. If he does so, his liability will exceed the value of the animal [Nesivos 310:1].

3. If B does not provide A the means to reach point 2 when required, B must return the rental fee. A must pay for any benefit he/she may have received from reaching the "half-way point."[Choshen Mishpat 310:1].

 

Application

 

Irving purchased a ticket from Malev from NY - Ireland - Tel Aviv. If Malev had reason to suspect that they may suddenly fold, they should not have put Irving in the situation. They would be required to get him to Israel at all costs.

Irving purchased a "way to get to Tel Aviv". He did not rent a "certain defined aircraft." As such, even if they folded unexpectedly, they are required to get him there at all costs.

If Malev would leave Irving to find his own way, Irving can demand a refund for the ticket. However, if he benefited by getting half-way, he would have to pay Malev that amount.

 

 

Costly Crossings: Taxi Torah!     Issue #: 150

Costly Crossings   Having requested a metered ride, instead of fixing a price with the monit ...

Costly Crossings

 
Having requested a metered ride, instead of fixing a price with the monit driver, quickly evolved into an increasingly costly picking for the Lewenstein party, as the pre-holiday bumper to bumper traffic snarling through the narrow Jerusalem streets began to sap their pockets.
 
After crawling for ten minutes, the traffic began to disperse and the upcoming traffic circle turned fairly empty. The monit driver revved up his engine and raced towards the circle.
 
Pushing her double stroller with two kids on her side, Mrs. Berger observed the episode. Reaching the intersection at about the same time that the taxi did, she wondered if it was noble for her to defer the right of way to the taxi and spare the Lewenstein's from incurring a more expensive ride.
 
What's the Law?

The Answer

 

If it is not too much of an inconvenience in doing so, it would be proper to allow the cab to go first.

 

 

Detailed Explanation    

 

 Costly Crossings invokes the following laws. 

 

1. Should a legitimate and legal struggle ensue between two parties over who should earn/save more money, a third party may offer to assist his/her friend or acquaintance. If both parties are equal strangers, we tell the third party to abstain from soliciting involvement. "How do you have the right to 'choose sides", why is A's blood redder than B's blood [Chofetz Chaim, Hilchos Rechilus, Be'er Mayim Chaim tziur 2:2].

2. Love your friend like yourself [Vayikra 19:18] as interpreted in the Talmud: Do not do to your friend that which you would not want done to you [Maseches Shabbos 31a].

Concern yourself with your neighbor's financial loss as though it was your own loss [Rambam Hilchos De'os 6:3].

3. While we cannot compel every individual to agree to concern him/herself with another's loss at the expense of incurring a considerable personal loss [Maseches Bava Metzia 33a], a person who is habitually overly concerned with him/herself will become greedy and will ultimately become needy. As such, each person must make an honest personal accounting when to place his/her personal concerns ahead of another's [ibid.] 

 

Application

 

Theoretically, one could argue - if the passenger and driver are legitimately battling over the end cost of the ride, the pedestrian should not get involved by giving up her right to cross in order to favor the passenger over the driver - unless the passenger is an acquaintance.

 

Instead, if she has the right of way, she should cross and allow for the driver to make more money off the ride.

 

However, since in real-life even the driver prefers a faster ride (as he hopes to pick up a new passenger as soon as possible, and make more money by beginning a new fare with its minimum initial charge), allowing the taxi to pass would benefit both the passenger as well as the driver.

 

As such, even if the pedestrian has the right of way, by allowing the taxi to go first, she fulfills the mitzvah of vehavta lereacha kamocha by saving the two from incurring a financial loss. If it is not a considerable inconvenience to do so, it is proper to defer the right of way to the taxi.

 

The Baffled Teacher     Issue #: 092

The Baffled Teacher Experienta Docet! (Experience teaches! )  As the eagerly awaited Passover s ...

The Baffled Teacher

Experienta Docet! (Experience teaches! )

 As the eagerly awaited Passover season was rapidly arriving, students and teachers alike, seemed to have been counting down the hours towards liberation. The finale of the wait was topped with a virtual mini-course in janitorial skills, as the student body and teachers staff avidly cleaned through their cubbies, lockers, and desks.

 Going through her desk drawers, Mrs. Linda Gold, the highly acclaimed A-Track sixth grade boys Latin roots teacher was confronted with confiscated symbolisms of her annus mirabulis (wonderful year) .

 A ping pong racket, a water blaster, a car magazine, a heavy duty flashlight, a megaphone, a GPS, a hardball, some darts, a blackberry, some rather dangerous vestiges of the beginnings of an armamentarium (arsenal), and - an unfamiliar bottle of lighter fluid apparently confiscated by Mrs. Perns, her beloved substitute.

 

1. Is a teacher permitted to temporarily confiscate tools of obstructions to the classroom?

2. Is a teacher permitted to confiscate tools of obstructions ad infinitum?

3. Is there a difference between a regular teacher and a substitute?

4. What should they do with dangerous substances?  

 

What is the Halacha?

 The Answer

 See detailed explanation

 

Detailed Explanation

 The Baffled Teacher implicates the following six laws.

 

1.       It is forbidden to steal temporarily with the intention of subsequently returning the article [Choshen Mishpat 346: 1] 

2.       It is forbidden to steal from a minor [Choshen Mishpat 346: 2]

3.       A parent or teacher may not use their position of power to indiscriminately inflict unnecessary pain on a child.

4.       One who is entrusted with the discipline of a child may not shirk his or her responsibilities [Mishlei 22:6 ].  

5.       So long as the pedagogue tactic is effective, a parent or one who is responsible for the development of a child may  (and at times should) cause the child pain while disciplining him or her [Rambam Hilchos De'os 6: 10].

6.       Similarly, one who is responsible for the child's development may confiscate articles obstructing the child's development [Pischei Choshen Hilchos Gezeilah 1: 17].

  Application

As individuals responsible for the child's development, a teacher or substitute may in good-faith confiscate from their students tools of obstruction. They may only keep them ad infinitum if returning them would be destructive to their students' development. Otherwise, they would be required to return the belongings to their due owners after the "lesson is learned." Similarly, dangerous articles should not be returned to the children.

Another thought to consider is that when parents send their children to school, they understand that the staff needs to keep control of the classroom and school and in their effort will remove tools of obstruction. Obviously, this does not give staff members to irresponsibly and indiscriminately confiscate belongings of children.s long as Mrs.Green or adult members of her household are home, she is permitted to allow others to use items which she borrowed. 

It is an act of negligence to vacuum without picking up articles from the floor which could damage the machine.

 If however, the articles which caused damage were in an unexpected place, and could not have been seen, the damage ensued is viewed as damages incurred in the course of normal use. Consequently, the borrower is absolved from paying for such damages.

Thus, if Bracha was negligent, she is liable to pay for the damages. Otherwise, Mrs. Stein would swallow the loss. 

A Shas Full of History: The Tenth Commandment & High Pressure Sales     Issue #: 247

A Shas Full of History: The Tenth Commandment & High Pressure Sales The following incredible fam ...

A Shas Full of History: The Tenth Commandment & High Pressure Sales

The following incredible family tale about my great-grandfather, Rabbi Dr. Joseph Saffra zt"l and  Hashem’s Providence was documented by my uncle, David Seidemann Esq of Lawrence, NY.

I have included excerpts from his article relevant to the Halachic discussion herein.

From the other side of the bench

By David Seidemann

One half hour earlier and the SS soldiers would have snatched him. But 30 minutes before the soldiers stormed through the back door, Rabbi Dr. Joseph Saffra z”tl ran out the front door. Some say he saw the angry crowds gathering on that November 9, 1938 night in Frankfurt, Germany. Others say that Rabbi Saffra received inside information from a local police chief upon whom he had performed dentistry work. For Rabbi Dr. Joseph Saffra was not just a rabbi, he was also an oral surgeon. They turned the entire house upside down that night, screaming “Where’s the rabbi, where’s the rabbi?” They returned every few days ransacking the home as those that remained trembled in fear. “Where’s the rabbi?” they demanded each time.

He fled that night, Kristallnacht, to Holland by train and then to America by boat. It wasn’t until a year later that he was able to send for his wife, three daughters and a son who was barely a year old. The banks were closed when he fled and even if they had been open, they weren’t giving money to Jews. Pressed for money with only minutes to spare, Rabbi Saffra was forced to sell his most prized possession, a set of Shas (Talmud)…

A complete set of Shas was a rarity in Frankfurt, Germany in those days and Ernie Guttmann wanted one. No one knows exactly how much Guttmann paid Rabbi Saffra for the set of books, but it was sufficient to get the rabbi to Holland.

End of scene one of what turned out to be an amazing story involving, Rabbi Joseph Saffra…

Scene two. Rabbi Saffra sends for his wife and children and settles in New York. Though reunited with his family, his set of Talmud books, his second love, remained in the hands of another.

Scene three. Guttmann and his family survive the Holocaust and move to America. His wife passes away. Guttmann takes up residence in Baltimore, Maryland.

Scene five. A young man named Shmuel Tarshish from Chicago marries a young lady, Adina Zehnwirth from Queens. They settle in Baltimore.

As it turns out, Tarshish’s great aunt is Guttmann’ second wife Debbie and Tarshish takes his new bride to meet Tante Debbie and her husband Ernie.

As they sit making small talk, Adina Zehnwirth Tarshish makes mention of the fact that her grandfather was from Frankfurt. Ernie’s eyes lit up “I was a young yeshiva boy in Frankfurt, perhaps I knew your grandfather,” he said. Adina Tarshish relayed that her grandfather was Rabbi Joseph Saffra and Ernie’s mouth dropped. He got out of his seat, ran to his book shelf and showed Mr. and Mrs. Tarshish the set of Talmud that he, Mr. Guttmann, had purchased from Adina’s grandfather in November of 1938.

On the spot, Mr. Tarshish asked if they could purchase the set of Talmud with Rabbi Joseph Saffra’s name in it, the set of books that set him free and saved his life, and ultimately the life of Rabbi Saffra’s family. Right then and there Aliza and Shmuel offered to buy the set at any price, the set that set Adina Zehnwirth’s mother free to come to America and give birth to her. Mr. Guttmann declined, for the Talmud books were very precious to him as well.

… Scene six. June 2001. Ernie Guttmann passes away … In June of 2002 the children of Ernie Guttman contact Shmuel Tarshish and inform him that the Shas, the holy books that once adorned Rabbi Saffra’s bookshelf in Frankfurt, are his for the taking, for free. “Your wife’s grandfather sold them under duress, to save his life, and the lives of his family. They belong to you; come and retrieve them.”…

The Dilemmas:

The Guttmanns said that Rabbi Saffra sold it under duress. Was the sale valid?

May the Saffras request to buy it back?

How much pressure can they place on Guttmann to do so?

What is the validity to the Guttmann children’s gift to the Saffra grandchildren?

 

 

What is the Halacha?

 

The Answer:

The sale was valid. The Saffras may investigate whether it is up for sale but cannot even devise a scheme to get Guttmann to acquiesce to sell the Shas. See detailed explanation under what circumstances the Saffras may keep the Shas.

 

Detailed Explanation

A Shas full of History invokes the following Halachos.

High-Pressure Sales

How does Halacha view and deal with high-pressure sales?

Generally, the result of one’s actions are not attributed to him/her if the performer was forced to act. This applies to sins which one is forced to do, as well as legal actions. Thus, if one is forced to give a gift or sign a document of sale, there is no legal validity to the act. The result of one’s actions needs cognitive presence to warrant attributing them to the actor. An act under duress lacks the necessary cognitive presence [Aruch Hashulchan Choshen Mishpat 205: 1].

Nevertheless, when one is forced to sell an article at market value, and the “seller” ultimately agrees to accept the fair value, even if he/she agreed to the transaction after having physically received the money, the sale is valid.

Since, the seller is ultimately not losing anything financially, he/she fully acceded to the sale and reached the requisite cognitive presence to legally transfer ownership of the said article. This is only true if the seller actually received the money. It is questionable if an IOU is sufficient [Aruch Hashulchan Choshen Mishpat 205: 2, 3].

[When one is forced to sell the said article below the fair value, whereby the seller does incur a financial loss from the sale, it is as though being forced to give a gift and the sale is invalid.]

Yet, to counteract attempts at high-pressured sales, when threatened with extreme measures of pressure, Halacha permits a seller to preempt a high-pressure sale with a “preemptive invalidating disclosure” called a מוֹדָעָה; that is; a statement in front of two witnesses who are aware of the existing extreme pressure tactics that the “subsequent act of sale” lacks legal validity and is only being done to placate the ire of the attempting buyer.

This legal statement does not need to be recorded in a document [Aruch Hashulchan Choshen Mishpat 205: 4].

Examples of extreme measures of pressure which lend itself for a “preemptive invalidating disclosure” include: the buyer or his/her proxy threatening the seller physically or with financial sanctions to force the seller to sell the property.

The threat though, must be one which the buyer or his proxy can plausibly carry out [Aruch Hashulchan Choshen Mishpat 205: 6].

Even if it is difficult for the buyer to carry out the threat, if he/she instills clear and present fear in the heart of the seller, whereby traumatizing the seller, such a pressure as well, suffices for the seller to invoke a מוֹדָעָה [Aruch Hashulchan Choshen Mishpat 205: 6].

However, if the seller is forced to sell the article to get money to pay a debt, even if the debt was imposed upon him/her in a threatening way, the seller cannot invoke a מוֹדָעָה. Instead, such a scenario, is viewed as though the seller pressured him/herself into selling it.

A seller may not invoke a מוֹדָעָה if he/she decided on his/her own volition to sell the article even though he/she was in a tight spot for other reasons not related to the actual sale of the said item; for in truth, almost any sale of a personal item is done so because the seller needs money for one reason or another. The מוֹדָעָה institution is intended specifically to counteract unethical high-pressure sales [Aruch Hashulchan Choshen Mishpat 205: 7, 8].

Nevertheless, as a gift is a one sided act on the part of the grantor, a preemptive מוֹדָעָה can always be issued before giving a gift or absolving someone from a debt which invalidates the act even if no pressure tactics existed. So long as the grantor reveals beforehand that he/she has no intention to give value to his/her words, the gifting act lacks validity [Aruch Hashulchan Choshen Mishpat 205: 9].

An example of a gift is the giving of a get when the husband is not required to do so by Halacha. Thus, in truth, when a man gives a woman a get when not required to do so, one runs a risk that he issued a preemptive מוֹדָעָה before two witnesses invalidating any subsequent giving of a get.

Thus, in order to protect the woman from such behavior, a clause is added into every get, whereby the man signs that he annuls any possible preemptive מוֹדָעָה that he may have made.

 

Because of this possibility, when Beit Din arranges a get, they instruct the man to declare:

שִׁמְעוּ אֵלִי! אַתֶּם עֵדִים שֶׁאֲנִי מְבַטֵּל לִפְנֵיכֶם כָּל מוֹדָעָה וּמוֹדָעָה שֶׁיָּצְאָה מִמֶּנִּי וְכָל דְּבָרִים שֶׁאָמַרְתִּי שֶׁאִם יִתְקַיְּמוּ יִגְרְמוּ לְבִטּוּל הַגֵּט וְכֵן פּוֹסֵל אֲנִי כָּל עֵדִים שֶׁיּוֹדְעִים שֶׁאָמַרְתִּי כָּל דָּבָר הַפּוֹסֵל אֶת הַגֵט וכולי.

 

Application

Though, the Guttmann children said that Rabbi Saffra sold his Shas “under duress”, such pressure would not invalidate the sale.

While the Nazi’s wanted his life, they did not say, sell the Shas or we’ll kill you.” He needed money. As he was pressed for money, he decided that it was worth it for him to sell the Shas at that time. Rabbi Saffra could not invoke a preemptive מוֹדָעָה in front of witnesses to disqualify such a sale.

The Shas belonged to Ernie Guttmann.

Mistaken Gift?

In June of 2002 the children of Ernie Guttmann contact Shmuel Tarshish and inform him that the Shas, the holy books that once adorned Rabbi Saffra’s bookshelf in Frankfurt, are his for the taking, for free. “Your wife’s grandfather sold them under duress, to save his life, and the lives of his family. They belong to you; come and retrieve them.”

While incredibly noble, and sincerely appreciated, their expressed reasoning was Halachically inaccurate. Rabbi Saffra decided on his own volition that it was worth it for him to sell the Shas to Ernie. He was not forced to do so. He received a fair market value for the Shas. The sale was valid and Rabbi Saffra could not even invoke a מוֹדָעָה in front of witnesses to disqualify such a sale.

Even if the Guttmann’s were correct in their statement that the sale was under duress, and as such are returning the Shas to the Saffras, them wouldn’t the Saffras be required to refund the money to them?

Instead, the Guttmann children acted completely benevolently and gifted the Shas they legally inherited from Ernie, because they understood the depth of sentimental value the Shas held in the hearts of the Saffra children. They understood that Ernie legally purchased it and were gifting it back to the Saffra family.

Mi ke’amcha Yisrael!

 

Do Not Covet

Ernie Guttmann was uninterested in selling. Under what conditions may the Saffra grandchildren try to attempt at buying the Shas?

This issue invokes the tenth commandment of the Ten Commandments; Thou shalt not covet.

When may a petitioner request to purchase an article and when is it forbidden to do so?

וְלֹא תַחְמֹד אֵשֶׁת רֵעֶךָ וְלֹא תִתְאַוֶּה בֵּית רֵעֶךָ שָׂדֵהוּ וְעַבְדּוֹ וַאֲמָתוֹ שׁוֹרוֹ וַחֲמֹרוֹ וְכֹל אֲשֶׁר לְרֵעֶךָ:

 

And you shall not be chomed your fellow's wife, you shall not (be mis-aveh) desire your fellow's house, his field, and his slave and his maidservant, his ox and his donkey, and anything that belongs to your fellow [Devarim 5: 18].

 

The tenth commandment includes two directives  

1)     lo sachmod and 2) lo sis-aveh

 

Rambam and Shulchan Aruch differentiate between the two.

Lo sis-aveh = do not fantasize and devise a plan to obtain another's object Lo sachmod = do not implement the plan about which you fantasized to attain; either by coercion, or pressure, even if you pay for it.

While both sins prohibit festering the drive to attain another' property Lo sis-aveh is strictly emotional, while Lo sachmod is taking the emotion to the next step; culminating with successful action.

 

Q 1). If A sees an article belonging to B, may A ask B if the article is for sale?

Yes. There is no prohibition of lo sis-aveh or lo sachmod to desire an article that you know is available for sale [Rabbeinu Yona Sha'arei Teshuva 3: 43].

Thus, A may investigate if the article is for sale. Strictly investigating if something is for sale is not a transgression of wanting another person's property. You simply wanted to know if that article that your friend presently has, is up for takes in the future [Minchas Pitim].

A must realize though, that bearing an underlying desire for the article even if the owner is uninterested in selling it constitutes lo sis-aveh and pressuring the seller to part with his/her belongings when you know that he/she really does not want to do so, is a transgression in process of lo sachmod [Rabbeinu Yona ibid.].

  1. 2) A potential buyer approaches a homeowner and asks if the home is for sale. The owner says “no”. The potential buyer continues to sweeten the deal; hoping the homeowner will agree. Is such behavior permissible?

If the reason why the homeowner does not want to sell is simply financial; meaning, he/she thinks that he/she could only get x for it and are unwilling to sell for so little, and the prospective buyer tells the homeowner that the price is something they would consider, then it is permissible.

However, if the homeowner is simply uninterested in selling, for example, they love the neighborhood, are idealistic about where they are living, then to offer the homeowner an offer that he/she cannot refuse, is a transgression of the prohibitions of lo sis-aveh and if successful in procuring, lo sachmod [Rambam Sefer HaMitzvos 264].

Q 3). While the coveter transgresses lo sis-aveh, does the coveter transgresses lo sachmod, if after pressuring the seller to sell, the seller acquiesces and agrees to sell?'

Even if he pays for the article, and the seller agrees to sell it, if the seller does so begrudgingly, the buyer transgresses the prohibition of lo sachmod.

Rambam rules that even if the seller subjects to the pressure and agrees to sell it, although the sale is valid, the buyer transgressed lo sachmod because he pursued procuring an article that the seller initially did not want to sell.

As Maharal [Tiferes Yisrael] writes: while lo sachmod is completed when implementing the plan, the beginning and root of the sin is the emotion.

 

Application

Ernie did not want to sell. The Shas was precious and sentimental to him. The Saffras were permitted to have asked initially whether it was up for sale. But once they understood that the reason why Ernie refused to sell was not because the price was too paltry, devising a plan to try to pressure Ernie to sell it would constitute lo sisave and carrying out their plan, even if paying a steep price for it would constitute lo sachmod.

 

The Guttmann children subsequently gifted the Shas back to the Saffras wholeheartedly. In fact, they gifted it back a whole year after Guttmann passed away. Arguably, we can assume that it was not gifted because they felt pressured, rather out of the benevolence of their hearts. It was a valid gift. The Saffras may keep the Shas.

Retracting Verbal Commitment     Issue #: Special Edition 3

Question: When the situation unexpectedly changes drastically after one verbally commits to his/her ...

Question:

When the situation unexpectedly changes drastically after one verbally commits to his/her fellow, may he/she retract claiming that he/she never would have committed under the present newfound conditions?

Answer:

בעל המאור, רא"ש, טור, בעל העיטור, תלמידי הרשב"א, חכם גדול אחיו, סמ"ע, גר"א עפ"י ירושלמי, ט"ז, שו"ת חת"ס, שבט הלוי

 בתרי תרעי אין אסור לחזור משום מחוסר אמנה בדברים

רש"י, רבינו יונה, ר"ן בדברי רשב"א, ראב"ד, מגיד משנה, תוס', בית יוסף, רמ"א, קיצור שו"ע

בתרי תרעי אסור מדרבנן משום מחוסר אמנה בדברים

 

Kenny's Kebab House     Issue #: 038

Kenny's Kebab House Kenny's Kosher Kebab House was a fast growing enterprise in the downtown busines ...

Kenny's Kebab House

Kenny's Kosher Kebab House was a fast growing enterprise in the downtown business district of Columbus, Ohio. The Kebab House boasted two large executive banquet rooms , numerous private dinettes, and a general eating area. The friendly ambiance, professional service, and mouth-watering carte du jour drew an impressive crowd of satisfied customers. Nevertheless, the restaurant would experience seasonal ups and downs.

With the arrival of mid-winter vacation, sixteen-year-old Bernie Stein took a job at the Kebab House to help his parents cover the bills, as they were experiencing financial difficulties. He was a hard and responsible worker and took his job seriously. Bernie was happy to be able to help his parents help him.

February 15th was payday and Bernie was looking forward to receive his hard-earned $500 paycheck. Dennis too was looking forward to take home his bimonthly check of $3,000.

Kenny, eager to pay his workers on time, spent the afternoon in his office balancing his books. Time was ticking and Kenny was up against the wall. He was out of meat and had to place a $5,000 meat order to be delivered before dinnertime. A $200 electric bill had to be paid. Dennis and Bernie were both expecting their paychecks, and additional $3500.

Kenny broke out in a sweat when he realized that he had but $3,000 available.

What should Kenny do?

What is the Law?

 

The Answer

If the meat distributor would accept a late payment, Kenny must first pay his employees. He should pay $500 to Bernie, $2500 to Dennis (see Detailed Explanation), and pay both the meat and the electrical bills a few days late.

However, Kenny is not required to risk forfeiting his business in order to pay his workers on time [Pischei Choshen 9:15]. Since a restaurant that goes without food for one night risks ruining its reputation, he may pay his workers late should the meat distributor only accept payment in full upon delivery (assuming he cannot responsibly borrow the money).

 

Detailed Explanation

In determining which debts to pay first, it is important to: (a) categorize each debt form; (b) Define the nature, scope, and limitations of each form s payment obligations; (c) Ascertain the correct sequence within each category; and (d) determine how a debtor divides limited funds amongst creditors of equal import.

Our case implicates the necessity to focus on (a), (b), and (d) (Case 139 may necessitate a focus on (c) as well).

Category A: Wages

Kenny owes earned wages to his employees, Bernie and Dennis. Paying them on time, Kenny fulfills a positive commandment and avoids transgressing five negative prohibitions and one negative rabbinic prohibition for each employee [Choshen Mishpat 339:2] (See Issue 36). He properly fulfills the positive commandment by paying each worker on time, in full [Ahavas Chessed 9:10; Nesiv Hachessed 28].

Kenny is required to pay his employees if funds are available [Choshen Mishpat 339: 10]. He is obligated to extend an effort to procure the funds [Tosafos Bava Kama 9a, 46a; Tosafos Bava Basra 92b], but is not required to incur a considerable loss to do so. If funds are unavailable, he does not transgress the prohibitions but still does not fulfill his positive obligation [Ahavas Chessed 9:7].

Category B: Purchases

Kenny owes the electric company for the electricity he used, as he purchased kilowatts of power from the electric company. This debt is much like a balance due for a sale.

Note: While any fixed monthly fees might be considered a rental and as such should theoretically fall under Category A [Choshen Mishpat 339:1], since there is a spread of days when payment is accepted, we view such a debt as having an alternative payment plan and would not be subject to the general stringencies of Timely Payments (See Issue 36).

Kenny will incur a similar form of debt when placing his meat order from the distributor.

Application

Paychecks vs. Bills

Certainly, as in any debt, Kenny may not swindle or default, nor may he intentionally postpone available payment of any form of debts due [Leviticus 19:13; Ecclesiastes 3:28]. However, delaying payment of a worker s timely wages is a time sensitive issue, running the employer an additional risk of disregarding a positive commandment as well as transgressing many more negative prohibitions [Choshen Mishpat 339:2] (See Issue 36).

Hence, Category A objectively takes precedence over Category B. However, since an employer need not incur a considerable loss to pay an employee on time [Pischei Choshen 9:15], Category A takes precedence over Category B providing that delaying the meat or electricity payment will not incur considerable losses to the business.

Assuming the meat distributor would allow for a delayed payment and the loss for a late payment to the electric company is nominal, Kenny is required to pay his workers before the other two bills.

Bernie and Dennis

Both employees deserve to receive their payment on time. Thus, Kenny must divide his resources between all of his employees [Ahavas Chessed 9:8] (See Case 139 if one employee is needier than another [Ahavas Chessed 10: 8-11]).

A debtor must divide the limited resources equally among all creditors of equal importance [Choshen Mishpat 104: 10, Ahavas Chessed 9 Nesiv Hachessed 22].

Accordingly, as employee wages precede payment for received merchandise, Kenny must divide his limited funds equally among his employees. Hence, he allocates $1000 to Bernie and Dennis, paying them each an equal share of $500. Kenny is thus left with two thousand dollars, which he forwards directly to Dennis. Consequently, Bernie receives his $500 and Dennis a total of $2500, while the meat distributor and electric company must wait.

*

The Torah commands us to pay our employees on time:

An employee who finishes the job at night can expect payment by dawn [Leviticus 19:13].

An employee who finished the job during the day can expect payment before dusk [Deuteronomy 24:15].

This applies to rental fees as well [Choshen Mishpat 339:1].

Follow the next few weeks for an exciting series on "Timely Payments". [Choshen Mishpat 339]

Shattered!     Issue #: 034

Shattered! A hot Shabbat meal, an accepting aura, and a pervasive love of humanity brought hundreds ...

Shattered!

A hot Shabbat meal, an accepting aura, and a pervasive love of humanity brought hundreds of university students, yeshiva fellows, families of hospital patients and curious onlookers to the Goodman home in Boston, Massachusetts.

A Goodman Shabbat experience was indeed one of a kind. Jerry's melodious voice and Lisa's mouth-watering cuisine left behind a flavor hard to forget. Dozens of guests from all walks of life would join together for an evening of love, song, inspiration, good food and a sense of purpose.

Jerry and Lisa left no stone unturned to fulfill the mitzvah of Hachnasat Orchim [Genesis 18:1, Maseches: Shabbos 127b], welcoming wayfarers in a most magnanimous, humble, and friendly manner. [Ahavas Chesed 3:1]

In time, the Goodmans needed to add an additional table in their dining room to accommodate the growing crowd.

One Wednesday, Jerry read online that a Mike Gerber was selling a used glass dining room table and matching chairs for three-hundred dollars. Jerry and Lisa drove their van over to Mike's house to view the table. The stunning table seemed like the perfect buy. It was large enough to fit another dozen guests comfortably. Lisa loved the table's style as it fit perfectly with her dining room décor. Moreover, she took an exceptional liking to the chairs because they were extremely comfortable and great for back posture.

Before agreeing to buy the set, Jerry asked Mike if the glass was attached to the table. Mike assured Jerry that it was indeed attached. Jerry looked at Lisa for her approval and Lisa winked in the affirmative. Jerry accepted the offer and handed Mike three crisp hundred-dollar bills.

Jerry and Lisa then brought the chairs out of the house and placed them in their van parked in Mike's driveway. While Lisa held the door open, Jerry and Mike began carrying the table to the front door with care and precision. As they neared the door, they tilted the table sideways so that it would fit through the door. Suddenly, they felt the weight rapidly shift as he glass top fell off the frame, broke the antique umbrella stand by the door, and exploded into countless shards on Mike's floor.

Looking over the remains of the table, it was clear that the top had simply been a heavy pane of glass resting on four suction cups attached to the wrought iron frame.

- What is the status of the sale of the table and chairs? Does Jerry receive a refund? If so, how much?

- Does Jerry share responsibility for any of the damage that occurred to the table or the umbrella stand?

 

What is the law?

[Based on a true story: Submitted by Judah Spetner – Member, Cincinnati Community Kollel – Cincinnati, OH]

 

The Answer

The Goodmans may demand their three-hundred dollars back, yet they must return the chairs. Jerry is absolved from paying for the damage to the umbrella stand.


Detailed Explanation

 

This case invokes the following two laws:

A consumer may rescind a deal upon finding a blemish in the merchandise purchased. [Choshen Mishpat 232:4]

One is liable for intentional and unintentional damages exacted on an article belonging to a third party.

One is absolved from paying for unintentional and completely unexpected damage he or she causes. [Choshen Mishpat 378:1, Sha"ch 2]

The Table and Chairs

While objectively there is nothing faulty with a glass tabletop detached from its frame, Jerry made it quite clear that he would agree to purchase only a table fastened to the wrought iron frame. Consequently, we deem anything short of that a “blemish” in the merchandise. Although Mike did not delude his customers intentionally, nevertheless, the Goodmans did not receive the merchandise they intended to buy. Hence, if they wish, they may rescind the entire deal even if they had already performed a legally binding act of acquisition.

Note: At the time of publication, it was brought to our attention that Jerry may have confirmed the attachment of the glass top merely to verify that the table could be turned on its side without consequence - a detached glass top would then not have rendered the table inferior in any way. We plan to discuss this in an addendum to next week's email.

While Lisa did indeed take an exceptional liking to the chairs, it is clear that the table and matching chairs were part of one purchase.

Thus, if the Goodmans decide to void the sale, they must return the chairs to Mike.

The Umbrella Stand

A person is responsible for his or her actions. Hence, one is liable for intentional and unintentional damage he or she causes. Nevertheless, one is not responsible to take precautions against a completely unintentional and unexpected damage. Our situation is a case in point. Jerry had no idea that the glass was detached from the frame. There was no way he could have taken precautions against damaging the umbrella stand. Hence, he is absolved from the damages incurred as a result.

see http://www.aish.com

Save the Koalas!     Issue #: 136

Save the Koalas!   The Koala was hunted almost to extinction in the early 20th century; largely ...

Save the Koalas!

 

The Koala was hunted almost to extinction in the early 20th century; largely for its fur. Millions of furs were traded to Europe and the United States, and the population has not fully recovered from such decimations.
 
Save the Koala Bears’ marketing experts inundated the public with an attractive and aggressively professional online campaign for their annual Chinese auction - featuring their celebrated mascot Eucalyptus. It was hard to find an Australian not buzzing about the impending Koala event. 
 
The Levi’s were elated when the phone rang after Sunday night salmon dinner. 
 
 “Hello Mr. and Mrs. Levi, Eucalyptus speaking. On behalf of the Australian Koala society, I am excited to inform you that you won the Dell New XPS 13 Ultrabook, valued on Dell’s website at $1499; quite an amazing deal for a ten dollar donation towards my kin. Your new Ultrabook will arrive at your home within forty-eight hours.” 
 
The excitement at the Levi’s though, was short lived.  The Ultrabook malfunctioned and crashed numerous times within the first few days of usage. The Levi’s hired a technician who confirmed that the motherboard contained failed capacitors, which left its trail of electrolyte across the board.
 
The Levi’s paid Save the Koala Bears ten dollars for a ticket to win the Ultrabook. They won the laptop, then had to pay for a technician and it still did not work.

 

Do the Levi’s have any claim against "Save the Koala Bears" or should they have considered keeping low expectations for a virtual giveaway? 
 
 

 

What’s the Halacha?
 

 

The Answer:  

 

The Levi’s may require Save the Koala Bears to deliver a new working computer but not to pay for the technician. 
 

 

Detailed Explanation

 

Save the Koalas invokes the following four Halachos.

 

1. A consumer who noticed an unforeseeable blemish in the merchandise after the transaction was completed, is entitled to recourse ad infinitum provided that the consumer did not subsequently utilize the article. Otherwise, usage of the article indicates a consent to the deal [Choshen Mishpat 232: 3 Pischei Teshuva 1].

 

 2. Unless otherwise stipulated, transaction terms are subject to local accepted custom. Hence, the classification of blemishes worthy of recourse are subject to local custom [Choshen Mishpat 232:6].

 

3. Unless otherwise expressed, a contemporary consumer of a new article expects to receive merchandise void of previous defects or blemishes. (Unlike an error in quantity, which can be easily rectified without altering the essential product, and as such, the consumer cannot dissolve the sale if the merchant can supply the requested volume, a refurbished product is not a new product, and as such, having to refurbish or repair the merchandise is not considered rectifiable.) [Choshen Mishpat 232: 1, 7, Pischei Choshen Hilchos Ona'ah 13: 6].

 

 

4. One is absolved from paying for unintentional indirect damages [Choshen Mishpat 386, Imrei Yosher].

 

Application

When purchasing a new item, the consumer can expect to receive unblemished merchandise. Does a Chinese auction winner have the right to expect to win unblemished merchandise, or should the winner consider that the donated item came from stock that the donor store could not sell? 
 
Dayan Chaim Kohn ruled that it is wrong and unjust for an institution to auction defective merchandise without being upfront with their clientele. 
 
Objectively, a Chinese auction winner can require the institution to deliver unblemished merchandise. (In a society, where it may be unfortunately common to receive blemished merchandise at a Chinese auction, the winner’s expectations would adjust accordingly.)
 
However, "Save the Koala Bears" is absolved from paying for indirect and unintentional damage caused. 
 
Hence, if the winner hired the technician on his/her own volition, the winner cannot require the institution to pay.
 
As the institution is required to deliver an unblemished computer, if the winner does not mind a repaired computer, the institution may see it profitable to hire a technician. Thus, before hiring the technician, it is sensible for the winner to confer with the institution. 
 
Otherwise, the winner may oblige the institution to supply a new working computer.

Pray Pal!     Issue #: 134

Pray Pal! The holiday prayer services are replete with much beautiful poetry which typically stri ...

Pray Pal!

The holiday prayer services are replete with much beautiful poetry which typically string Halachic and Midrashic literature apropos to the specific period of the holiday. Ari reveled at each opportunity to recite the many beautiful and uplifting piyutim, (Jewish liturgical poems) during each holiday. So it was no surprise that Ari purchased a striking set of matching machzorim (holiday prayer books) to become his "pray pal".

 

A few years of serious holiday praying passed. The years and joyous tears left their mark on the pages until Shabbat finally fell out during Chol Hamoed (the intermediary days). Ari typically used his machzor and discovered a considerable defect. The entire Shabbat morning liturgy was missing.

 

Immediately after the holiday, Ari returned to the store to demand a replacement. The problem was that the old color was out of style. Ari preferred the aesthetics more than the beauty of well worn pray pals. He refused to take a different color, which clashed with the rest of the set and the proprietor could do nothing with worn out prayer books. Ari wanted a matching set. 

 

- To what, if any recourse is Ari entitled?

 

 What's the Halacha?

 

The Answer

Unless local business practice differs, Ari may dissolve the sale from years gone by, if he immediately stopped using the machzor. 

 

Detailed Explanation

 

Pray Pal invokes the following laws.


Unless local business practice differs, a customer may return the entire merchandise (if the seller can easily repair or replace the defective part without adversely effecting the merchandise, the customer can only demand a repair or replacement part) he/she subsequently found to be defective for an unlimited amount of time following the purchase; provided the customer did not previously pardon the seller.  

  

Using the defective merchandise after noticing the blemish, generally implicates a pardon. Overlooking an obvious blemish, or a blemish generally discernible by prospective customers implicates a pardon provided the merchandise was not misrepresented [Choshen Mishpat 322: 3, 6].

 

 

Application

 

We can assume that it is not normal for one who purchases a set of machzorim to look through each volume to check if all of the pages are included. As such, objectively, we do not assume the customer to have pardoned the seller by not checking through the set before consummating the sale. Hence, upon discovery of the blemish, the customer retains the right for recourse, provided he/she immediately discontinues using the machzor. Thus, unless local business practice does not allow for recourse after such a long time, the customer is entitled to a new volume.

 

What if the seller can replace the defective part, but it no longer perfectly matches the initial set? Can the customer demand full recourse for an entirely new set?  

 

According to our polls, consumers who purchase a set of machzorim are particular that the set matches. As such, if the seller cannot provide the customer with a replacement that matches with the set, the customer may demand recourse on the sale of the entire set, even years later - provided of course that this complies with local business practice.

 

 

Up Up & Away: Kiddy Litter or Kitty Litter     Issue #: 121

Issue 121.pdf (853.71 kb) Up Up & Away: Kiddy Litter or Kitty LitterAs the charming Jerusalem ch ...

Issue 121.pdf (853.71 kb)

Up Up & Away: Kiddy Litter or Kitty Litter
As the charming Jerusalem children cheerfully capered in the long awaited rain, Grandma Bertha Braun slowly made her way up the hill, while bracing herself against the powerfully wet winter winds. Suddenly, she observed two brimming grey 95 liter garbage bags dart down the drenched stairway of the adjacent building, bouncing upon the backs of the Berger boys.

The boys dashed towards the giant green dumpster, swung their bags over their shoulders and readied themselves for the twenty yard  toss.

“Ah Ah” they yelled on the top of their lungs. Before they could release their hand ammo, a hungry litter of unruly kittens impudently poked their heads out of the dumpster, eyed the Berger boys and leaped forward. The Berger boys dropped their projectiles on the ground near the bin and ran.  

Bertha did not see the cats. She did see the Berger Boys leave the trash on the ground and run though. Bertha  became incensed. “Who raised these kids? How insensitive to litter the trash out on the sidewalk instead of placing it in the dumpster!” As these aggravating thoughts began to overtake her mind; suddenly a mighty gust of wind  shook her up and threatened to blow her umbrella inside out. 

Up Up and Away! As Bertha tried to hold on tightly and maneuver her umbrella so; the wind prevailed. Her umbrella blown inside out and across the street., Bertha reluctantly continued on, unshielded from the elements, leaving her umbrella shards as a lasting public evidence of Bertha’s capitulation to a Greater Force.

May the Berger Boys leave the trash outside near the dumpster or should they bring it back home and wait for a more opportune time to discard their bags?

Must Bertha chase her shards and toss them in the public trash or may she have the wind “pick up the pieces”? 

 

What’s the Law?
 

The Answer:  

The Berger Boys may temporarily leave the trash on the side of the dumpster, but should return to place the bags inside as soon as the “coast is clear”.
 
If Grandma Bertha is able to, she must pick the shards up. Nevertheless, if she does not do so, Beit Din will not hold her liable for damages incurred by a stumbler, though she’ll have an account to clear with Heaven. If she is unable to chase after the shards, she is absolved. 
 
 

Detailed Explanation

Background:
 
A. Prior to the advent of plastics and disposable cans, waste was typically organic, and after drying or biodegrading could be used effectively as compost, a key ingredient in organic farming.  
 
B. After the waste dries, worms and fungi further break up the material. Aerobic bacteria manage the chemical process by converting the inputs into heat, carbon dioxide and ammonium. The ammonium is further converted by bacteria into plant-nourishing nitrites through the process of nitrification.
 
Traditionally, composting was to pile organic materials until the next planting season, at which time the materials would have decayed enough to be ready for use in the soil. The advantage of this method is that little working time or effort is required from the composter and it fits in naturally with agricultural practices in temperate climates.
 
There are numerous ways to create compost though. For our purposes, we will highlight the “heating process, block system” which is effective in creating large quantities of compost; a practice prevalent in Talmudic times.


 “The heating process is based on a continuous block system. That is, new blocks are being made all the time and piled up. On the first day, a block is made by building up layers of materials collected for composting. After two days, when the block has started to decompose, the air is forced out of the block by trampling over it. On days two and three, new blocks are built next to the first block. On day four, a new block should be built on top of the original block, cutting it off from the outside air totally etc.” Farmers commonly piled the compost blocks in public property which allowed for ample trampling [Bava Metzia 118, Rambam Nizkei Mammon 13: 15, Composting in the Tropics II].
 
C. Plumbing was extremely rare until the development of modern cities in the 19th centuries. At about the same time, public health authorities began pressing for better waste disposal systems to be installed. Earlier, waste disposal systems merely consisted of collecting waste and dumping it on ground or into a river. 
 
Up Up & Away: Kiddy Litter or Kitty Litter invokes the following five halachos
 
1. One may not discard his/her broken wares in public property. Doing so, he/she has illegally created a stumbling block and is liable for physical damages incurred by a stumbler (or his/her livestock) [Choshen Mishpat 410: 20, 21, 417].
 
2. If one’s wrecked wares land in public property inadvertently, he/she must pick it up - irrespective of whether he/she wants to retain ownership on the shards. After ample time to pick it up has passed, the shards become a stumbling block.  Beit Din can hold the owner liable for physical damages incurred by a stumbler (or his/her livestock) as long as the owner retains ownership thereof. 
 
Were the owner to relinquish ownership thereof; no one owns the stumbling block or intentionally placed it illegally in public property. Beit Din cannot hold the original owner liable.  The Heavenly Court will prosecute the issue [Choshen Mishpat 410: 20, 21, 412:2].
 
3. Was one permitted to pile his/her organic waste outside his/her home in public property? 
 
It depended. During the season, typically a month or so before the planting season, it was permissible to so and even allow for the public to trample on the compost. Other times during the year, it was forbidden to store waste in the street. Nevertheless, during the “off season”, one is permitted to remove the refuse from his home to the street temporarily, with the intention to transfer it to a landfill immediately [Bava Metzia 118, Rambam Nizkei Mammon 13: 15, Choshen Mishpat 414:2].
 
4. When permitted to place waste in public property, is the owner liable for damages incurred by a stumbler? 
 
The right to place his/her compost in public property does not absolve the owner from liabilities for damages. As with general stumbling blocks, Beit Din may collect for damages incurred to the stumbling person or livestock, yet, in a special dispensation, the Torah does not vest Beit Din the authority to collect payment for damages incurred by another's inanimate property resulting from the obstacle. 
 

A Halachic authority should be consulted with regards to one’s moral obligation nevertheless [Choshen Mishpat 410: 21 see also Ketzos HaChoshen]. 
 
5. May one store compost in the street of a modern city with a built-in plumbing infrastructure?
 
No. In modern city’s it is generally always “off season”. (One must follow the accepted local custom) [Aruch Hashulchan 414].
 
Application
 
Unless there is no room in the dumpster ( as often happens during garbage strikes) it is unacceptable to leave trash in the street. 
 
The Berger Boys predicament allowed them to do so “temporarily” though until they can dispose of their ammo properly. Similarly, one may leave the bags on the side, if the garbage collectors will pick it up immediately (provided this complies with local law). Were one to inadvertently hurt themselves on the bags, the boys would be liable if they were not minors (younger than thirteen years old).
 
If Grandma is able to do so, she must not leave her broken wares in public property. [It is probable though, that Grandma would not be in a physical position to chase after the umbrella].
 
Grandma Bertha did not intentionally create a stumbling block. Additionally, she relinquished ownership of the shards. Beit Din therefore has no premise to hold her liable for physical damages incurred by a stumbler. Nevertheless, as she indirectly caused damage to someone else (if she was able to pick it up), she has an account to clear with Heaven. 
 

Organic Transplants: Of Hearts and Palms     Issue #: 120

Organic Transplants: Of Hearts and Palms With a score of experience in geriatric medicine, physicia ...

Organic Transplants: Of Hearts and Palms

With a score of experience in geriatric medicine, physician Roy Feldman M.D.'s Roy Center, a cutting edge and state-of- the- art geriatric center, earned prestige and renown throughout the Sunshine State. The local pensioners along the Fort Lauderdale waterfront enjoyed the professionalism, respectfulness and personal touch so indicative of the Roy Center. 

Roy and his staff provided primary, geriatric care, counseling, and guidance in long-term planning. Though still in the prime of her life, Lori Lehman continued to fight for her life ever since her tragic boating accident. Lori had previously discussed with Roy the possibility of donating her heart to his patient, her 63 year old mom should she pass away suddenly, as her mom was on line for a transplant.

Adjacent to the Roy Center; stood the doctor's stunning waterfront estate home. His residence boasted four large bedrooms, with a downstairs master suite, four luxury baths, formal living and dining rooms, a family room and a gourmet kitchen with custom cabinetry, stainless appliances, granite counters and center island. 

The dramatic 16' ceilings, impact windows and doors offered wide water views. The private backyard lined with Sylvester date palms and a covered veranda overlooking the water offered a tranquil setting away from the pressures at work. 

As the Feldman kids grew up and left home, Roy and his wife entertained the idea of enhancing their estate whereby clearing some palms to make way for a sparkling private pool.

May/should Lori donate her heart to her Mom?
May Roy clear away the Sylvesters to make room for the pool?

 

What's the Halacha?

The Answer:  

As of yet, Lori may not donate her heart to her Mom. Roy may not eliminate the Sylvester to make room for the pool unless he needs the pool for his health. Even so, many would be wary of doing so. If need be, he may effectively transplant the tree instead. (A competent Halachic authority might offer alternative options).

 

Detailed Explanation

 

Organic Transplants: Of Hearts and Palms invokes the following eight Halachos.
 
1. The human body is sacred. Benefitting from a cadaver is almost always forbidden even with the prior consent of the individual [Yoreh De’ah 349:1]. 
 
2. To save a deathly ill patient, it is permissible to benefit from a cadaver [ibid. Pischei Teshuva 1].
 
3. It is forbidden to terminate the life of a terminally ill patient in order to save the life of another patient [Rambam Hilchos Rotzeach 1: 9].
 
4. Do not destroy a fruit-bearing tree so long as it produces sufficient fruit from which one can benefit (Devarim 20: 19, 20, see Maseches Bava Kama 91b for minimum production quantity).

5. Man is an inverted tree.  His/her roots; the conduits of his/her life source are in the heavens, his/her arms and legs are its branches [Maharal Netzach Yisrael 7]. Man is comparable to a fruit bearing tree, bearing eternal fruit [Gur Aryeh Bereishis 9:21]. 
 
Rebbi Chanina testified that his righteous son Shivchis died young because he felled a palm tree while it was still productive [Maseches Bava Kama ibid.].
 
6. If the tree is damaging other fruit, or if it is more profitable to market the wood than the fruit thereof, one may cut down the tree [e.g. hearts of palms] (Maseches Bava Kama ibid.) 
 
7. Similarly, if one needs the area, one may eliminate the tree [Rosh 8]. 

Needing the space means for necessity and not for luxurious consumption [Chavos Yair 195]. 
 
8. When it is permissible to eliminate a productive fruit tree, need one concern him/herself with the mystical danger documented in the Talmud?

Though, Binyan Tzion [Aruch Laner, Rav Yaakov Ettlinger] says one need not worry; common custom is to be wary of such danger as per Yaavetz 1: 76, Taz, and Chasam Sofer.
 
 
Application 
 
In the late nineteen sixties and early seventies, most heart transplant recipients did not survive [Professor Shimon Glick Head of Dept. of Internal Medicine, Soroka Medical Center].  Even after medical advances increased success rates dramatically; as of yet, the heart must be harvested while the donor patient cannot definitively be proclaimed as halachically dead.  As such, as of yet, it would be forbidden to allow the practitioner to transplant Lori’s heart, even to benefit her mother [Rav Shlomo Zalman Auerbach].   
 
Roy may only fell the productive tree if he needed the space. Even so, many are wary of potential mystical dangers associated with the untimely cutting down of fruit bearing trees. If Roy did not need the pool per se; rather, he merely wished to pamper himself with luxury and comfort, it would be in fact forbidden for him to cut down the tree. Instead, numerous approaches are available, one of which is to effectively transplant the tree to an alternative area, while not jeopardizing the longevity of the tree.

Acupuncture East vs. West     Issue #: 119

Acupuncture East vs. West Acupuncture is a type of alternative medicine that treats patients by ins ...

Acupuncture East vs. West

Acupuncture is a type of alternative medicine that treats patients by insertion and manipulation of solid, generally thin needles in the body. 
 
Its general theory is based on the premise that bodily functions are regulated by the flow of an energy-like entity called qi. 
 
Acupuncture aims to correct imbalances in the flow of qi by stimulation of anatomical locations on or under the skin called acupuncture points, most of which are connected by channels known as meridians.

The amount of pain, when administered properly, very often depends on the needle sizes which apparently vary between China and Japan.
 
Whether acupuncture is an effective cure is subject to continuous international debate. Proponents of acupuncture believe that it promotes general health, relieves pain, treats infertility, treats and prevents disease.Critics of acupuncture claim that scientific research has not found it effective for anything but the relief of some types of pain and nausea. 
 
Some maintain that acupuncture is merely psychological and there is no difference whether the practitioner punctures the designated acupuncture points or random points. 
 
And yet others claim that it acupuncture is mystical, noting that Chinese medicine forbade dissection, and as a result the understanding of how the body functioned was based on a system that related to the world around the body rather than its internal structures.  The 365 "divisions" of the body were based on the number of days in a year, and the 12 meridians proposed in the TCM system are thought to be based on the 12 major rivers that run through China. 
 
As Acupuncture has been practiced for generations in the East, yet its general effectiveness has yet to have been scientifically proven, may one elect to undergo acupuncture in order to alleviate acute pain or to as a preventative measure to avert disease?

What's the Halacha?

 

The Answer:  

It is permissible to undergo Acupuncture.
 

Detailed Explanation

 

Acupuncture East vs. West invokes the following Halacha.
 
1. Inflicting pain or physical damage to one’s body is permissible in the reasonable hope of sparing oneself from a more severe physical (e.g. resetting a broken limb) or severe emotional pain (e.g. elective plastic surgery). [Shevet Halevi, Shulchan Aruch HaRav, Igros Moshe Choshen Mishpat II: 65, Riv’vos Ephraim VIII: 389].
 
Application 
 
If the procedure is commonly practiced and reasonably successful, it is not different than any other medical practice even if the scientific world has yet to prove its efficiency.
 
People of repute who have elected to undergo Acupuncture treatment, have told me that a good practitioner should cause no pain and let no blood. In such instances, the question does not begin [Dayan Chaim Kohn].

 

Q. Is there an issue of involving oneself with prohibited mysticism by engaging in acupuncture?
 
This has nothing to do with any mysticism or metaphysical. They simply understand holistic medicine [Dayan Chaim Kohn].

Whopping Wet Winter War     Issue #: 116

Whopping Wet Winter War Concluding a taxing wintery day of jury duty, envisioning the thrilling stru ...

Whopping Wet Winter War

Concluding a taxing wintery day of jury duty, envisioning the thrilling struggle for an inch on the Manhattan Subway, the stressed out crowd carefully pushed their ways down the black-iced stately stairway before the New York City Supreme Court building on 60 Centre Street.
 
His checkered scarf tightly wrapped around his face; Arnold‟s brown Florsheim‟s™ Cromwell dress shoes suddenly lost traction, and sent him for a hard nose dive, but not before the tip of his black totes® umbrella rib pierced an ugly snag in the flapping coat tails of Ben‟s blue Nautica; in no time - pulling Ben down hard to a sitting position on the cold wet concrete.  
 
The debacle compounded almost simultaneously, as Marc, trekking closely behind, stumbled hard over sprawled out Arnold, broke his ankle and inadvertently crushed his rented MacBook Air across Arnold‟s battered bleeding face.

Must Arnold pay for the damage his umbrella rib tip caused to Ben’s blue Nautica? 

Who pays for the MacBook; Arnold or Marc? 

If the MacBook caused Arnold to need additional stitches; is Marc liable? 

Who pays for Marc’s medical expenses?
 
 

What's the Halacha?

 

The Answer:  

Arnold is absolved from paying for Ben’s coat, Marc’s MacBook or Marc’s medical expenses. Marc is absolved from paying for Arnold’s additional stitches.

Detailed Explanation 

 

Whopping Winter Wet War invokes the following six laws.
 
1. A person is liable for both intentional and unintentional damages that he or she exacts on a third party‟s article whether due to negligence (פשיעה) or accidental mishap (אונס). 
 
However, one is absolved from paying for unintentional completely uncontrollable damages (אונס גמור) he or she causes [Choshen Mishpat 378:1, Sha"ch 2].
 
2. “A carpenter gripping a beam walked behind a potter holding a barrel.  The beam punctured the barrel. The carpenter is liable for the damages to the barrel. 
 
Exceptions: The carpenter is absolved, if the circumstances having caused the puncture were deemed as „completely unexpected/uncontrollable‟ or the potter made an unlawful short-stop and did not give ample warning” [Choshen Mishpat 379: 3].
 
3. One may not place an obstacle in public property. While one who does so is liable for physical damages duly incurred by people and animals; the Torah does not grant Beit Din the authority to collect payment for damages incurred by another's inanimate property resulting from the obstacle [Choshen Mishpat 410: 21, see Aruch Hashulchan 410: 26 for explanation].
 
4. A and B were on foot; one behind another. A inadvertently slipped (without negligence on his/her part) and was incapable of standing up [Shulchan Aruch] or warning [Rema] B, before B accidentally tripped over A. A is absolved from damages sustained by B.
 
5.  If A was capable of standing up [Shulchan Aruch] or warning B [Rema], but failed to do so before B tripped over AA is liable for the damages B sustains from A‟s body.

(Similarly, if C trips over B, B is liable for the damages C sustains from B‟s body, if B was capable of standing up [Shulchan Aruch] or warning C [Rema], but failed to do so.) [Choshen Mishpat 413: 1, 2]

6. When B stumbles over A; do we view B as having stumbled over an obstacle (whereby Beit Din may only collect for damages sustained to people or animals) or having been damaged directly by a human being (whereby Beit Din may even collect for damages sustained by inanimate objects)?  As valid arguments are made to both sides, we would respect the status quo with regards to forcing A to pay for damages sustained by A's inanimate property [Choshen Mishpat 413: 1]. 
 
Application 
 
1.  Arnold “carefully pushed his way down the stairs.” His subsequent fall and piercing of Ben‟s coat was completely uncontrollable. He is thus absolved from paying for the ripping Ben‟s blue Nautica  
 
2. “The debacle compounded almost simultaneously” suggests that Arnold had no time to get up or warn Marc.  Again, the debacle was completely uncontrollable and as such Arnold is absolved.  
 
Even if Arnold had the capability to stand up or warn Marc, as there is a strong argument to view Arnold as a “stumbling block” Beit Din cannot exact payment for the damage to the “inanimate MacBook.”
 
3. Marc is absolved from paying for Arnold's additional stitches.
 
4. If Arnold had time to get up, he would have to pay for Marc‟s medical expenses. As he did not have time, he absolved.

Sideswipe Delivery     Issue #: 115

Sideswipe Delivery “It’s coming … Get there fast!" she yelled. The hazard lights ...

Sideswipe Delivery

“It’s coming … Get there fast!" she yelled. The hazard lights flashed ferociously at 2 am on a cold winter night. 
 
Barreling down Forty Eighth street in Borough Park, at lightning speed, and the wrong way to boot, the Freedmans raced against time. Would they make the Maimonides delivery ward in time? Mrs. Freedman had an unpredictable and sometimes risky delivery history.
 
“Ari watch out on your right!”, shrieked Mr. Freedman to his brother, while pressing his palms up hard against the roof of his blue Toyota Prius.  Ari instinctively swerved to his left to protect himself, his passengers and his brother’s car from  an oncoming  speeding Domino’s Pizza delivery boy texting on his motorcycle. 
 
Crunch! Ari sideswiped a parked white Honda Civic, leaving a line of white along the body of his brother’s car, shook Mrs. Freedman up, and took the Civic’s sideview mirror along with him to the hospital. 

Barring insurance policy guidelines, who should pay for the damages to the Civic; the delivery boy, Ari, Mr. and Mrs. Freedman, or must the Civic owner swallow the loss ?

 

What's the Halacha?

 

The Answer:  
 
Barring insurance policies, the Civic must swallow the loss.

 

Detailed Explanation

 

Sideswipe Delivery invokes the following laws.
 
1. In order to ensure that people would not be afraid to endeavor to save a person in distress, the sages instituted a special dispensation from paying for any inadvertent damages, one causes while involving oneself in a saving the life of another [see Toras Hayoledes by Rav Yitzchak Zilberstein in the name of Rav Chaim Pinchas Scheinberg for possible exceptions] [Choshen Mishpat 381: 3].  
 
2. One who saves himself/herself by damaging another’s property must pay for the damages [ibid.]
 
3. Beit Din generally lacks authority to collect for indirect damages resulting from the aggressor's actions. Nevertheless, the aggressor has a moral obligation to pay for intentional indirect damages, while is absolved from paying for unintentional indirect damages [Choshen Mishpat 386, Imrei Yosher].
 
Application: 
 
Ari Ari was involved in saving his sister-in-law. We would apply the special dispensation from paying for any inadvertent damages and absolve him from paying for the damaged Civic (barring insurance policies).
 
 
Mr. and Mrs. Freedman If Mrs. Freedman would have been driving and inadvertently damaged the Civic, she would be liable. However, in our scenario, she did not commit the damage; her savior did. She is absolved from paying. 
 
The Delivery Boy  The delivery boy at worst was partially indirectly responsible for the damage to the mirror, for which we cannot demand him to pay.
 
For Further Discussion 
 
Consider the following three scenarios.
 
1. Ari collided with the Pizza Delivery boy, while the delivery boy was texting and speeding.
 
2. Ari collided with the Pizza Delivery boy, while the delivery boy was driving normally, but had an opportunity to move out of the way.
 
3. Ari collided , while the delivery boy was driving normally, but did not had an opportunity to move out of the way [see Choshen Mishpat 378: 6; see Issue 114 and reflect on the following three concepts 1. Right of way 2. Ability to avoid collision 3. Intentional/unintentional  damage].

Cyber Monday Maul & Web Woe     Issue #: 114

 CYBER MONDAY MAUL & WEB WOE!  CYBER MONDAY MAUL! Cyber Monday; the biggest online sal ...


 
CYBER MONDAY MAUL & WEB WOE!

 
CYBER MONDAY MAUL!

Cyber Monday; the biggest online sale day of the year! Incredible bargains, no Black Friday crowds. No queuing on a line in the cold in front of stores. No pushing or shoving. What could be better? ... All from the comfort of his own desk! With a few clicks of the mouse; a lot of savings in the wallet! 
 
David did a bit of searching and in a few short cyber moments found the bargain laptop he was looking for. The site was not familiar to him nor the name, but hey, there thousands of legitimate sites out there. This one looked O.K. In this economy, it is tough to give up on such a bargain… 
 
David slipped big time. Sure it was a bargain and he even got his laptop via the free overnight delivery...but he also got a virulent virus that infected his own desktop computer, deleted files, grabbed his Microsoft outlook address book and unwittingly spread it to all the addresses he had, resulting in the deleting of hundreds of valuable files from his contacts. 
 
How would Torah Law adjudicate this scenario?

*

WEB WOE!

Anyone who uses a computer now knows of the need to have anti-virus software.
 
On Tuesday, November 1st, Aaron purchased a new laptop and had yet to install anti-virus software on his computer.
 
Josh sends out a weekly commentary on current events to select friends. On Friday November 4th, Josh sent Aaron a PDF file with his article.  
 
Unfortunately, Josh's file had malicious software embedded in it.  The software entered Aaron’s Gmail address box and sent out an email to 100 of Aaron’s contacts.
 
In the email, there was a link to a web site in China for buying cheap electronic goods.  It turned out the web sites were illegitimate and simply collected credit cards numbers; later to use them for fraudulent purposes.
 

Twelve of Aaron’s contacts discovered that their credit card information was then used to buy $50 worth of goods they did not authorize.  
 

[So how did email go out to all of these people?   When malicious software (known as malware) is loaded onto a computer, one thing it might do is go to the users email address book and send email to all or part of the people in the address book.   The malware then sends a message directing the recipients to a website where they are promised cheap electronic devices.   They then went to those sites and naively supplied their credit card information.]
 
 
 
Is Aaron responsible to pay the $50- for each of the 12 people?
 
 

What is the Halacha?

 

The Answer:  
 
Both David and Aaron are absolved.  

Detailed Explanation
 

Cyber Monday Maul & Web Woe invokes the following Halacha. 
 
1. A entered B’s property illegally. B stumbled upon A and suffered injury or financial loss. If  B initially saw A, and was able to protect himself/herself from A, while A was wrong for trespassing; B  cannot hold A financially liable for his/her incurred damages [Choshen Mishpat 378: 6]. 
 
Application
 

With the pervasive prevalence of maleware, any computer user who makes use of the internet without anti virus software is negligent for not installing the appropriate protective software.
 
Similarly,  every user knows that he/she must use caution when opening emails and supplying credit card information to unknown sites.
 
As the viruses were sent unintentionally to people who knew, and were able to protect themselves from  damage and chose not to do so, David and Aaron would be absolved from resultant damage. 
 

 

Football Fury & Snow Slamming     Issue #: 113

Football Fury & Snow Slamming Football Fury Growing up in New York City, came along with many be ...


Football Fury & Snow Slamming

Football Fury Growing up in New York City, came along with many benefits and perks; not to forget - football fury in front of school on a barricaded one way street, decorated with double parked cars owned by staff members and block neighbors.

The senior class of 96’s amiable rapport with their science teacher, Mr. Rose turned sour once Ari tackled Benny through Mr. Rose’s windshield.

 

Who must pay for the window?

 *

Snow Slamming Traveling at reduced speed down I-95, due to the falling wet snow, a car carrier and white Hummer inadvertently swerved into each other’s lanes, sideswiping and causing each other significant damage.

 

How would Torah Law adjudicate this scenario?




What is the Halacha?

 

The Answer:

The boys are absolved from compensating Mr. Rose for inadvertently smashing his windshield (see detailed explanation).  The car carrier and Hummer are liable for the damages they caused each other.

 

Detailed Explanation

 

Football Fury & Snow Slamming invokes the following three Halachos.

 

  1. While Beit Din retains the authority to demand compensation for unintentional damages directly perpetrated by the aggressor's actions - when the aggressor could reasonably have assumed that such damage could have resulted [Choshen Mishpat 378: 7] - there are particular exceptions.

 

During distinct instances, our sages sanctioned involvement in specific activities within public property, which inherently encompass a compromised degree of caution, whereby absolving the individual from consequential unintentional damages [See Choshen Mishpat 378:8 for examples].

 

  1. If A and B collide and actively injure each other or damage each other’s property, whether intentionally or unintentionally, while walking legally in public property, they are liable for the damages they cause to one another [Choshen Mishpat 378: 7, 221: 8 Rema].

 

  1. If A and B damage each other, either personally or via their property, the greater damager subtracts the value of the lesser damage and compensates the difference to the lesser damager [Choshen Mishpat 402:1].

 

 

Application

 

Football Fury When involved in playing football, a player’s degree of caution for surrounding property is naturally compromised. Generally, however, a player in a public city street would be liable nevertheless for damages to parked cars because the city street is given for parking cars and not for football playing. However, when a local municipality issues a school a permit to close off the street to through traffic, allowing the students to play ball in the street, the municipality essentially grants the players the right to involve themselves in an activity encompassing a compromised degree of caution. As such, the players would be absolved from paying for unintentionally damaging Mr. Rose’s windshield.  

 

Snow Slamming: Both the car carrier and the Hummer were abiding by the law and driving in their respective appropriate lanes at reduced speeds due to the compromised weather conditions.  Nevertheless, they both unintentionally actively damaged one another’s property and are liable for the damage incurred, if they were aware of each other’s presence and could have avoided colliding. 
 
However, in all probability, they were both unable to avoid the unintentional active damage. Rambam absolves the parties in such instances [see Rambam Chovel Umazik 6:9, Choshen Mishpat 378 Biur Hagra]. 
 
In practicality, drivers agree to abide and bind themselves by regulations established by insurance companies [Choshen Mishpat 331].  
 

About Project Fellow     Issue #: 000

Explore contemporary case studies via  the time-tested prisms of three thousand years of  ...

Explore contemporary case studies via  the time-tested prisms of three thousand years of  Jewish ethics and business law through our stimulating activities and guided modules.

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Sahara Air vs. Jetways Airlines | Coke vs. Pepsi     Issue #: 109

Sahara Jetways Airlines invested time and money into Teddy Martins, a promising and skilled airline ...

Sahara

Jetways Airlines invested time and money into Teddy Martins, a promising and skilled airline captain, sending him through a rigorous sixth-month New Generation Aircraft Training Program. Upon his successful completion of the intensive and highly specialized course, Jetways promoted him to man the next generation B777-300LR Fly-By-Wire, a futuristic and technologically advanced craft.   

Four months later Sahara Air, Jetways' rival airline, poached Teddy by enticing the now-expert pilot with a $30,000 raise in pay plus other perks. Teddy was soon under their wings!   Jetways responded by suing Teddy in Indian court for joining Sahara Airways.
 
 
Coke

In May 1998, Pepsi filed a petition against the Coca Cola Company, alleging that Coke had entered into a conspiracy to disrupt its business operations. Pepsi accused Coke of luring away three of Pepsi's key sales personnel from Kanpur, going as far as to offer at least one of the employees the Indian equivalent of $20,714 a year in pay and perks, almost five times what Pepsi was paying him.    The other sales personnel, who were earning the equivalent of $994 a year, were offered a salary equivalent to $3852. Many truck drivers in the Goa bottling plant, who were getting $51 a month, moved to Coke, where they received $207 a month.    Pepsi claimed that these tactics were causing immense damage, as those employees who had switched over were carrying with them sensitive trade

 

What is the Law?

The Answer: 
 
Beit Din would not penalize Sahara. Nonetheless, Teddy may not breach his contract in favor of alternative employment.
 
If workers are hard to come by, so long as Coke does not cause Pepsi to fold, Coke could not be penalized for poaching Pepsi's workers. In both cases, the local legality of non-compete clauses (which varies from locale to locale) must be respected (Please refer to Detailed Explanation).
 

Detailed Explanation
 
Sahara And Coke invokes the following seven Halachos.

 

1. If A extended "significant effort" towards obtaining readily available a) merchandise, b) services, c) specific employment d) or a particular employee; C may not subsequently endeavor to obtain it for him/herself.
 
2. C may endeavor to obtain merchandise, services, employment, or employees of limited availability, after A extended "significant effort" in obtaining it; so long as A has not performed a legal binding "acquisition" (kinyan) [Choshen Mishpat 237:1, Pishchei Teshuva 2].
 
3. Nonetheless, Rav Moshe Feinstein rules that it is nonetheless virtuous for C to attempt to desist his/her pursuit, whereby allowing A to finalize his/her purported transaction [Igros Moshe: Choshen Mishpat I 60].
 
Extreme Measures of Effort Stringency
4. Even Rema prohibits C to endeavor to obtain objects, employment, or services when A has extended “extreme measures of effort” towards obtaining limited available objects [Maseches Gittin 59b].
 
Example:
“A” invested significant resources in his/her pursuit thereof. Included in this is honing a worker [Maharik].
 
5. It is forbidden for an employee to breach the terms of a signed contract with an employer in favor of alternative employment [Ritva, Machane Efraim Schirus Poalim, Ketzos HaChoshen 333: 7, Pischei Teshuva 4, 5].
 
6. An employee may pursue commencing alternative employment following termination of signed contract while employed by the competitor [Rabbi Akiva Eiger 237 like Mishna L’melech Hilchos Gezeila 1: 9].
 
7. A competing establishment or service provider may offer perks and better deals than the first enterprise in order to entice customers to switch to the competition [Choshen Mishpat 228:18].
 
Darchei Moshe [156] forbids it if doing so will compel the original enterprise to fold .
 
Application
Sahara
If Teddy was under contract with Jetways, Sahara may not convince him to terminate it to work for the competition. While under contract with Jetways, Teddy may search for alternative employment to commence after the termination of his contract. Jetways invested significantly in Teddy’s training. Whether Jetways received their investment worth from four months of Teddy’s services is a case by case call. If Jetways has yet to receive their investment worth, according to Maharik (see 3.1 c) this would be considered as though Jetways invested significant measures of effort towards obtaining services from Teddy.
 
As such, even though Teddy was a “one of a kind employee,” Sahara should wait to poach Teddy until Jetways received their investment worth. Nevertheless, if Sahara did poach Teddy and Teddy was not under contract, Jetways would not win their suit; as Beit Din will respect status quo rather than issue a verdict whereby defining the parameters of “extreme measures of effort”. 
 
Coke
 
If employees are easy to come by, Coke should hire other prospective workers rather than lure away employees from Pepsi.  If the likes of these employees were unique, Ashkenazic custom would permit Coke to offer Pepsi’s employees incentives to switch; provided that they will 1) not breach written contracts and 2) threaten Pepsi’s closure.
 
In terms of carrying classified information, the parameters of the legality of non-compete clauses in employment contracts vary greatly from State to State and from country to country. Local secular law would determine whether and for how long Pepsi’s former employees are barred from working for a competitor
 

 

To Save a Synagogue     Issue #: 124

Issue 124 with hebrew source material.pdf (1.73 mb) Issue 124.pdf (863.97 kb) To Save a Synagogue Du ...

Issue 124 with hebrew source material.pdf (1.73 mb)

Issue 124.pdf (863.97 kb)

To Save a Synagogue

During the trying years of 1809-1812 - just as the rumblings of reform  began advocating municipal change, the city of Pressburg suffered from numerous ravaging fires – during war time and peace - which tragically swept through the ghetto quarters.  The fires impoverished the people and destroyed Jewish homes. The fire of 1811 proved to be particularly demoralizing when the Jewish hospital burned down. 
 
It occurred during one such fire, that the horrified townsmen noticed  that their synagogue was in danger of becoming engulfed in the inferno, as the merciless flames traveled rapidly through the city.

Determined to save their beloved house of worship, they raised their axes in hand and created a fire line by demolishing the adjacent shack of a poor widow.
 
(Note: A similar, but perhaps different story took place in San Francisco in 1906. As a result of the 1906 earthquake, incontrollable fires broke out through the city. The entire Van Ness Avenue was dynamited to create a fire break.) 
 
 
Must the townsmen reimburse the widow for destroying her home to save their synagogue?
 

WHAT’S THE LAW?

The Answer:  

If the widow was not around or did not protest, the townsmen were permitted to destroy her shack to save their synagogue but they must pay towards her repairs. 

Detailed Explanation

WHO’S ON FIRST?

If an individual lost an article and is confronted with the ability to save his and his friend’s article, he must save his friend’s article if doing so will not jeopardize his ability to save his article.

If doing so will jeopardize his ability to save his article; though according to the letter of the law, he is not required to forfeit his belongings to save those of his friend, it is fitting to act righteously and do so rather than acting stingy unless doing so will engender a clear and significant loss.

One who is constantly worried about not incurring losses or inconveniences to assist his fellow, becomes a selfish person and G-d will arrange his wheel of fortune so that he will have to come to rely on other people’s beneficence [Choshen Mishpat 264: 1].  
 

May he demand compensation for saving his friend’s article instead of his own article?

If he chose to save his friend’s article instead of his own, he deserves to be paid for his time. Compensation for his article which he chose to forfeit is deserving if his friend so wills.

Two ways to determine his friend’s will:

If

1) he so stipulates with his friend before attempting to save the article

2) or stipulates so before a Beis Din (3 people) who can ascertain that the owner would be willing to compensate to such a degree [Choshen Mishpat 264: 3]. 

Two were traveling on the way; one with a barrel of wine and one with a jug of honey. The jug of honey cracked. Before the honey spilled out entirely on the ground, the wine owner poured out his wine and caught the honey in his barrel. The wine owner can ask to be compensated for his time but not for the lost wine unless he stipulated with the honey owner or before Beis Din and received their permission to do so. If the honey owner promises to compensate the wine owner for his wine, there is one school of thought who requires the wine owner to do so [Choshen Mishpat 264: 5]. 

May A avert a sudden significant monetary loss through temporarily using B’s assets of lesser value? 

If B is present, A may not do so without B’s consent. If B is not available to consent or protest, Beis Din allows A to assume that B would consent to use his/her money temporarily to save a fellow Jew from suffering a clear greater financial loss so long as due compensation is guaranteed [Choshen Mishpat 308: 7 Rema, 264:5].

One who loses an article to a lion, bear, and gales of area, rush of the river or similar circumstance of almost sure defeat despairs from  ever retrieving it. Protesting the contrary is like crying over a collapsed home. While generally one should nevertheless return the article to the original owner, the finder would not be liable for damaging it [Choshen Mishpat 259:7].

If the “lion, bear, or gales of the sea” are encroaching towards the article but have yet to ensnare it, there is reason to argue that despair might not be a given, and the owner’s protests might be legitimate. In such a situation, it is proper to treat the article as though it still belongs to the original owner [Chasam Sofer Yoreh Deah Responsum 234].  

Application
 
Although, as long as the widow did not protest, the townsmen were permitted to destroy her shack  in order to save their “more expensive” house of worship, nonetheless they are required to immediately compensate her for the loss. We would not view the shack as though it was already lost to the “gales of the sea” and virtually ownerless; as the conflagration did not yet engulf the widow’s shack.  The widow’s claim that her shack might not have burned down must be respected. Hence, the townsmen must rebuild her roof. [With respect to from which community fund they should draw the money, see Chasam Sofer Yoreh Deah Responsum 234].
 

The Dira Debacle     Issue #: 241

The Dira Debacle   Last minute preparations for a major transition in their lives; the yeshiva ...
The Dira Debacle
 
Last minute preparations for a major transition in their lives; the yeshiva boys were furiously readying themselves for the transformative move to Eretz Yisrael. They were on their own in terms of finding lodgings for themselves and were engaging their resources and international contacts to arrange boarding arrangements for each other.

Ari Berger was on the ground already in Yerushalayim and found a newly opened empty apartment with 6 beds available. He contacted 5 friends including Dovid Fried who all gave them their word that they would join him in the apartment. Each boy would pay $150 per month. Meanwhile, Ari gave word to the landlord that he and his friends would take the apartment in the Gush Shmonim neighborhood. He even paid the landlord for his share for the upcoming month. The landlord would be greeting them October 28th Tishrei 26th at 10 AM.

The boys arrived in time and an amiable meeting took place. The contract was signed and money was transferred. Each boy paid $450 up front; covering three months of rent. The landlord would come around in three months time to collect the second payment for the subsequent months of the semester.

An hour later, Dovid Fried heard that his cousin Chaim's apartment had an extra bed and Dovid very much wanted to join. He felt that his transition would be made that much easier if he joined Chaim. He discussed the matter with Ari Berger, the other four guys and called the landlord. The catch; Chaim's apartment was under renovation and would be available in two days.

Ari told the landlord on the phone that he had a new guy Nochum willing to take Dovid's bed, but would be arriving after Shabbos. The landlord agreed and told Ari to have Nochum give $450 to Dovid.

Dovid vacated Ari's apartment and slept at a married friend's house for Shabbos; intending on moving in with Chaim when Chaim's apartment was ready; hopefully Sunday or Monday.

Then came the bombshell. During renovations, the workers busted some water pipes that made the apartment Chaim intended to rent uninhabitable for the near future. It would not be ready in time for the new Yeshiva winter semester .

Dovid was now homeless! "Homeless?," he thought! "No way! I paid for three months in Ari's apartment. I'm going back.' He brought his stuff back, dumped it on his former bed, only to have discovered that Nochum already arrived.
Now What?

What's the Halacha?
The Answer
 Dovid cannot kick out Nochum.

 

Detailed Explanation

Ownership is an attribute of an individual's cognitive capacity. Thus, only a human being can own property.

The transference of ownership between two parties; a grantor and a grantee, necessitates an extreme seriousness of mindfulness.

Notwithstanding the ethical obligation to uphold a verbal commitment [Tur 189: 1, Beis Yosef 1], generally, for most people, an unexpressed cognitive decision or a verbal commitment alone is insufficient to concretize a transfer of ownership.

Instead, a determined legal act of acquisition must be performed which displays the extreme seriousness of the commitment.

Transference of moveable objects, livestock, and real estate each necessitate their own respective types of acts of acquisition. These acts are called kinyanim.

An acquirer may assume legal ownership of real estate from a seller/grantor via a variety of kinyanim which include 1) kesef/money 2) shtar/contract 3) chazaka/display of ownership 4) chalipin/ceremonial article transfer {5) or any other developed prevalent means}.

Each of these means of kinyanim have their individual guidelines and regulations.

In many places, the custom is to require a combination of kesef/money and shtar/contract [Choshen Mishpat 190: 7].

This is indeed a contemporary prevalent custom.

Whether registering the real estate purchase in the governmental land registry is a necessary component of contemporary real estate kinyanim is subject of halachic discussion amongst contemporary halachic arbiters.

Once legal ownership is effectively assumed, the acquirer may not simply dissolve the acquisition verbally [Choshen Mishpat 189: 1].

Instead, the initial grantor would have to perform one of the aforementioned means of acquisition in order to re-assume ownership of the real estate [ibid.].

A real estate acquirer need not give the money him/herself to the seller. Instead it is sufficient for a third party to give the money on the acquirer's behalf [Choshen Mishpat 190: 4].

Similarly, to effectively dissolve a real estate acquisition, a third party would be able to return the money to the initial purchaser on the initial seller's behalf.

Q.

Is a real estate rental treated as a real estate purchase - in that reversing the deal necessitates a reverse act of acquisition, or is a verbal agreement sufficient?

A real estate rental is an acquisition of the property's function [Choshen Mishpat 192: 13].

Thus, generally a real estate rental may be affected in a similar manner as a real estate purchase, i.e. in one of the aforementioned means; 1) kesef/money 2) shtar/contract 3) chazaka/display of ownership 4) chaipin/ceremonial article transfer[1] [Choshen Mishpat 190:1]. 

It should follow therefore, that barring contractual agreements otherwise, once a renter effectively assumes ownership of the function thereof, for the term of rental, the rental agreement could not be dissolved verbally even if both parties subsequently consent.

Instead, the landlord should have to either have money transferred back, give a shtar, or assert a chazaka based upon the prevalent custom of acceptable kinyanim.

This is the view of most Poskim [Sm"a quoting Rivash].

Other Poskim maintain that since the landlord always owned the real estate's structure it is easier for the landlord to reclaim the function of the owned property from the renter. Even a mutual verbal consent to dissolve the agreement should suffice for the landlord to re-assume ownership thereof of the functionality of the property of which it's structure he/she owns [Machane Efraim].

*

As a result of both valid viewpoints, when a rental agreement is terminated by mutual verbal consent of the landlord and tenant, we are left with a halachic uncertainty how to adjudicate the scenario. In cases of halachic uncertainties, we rule that the parties should respect the status quo of the contested money/property; employing the formula of hamotzi mechaveiro alav hara'yah.

When a landlord and tenant are in a dispute as to whether the tenant has a right to dwell in the landlord's property, we view the tenant as though he is trying to take the functionality from the landlord. When employing the hamotzi mechaveiro alav hara'yah formula, the onus of proof would be upon the tenant [Dayan Chaim Kohn].

 

  

Application

Dovid effectively assumed ownership of a degree of the functionality of the landlord's property via a valid kinyan kesef. He initially attempted to dissolve his ownership verbally. He would not receive his money back though, until Nochum paid him.

Nochum paying Dovid on the landlord's behalf would be sufficient to dissolve Dovid's functionality ownership.

Nochum attempted to assume ownership of the same functionality via a kinyan chazaka, displaying ownership by means of using the bed. He intended to pay for the rental as soon as he met up with Dovid.

Whether or not Nochum's kinyan was effective is contingent on whether Dovid still owned the function. If Dovid effectively dissolved his kinyan prior to Nochum's attempt, then indeed Nochum affected a valid kinyan and he is the rightful owner of the bed rental.

If Dovid did not effectively dissolve his rental agreement until he received the money from Nochum, then Nochum's moving in to the bed has no halachic ramifications as long as he did not pay Dovid.

We explained that while a buyer and seller cannot dissolve the sale verbally, it is questionable whether a landlord and tenant can consent to terminate or dissolve the tenancy verbally. As a result of this halachic quandary, we must respect the status quo of the contended property.

 

Moreover, in a landlord-tenant dispute over the right to dwell in the property, we view the landlord, not the tenant as though he is the muchzak. In practice, the landlord would win an unresolved halachic quandary. 

Thus, as Nochum is presently in the bed, he can claim that Dovid's tenancy has been terminated and as a result, Dovid cannot kick him out [Dayan Chaim Kohn].

The All American Farm Boys & The Eggless Cantor     Issue #: 069

The All American Farm Boys & The Eggless Cantor New Jersey is central to the history of Jewish f ...

The All American Farm Boys & The Eggless Cantor

New Jersey is central to the history of Jewish farmers in America. During the first half of the twentieth century, thousands of Jews started farms in the Garden State. For the most part, they started egg farms due to poor soil for crops. Jews were some of the first people to have large egg farms. In her book about the Jewish farming community of Farmingdale, New Jersey, Gertrude Dubrovsky writes, "Jewish farmers took chicken raising out of the backyard and made an industry of it".

Around the First World War, Jews started settling in loose knit groups on farms in south central New Jersey. Some of the bigger Jewish farming communities were in Tom's River, Farmingdale and Lakewood. (Berger, Joseph (May 31, 1987) The New York Times.

{Henceforth, names are fictitious for obvious reasons}.

By 1920, 50 close-knit eastern European Jewish families belonged to the Any-town Community of Jewish Farmers. The local Hope of Israel Synagogue served as the moral and spiritual hub for the hard working congregants. Cantor Herbert's sweet and inspiring cantorial Shabbat renditions propelled the men of the soil high into the ethereal stratosphere each weekend infusing them with an otherworldly mutual rapture, love, and sense of purpose. In return, Hope of Israel provided Robert with a decent salary and a dozen eggs a week to gargle or fry.

Seventeen years passed and new waves began to form within the community. The younger generation lost interest in Herbert's Eastern European musical style. While Anytown could not boast a significant population growth, before long a new All American Farm Boys Congregation was formed. Suddenly threatened with a dwindling membership Hope of Israel could no longer meet their budgetary demands.

As the 1937 High Holidays approached, Hope of Israel's Board of Directors notified Cantor Herbert that they could no longer renew his contract.

Devastated, and left penniless, Herbert summoned Congregation AAFB to court accusing them of undermining his livelihood.

The AAFB or Cantor Herbert?

 

What's the Halacha?

 

The Answer

While ethically, the younger congregants should have considered very strongly before opening a competing congregation, as locals, the young AAFB congregants are legally entitled to open a synagogue to their suiting. Hence, they are not responsible to pay Cantor Herbert for his consequential loss (See Detailed Explanation and Igros Moshe C.M.).

Outsiders though, would not be entitled to open a competing place of worship with the pre-existing local synagogue. Likewise, they would be compelled to close should they have already opened.

 

Detailed Explanation

 

Caution: The Eggless Cantor involves an extremely delicate subject matter. Even the slightest detail can significantly alter the ruling. Additionally, often local needs and far-reaching implications must be considered. Thus, when seeking to engage in a venture, which could adversely damage pre-existing establishments, it is prudent to seek Halachic advice.

The Eggless Cantor implicates the following four laws.

1. Unless absolutely necessary it is wrong to engage in a venture that could put one's fellow out of business [Shulchan Aruch HaRav Hilchos Hasagas Gevul 13].

2. A stranger may not start a business, which could harm the local pre-existing establishment [Choshen Mishpat 151:5]. However, if the public will benefit significantly from the new business, the public's interest is preferred over the pre-existing establishment [Nimukei Yosef Maseches Bava Basra 11a].

3. Generally, one local does not have a preferred right over a particular line of business more so than does his/her neighbors. Consequently, a local may open a competing business to a pre-existing establishment [Choshen Mishpat 151:5].

4. Nevertheless, when a local's opening of a competing practice (B) may harm the pre-existing establishment to such an extent that (A) can no longer make ends meet, Halachic guidance should be sought [ibid.]

Application

Optimally, the younger congregants should have attempted to initiate a workable compromise with the older generation, instead of simply opening up a competing congregation. Generally, peaceful resolutions are preferred. Nevertheless, as locals, they are legally entitled to open a place of worship, which suits their style even if by doing so, Hope of Israel would suffer financially.

In situations comparable to our case when the resultant losses were so significant that (A) or the pre-existing synagogue could not meet their budgetary demands, there is often valid room to rule stringently. (As noted in 4, in each particular case, Halachic guidance should be sought).

However, in the Eggless Cantor there is another issue to consider towards vindicating the AAFB congregants.

The community was stagnant. Uninterested in Cantor Herbert's style, Hope of Israel lost its appeal to the younger generation. Bereft of a service of their liking, the younger generation could simply have moved away to a different location where they could feel comfortable praying in their preferred style. As such, Hope of Israel's days were inevitably numbered. Arguably, it was not the opening of AAFB per se which brought Hope of Israel to financial distress.

This being said; coupled with the aforementioned legal right for the locals to open a synagogue to suit their liking, they could not be held liable for Cantor Herbert's unfortunate situation.

Class Action: The Banana Toss     Issue #: 068

Class Action: The Banana Toss Leah Gold was a good natured and intelligent young girl. She strove to ...

Class Action: The Banana Toss

Leah Gold was a good natured and intelligent young girl. She strove to excel in her studies and earned her well deserved reputation as a sincere and trusted friend. Seated amidst her classmates on North Green Bay Avenue in Milwaukee, Minneapolis, Leah would often feel overcome with a sudden surge of spirited energy.

With the patient prodding and encouragement of her dedicated TA teachers, she invested much effort into channeling her inquisitiveness, vivid imagination, and enthusiastic innovativeness towards constructive venues. As she slowly matured, her tendencies only added to the overall high school spirit and collective learning experiences.

One bright sunny October day as the multi colored autumn leaves rustled softly in the refreshing morning breeze, the inner whispers so familiar to her young heart began to reach a crescendo.

The authoritative voice emanating from behind the teacher's desk enhanced the background undertones of the visions of her inner-self. Leah was climbing a tall Emergent tree. Her arm slowly reached up for the prehensile tail of a new world monkey, lifted the yellow banana from within its grip and wounded up for the fifty yard toss, when suddenly she caught herself in her tracks.

"A class disruption of such sorts would certainly spoil today's lesson. My classmates' parents invest untold efforts in order to cover their tuition obligations. Perhaps by disrupting the class, I will be grossly guilty of thievery of a high order."

 

What's the Law?

[Submitted by: Z.R. 10th grader Passaic, NJ]

 

The Answer

Leah indeed, may not toss the banana across the room. However, if she would do so she would not be liable to compensate her classmates' parents for lost class time.

 

Detailed Explanation

 

By tossing a banana disrupting a teacher from presenting her lesson, Leah could transgress the following five sins.

1) Do not do to your fellows that which you would not want another to do to you (Vayikra 19; 18).

2) Do not garner honor as a result of your fellow's humiliation (Devarim 6:12, Yerushalmi Maseches Chagiga 2:1)

3) Do not insult, pain, humiliate your fellow (Vayikra 19: 17, 25: 17).

4) "Do not act in a manner which will disgrace My Sacred Name" (ibid 22: 32).

5) Do not display disdain to food by throwing bread, or another food item in a manner in which it can become unappealing (Shulchan Aruch Orach Chaim 171:1).

Although, a disruption of such proportions is indeed a loss for the entire class, this is to be expected in a classroom setting with lively younger children. As such, parents do not expect every single classroom moment to be 100% productive working time. Consequently, Leah is absolved from compensating her friends' parents.

Question to Ponder:

Would the answer differ it if a teenager impedes a teacher from teaching for an extended period of time?

[Answered by Rabbi Yosef Friedman]

Land Rover Insurance Claim: A Smashing Success     Issue #: 067

Land Rover Insurance Claim: A Smashing Success   The LR3 incorporates the latest in electronics ...

Land Rover Insurance Claim: A Smashing Success

 

The LR3 incorporates the latest in electronics in a system called Terrain Response, which selects the best combination of traction, power, gearing, and braking to suit any type of terrain and surface." (www.Automotive.com

Bobby Castel inched slowly towards the red light at the Reisterstown Rd. and Falstaff Rd. intersection when suddenly a red audi clattered his Rover's right doors and fenders.

Bobby's brother, a successful mechanic and body part dealer repaired his rover for $200 while Bobby forwarded the remaining $3800 balance from his insurance claim to cover young Sammy Castel's private school tuition dues.

 

What's the Law?

 

 

The Answer

 

Provided the insurance claim is not fraudulent, and the Rover is repaired, Castel's brother may gift him $3800. If the repair costs exceed the depreciation value and Bobby chooses not to repair the Rover he is only entitled to the Rover's depreciation value.,

 

Detailed Explanation

 

Land Rover Insurance Claim: invokes the following three laws:

 

  1. One who damages another's property is required to repair the damage [Choshen Mishpat 387, Scha"ch 1]. If unable to repair the damage effectively he must see to that it be done or compensate the victim for the financial loss incurred [Choshen Mishpat 387:1].

 

  1. Unless local custom differs (e.g. insurance policies), damages are assessed by the depreciation of the entire article. [Minchas Yitzchak 3: Responsa 126] If the cost of proper repair is less than the depreciation value, the damage value is figured at the cost of the repair [Chazon Ish: Maseches: Bava Kama 6:3].

 

  1. If the local custom is to collect for the costs of parts and labor albeit exceeding the depreciation of the entire article, one follows local custom.

 

Application:

 

The Audi's owner must repair Bobby's damage. Assuming the 4,000 claim was not fraudulent; Castel's brother may demand the 4,000 from the Audi's insurance company for the repair of the Rover. If the mechanic wishes to subsequently gift his brother $3800, he may do so.

 

However, if Bobby decides not to repair his Land Rover, he did not incur those losses. Instead, he may only claim the value of depreciation and not the exceeding repair costs.

 

[Answered by Dayan Chaim Kohn]

Cashed In!     Issue #: 064

Cashed In!   Sonia Good of Bakersfield, California enjoyed spending her golden years at the Gle ...

Cashed In!

 

Sonia Good of Bakersfield, California enjoyed spending her golden years at the Glenwood Gardens; a beautiful assisted living community, which offered attractive continuing care and retirement facilities. Her children and grandchildren made it their business to visit her throughout the week. Sonia would listen to the children talk, teach them how to knit, play bingo with them and share with them eighty-nine years of history. 

 

Last Tuesday afternoon, Sonia's ten-year-old granddaughter Leah Rice came to visit. They decided to take a stroll down the road to Pride's Produce Stand to purchase a cup of freshly squeezed orange juice.

 

"That will be $1.50 please", said Jonathan, the cashier. "Sure thing", replied Sonia. Sonia handed Leah $1.50. Leah paid Jonathan and took their cup of Orange Juice. Together, Grandma and Leah sat down beneath the shady green tree to enjoy the fresh air, their drink and most of all each other's company.

 

 Jonathan looked at one of the quarters Leah had handed him. Suddenly his heart began to race. "I can strike it rich today," he said to himself.

 

 "Look here, this madam gave me a 1932 US quarter which sells as a collector's item for $1000." Jonathan took a quarter from his pocket, switched it for the collector's quarter and promptly placed $1.50 in the cash register.

 

Jonathan made a mental note to cash in his quarter before nightfall.

 

What's the Halacha?

 

[Submitted by Sandor Milun - Madison, Wisconsin / London]

 

The Answer 

Jonathan may keep his windfall.

 

Detailed Explanation

 

Cashed In! invokes the following law.

Background: 

Generally, a legal acquisition or transfer of ownership results from a synthesis of two integral factors - a defined means of acquisition and a level of cognitive awareness. Even in certain specified instances where one need not be actively aware of the transition at the time of the transfer, such acquisition results only if it is probable that the acquirer would discover his/her acquisition in the near future. Otherwise, a "prescribed means of acquisition" alone does not effect a transfer of ownership of the article.

Such an article either remains ownerless or in the possession of the initial owner.

 

Consequently, we can appreciate the following law.

1. A middleman purchased and resold metal presuming from the onset that the merchandise was iron. Subsequently, the customer discovered a precious metal hidden beneath the iron coating.

The customer need not return the merchandise to the middleman [Choshen Mishpat 232: 18, Pischei Teshuva 8, Nesivos Hamishpat 8].

 

Application: 

Although, nowadays coin value information readily available, people generally do not take note of the dates printed on their coins. Instead, when performing any means of legal acquisition of currency, one's cognitive awareness is limited to the face value of the coin or promissory note.

The acquisition of its value as an antique or collectors' item will not be affected before becoming aware of its value. 

In our case, the collectors' value of the quarter remained forever ownerless and becomes the property of the one who discovers its value.

Consequently, as Grandma Sonia never knew she carried a collector’s item, she lacked legal ownership of the additional value. Similarly, we may comfortably assume that the storeowner would never have found out that a 1932 quarter lay in his or her cash register. As such, the proprietor will not become the legal owner of its collectors' value. Jonathan discovered a windfall. As long as the makes the proprietor whole, by giving him or her the due twenty five cents, he may redeem his discovery as he sees fit.

A Free Ride?     Issue #: 063

A Free Ride? Rail Corporation New South Wales (RailCorp) is a statutory authority of the New South W ...

A Free Ride?

Rail Corporation New South Wales (RailCorp) is a statutory authority of the New South Wales government. RailCorp owns, operates and maintains the Sydney suburban and interurban rail network, marketed under the CityRail brand; in addition to operating rural passenger services under the CountryLink brand. Trains operate for 20 hours a day, and over 900,000 weekday passenger journeys are made on 2365 daily services over 2080km of track and through 306 stations (including interurban lines).

"This past week in Sydney, the RailCorp workers who run the light rail inside the city went on strike due to contract disputes between the Union and RailCorp management. The Union decided to strike in a way that would not inconvenience the city of Sydney, however would still get the message across to management. They ran the trains, yet they refused to check passenger tickets or sell new tickets. As I entered the station, a very polite worker confronted me, smiled and happily advised me that today I should not bother going to the unoccupied ticket counter, as I need not buy a ticket today. Uneasy about pilfering a free ride, I decided to try to purchase a ticket through the machine. I approached the machine only to find that a technician had beaten me to it. He had already began opening it up in order to disable the machine."

  1. If I cannot convince the technician to allow me to purchase a ticket before he disables the machine, may I ride the train to work today?
  2. 2. Am I stealing if I take advantage of the strike and take multiple rides

 

What's the Halacha?

 

The Answer

As long as children will not wrongly learn from our behavior that jumping the turnstile or cheating an authority is allowed, one may ride the train free, even numerous times, during the  duration of the strike.

 

Detailed Explanation

 

A Free Ride?  invokes the following three laws.     

1. One may not steal services from an individual, service provider, statutory authority, or government body. A thief is obligated to repay the value of the stolen services to the victim [Choshen Mishpat 348: 2 Shach 3]. 

 

2. One who loses an article to a lion, bear, and gales of a sea, rush of the river or similar circumstance of almost sure defeat despairs from ever retrieving it. Protesting the contrary is like crying over a collapsed home. As such, consciously or subconsciously the initial owner allows another party to pick up the article [Choshen Mishpat 259: 7].

 

3. One is obligated to be extra vigilant never to allow children to learn from our behavior, even if our actions are in accordance with the letter of the law; that cheating and swindling is permissible [Succah 46b]. 

Application:

Objectively, it is forbidden to board the train without paying for your ride at the required time. One who takes a free ride illegally must repay for his or her theft afterward.

However, in our instance, RailCorp knew of the impending strike, yet RailCorp continued providing train service.

Additionally, the authority knew that most of society would never even consider paying for their rides later. Even if they would not turn an individual down if he or she wished to pay later, they inevitably lost their claim to the value of the rides that day.

Thus, the circumstances are no different from a gale of water approaching articles on the beach. Railcorp, "threw the rides into the sea". Accordingly, one is not guilty of theft for riding the train even numerous times that day free.

However, when traveling with children one must make sure that they understand why today is different from the norm. If there is a possibility that children or people who somewhat lack a "finer discerning capacity" will mistakenly learn from our practice that one may jump the turnstile, then it is forbidden to ride the train that day.

 

 

Partnership vs. Investment     Issue #: 221b

Partnership Vs. Investment Daniel and Ben partnered to sell camera accessories online. Daniel i ...

Partnership Vs. Investment
 
Daniel and Ben partnered to sell camera accessories online. Daniel invested $60,000 into the business while Ben invested $40,000 in to the business. Ben is the active partner.    

In addition to dividing the returns 60/40, May Daniel demand that the first $5,000 of profits?   

Must Daniel compensate Ben for his services?
 

What's the Halacha?

 

The Answer:

Daniel may demand the first 5,000 of profits. 

Daniel need not compensate David for his services.
 

Detailed Explanation

Partnerships vs. Investments  invokes the following laws.

When both parties invest  their own money in a venture, no loan transpired and there is no need to compensate the active partner for the rendered  services [Y.D. 177:3 Rema]. 

Additionally the two may divide the returns in any manner they wish and need not concern themselves with ribbis issues [Sha”ch 13].

Halachically Warranted Investments     Issue #: 221a

Halachically Warranted Investments How an investor can earn dividends without encountering ribbis: & ...

Halachically Warranted Investments

How an investor can earn dividends without encountering ribbis:

 

Unless otherwise stipulated, Chazal view an investment, where one party provides the funds (investor) and the second party (invested) actively runs the business as a 50% loan: 50% deposit [Y.D. 177: 2]. (Note: Although 50% is deemed a loan, nevertheless, the entire sum must be used for the investment purposes strictly in accordance with the contractual agreement [Y.D. 177: 30].)

 

Liability: This means that the invested is fully liable for 50% loan even if it is lost due to an unforeseen mishap. The degree of liability for the 50% deposit is shared between the investor and invested. That is, the invested assumes liability for losses due to negligence and the investor assumes liability for losses due to unforeseen mishap. [Y.D. 177: 2]

    

Returns: In terms of splitting the dividends; the invested keeps the money generated from the 50% loan and the investor keeps the money generated from the 50% deposit. As noted above, one may earn dividends off of a deposit [See below].

 

Service Charge: Although, one may earn dividends from a deposit, but a lender may not receive a free or discounted service from the debtor for having advanced the debtor a loan. For the invested to actively invest the 50% deposit on behalf of the investor without receiving compensation for his services, in return for receiving the 50% loan, constitutes ribbis.

Therefore, to ensure that the arrangement does not constitute ribbis, it is imperative for the investor to arrange to compensate the invested for providing the investing services.

Selected Rooftop Fence Laws     Issue #: 240

Selected Rooftop Fence Laws   Commandments By leaving around dangerous obstacles in/around one ...

Selected Rooftop Fence Laws

 

Commandments

By leaving around dangerous obstacles in/around one's home, one can transgress the following two commandments/prohibitions.

רַק הִשָּׁמֶר לְךָ וּשְׁמֹר נַפְשְׁךָ מְאֹד "Watch and be very vigilant over protecting your life..." [Devarim 4:9]. (Positive Commandment)

וְלֹא תָשִׂים דָּמִים בְּבֵיתֶךָ "Do not place blood in your home"[Devarim 22:8]. (Negative Prohibition)

In addition, there is an independent positive commandment to erect a protective fence around the roof of one's residence [Devarim 22:8].

כִּי תִבְנֶה בַּיִת חָדָשׁ, וְעָשִׂיתָ מַעֲקֶה לְגַגֶּךָ... כִּי-יִפֹּל הַנֹּפֵל מִמֶּנּוּ"

 

The Bracha/ Benediction

According to most Poskim, a bracha should be recited fulfilling this mitzvah of erecting a protective fence around the rooftop of one's residential property. The rooftop owner recites ... אשר קדשנו במצוותיו וציונו לעשות מעקה 'Who sanctified us with His Mitzvos and commanded us to erect a fence when putting up this fence.

Although, as a general rule we recite a bracha prior to doing a mitzvah, ,עובר לעשייתן there are exceptions.

One example is when a mitzvah takes a long time to perform, and there exists a fair possibility that some circumstance can hinder the completion of the mitzvah. If the mitzvah individual would not complete the mitzvah act, he/she would have recited bracha in vain, which is a grave sin [Shemos 20:6] . As such, the individual recites the bracha before the culmination of the act.

Thus, regarding erecting a fence, Chasam Sofer rules that the individual should recite the bracha before erecting the last stretch.(Others rule to recite the bracha before beginning [Ba'al Ha'Itur].)

 

Employee

When erecting a fence around someone else's rooftop one recites אשר קדשנו במצוותיו וציונו על עשיית מעקה' Who sanctified us with His Mitzvos and commanded us about erecting a fence.' [see R Akiva Eiger's glosses]

Whether a homeowner recites a bracha when a fence is installed by an employee who is not mitzvah-bound is a discussion amongst the Poskim. [see R Akiva Eiger's glosses, Pischei Teshuva 427:1 for details] in light of this, many homeowners like to personally complete the last part of the fence in order to recite the bracha right before completion.

 

Landlord or Tenant

It is the tenant's responsibility to erect the fence. Chazal understood that the tenant would have the invested interest in getting it done expediently, therefore put the responsibility on him/her.

Type of Fence

The fence must be sturdy enough that a person can lean on it and not fall. Similarly, it cannot have openings through which children etc. can fall [Choshen Mishpat 427: 5].

The fence must be at least 10 tephachim high [Rambam Shmiras Nefesh 11] which is 86 cm/33.85 inches (R. Chaim Na"ah) - 98 cm/38.58 inches (Chazon Ish) [Choshen Mishpat 427: 5].

 

Type of Roof

Of course, in any situation where there is a potential for someone, a child etc. to harm him/herself, one is required to take necessary precautionary measures to ensure that he/she does not put blood in his home

However, the positive mitzvah to erect a fence of at least 10 tephachim high on a roof though, is subject to guidelines and specifications insinuated in the Pasuk (verse).

What constitutes a roof that requires one to fulfill the positive mitzvah of erecting a protective fence around its perimeter?

Does a stairwell, porch, a window, a slanted roof, a school rooftop, a co-op apartment rooftop, and a rooftop which is rarely used require one to fulfill the mitzvah of erecting the fence?

The Pasuk says: "When you build a new home, you shall erect a fence around the roof ...so none can fall down from it." [Devarim 22:8]

"The roof must be over a home within which people dwell."

According to most Poskim, the "roof of a home within which people dwell" is an example of a raised living area where people frequent and from which people can potentially fall.

This would include a raised porch although no one lives underneath, a stairwell in a home or an apartment building, the roof top of a residential building upon which people frequent[1][427: Sm"a: 1, Shevet HaLevi, Kisvei Kehillos Yaakov Maseches Sukka].

 

Slanted Rooftop

It would exclude a slanted roof [Teshuvas HaRashba] which is uncommon for people to use, or even a flat roof upon which is uncommon for people to use.

 

School Rooftop

A school is not a residential building (provided it is not housing a dormitory as well) [Choshen Mishpat 427: 3] and as such placing a fence around its roof as is common in Flatbush, NY where the playground is the school rooftop would be a fulfillment of the mitzvos רַק הִשָּׁמֶר לְךָ וּשְׁמֹר נַפְשְׁךָ מְאֹד "Watch and be very vigilant over protecting your life..." [Devarim 4:9]. (Positive Commandment) and וְלֹא תָשִׂים דָּמִים בְּבֵיתֶךָ "Do not place blood in your home" [Devarim 22:8]. (Negative Prohibition) but not a fulfillment of the mitzvah of כִּי תִבְנֶה בַּיִת חָדָשׁ וְעָשִׂיתָ מַעֲקֶה לְגַגֶּךָ. Thus, while the school must take the necessary safety precautions, no bracha אשר קדשנו במצוותיו וציונו לעשות מעקה is recited.

 

Sukka Rooftop

Poskim discuss whether there is a mitzvah to erect a fence around a roof which is only used during Sukkos.

 

Co Op

Partners in a rooftop all have a mitzvah to erect a protective fence around the roof [Choshen Mishpat 427: 3].

Poskim discuss what to do when one is a partner with another tenant who is not mitzvah-bound [see Ba'er Heiteiv 3 in Choshen MIshpat 427].

 

Rooftop Height

The rooftop must be at least ten tefachim which is 86 cm/33.85 inches (R. Chaim Na"ah) - 98 cm/38.58 inches (Chazon Ish) above the ground.

Rooftop Width

The rooftop have a minimum surface area of four cubits by four cubits wide 1.92 meters /6.299213 Ft. x 1.92 meters /6.299213 Ft (39.68 square feet)(R. Chaim Na"ah).

Fence Size

The height of the fence of at least ten tefachim 98 cm/38.58 inches (Chazon Ish) high.

Window Sills

This generally excludes a window sill. Thus, when a tenant installs window guards to fulfill the mitzvos of mitzvos רַק הִשָּׁמֶר לְךָ וּשְׁמֹר נַפְשְׁךָ מְאֹד "Watch and be very vigilant over protecting your life..." [Devarim 4:9]. (Positive Commandment) and וְלֹא תָשִׂים דָּמִים בְּבֵיתֶךָ "Do not place blood in your home"[Devarim 22:8]. (Negative Prohibition) but not a fulfillment of the mitzvah of כִּי תִבְנֶה בַּיִת חָדָשׁ וְעָשִׂיתָ מַעֲקֶה לְגַגֶּךָ and as such, the tenant would not recite a ברכה .

 

 

 

[1] As opposed to Chazon Ish who maintains that this mitzvah strictly applies to one who owns a residential home with a rooftop that is frequented.

Promises, Protexia & Hedging     Issue #: 246

246.pdf (1.37 mb) Promises, Protexia, & Hedging Mordy and Mindi Martin requested that Morah Riki ...

246.pdf (1.37 mb)

Promises, Protexia, & Hedging

Mordy and Mindi Martin requested that Morah Riki reserve a spot for their three-year old Moishe. Morah eagerly anticipated Moishe’s smile and gladly reserved a spot for him.

Three weeks before the onset of the new school year, Mordy unexpectedly received a great job offer in Chicago, Illinois.

*

Mordy and Mindi decided that the opportunity to move was ripe. As their apartment on Rechov Sorotskin was in high-demand, their landlord did not mind them terminating their lease, but simply requested that the Martins take care of finding the new tenant. Within minutes after announcing their decision, a long list of interested parties formed. Mordy told Chaim – that as his Chavrusa, he gets “first dibs on the apartment”.

Two weeks later, Mordy’s sister became engaged and announced her plan to move to Israel. With apartments hard to come by, it seemed only natural for Mordy’s sister to take over Mordy’s apartment. Mordy’s parents voiced their feelings quite vociferously. But Mordy told Chaim that he has first dibs???

*

Mindi, a certified nurse, now begins to pursue employment in Chicago, sending out her resume to numerous clinics. Chicago Kosher Clinic offers her a job and they need an answer in two days. Meanwhile, Mindi is waiting for a reply from Chicago Healing, which offered a higher wage and more vacation days, an offer that Kosher Clinic couldn’t beat.

But Mindi is afraid to let the Kosher Clinic offer pass through her fingers, lest Chicago Healing fall through, so she hedges and tells Kosher Clinic that she is interested…but she knows that should Chicago Healing give her a yes, she’s rescinding on her verbal pledge to work for Kosher Clinic. But if she is straightforward with Kosher Clinic from the onset, maybe they won’t give her shot.

What about their verbal commitment to Morah Riki?

What should the Martins do?

May Mindi hedge?

 

What’s the Halacha?

The Answer:

The Martins may break their commitment to Morah Rikki, but if Morah Rikki lost potential clients, they will have to compensate her for her loss. (See detailed Explanation).

They may break their commitment to Chaim, but should try to explain the situation to him and get him to forgive them for backing out.

Mindy may hedge without being forthcoming because Kosher Clinic understands that when people search for a job, their verbal commitments do not mean that they are 100% ready to commit and Kosher Clinic should anticipate that if Mindy finds a better working condition, she will probably back out.  

 

Detailed Explanation

 

Promises, Protexia, & Hedging invokes the following Halachos.

Rescinding from a verbal commitment can engender one, some or all of the following (1) breach of trust between persons (2) a sin against G-d (3) a sin against oneself.

Biblical Positive Commandment

At the time that one makes a verbal commitment, he/she must be fully serious about fulfilling the commitment. By making a half-hearted commitment, one transgresses the commandment of

מֹאזְנֵי צֶדֶק אַבְנֵי צֶדֶק אֵיפַת צֶדֶק וְהִין צֶדֶק יִהְיֶה לָכֶם אֲנִי יְ-ה-וָ-ה אֱלֹהֵ-יכֶם אֲשֶׁר הוֹצֵאתִי אֶתְכֶם מֵאֶרֶץ מִצְרָיִם [ויקרא יט לו].

Which means that when you say hein, “yes”, it should be tzedek, just, you should mean it!

The Poskim however explain that this is true, so long as the message that you are conveying is indeed yes.

Rabbinic Prohibition

Even if the promissor was fully committed at the time of the commitment, may he/she subsequently rescind?

שְׁאֵרִית יִשְׂרָאֵל לֹא יַעֲשׂוּ עַוְלָה וְלֹא יְדַבְּרוּ כָזָב וְלֹא יִמָּצֵא בְּפִיהֶם לְשׁוֹן תַּרְמִית וגו' (צפניה ג')

The Jews who remain do not act evil nor do they speak deceptively and there is not found in their mouths devious tongues.

A promissor transgresses a prohibition from the prophets for rescinding on a verbal commitment, when the “promised” relied on the words of the promisor. The promisor is called an untrustworthy person and the promised has the right to call him a rasha. He broke his counterpart’s trust [Beis Yosef Yoreh Deah 264].

Examples include 1) a reasonable promise by an individual [Choshen Mishpat 204: 8], 2) even a large promise by a community [Choshen Mishpat 204: 9, Nesivos], 3) an unreasonable promise to a child who thinks that it is reasonable (Be careful about telling your two-year old that you’ll take him to the moon!)

To Children.

וְאִישׁ בְּרֵעֵהוּ יְהָתֵלּוּ וֶאֱמֶת לֹא יְדַבֵּרוּ לִמְּדוּ לְשׁוֹנָם דַּבֶּר שֶׁקֶר הַעֲוֵה נִלְאוּ. (ירמיהו ט: ד)

Adults must consider an additional prohibition that can be transgressed when not fulfilling a commitment to a child.

A person may not promise a gift to a child and not fulfill his promise lest he train the child to lie. Yirmiyahu Hanavi exhorts the Jews for having trained their children to speak untruths [Maseches Succah 46b].

[Note: A 4th example includes even an unreasonable promise to give a tzedaka-worthy individual. A verbal commitment to Tzedaka is legally binding. A promise to a poor person could constitute Tzedaka.]

In contrast, when the promised did not rely on the promisor’s verbal commitment; generally, the promissor does not transgress the rabbinical prohibition of being an untrustworthy individual. The promised cannot call him a rasha for rescinding. He did not break his counterpart’s trust.

Personal Perfection

However, a G-d fearing person should take care to keep his commitment even if the promised did not rely on his word. Rescinding even from an unexpressed commitment is a lack of perfection of his middas ha’emes towards which a G-d fearing person must strive to attain.

Extreme levels of bracha are in store for one who strives to appropriately perfect his/her middas ha’emes when Halacha so warrants. (There are times when Halacha requires that middas ha’emes bend in deference to other middos, like propriety and peace [Menoras HaMaor, 2:1].)

Disgracing G-d’s Name

Moreover, when rescinding will create a Chillul Hashem, the promisor commits a grave almost unforgivable sin for rescinding (מיתה בידי שמים) [Sha’arei Teshuva 3: 114].

Unforeseeable Drastic Circumstance Change

Is it always forbidden to rescind a reasonable commitment? What if the situations subsequently unforeseeably change so drastically that under such circumstances it is clear that the promisor would not have committed? Is the promisor still bound by his/her original verbal pledge? In halachic terminology this phenomenon is called trei tarei, two market rates or a sudden drastic change in market rate, situations…

There are two opinions which traces itself back through the ages.

The lineup looks like this:

Unforeseeable Drastic Circumstance Change

בעל המאור, רא"ש, טור, בעל העיטור, תלמידי הרשב"א, חכם גדול אחיו, סמ"ע, גר"א עפ"י ירושלמי, ט"ז, חתם סופר, ערוך השלחן, שבט הלוי

not forbidden to rescind

רש"י, רבינו יונה, ר"ן בדברי רשב"א,  רבינו ירוחם ראב"ד, מגיד משנה, תוס', בית יוסף, רמ"א, קיצור שו"ע

forbidden to rescind

 

Aruch Hashulchan determines that the strict Halacha is that the committer may rescind. It is a middas Chassidus though, not to do so.

Thus, if an unforeseeable drastic circumstances change, one cannot hold it against a promissor for rescinding his/her verbal commitment.

Yet, because of the strong argument to the contrary, many Poskim will leave it to the petitioner to choose whether he/she wants to keep to the original commitment or take the liberty to back out under the new unexpected drastic altered circumstance.

If the Work is no longer necessary

There is a more extreme level than the situation changing drastically whereby under the new conditions, the promise would not have been made. 

Sometimes the situation changes so drastically that the verbally agreed upon work is completely unnecessary.

Under such circumstances, provided that there is no real financial loss to the other party, the verbal committer may back out even according to Rema [Ketzos Hachoshen Choshen Mishpat 333].

Midas Chassidus

Rebbe Tavos would not rescind on his word even if you were to give him all of the riches in the world [Maseches Bava Metzia 49b].

[As with all middas hachassidus, behaviors, one must take into consideration the collateral results of one’s choice of action before deciding whether it is appropriate to follow the middas hachassidus approach in this particular situation.]

 

Financial Liabilities

Financial Liability for Cancelling Verbal Employment Commitment

Objectively, an employer does not need to pay for services he/she did not receive [Choshen Mishpat 333:1].

However, when an employer makes a verbal commitment promising a position to a potential employee, the employee relies upon the word of the employer. 

More than simply hoping to earn money, the employee may have turned down alternative employment. Instead, it may be too late to seek other employment. Consequently, by breaching the verbal commitment, at times, an employer can cause the employee a financial loss. 

The employer is liable to pay for the financial damage he/she causes by cancelling the employment. (You pay for a loss!) [Choshen Mishpat 333:1].

Nevertheless, if an unforeseen circumstance occurs, which renders a job unnecessary, an employer may cancel or terminate the work agreement, generally without liability even if the employee suffers a loss.    

Why?  A) No service was received B) The employer was not negligent [Choshen Mishpat 333: 2].

Similarly, if both the employer and employee or, only the employee had reason to anticipate a particular circumstance which would render the job unnecessary, the employer may cancel the agreement without liability. 

Why? A) No service was received! B) The employer was not negligent [Choshen Mishpat 333: 2].

Hedging

A yes must be a yes.

Can you hedge then?

When your counterpart believed that your yes was a yes, then your yes must be a yes.

Thus, Dayan Chaim Kohn told me that generally, nowadays potential employers do not responsibly rely on a verbal commitment. They are aware of the complexities that life brings and that it is far from uncommon that issues or circumstances arise that commitments are not upheld.

Similarly, one should expect that an Anglo-Saxon expatriate in EY, might have to consider returning to the diaspora for a myriad of reasons. As such, hedging under these circumstances would be permitted.

 

 

Application


Mindy and Mordy’s situation changed so drastically that were they to relocate, Morah Miri’s services are completely unnecessary.

Additionally, as the Martins are of Anglo-Saxon background, Morah Miri had to anticipate that situations may warrant that they suddenly decide to relocate and did not completely rely on their verbal commitment.

Thus, if the Martins choose to relocate and rescind on their verbal commitment, they cannot be stopped. However, as this is not an “accident” but rather a result of a decision that the Martins made to relocate, they would be required to compensate Morah Miri for the losses she incurred by relying on their word.

For example, if she ordered extra materials, or turned down another child, or did not bother seeking another one to fill Moishe’s spot and now it is too late to find one to fill his spot – then the Martins would have to compensate her appropriately. (Note, if she is willing to forgo part of the tuition money to have less children, then the Martins only need to pay the difference.)

*

At the time, Mordy really meant what he said that Chaim was first on the list. His yes was a yes. It was a reasonable promise as well. However, Mordy’s sister got engaged and wants to move to EY.  An unexpected new circumstance surfaced under which it is clear that he never would have promised Chaim to take the apartment. Thus, he can give it to his sister. However, it is best to explain the situation to Chaim and ask him to forgive him for breaking his trust.

*

Although one’s yes must be a yes, that is so long that the message that you conveyed was yes! However, so long as in a job searching market, it is understood that a potential employee is looking at multiple possibilities simultaneously, the potential employee may say yes although he/she is hedging for a better option. However, in a situation where a yes is understood as a final commitment, then it would be forbidden to hedge.

ShopRite & Pedal to the Metal     Issue #: 129

ShopRite ShopRite: today, it is the largest retailer-owned cooperative in the U.S.; Wakefern Food Co ...

ShopRite

ShopRite: today, it is the largest retailer-owned cooperative in the U.S.; Wakefern Food Corporation; Always Fresh... Always for Less. Shoprite does it Right.

Inspired by philanthropist Milton Hershey, Ted Bernstein, CEO of Party Streamers Inc. managed a large orphanage in back of his sprawling upstate estate. Continuos arrangements with food distributers proved as an economical and efficient way to run the kitchen.

Wakefern agreed to allow Bernstein to purchase wholesale from the cooperative.

An order form was generally submitted in the beginning of the month. In conversation with Wakefern at the onset of the relationship, Bernstein requested that Wakefern provide them with fresh produce as well. Wakefern duly informed their produce distributer in Elizabeth NJ.

Subsequently, Bernstein found a cheaper produce distributer and signed an agreement...but not before Wakefern had already purchased considerable produce with Bernstein in mind. ◆

 

Pedal to the Metal

"Hit the pedal to the metal. I've got to catch this flight..." pressed Barry Weinstein to his Livery Driver. "The gate to the USAir domestic flight from Newark to O'Hare is closing in forty-five minutes!"

Eager to please his frequent customer, the driver complied...but was clocked at 100 miles per hour and was slapped with a hefty ticket and points on his license.

 

Wakefern spent money because of Bernstein's request. Is Bernstein required to ensure Wakefern does not incur a loss?

The cab driver sped to help Barry. Is Barry required to pay for the ticket?

 

What's the Halacha?

THE ANSWER

Background

One is morally bound to uphold a reasonable commitment (one which an honest man in his capacity can practically fulfill). Should the situation unforeseeably change to the extent where it would be commonly understood that the commitment was in error, one cannot be bound to the commitment.

Nevertheless, it is noble to uphold a verbal commitment- reasonable or unreasonable (whether or not people actually depended on the commitment), even if the circumstances change drastically [Aruch Hashulchan § 204:8 that Rema's stringent view in Choshen Mishpat § 204:7-8; is merely a middat chassidus].

Congruously, breaching a verbal commitment generally carries fewer legal implications than would breaching a written commitment or a promise bolstered by a legally binding “kinyan” or prescribed physical act implicating obligation.

Below however, are some examples of verbal commitments lacking the bolster of a conventional “kinyan” which are nevertheless legally binding [See Issue 25].

---

1. A verbally commissioned B to manufacture a defined item with the expressed intent of purchasing it from the manufacturer upon its completion. B duly relied on A and manufactured it. A reneged on the commitment. If B is unable to sell the item immediately and will suffer a financial loss, A must compensate B for the financial loss he/she caused him/her [Choshen Mishpat § 333: 8].

2. A verbally hired B to manufacture a defined item with the expressed understanding of owning the item from the onset. B duly relied on A and manufactured it. A reneged on the commitment. A must pay B for the provided services whether he/she wishes to accept the finished product or not [Nesivos Hamishpat ibid. 15].

3. A verbally asked B to present money to C with the expressed intent of paying B. The benefit C receives as a result of B honoring A’s request functions as would a legally binding “kinyan” whereby lawfully obligating A to unconditionally uphold his/her commitment [Ran Maseches Kiddushin 4b].

4. A verbally asked B to discard money with the expressed intent of paying B. As no one benefited from the money which B discarded, A’s request lacks a legally binding “kinyan”. A cannot be lawfully bound to pay B [Aruch Hashulchan § 380: 4, Shulchan Aruch Even Ha’Ezer §30: 33].

 

APPLICATION

Shoprite

If protocol would have been that Wakefern would order based upon a verbal discussion, then although Bernstein could legally have backed out upon finding a considerably better deal, he would be liable to compensate Wakefern if they would be unable to sell the produce and whereby incur a loss on his account.

However, since protocol was to submit a monthly order form, Bernstein did not have to expect Wakefern to order produce based upon their initial conversation. Bernstein would therefore be absolved from compensating Wakefern for any resultant subsequent loss.

Pedal to the Metal

The livery driver ultimately chose to speed on his own accord. Even if Barry would have told him to speed and he would pay for any ticket, Barry would be absolved from paying.

Why?

Barry made a verbal commitment which lacked a legally binding kinyan. Even if it would have been certain that the driver would have gotten caught, one cannot argue that the ticket money the driver paid as a result of Barry's request would function as a legally binding kinyan to obligate Barry to honor his commitment because no one benefited from the ticket money. It would be similar to A asking B to discard money rather than to honor his request by presenting money to C.

 Q. Is there a middat Chassidut for Bernstein and Barry to uphold their words?

The Heart in Asking Forgiveness     Issue #: 238

The Heart in Asking Forgiveness Before Yom Kippur we beg forgiveness from one another [O.C. 606]. So ...

The Heart in Asking Forgiveness

Before Yom Kippur we beg forgiveness from one another [O.C. 606].
Some are accustomed to ask forgiveness from peers who they know that they did not harm during the course of the year in order to create a positive atmosphere [See Tur and Levush 606].
 

* SELECTED QUESTIONS *

1. Before one retires for the night, one should repent and accept upon himself/herself to turn over a new leaf the next day. 
In essence, one should not allow past failures to pull him/her down. “A stitch in time saves nine.” 

2. Additionally, it is appropriate for one to forgive all past misdeeds that people inflicted on him/her. Forgiving others is a zechus (merit)  for “long days.” [Mishna Berura 239:13, 603: 2].

3. A butcher once sinned against the great Amora; Rav {first generation Talmudist}. The butcher failed to approach Rav and beg forgiveness. 

On Erev Yom Kippur, Rav made it his business to appear in front of the butcher to give him the opportunity to beg for forgiveness. The butcher forfeited his opportunity by snarling at Rav instead. 

While he was cutting the meat, the cleaver slipped and beheaded the butcher [Maseches Yoma 87a].

Q . Why did Rav deem it necessary to present the butcher with the opportunity to beg for forgiveness. Would it not have sufficed for Rav to forgive the butcher before he retired at night?
 
A. Let us begin answering this question by posing another question.

Q. If A victimized B and subsequently discovers that B forgave A is it necessary for A to beg forgiveness from B?

A. When rectifying an interpersonal sin, there are numerous issues which must be addressed; two of which include 1) the harm inflicted on the victim 2) the stain on the personality of the aggressor.

The harm inflicted on the victim can be rectified by compensating for the loss or damage and the victim wholeheartedly forgiving the aggressor for the harm done. 

The stain upon the aggressor’s personality is removed by way of B humbling himself/herself (before the victim) [Chut Shani: Yom Kippur pg. 100 from Chazon Ish].

Accordingly, even if Rav were to have forgiven the butcher before he retired for the night, whereby, the butcher’s harm to Rav no longer existed, unless the butcher humbled himself before Rav, the stain on his personality was not fully removed.
It was Rav’s concern for the aggressor’s eternal benefit that moved him to present himself before the man. 
 
5. Does the forgiveness of a child count?
Although a child lacks the maturity to forgive monetary debts owed to him/her, the child does have the capacity to forgive a wrongdoing  and not feel harmed in his/her heart.

Here too, the aggressor must try to make amends in order to gain full atonement [R Nissen Karelitz in Chut Shani: Yom Kippur pg. 101].
 
6. Is it sufficient for the victim to say he/she forgives the aggressor or does the victim have to mean it? 
Forgiveness is in the heart. 

If the victim does not succeed to remove the hurt from his/heart, the aggressor did not achieve forgiveness even if the victim verbally says “I forgive you.” [Chut Shani: Yom Kippur pg. 100 from Chazon Ish].

7. If A took money from B without B’s knowledge. If B was not pained as a result, A may simply have the funds returned to B without explanation [Pele Yoetz].
 
8. If the victim does not accept the request for forgiveness, the aggressor should try two more times using different approaches to convey his/her sincere remorse and beg for forgiveness.

Just saying a cold “I am asking you to forgive me” without trying to make the victim feel  better does not count [R Elyashiv zt’l].
 
9.  What if the damage is irreparable?
 
If the damage is still present or irreparable, it is not cruel for the victim not to forgive. An example can be defamation. Think Cyberbullying!

A victim who does forgive nonetheless is extremely virtuous and excels in the attribute of humility  [O.C. 606: 1 see Mishna Berura].  

*

Of Weddings, Shoes, Hamsters & Whiskey     Issue #: 243

Of Weddings, Shoes, Hamsters & Whiskey Before the groom (chassan) goes down to the chupa, he acc ...

Of Weddings, Shoes, Hamsters & Whiskey

Before the groom (chassan) goes down to the chupa, he accepts upon himself the financial responsibilities towards his wife-to-be, written in the kesuba.

The mesader Kiddushin, officiating Rabbi, acts on behalf of the bride, hands the chassan his kerchief, (as though it was the bride who was handing her kerchief to the groom), the chassan picks it up, and somehow through that act, the groom becomes obligated in the terms of the kesuba. The groom then returns the kerchief to the Rabbi.

William’s got a warehouse full of whiskey. Whiskey is made from barley, rye, or wheat may not be owned by a Jew during Passover. Derivatives of the five grains are chometz. Jews who own leaven or leaven derivatives (chometz) must either dispose of the goods before Passover or sell them to a gentile for the duration of the forbidden time. 

For generations, the local Rabbi facilitates this sale for his constituents. How does he assume the legal right to sell William’s whiskey to the gentile? He gives William his kerchief and assumes the legal right in the whiskey to sell it. William then give him back his kerchief.

This means of acquisition is called chalipin. It is from the most prevalent means of legal acquisition in day to day life. Its use dates back thousands of years. The first mention is in Megillas Ruth. Yet, it may seem difficult to understand on face value how and why such an act should work.  It might be easier to comprehend why lifting an object, or improving realty (a form of chazaka) functions as a means of acquisition. After all, we can understand why displaying ownership works as a means of acquisition. But how and why does chalipin work?

And for the record, while we attempt to understand why and how chalipin works, we may discover answers to the following issues.

 

Does the grantor assume temporary ownership of the kerchief?

Is there a way to perform a chalipin act today for an anticipated acquisition tomorrow?

May the officiating Rabbi give the groom a paper napkin or a disposable cup, a hamster or a goldfish?

 

What’s the Law?

 

The Answers

The grantor assumes a limited ownership.

There is a way to perform a chalipin act today for on condition that x amount of time passes.

It is questionable whether the Rabbi can use a disposable cup. He may not use a paper napkin. He may use a hamster or a goldfish.

See Detailed Explanation.

 

Detailed Explanation

 

Before we discuss why and how chalipin works, it would behoove us to understand the basic concept of ownership transference between the grantor and the acquirer.

Ownership transference is essentially in the mind! The required defined actions are necessary to simply confirm the commitment and establish that the idea to transfer ownership was not simply a fleeting thought [Choshen Mishpat 195: 7, Sm”a].

Thus, transference of ownership is primarily a function of the human intellect. It is generally expressed in a physical act, but causes a transference in the upper worlds as well. 

That being said, let us take a look at the first mention of kinyan chalipin in The Scriptures. We will notice that while the prevalent custom is to use a kerchief or other belonging, in the times of the Scriptures, a shoe was used.

R Akiva Eiger references the Holy Zohar who discusses this deep concept.

The wife of a man who dies childless must marry the dead husband’s brother. This is called yibum or Levirate Marriage.

The relative who marries the widow inherits all of the dead man’s assets; (even inheritance plots sold posthumously). If the relative does not want to marry her, he must perform the mitzvah of chalitza. The woman takes off the man’s shoe and spits at it.

In Megillas Ruth, Machlon; Ruth’s husband died childless. Tov was Machlon’s closest relative. He had the first responsibility to perform yibum with Ruth.

Along with performing yibum, he would have inherited Machlon’s realty. Tov did not want to marry Ruth. Boaz, the next closest relative, who was willing to perform yibum with Ruth, purchased Tov’s rights to Machlon’s realty by removing his shoe and giving it to Tov, whereby Tov transferred his ownership rights of the fields to Boaz. The Pasuk says that this means of kinyan, was a long standing custom amongst the Jewish people.

וְזֹאת לְפָנִים בְּיִשְׂרָאֵל עַל הַגְּאוּלָּה וְעַל הַתְּמוּרָה לְקַיֵּם כָּל דָּבָר שָׁלַף אִישׁ נַעֲלוֹ וְנָתַן לְרֵעֵהוּ וְזֹאת הַתְּעוּדָה בְּיִשְׂרָאֵל: {ח} וַיֹּאמֶר הַגֹּאֵל לְבֹעַז קְנֵה לָךְ וַיִּשְׁלֹף נַעֲלוֹ:

And this was a long standing Jewish tradition for redemption and ownership transference to make commitments binding a man would remove his shoe and give it to his counterpart and this was   . The relative told Boaz, acquire the inheritance and Boaz removed his shoe [Ruth 4: 7, 8].

What is the significance of shoe removal and why does the Rabbi use a kerchief at the wedding or when assuming power of attorney to sell your chometz and not his shoe?

In an effort to understand the concept of chalipin, let us peruse the Scriptures for some more instances when individuals acquired or removed their shoes.

Shoes in the Torah

Yosef’s Brothers

  1. The ten brothers took the money they earned from selling Yosef HaTzaddik (twenty silver coins) and used the money to purchase ten pairs of shoes [Pirkei D’ R Eliezer].

In fact, when the Roman ruler Lulianus set to avenge the sale of Yosef 16 centuries later by executing 10 Mishnaic luminaries; as part of the charade, Lulianus filled his palace with shoes to incriminate the sages.  

                   גָּבַהּ לֵב בִּגְדוֹלִים וְצִוָּה לְמַלּאת פַּלְטֵרוֹ נְעָלִים וְקָרָא לַעֲשָׂרָה חֲכָמִים גְּדוֹלִים מְבִינֵי דָת וּטְעָמֶיהָ בְּפִלְפּוּלִים

 [Eileh Ezkara Selichos Mussaf Yom Kippur]

 

Holy Places

  1. Moshe Rabbeinu had to remove his shoes from his feet when he stood by the Shechina [Shemos 3: 5].
  2. Yehoshua had to remove his shoe(s) in deference to the holy place on which he stood when the Angel Michael appeared before him to promise him in G-d’s Name a successful attack on Yericho [Yehoshua 5: 15].
  3. The Kohanim could not wear shoes in the Mikdash. (Midrash Rabba Shemos 2:13).

Yom Kippur

  1. It is forbidden to wear shoes on Yom Kippur [Maseches Yoma 8: 1].

Excommunication

  1. The Excommunicated must take off his shoes [Moed Katan 15b].

 

Shoe: Definition

A shoe is a personally fit apparatus that human beings place around their feet. It enables them to go where they want while protecting their feet from being affected by the surface upon which they tread.

A human shoe thus signifies numerous concepts including but not limited to

  1. a) Individuality
  2. b) Free will
  3. c) Separation and elevation from the surface
  4. d) Limitation by natural order (fit tightly around the foot)[1]
  5. e) The shoe services man by enabling the wearer to transfer domains.

Holy Premises

The sanctity of the Beis HaMikdash is to permeate the individual. He is to connect with the sanctity therein and become metamorphosed through its directive. He does not instruct the Mikdash, but the Mikdash instructs him. Moshe and Yehoshua too, stood upon holy ground. They were to become one with the sanctity therein and become metamorphosed by G-d’s directive [Rav Shimshon Raphael Hirsch]. Moreover, Moshe was to shed his physical limitations and ready himself for constant prophecy, connecting himself to the Shechina instead [Zohar Chukas 7].

Mundane Premises

תנו רבנן, שבעה דברים צוה רבי עקיבא את רבי יהושע בנו... ואל תמנע מנעלים מרגליך. (פסחים קיב א) אמר רבי חייא בא אבא אמר רבי יוחנן גנאי הוא לתלמיד חכם שיצא במנעלים המטולאים לשוק (שבת קיד א)  

Generally, though, our sages instruct us that we must wear shoes. Amongst the instructions Rebbi Akiva gave to his son was to always wear shoes [Maseches Pesachim 112a]. Rebbi Yochanan said that it is inappropriate for a Torah sage to walk in public with ripped shoes [Maseches Shabbos 114a].

 

Why?

The earth was cursed since Adam’s sin as in אֲרוּרָה הָאֲדָמָה בַּעֲבוּרֶךָ [Bereishis 3: 17].  From hereon Man was to lift himself above the earthiness and overcome its limitations. “Do not be so connected to the ground!” The human being who caused the אֲדָמָה to be cursed can transcend it and become one who brings blessing to the אֲדָמָה as Hashem promises Avraham Avinu וְנִבְרְכוּ בְךָ כֹּל מִשְׁפְּחֹת הָאֲדָמָה.

The earth upon where the Mikdash stood on the Temple Mount however, was not cursed as a result of Adam’s sin.

[It is interesting to note that psychologically people feel comfortable removing their shoes at home, for they connect with their home, whereas shoes are for outside the home.]

Yom Kippur

On Yom Kippur we are like heavenly angels [Zohar Tetzaveh 96, Menoras HaMaor 5:2:2, 3]. Through Teshuva, we can lift ourselves above the natural order, and unfetter our conceived limitations.

Excommunicated

The excommunicated is stripped of his individuality and must humbly submit himself to the governance of others. He removes his shoes.

The Brothers

By purchasing shoes, the brothers displayed their independence and severance of ties from Yosef. They would walk away from the brotherhood as the Pasuk says;

וַיֹּאמֶר אֶת אַחַי אָנֹכִי מְבַקֵּשׁ הַגִּידָה נָּא לִי אֵיפֹה הֵם רֹעִים: וַיֹּאמֶר הָאִישׁ נָסְעוּ מִזֶּה כִּי שָׁמַעְתִּי אֹמְרִים נֵלְכָה דֹּתָיְנָה וַיֵּלֶךְ יוֹסֵף אַחַר אֶחָיו וַיִּמְצָאֵם בְּדֹתָן: (בראשית ל"ז: ט"ז, י"ז)

Whereas Yosef was seeking brotherhood, they traveled away from this [Rashi, Ramban, and Ohr HaChaim Hakadosh]!

Chalitza

The Neshama of the dead brother becomes connected to the Neshama of the live brother. He can benefit the soul of the dead and bring it to its resting place by marrying the widow. If he refuses to do so, the widow removes his shoe. Through this action, she is removing her husband’s soul that has become connected with the soul of the brother-in-law and she takes it toward herself. She now has the capacity to bring her former husband’s soul to its resting place by building a family with whomever she chooses to do so [Zohar Chukas ibid.].

 

Kinyan Chalipin

Two explanations are offered in the Zohar [Zohar Parshas Chukas referred to in Glosses of R Akiva Eiger on Choshen Mishpat 195: 3].

1)      Just as the shoe transmits the person from one domain to another; removing of one’s shoe and giving it to another signifies the counterpart’s cognitive resolute decision for ownership transference. How?

The acquirer or his/her deputy removes his shoe and gives it to the grantor.

He instructs the grantor to internalize the symbolism of the domain-transferring shoe and resolve to cognitively acquiesce the ownership of the purported article.

The grantor accepts the shoe and simultaneously agrees to cognitively acquiesce the ownership of the purported article.

2)      In a deeper sense, the shoe represents a dimension of the Shechina. G-d’s Essence is beyond our reach, but He allows His Shechina; spiritual eminences to rest in various degrees of intensity in our physical world. The concept of a shoe carrying a greater being on a lower surface is a mashal an allegory for the Shechina which bears the eminence of a Greater Being on a lower form of existence.

 

(Aside from this explanation, there are deeper concepts which are beyond my present scope of comprehension)

 [עיין בעשרה מאמרות להרמ"ע מפאנו, מאמר אם כל חי (ח"ג סי' כב): והוא [חנוך] היה תופר מנעלים בפועל וגו'].

As such, when performing kinyan chalipin, the grantor brings the acquirer’s shoe to his domain and commits in the name of the Shechina to cognitively acquiesce the purported article to the acquirer. Such an action has semblances of swearing in G-d’s Name, where the one who swears says that just as Hashem is true so will I commit to fulfil my word…”

Shoe to Kerchief

The Zohar explains, that the shoe was used as long as people were scrupulously honest and upheld every commitment. Then we could feel comfortable invoking the Shechina in our commitments. As time went on and people became less honest, Chazal instituted a substitute for the shoe, so as not to G-d forbid invoke the Shechina and not fulfil the commitment properly. The kerchief or corner of one’s cloak was chosen to signify a concealing of a profound concept.   

The Questions

Now let us attempt to elucidate the questions we began to explore.

Does the grantor assume temporary ownership of the kerchief?

Must the grantor return the kerchief to the acquirer?

Is there a way to perform a chalipin act today for an anticipated acquisition tomorrow?

What type of materials may be used?

May the officiating Rabbi give the groom a paper napkin or a disposable cup?

Chalipin Acquirables

The acquirer can acquire moveable objects, realty, personal commitments via kinyan chalipin.

The Process

The acquirer or his/her deputy gives a functional object (either the acquirer’s or deputy’s article) i.e. a vessel or an article of clothing or a piece of functional material to the grantor.

In fact, when the groom accepts upon himself the kesuba responsibilities, the officiating Rabbi uses his kerchief instead of using the bride’s kerchief [Choshen Mishpat 195: 3 Rema].

Food items may not be used.

Are animals considered food items or functional material?

Not only work animals but even animals which produce usable byproducts like wool, milk etc. have a status of functional vessels which can be used to perform kinyan chalipin [Choshen Mishpat 195 Sm”a 7].

The Poskim understand the Sm”a to include any animals which can be used in any way. This would include pets.

In return, the grantor cognitively gifts the article-of-acquisition to the acquirer wherever it may be. The value of the functional object may be negligible, but it must be made from respectable materials. This excludes vessels made from dried dung [Choshen Mishpat 195: 1, 2, 3].  

Explanation

Vessels made from dried dung have a very limited functionality. They cannot be used for hot. [Shita Mekubetzes from R. Yonasan]

 

As kinyan chalipin does not function like a payment, but instead to inspire a serious cognitive decision to transfer the article’s ownership, it is unnecessary for the grantor to keep the kinyan article forever. Instead, the acquirer or his/her deputy may give the kinyan article to the grantor for a limited time on condition that the grantor subsequently return the kinyan article to its original owner.

The degree of ownership that the grantor assumes of the chalipin article is limited in time and scope. The grantor is given the chalipin article for the specific facilitate the kinyan chalipin and for a definitive time period.

In fact, it is so generally understood that the grantor must return the chalipin article to the acquirer or the deputy that the grantor is not permitted to keep it for him/herself without permission to do so [Choshen Mishpat 195: 4, Rema].

Thus, the officiating Rabbi at the wedding gives his kerchief to the groom on condition that the groom return the kerchief to the Rabbi after the groom commits himself to the kesuba terms. Similarly, the Rabbi officiating the chometz sale will acquire the rights to sell William’s Whiskey [Choshen Mishpat 195: 3].

Gift

When attempting to acquire a gift, the deputy can perform a kinyan chalipin with his/her kerchief unsolicited.

Purchase

When attempting to procure a purchase, the deputy cannot affectively perform a kinyan chalipin with his/her kerchief unsolicited, as the “acquirer” may not want to purchase the item [Choshen Mishpat 195: 3].

For a Later Date

Kinyan Kesef

In Issue 242, we mentioned that the Poskim rule that if money was indeed pre-paid for the purpose of kesef kinyan, the money need not physically exist anymore at the time the land was to transfer ownership [Choshen Mishpat 191 Sm”a 9, Taz]. This means, that via kinyan kesef the acquirer can give money far in advance and acquire the article at a later date.

Why?

Since if for whatever reason, the sale ultimately fails to materialize, the seller is required to reimburse the buyer, it is as though the purchase money is still in “existence” at the time the land actually transferred ownership [Ketzos Hachoshen]. 

Kinyan Chalipin

What about kinyan chalipin? Can a kinyan chalipin be employed to take affect at a later date? Remember: the chalipin article may be returned to the acquirer immediately after the execution of the chalipin act.

The acquisition must take affect together with the transferring of the chalipin article.

Thus, performing a kinyan chalipin now for an acquisition to occur later is ineffective.

However, one can perform a kinyan chalipin now for an acquisition to occur now on condition that x amount of time passes.

Rema assumes that it can be assumed that most wishing to “postpone” the realization of the ownership transference to a later date would want to do so in whichever effective manner works and as such, there is no need to specify “for an acquisition to occur now on condition that x amount of time passes” [Choshen Mishpat 195: 5].

Application

The grantor assumes a limited ownership of the chalipin article in scope and time and must return the article to the original owner unless otherwise expressed.

There is a way to structure the kinyan chalipin to take effect at the time of the performance of the chalipin act on condition that x amount of time passes.

Disposable Wares

Rav Yaakov Bloy [Pischei Choshen Kinyanim] suggests a comparison of disposable wares to R. Yonasan’s interpretation of dung vessels, vessels with a limited functionality capacity.  Disposable wares too, have a very limited functionality capacity and are not made to use more than one time. Accordingly, a kinyan chalipin performed with disposable wares is ineffective.

On the other hand, for the duration of their existence, they are completely functional. Perhaps that is sufficient to be considered for kinyan chalipin. Rav Bloy leaves this question unanswered.

A paper napkin though cannot be used.

Goldfish and Hamsters

What about using goldfish or hamsters?

Pets are deemed functional vessels as would an animal that can be used for work or can produce usable byproducts [Dayan Chaim Kohn].

 

[1] In a deeper vein, the physical body is like a shoe to the spiritual soul.

Amazon’s Alexa. Google’s Waymo. PrimeAir Drone Delivery.     Issue #: 244

Amazon’s Alexa, Google’s Waymo, PrimeAir Drone Delivery Amazon’s Alexa. Google&rsq ...

Amazon’s Alexa, Google’s Waymo, PrimeAir Drone Delivery

Amazon’s Alexa. Google’s Waymo. PrimeAir Drone Delivery. It’s a revolution. “You won’t have to lift a finger!” Touchscreens technology will become archaic. The World is changing fast. Faster than many of us can imagine!

Voice activation is getting things moving today. Brainwave activated robots might soon be the accepted norm.

Filling the order will be completely robotically performed; all activated by the consumer’s voice or brainwaves.

We are witnessing before our eyes the revelation of the koach hadibbur and olam hamchshava!  We’ll come home look at the ingredients in the kitchen, think about a dish we want, and the dish will be prepared for us and brought to our plate. The robot will feed us too. Sounds like Gan Eden!

What about kinyanim?

How does Corey the consumer Halachicaly acquire a sneaker that he has not picked up, carried or dragged into his domain? If Corey does not acquire the sneaker until it lands in his front yard, what if Larry hacks the drone, and redirects it to his home, has Larry stolen from Amazon or from Corey?


 

Important: We asked Amazon this Question! As of Feb. 9th 2017, as per the legal board in Amazon, they do not yet have a policy in place. So we ask; according to Halacha, what would the law be?

 

What’s the Law?

 

The Answer

If there is a person packing the merchandise and putting it on the assembly line, then in all probability, the hacker stole from Amazon.

If the entire system is automated, then Larry stole from Corey if Larry hacks the drone once the sneaker was lifted up 11.28 inches even in Amazon’s warehouse.

 

 

Detailed Explanation

To appreciate Hacking Alexa, Waymo & PrimeAir let us familiarize ourselves with the following means of acquisition (kinyanim).

Types of Kinyanim; (Means of Acquisition)

כסף | Money

Biblically; one can acquire movable merchandise through paying for it.

Rabbinically; generally, [exceptions do exist] payment is insufficient. Instead, movable merchandise is acquired in the same manner as are movable gifts (listed below).

Reason

This legislation was enacted to protect the consumer and incentivize the seller to protect the merchandise from potential loss or damage that can occur to the merchandise while it is still stored in the seller’s warehouse; away from the consumer’s reach. Thus, the Rabbis decreed that even if the consumer pays for the merchandise, the seller still owns it until the consumer performs another kinyan through which the consumer takes the merchandise into his/her domain.

 

Alternative Means of Acquisition include:

יד | Hand

Merchandise which is completely in the consumer’s hand or airspace of the palm even if the merchandise is not “lifted” off of the ground or original surface.

Merchandise which hangs over the sides of the hand/palm needs to be acquired in an alternative form [Choshen Mishpat 198: 2 Nesivos].

 

הגבהה | Lifting the merchandise.

How high?

Two Views

1 handbreadth 3.16 in/8.02 cm (RCN) | 3.76 in/9.55 cm (Chazon Ish)

3 handbreadths 9.48in/24.06 cm (RCN)|11.28in/28.65 cm (Chazon Ish)

Generally, we would require three handbreadths. [For scenarios where one must own an article Rabbinically, 1 handbreadth is sufficient. An example would be the necessity for a courtyard neighbor to own a portion of the jointly-owned bread by which the Rabbis permitted carrying on Shabbos between the courtyard homes.]

How much?

The entire article at once. Otherwise, only the part that is in the buyer’s hand is acquired. Two people nonetheless can work together, lift an article together and acquire it jointly [Choshen Mishpat 269: 2, 5].

By Whom?

The consumer does not need to lift the merchandise with his/her hand. Causing the merchandise to be lifted is sufficient. Thus, electronically controlling a crane or a hoist is sufficient to affect הגבהה [Choshen Mishpat 269: 5]. Similarly, one can employ an employee to lift up merchandise and acquire it on the employer’s behalf [.

Lifted to check if it’s good:

The consumer lifted the article to check if it’s good, decided it was good and took it. When did the consumer acquire it? On one hand, when the consumer lifted it, he/she did not intend on acquiring it yet. On the other hand, if it is good, perhaps the consumer intended to acquire it immediately.

Example: lifting up the eggs to see if they are cracked.

[There is a valid argument for each approach. Hence, in practice, it remains as a halachic quandary. See Choshen Mishpat 200: 8, Chochmas Shlomo 198: 1].

Type of Article

Any type of article can be acquired through הגבהה.

 

*

 

משיכה | Dragging the Merchandise from the Seller to the Buyer

The buyer drags the merchandise its entire length to a different position. When acquiring an animal, it is sufficient for the buyer to cause it to move a front and hind leg.

What

משיכה is an effective way of acquiring merchandise which is too difficult to lift up.

Anything that is normally picked up cannot be acquired through משיכה.

There are however specific guidelines as to when and where משיכה is effective.

Objective

The objective of משיכה is to get the object to move from the seller’s domain into the buyer’s domain.

Where

For an effective משיכה, the buyer’s domain does not need to only be his/her private property. Instead, משיכה can also take place in a property mutually owned by the seller and the buyer and in a quite ally-like domain, even though it is public property. An alley-like domain is structured for individuals to take care of private business; for example: washing one’s car.

 

Where Not

משיכה is ineffective in the seller’s domain, a public thoroughfare or a domain which the buyer has no right to perform within it kinyanim. Nonetheless, a third person can permit the seller and buyer to use the third person’s property to perform משיכה within it.

However, a buyer can pull the article from a public thoroughfare into his/her private domain, mutually owned domain or alley-like domain. As long as the entire article was moved (or front and hind leg for animal) in the public thoroughfare, it suffices for a small portion of the merchandise to cross over the border into the appropriate aforementioned private domains.

How?

Getting the article to move to a different position is sufficient. Thus, the acquirer need not physically pull the animal of acquisition. Causing the animal to move by hitting or calling the animal to come and it responds suffices [Choshen Mishpat 197: 3].

 

*

Some types of merchandise are too bulky or heavy to perform משיכה or הגבהה.

Some instances do not provide an option for dragging the article into a private-like domain.

In a private place, there are ways to employ one’s personal domain to act as an extension of oneself and acquire the article through קנין חצר | kinyan chatzer.

How though, can one acquire an article which is too difficult to pull or lift and is not in a locale where קנין חצר can be employed?

 מסירה is an alternative option which works specifically for merchandise too big or heavy for משיכה or הגבהה specifically, in a public thoroughfare or a domain which does not belong to the seller and/or buyer.

 

מסירה | “Giving over the Reins”

The seller/grantor permits the acquirer to grab hold of part of the merchandise. Understandably, this is a “weak type of kinyan” because simply grabbing hold of merchandise does not show ownership in the way making an article move into your domain or lifting it up shows.

Where

Thus as explained above, מסירה only works for merchandise too difficult to perform משיכה or הגבהה and where no קנין חצר can be employed i.e. in a public thoroughfare or a stranger’s property.

 

מנהג התגרים | Local Accepted Business Practice

Any locally accepted means of acquisition/commitment is Halachicaly mandated. For example, saying mazul und bracha and a handshake in the diamond district is a binding commitment.

 

Ø  The Quick Kinyan Code

Kinyan

Limitations

Public Thoroughfare

Stranger’s Property

Seller’s Property

Alley-like domain

Mutual /Acquirer’s Property

יד

Whatever is in the consumer’s hand or airspace of the palm

V

V

V

V

V

הגבהה

Raising 1 or 3 handbreadths

V

V

V

V

V

משיכה

Full length, only something that is not normally lifted

X (can be pulled the full length in a PT if then brought into alley-like, mutual or acquirer’s property)

X

X

V

V

מסירה

Heavy articles, too hard to unilaterally pull or lift

V

V

X

X

X

מנהג התגרים

 

V

V

V

V

V

 

 

Application

 

On Feb.9th 2017, we asked Amazon, “If a hacker hacked the drone en-route to the customer, did the hacker technically steal from Amazon or the consumer?”

They researched the query and responded; “We do not know. We presently have no legal code regarding this issue. The fact that we may pledge to stand behind our commitment might simply be a strategic customer service policy.”

That being said, as of Feb.9th 2017, there is no מנהג התגרים with which to contend.

Thus, at present we can address this issue with respect to any of the other means of acquisition which may or may not have occurred.

*

Presently, there is a human being who fills the Prime Air order, packs it up and sends it along the assembly line to be picked up by the drone. The drone then flies to the customer and drops off the package at a designated space on the customer’s property.

In such a scenario, by placing the order on one’s tablet, the consumer performed no valid kinyan on the article until the drone lands on the consumer’s property.

All things considered (we will learn more about the requirements of property to work as קנין חצר, in a subsequent issue) the consumer would not acquire the merchandise until it lands in his/her קנין חצר-worthy property or the consumer lifts it up.

Accordingly, one who hacks the drone midway and redirects it to his property will be stealing directly from Amazon.

On the other hand, if in the near future, the entire process is automated, so that when the consumer taps on his/her tablet to order the merchandise, a robot automatically packs up the ordered merchandise and sends it on its way, then clicking the order button, or for that matter telling Alexa to order it for you would directly cause the sneaker to be lifted in the warehouse. Causing the merchandise to rise up three handbreadths (11.28 in.) could work as קנין הגבהה even inside Amazon’s warehouse.

(משיכה is not an option because these are items which are to be lifted.  קנין כסף can only be an option if it would be considered מנהג התגרים for which at this stage, it is not yet determined.)

As such; in such a scenario, were one to hack the drone midway to the consumer’s home and redirects it, the hacker would be stealing from the consumer.

The Baffled Babysitter XIII : A Trip To New York City: Part 1     Issue #: 111

The Baffled Babysitter XIII :  A Trip To New York City: Part 1 1. “Ding Dong. Ding D ...

The Baffled Babysitter XIII :  A Trip To New York City: Part 1
 
1. “Ding Dong. Ding Dong. Watch the closing doors!”   Angling her back just so, preventing the subway doors from closing on her charges; two by two, Naomi’s left hand led her four energetic nephews aboard the 1 Train towards Battery Park as her right fist clutched a carbonated apple drink can she opened moments ago for the kids while waiting for a challenging half hour on the stale-aired platform. A silent expression of gratitude - to her gymnastic teacher crossed her mind; till the feeling of cold brass swiftly pressed hard against her forearm.  A tuba held by a six foot teenager forcefully maneuvered its way through the crowd. Naomi’s hand lost its equilibrium and the can sent an apple juice shower down an attorney’s suit pants. 

2., 3. Before the three-way brawl involving the attorney, Naomi and the tuba bearer ensued, Naomi made a beeline to the lone available seat; promptly sat down, piled the kids onto her lap only to have sensed the crush of a hot paper cup  and felt her dry clean-only skirt swimming in a gush of mocha and whipped cream. “Madam can’t you watch where you’re sitting?” yelled the irate tourist sitting next to her. “You owe  me a cup of coffee.” Then, the expected  five-way symphony of incensed passengers instantly erupted in the car – only to be drowned out by an ear piercing chorus of four banjos and five bongo drums. 

Though still dripping from mocha, Naomi gasped a sigh of relief when the doors flung opened  and the victims of her juice and espresso debacles dashed out to catch their departing transfer across the platform


4., 5. Manipulating her foursome down Broadway towards the park, Naomi eyed a symmetrical tower of mouthwatering mangos prominently perched atop Peter’s Produce Parlor checkout counter along the exterior of the shop. On brief lunch break, family friend Natan Teeberg whisked by en route for bagels, pulled a mango down for Naomi and kept on scurrying. Crash! Down rolled the pile of mangos behind the counter. A mango’s bull’s-eye fall onto the cashier’s open beer can on the floor, splattered the fruit and sent a carbonated geyser billowing upwards; painting the white ceiling and nearby bananas with a sticky layer of green beer gloss. Instantly, Peter’s shelf stackers chased after Natan and subdued him two blocks yonder. Fruitlessly frisking him for compensation cash, they sped off with Natan’s Metrocard for recourse.  
 
1. Who is responsible to pay for the attorney’s cleaning bill – Naomi or the tuba bearer?

2. Is Naomi required to pay the tourist for her coffee?

3. Is the tourist required to pay Naomi for the cleaning bill? 

4. Is Natan required to pay Peter for the damaged Mango? Cleaning the beer off the ceiling and bananas?

5. May Peter’s boys seize a Metrocard from Natan to cover possible expenses?
 

What is the Law?

The Answer: 

Beit Din cannot force Naomi to pay for the attorney’s cleaning bill, the tourist for Naomi’s cleaning bill nor Natan to pay for cleaning the beer off the ceiling and mangos. Peter’s boys may not seize the card. See detailed explanation regarding their moral obligations, the tuba bearer’s liability, and Natan’s liability for the damaged mangos.

Detailed Explanation
 

The Baffled Babysitter XIII invokes seven Halachos.


1. It is forbidden to cause an individual direct or indirect damages [Choshen Mishpat 378].
 
2. One may not place an obstacle in public property.  
 
3. Nevertheless, while he/she who plants an obstacle is liable for physical damages incurred by  people and animals; yet, in a special dispensation, the Torah does not vest Beit Din the authority to collect payment for  damages incurred by another’s inanimate property resulting  from the obstacle [Choshen Mishpat 410: 21]. 
 
4. Beit Din has the authority to collect for intentional damages directly resulting from the aggressor’s actions.
 
5. In addition, Beit Din has the authority to collect for unintentional damages directly resulting from the aggressor’s actions when  the aggressor could reasonably have assumed that such damage could have resulted.
 
For example, a homeowner is absolved from paying for unintentionally harming an individual or his/her belongings who, unbeknownst to the homeowner, entered the home. Similarly, in public property, the aggressor is absolved from paying for unintentionally harming an individual or his/her belongings that he/she could not have expected to possibly encounter [Choshen Mishpat 378].
 
6. Beit Din generally lacks authority to collect for indirect damages resulting from the aggressor’s actions. Nevertheless,  the aggressor has a moral obligation to pay for intentional indirect damages, while is absolved from paying for unintentional indirect damages [Choshen Mishpat 386, Imrei Yosher].   

7. Grabbing an object as payment for a debt may be done only following an assessment and through an injunction of Beit Din [Choshen Mishpat 97: 6].
 
Application
 
1. Naomi did not directly cause the attorney damage. Beit Din cannot demand payment from her. Arguably; there are situations where holding an open soda can in the subway is irresponsible, while at times it is not. If Naomi was irresponsible, she would have a moral obligation towards the attorney.
 
Even if  it is normal for crowds to push themselves in to a subway car as the doors begin to close, the Tuba bearer  is liable to pay if he saw the can and he directly knocked her hand over, whereby spilling the apple juice. If he did not see her, he would be liable if he had reason to suspect that someone in the crowd would be holding an open can of drink.
 
 If however, he knocked into her and the juice indirectly spilled because she lost her equilibrium, Beit Din would not require the tuba bearer to pay for the indirect damage. The tuba bearer would nevertheless have a moral obligation to pay if he was reckless (i.e. he could have assumed that a fellow passenger was holding an open drink).
 
2. Assuming that it highly unlikely to find cups of coffee on an empty subway seat, Naomi need not watch where she sits and is not held liable for inadvertently damaging the coffee. 
 
3.The tourist faultily placed an obstacle in public property which damaged Naomi’s skirt, an inanimate object. While there is discussion as to the tourist’s a moral obligation to pay the cleaning bill, Beit Din is generally not vested with the authority to demand payment.  

4. Natan must  pay for the mangos if  he irresponsibly pushed down a responsibly piled tower, even if he did so inadvertently. However, if they were piled precariously, in a manner that Natan could not have expected his pulling down a mango to send the tower tumbling down; Natan would be absolved.
 
Natan Teeberg had no reason to expect that an open can of beer would be positioned on the floor behind the checkout counter. The damages due to the billowing geyser at best were an unintentional indirect damage for which there is not even a moral obligation to recompense.   
 
5. Without a damage assessment permission from Beit Din, Peter’s boys may not seize the Metrocard to possibly cover the cost of the damaged fruit.

Meds & The Baffled Babysitter Part XII     Issue #: 108

Meds Ear thermometers, surgical tape, single-use capillary blood sampling devices, sterilizing solut ...

Meds

Ear thermometers, surgical tape, single-use capillary blood sampling devices, sterilizing solutions and more…Two years passed since the Adlers relocated to Ramat Beit Shemesh. By now, Dr. Adler secured his permanent Israeli medical license, and set up his private practice as well.  In due time, Adler became a loyal customer of RIMS (Rofeh Israeli Medical Suppliers).

 

On Thursday Sept 15th  Yaron Avraham, a salesman for  EMES (Emergency Medical Supplies) RIMS’ competitor showed up during lunch; to convince Adler to switch suppliers and receive more for less.

 

 - May Yaron convince Adler to switch suppliers?  

The Baffled Babysitter Part XII

Wondering why she was experiencing a lull in her employment by the Greens, [See Issue 92] Bracha did some investigative research. Did Temima present herself to Mrs. Green as a more talented young lady and willing to work for less?

- May Temima convince Mrs. Green to hirer her instead of Bracha?

 

 

 

 

What’s the Law?

 

The Answer:

Meds Case:  Yaron, the new supplier, may convince Dr. Adler to switch suppliers.

 

Baffled Babysitter Case: Temima may advertise that she is available for hire but may not convince Mrs. Green to hire her instead of Bracha.  

 

Detailed Explanation

 


Meds & The Baffled Babysitter XII invokes the following Halachos.

  1. A local entrepreneur may open a competing establishment. Darchei Moshe forbids it if doing so will compel the original enterprise to fold [Darchei Moshe 156] .
  2. A competing establishment or service provider may offer perks and better deals than the first enterprise in order to entice customers to switch to the competition [228:18]. Darchei Moshe forbids it if doing so will compel the original enterprise to fold [Darchei Moshe 156] .

Note that the guidelines for aggressive targeted marketing practices at the competitor's loyal customers are delineated in points 4 and 5 below.  

  1. Once B decides to hire or buy merchandise from A, A has attained a sense of opportunity security.

While Competitor C may publicize his/her higher bid, C may not jeopardize A’s security by approaching B with a higher bid until A walks away from the deal (see Issue 107) [Choshen Mishpat 237 Prisha 1].

If C jeopardizes this security, Beit Din may publicize that C is “a rasha" and "evil," as well as penalize him/her, but cannot force C to return the merchandise, the service, or the position to A. (Let C extend the effort and obtain a similar item somewhere else!) [Choshen Mishpat 237:1, Pischei Teshuva 2; Yam shel Shlomo: Kiddushin 3:2].

  1. In a relatively "closed market" economic environment, tenure and customer loyalty create the same level (if not more) of “opportunity security” as would B’s decision to hire or buy merchandise from A.

Thus, C may not manipulate B's employer or loyal customer to forgo his/her long-standing trusting relationship with A.

A modern day example of a closed market environment can be found in the medical field; namely a family doctor. In the US, families generally stick with their pediatricians for decades. A new doctor may not cajole patients of the old doctor to switch over to his/her practice [Tosafos Kiddushin 59a].

  1. In an "open market" economic environment, tenure and customer loyalty do not afford the provider with “opportunity security.” Instead, the provider is always wary lest he/she lose the customers to the competition. Under such conditions, C may attempt to manipulate B to forgo his/her long-standing and trusting relationship with A.

A modern day example of an open market environment is an internet service provider. Consumers generally do not build “trusting relationships” with their providers.  Provider B may call Provider A’s customer and cajole him/her to switch over to the service B upon the termination of the contract with A [Choshen Mishpat 237 Prisha 1].

Application

Arguably, families like the Greens build trusting relationships with their babysitters. A constant babysitter like Bracha is likely to develop a sense of opportunity security without having to look over her back lest the competitor beat her to the job next week. We would view such employment as a closed market economic environment. While Temima may publicize her better rates, she may not approach Mrs. Green and cajole her to employ her in Bracha’s stead. Let Temima find other employment somewhere else.

Nevertheless, in the competitive market of medical suppliers, each provider is well aware that doctors will constantly be looking for better opportunities across the global economic environment. RIMS know that Adler’s loyalty is due simply to the fact that he has yet to find a better deal by a competitor. As such ROFEH would not be guilty of “stealing” RIMS loyal customer, even by approaching Adler and convincing him to switch.

Vacated Vacation!     Issue #: 135

 Vacated Vacation! After a year of hard and dedicated work at Hillside Educational Center, Aviv ...

 Vacated Vacation!

After a year of hard and dedicated work at Hillside Educational Center, Aviva Fried was ready for a well deserved vacation.

Typically ear-marking a percentage from her bi-monthly paycheck for her summer retreat motivated her to overcome the many challenges at work. 

Aviva and her friend Rina reserved a professed vacation apartment from June 28th to July 10th in Jerusalem's Maalot Dafna neighborhood. She looked forward to walking to the Kotel on Shabbat.

Aviva and Rina arrived on Thursday evening and picked up the key from a neighbor. Tired and hot, Aviva opted for a shower before they began their hectic itinerary.

Having to call an SOS plumber and dealing with major drainage backup, which flooded the shower room and hallway did not fit in to their well planned schedule. Aviva and Rina packed their bags, vacated and booked a week in the Dan Panorama.

They withheld the remainder of the rental fee, demanded a refund for the deposit, as well as reimbursement for the difference in price between the Maalot Dafna rental and a room in the Dan Panorama.


 

What’s the Law?

 

The Answer:                                                      

Aviva and Rina cannot demand reimbursement for their stay in the Dan Panorama. Whether they may withhold any or all payment or demand reimbursement is subjective to the understandings behind short term rentals. See Detailed Explanation below.  

 

Detailed Explanation


Vacated Vacation invokes the following three Halachos.

 

  1. One is absolved from paying for unintentional indirect damages [Choshen Mishpat 386, Imrei Yosher].

 

  1. If the seller can easily repair or replace the defective part (without adversely effecting the merchandise), the customer can only demand a repair or replacement part [Choshen Mishpat 232: Sm”a 2].

 

  1. At times, certain defects in a merchandise can render the product unfit for a specific clientel's usage, but for others the product remains functional. When it is impossible to prove the clientel to which the consumer belongs, we respect the status quo and leave the merchandise and money in their respective jurisdictions [Choshen Mishpat 232: 23].

 

Application

 

The landlord unintentionally indirectly caused the vacationers a loss. Thus, the landlord is absolved from paying for their stay at the Dan Panorama.

Objectively, a backed up drainpipe can be fixed. As such, a renter should be required to remain in the house and simply have the landlord care for the leak in a timely and efficient fashion (and perhaps subtract rental money for the inconvenience).

 

However, there is reason to assume that the short term vacationers intended upon renting a hassel free living quarters.

 

As such, dealing with a stuffed up drainpipe in a foreign country does not meet the description of the "sale". The situation cannot be fixed; and as such, the renter may leave and need not pay for the remainder of the days reserved.

 

As to exactly how much bother the renter was initially willing to endure, upon the "deal's consummation" is subjective and will be difficult to prove. As such, when doubts arise as to whether or not conferring with the landlord and dealing with arranging for a plumber to repair the drain in a timely fashion is within the renter's initial reasonable expectations, we would have to respect the status quo.

 

Practically speaking, if it would be able to be fixed in a timely fashion, the landlord would keep the deposit, but we could not obligate the renter to pay for the rest of the days so long as we cannot prove that they were initially willing to rough it for a few hours if need be.

 

We can assume that the vacationers wished to rent the apartment for a ten day bloc and did not wish to move their belongings from place to place during their stay. As such, we cannot obligate them to return to the original apartment even after the landlord repairs the leak.

The Baffled Babysitter XIV     Issue #: 133

The Baffled Babysitter XIV A community-wide event without Mrs. Berman? Inconceivable! That's where S ...


The Baffled Babysitter XIV

A community-wide event without Mrs. Berman? Inconceivable! That's where Sara, her favorite babysitter would fill in; running hoards of chores and helping astutely around the house. All debacles aside, Meira, and the twins; Yair and Yonatan were quite fond of Sara and craved their quality-time spent with her, immeasurably.

Shavuot cooking was in the air and Mrs. Berman's annual CBM (Community Board Membership Cheesecake Baking Marathon) for the Central Beit Midrash All Night Study Event. Less than one day remained till crunch time!

The grocery order arrived at 10:00 AM and Sara was off to a frenzied start in the kitchen. A few stark errors in the order only added to the pressure cooker. A twenty lb. bag of potatoes arrived, instead of five. No time to return them to the store. Three and a half times the price of five. Use five lbs.? Will the store accept fifteen back after the holiday? Forget the potato kugel? Impossible!

Sara decided to improvise when she opened the newly purchased food processor which was missing an attachment.

A jumbo institutional size cream cheese received, instead of the smaller size. Certainly can't use part and return the rest! "But...She asked and paid for a small one and they gave her a large. She needs to make the cheesecake this morning, now!" 

Cakes and kugels in the oven; the twins went in to nap. Yair was up an hour later, bathed and dressed in his new striking holiday outfit from the JAP. Mrs. Berman had ordered two matching outfits size 6 online for the twins and was eager to take pictures of the twosome and email them to her Mom in the States before candle lighting. Sara cut the tags off of Yonatan's as well. Soon Yonatan awoke, took a bath and proudly donned his over-sized fashion ware.

 

Ø  May Sara use five pounds of potatoes and return the rest after the holiday?

Ø  May the Berman's demand a full refund for the food processor or only an attachment replacement?

 

Ø  May they use the cream cheese?

 

Ø  Mrs. Berman ordered two of the same sized outfits. They were misfits. She removed the tags before trying them both on her kids. Even if she'd be allowed to return one, her boys would not match anymore. May she force JAP to refund her for none, one, or both?


                       

What is the Law?

 

The Answer:

See detailed explanation.

Detailed Explanation

 

The Baffled Babysitter XIV invokes the following five laws.

 

  1. When merchandise’s metrics are even slightly erroneous, recourse is permitted even years after the sale. [Choshen Mishpat 232:1].

 

  1. When the error is easily rectifiable (i.e. adding/subtracting an additional unit) the transaction is valid but the plaintiff may demand reimbursement for the difference [Choshen Mishpat 232:1]. For example if the consumer received 99 units instead of 100, he/she may generally demand from the seller one more unit ad infinitum but cannot compel the seller to void the sale completely.

 

  1. Generally, a consumer forfeits his/her claim for recourse after displaying consent to having received the faulty merchandise.

 

An example is using the merchandise after discovering the blemish.

Another example is if it is normal for a potential customer to have discovered the blemish while making a routine examination of the merchandise before the purchase, and the customer failed to examine the article, we view it as though the customer agreed to take the article “as is”. [Choshen Mishpat 232:2, Sm”a 10].

 

  1. However, using the article under “clear circumstances of desperation” after having discovered, the blemish does not indicate consent to the sale.

 

For example: A purchased a horse upon which to travel, from B. While on the “maiden journey”, A noticed a significant blemish worthy of dissolving the sale. But A was stuck! He had to get back to town to deal with B and needed to continue riding the horse.

Pischei Teshuva rules that such usage under “clear circumstances of desperation” does not indicate consent to the sale of the horse. The customer had no choice! The customer may still demand appropriate compensation for the blemish, although he/she continued using it under the circumstances [ibid. Pischei Teshuva §1].

 

  1. If the customer notifies the seller that he/she wishes to either dissolve the sale or demand to be made whole – appropriately, subsequent usage does not indicate consent. Nevertheless, upon returning the article, the customer would have to pay the seller for the benefit or wear and tear he/she put on to the article [Machane Efraim].

 

Application:

Note: The applications below reflect the strict Halachic approach. Store policies and local customs create variables beyond the scope of this issue.

 

Food Processor

A food processor with broken attachment is rectifiable by exchanging the broken part for a new one. The Berman’s may only demand a new part.

 

Potatoes and Cream Cheese

 

Consideration A

Usage of a “blemished purchase” under “clear circumstances of desperation” does not indicate consent to the sale.

 

Consider:

Could the Berman’s have borrowed potatoes and cream cheese from a neighbor or were they really stuck?

 

Was the prospect of not having cheesecake and kugel considered a “clear circumstance of desperation” likened to being stuck in the middle of the way without being able to get back to the city?

 

Is the fact that Mrs. Berman simply did not have time to replace the merchandise because she was busy doing other things considered a “clear circumstance of desperation”?

 

So it seems difficult to view our situation as a “clear circumstance of desperation”. Seemingly, using the cream cheese and potatoes should indicate consent.

 

Consideration B:

 

Generally, groceries will not accept returns on dairy products. We can assume that the grocer would rather the Bermans use whatever they intended on purchasing and paying for the amount of a smaller container, rather than expecting them to return the full cream cheese after the holiday.

 

In a store that sells loose potatoes as well as large packages, the Bermans usage of five pounds of potatoes would not indicate consent for the entire bag. Otherwise, unless we can conjure up a case of ““clear circumstance of desperation,” usage of five pounds would indicate consent on the entire package.

 

Parenthetically, calling the store conveying that they were uninterested in the larger items would make issues simpler.

 

Clothing

We asked a mother the following two questions:

 

  1. a) When you purchase clothing online do you try them on the children before removing the tags?
  2. b) When you purchase two matching outfits do you view it as one or two separate purchases?

 

She answered:

 

  1. She assumes when ordering ordinary children’s clothing online that size six is size six and does not try them on before removing the tags.
  2. While it means a lot to her that her children match, unless the store sold it as a set of two shirts, it is viewed as to separate sales.

 

Accordingly, not pre-checking the size before removing the tags does not indicate consent to keep it “as is.” She would be entitled to a replacement or refund 

However, even if the online store was out of stock and could not replace the misfit, while Mrs. Berman is entitled to a refund for Yonatan’s she must keep Yair.

Teenage Terror     Issue #: 117

Teenage Terror  Dave and Barry were flaunting their newly discovered adolescent prowess. &ldquo ...
Teenage Terror
 
Dave and Barry were flaunting their newly discovered adolescent prowess. “ Dave. I’ve mastered the art of holding my alcohol. I’m leaving the room for a minute. Spike whatever you want on the laden table. 
 
Dave reached for the Arik, an Israeli/ Moroccan 95% alcoholic beverage and poured a significant quantity in Barry’s chicken soup.    Barry returned to the room; but before he could sit down to continue eating, Dave stood up tall and called out, “Barry! Come on, try me, give me your hardest shot!” Barry clutched his fist, and approached Dave. 
 
Dave tightened is abdomen muscles. Barry gave a powerful blow, knocked Dave to the floor, and continued eating. The next thing Barry remembered was lying next to Dave in the Emergency Room. Dave sustained a ruptured abdomen muscle, while Barry was diagnosed with alcohol poisoning.  
 
Is Barry liable to pay for Dave's medical expenses?
Is Dave liable to pay for Barry's medical expenses? 
 
 

 What is the Law?
 
The Answer:  
Dave is absolved from paying for Barry’s medical expenses. Barry is required to pay for Dave’ medical expenses.
 
 
Detailed Explanation
 
 
Teenage Terror invokes the following three laws.
 
1. It is forbidden to inflict physical pain or damage to oneself or to one’s friend [Rambam Hilchos Chovel Umazik 5: 1].
 
{Parenthetically; inflicting pain or physical damage to one’s body is permissible in order to spare oneself from a more severe physical (e.g. resetting a broken limb) or severe emotional pain (e.g. elective plastic surgery). 
 
Endangering one’s life though, is forbidden even to remove physical or emotional pain (e.g. dieting leading to anorexia) [Igros Moshe Choshen Mishpat II: 65, Riv’vos Ephraim VIII: 389].}  
 
2. We assume that an average person in a balanced state of mind is unwilling to undergo extreme pain or loss of limbs unless it is the best of two worst options.  As such, even when a victim says that he/she gives “permission” to an assailant to harm him/her, we assume he/she was not sincere, and the assailant remains obliged to pay for damages [Maseches Bava Kama 93a].
 
3. B was aware that A deposited a parcel of his food into B’s property. B did not watch his/her animal from eating the food. B’s animal ate the food and got sick. B cannot demand payment from A [Choshen Mishpat 393: 2, Sm”a 4].  
 
Application 
 
While Dave spiked Barry’s food, Barry knew the risk and should not have eaten it. 
 
Even if Dave told Barry to give him a blow, we assume he never meant to absolve Barry from paying for such an excruciating pain and significant damage.

The Therapist's Moral Dilemma     Issue #: 163

The Therapist's Moral Dilemma   The news leaked. Excitement was thus abounding in the Yerushala ...
The Therapist's Moral Dilemma
 
The news leaked. Excitement was thus abounding in the Yerushalayim apartment building; as Shira Berger was about to officially announce her engagement in but two hours. Some of the neighbors even figured out to whom. As most of the neighbors began baking for the “surprise” event later that evening, Avraham Weiner seemed awfully perturbed.
 
“The fellow is my client,” Avraham thought to himself, “and he’s not emotionally stable. In my personal professional assessment, I don’t believe that he is ready to get married, but as a professional, I am forbidden to disclose confidential information about my patients.
 
If I let this relationship materialize, I may be guilty of standing idly by my brother’s blood, lo saamod al dam re’acha, but if I disclose information, I will breach the trust, destroy my client, jeopardize my job as well as the entire field of mental health if the public loses faith in the ability for therapists to respect the confidentiality of their patients.”
 
WHAT'S THE LAW?
 
THE ANSWER:
Avraham may not divulge the information to Shira. Optimally, he should attempt to convince his patient to be strait forward with Shira. Otherwise, the most he would be able to do is benignly drop a warning signal PROVIDED there is absolutely no way that anyone would discover that his information stems from servicing his client.
 
Detailed Explanation
 
Contemporary Poskim [heard from Rav Yitzchak Berkovits Shlita] explain that should the public discover that therapists cannot be trusted with their confidentiality, there is a grave likelihood that people will Heaven-forbid stop seeking professional mental health when appropriate.
 
Such a phenomenon is an issue of pikuach nefesh for the public; putting the lives of the public at stake.
 
While Avraham is faced with a prohibition of lo sa’amod al dam re’acha; do not stand idly by your brother’s blood [Vayikra 19: 19, Sanhedrin 73a] by not warning Shira of what may loom ahead of her; he cannot proactively intervene to save Shira’s life at the expense of jeopardizing the safety of the public.
 
Instead, he should fulfill both conflicting prohibitions by attempting to convince his client to be forthcoming with Shira.
 
If there is a way for him to raise a “red flag,” perhaps even indirectly, to Shira in a manner that NO ONE will realize that the fellow is his client/ his reasoning stems from his professional understanding, (which is arguably quite difficult) he should do so [Chazon Ish].

Flower Foul     Issue #: 184

Flower Foul A frequent festive Jerusalemite Erev Shabbat site: makeshift tents on the street corners ...

Flower Foul

A frequent festive Jerusalemite Erev Shabbat site: makeshift tents on the street corners set up with a colorful array of flowers for sale.

Adam, an independent contractor, sets out early Friday morning to his favorite corner. After two years of hitting the pavement, he’s even got some steady customers as well. Forest Florist in Ramat Eshkol pays Adam ten shekels for every bouquet he sells for them. Like clock-work, one half hour before Forest Florist closes, Adam returns religiously with the leftover flowers and cash and receives his due remuneration.

Last week, as Adam was heading back to the store, a car jumped the curb, hit his cart, sent a few buckets of flowers flying and sped off.

 

Under what circumstances need Adam reimburse Forest Florist for lost bouquets?

What's the Law?

The Answer:

Adam is absolved from paying for the destroyed bouquets.

Detailed Explanation

 

T.L. C. Trustee Liability Chart

 

 

Negligence

Theft/Loss not due to negligence

Unforeseen &

incontrollable accidents

Damage in course of normal use

1. no benefit

Unpaid trustee

Liable

Absolved

Absolved

Liable

(may not use it)

2a. partial benefit

Paid trustee

Liable

Liable

Absolved

Liable

(may not use it)

2b. partial benefit

Renter

Liable

Liable

Absolved

Absolved

3. absolute benefit

Borrower

Liable

Liable

Liable

Absolved

 

 

Forest Flowers invokes the following Halachos:

The Paid trustee, or shomer sachar, has limited benefit from the service provided.

While he/she benefits from the payment for his/her supervision of the property, he/she nonetheless is not authorized to make personal use of it. With limited benefit, he/she correspondingly assumes limited liability. In exchange for the payment that his/her service demands, he/she accepts the responsibility of protecting the property from theft and loss and is liable to pay in the event of such an occurrence.

 

In contrast to a borrower who has complete benefit from the article and as such is liable even for uncontrollable accidents (i.e. armed robbers), the shomer sachar is absolved from paying for damages or losses due to unforeseen incontrollable accidents [Ibid. 22:9-11].

 

The Renter or a socher, also has limited benefit from the article.

While personal use of the property is authorized, he/she pays a fee. Again, limited benefit corresponds to limited liability. His/her limited liabilities mirror those of the paid trustee. He/she accepts the responsibility of protecting the property from theft and loss and is liable to pay in the event of such an occurrence. However he/she is absolved from paying for damages or losses due to unforeseen incontrollable accidents [Choshen Mishpat 307:1].

 

The borrower enjoys complete benefit from the article

The borrower enjoys complete benefit as he/she may use the article free of charge. Complete benefit corresponds to a heightened degree of liability. The borrower accepts the responsibility to return the article or compensate for its loss, come what may, even if the damage or loss was incontrollable, spare one that results from normal usage of the article [Choshen Mishpat 340:1; Sha"ch - Choshen Mishpat 340:3].

Application

To hold Adam liable for compensating Forest Florist for the incontrollable accident that occurred, one would have to establish that Adam mirrored a borrower as he was receiving complete benefit from the ability to sell the flowers, without Forest Flowers receiving benefit from his work. An example would be, if Forest Flowers could have easily sold all of those bouquets from their store without Adam’s work and were simply allowing Adam to profit from the ability to sell them on the street corner.

Otherwise, if Forest Florist needed or benefitted from Adam’s service to improve or raise their sales and/or income, Adam alone was not benefiting from his handling of the flowers. As both Adam and Forest Florist benefitted from Adam’s handling the flowers, Adam would be viewed as a paid trustee, who enjoys a limited benefit, and is thus absolved from compensating for incontrollable accidents [Choshen Mishpat 186: 2].

 

In-Law or Out Law     Issue #: 183

In-Law or Out Law Rafael’s complex was gnawing at his conscience. With the Jewish New Year rap ...

In-Law or Out Law

Rafael’s complex was gnawing at his conscience. With the Jewish New Year rapidly approaching, he wanted to make meaningful and lasting amends.

Rafael racked his brains to think of a gift that would finally convince his mother-in-law that he respected her.

Knowing that there was a small possibility that his mother-in-law might be touched by the gesture but not particularly care for his choice, Rafael struck a deal with Finesse Furs.

“If she accepts the Mink, I’ll happily pay the full thousand dollars in ten installments. If she says, ‘Oh my dazzling darling, I’m so touched. You’re such a wonderful son-in-law but I prefer that you don’t spend your money like that (lest you come begging from me when you’re stuck…)’ then I’ll return the Mink to you and pay you $100 for your ‘service’.”  

Rafael’s mother-in-law was overcome with emotion but declined the offer. While returning the Mink, Rafael was accosted in the Mall Parking lot and forced to hand the coat to an armed outlaw.

 

 How much is Rafael required to pay Finesse?

What's the Law?

 

The Answer

Rafael is absolved from paying for the Mink.

Detailed Explanation

In-law or Outlaw invokes the following Halachos.

T.L.C. Trustee Liability Chart

 

 

Negligence

Theft/Loss not due to negligence

Unforeseen &

incontrollable accidents

Damage in course of normal use

1. no benefit

Unpaid trustee

Liable

Absolved

Absolved

Liable

(may not use it)

2a. partial benefit

Paid trustee

Liable

Liable

Absolved

Liable

(may not use it)

2b. partial benefit

Renter

Liable

Liable

Absolved

Absolved

3. absolute benefit

Borrower

Liable

Liable

Liable

Absolved

 

 

The Paid trustee, or shomer sachar, has limited benefit from the service provided.

While he/she benefits from the payment for his/her supervision of the property, he/she nonetheless is not authorized to make personal use of it. With limited benefit, he/she correspondingly assumes limited liability. In exchange for the payment that his/her service demands, he/she accepts the responsibility of protecting the property from theft and loss and is liable to pay in the event of such an occurrence.

 

In contrast to a borrower who has complete benefit from the article and as such is liable even for uncontrollable accidents (i.e. armed robbers), the shomer sachar is absolved from paying for damages or losses due to unforeseen incontrollable accidents [Ibid. 22:9-11].

 

The Renter or a socher, also has limited benefit from the article.

While personal use of the property is authorized, he/she pays a fee. Again, limited benefit corresponds to limited liability. His/her limited liabilities mirror those of the paid trustee. He/she accepts the responsibility of protecting the property from theft and loss and is liable to pay in the event of such an occurrence. However he/she is absolved from paying for damages or losses due to unforeseen incontrollable accidents [Choshen Mishpat 307:1].

 

Application

A took home merchandise from a craftsman to present to his in-laws and stipulated that he/she will pay for the purchase in full should the in-laws accept the gift; and if they do not, he/she will pay the craftsman a fee for using the merchandise to please the in-laws. An unforeseen incontrollable accident occurred upon returning the merchandise to the seller. Once the in-laws reject the purchase, the customer transforms into a renter, paying for the ability to use the craftsman’s article; a whereby the customer is absolved from paying for losses or damages that were beyond his control (armed robbers).

If however, the incontrollable phenomenon would take place en route to the in-laws, the customer would be liable to pay for the value of the purchase. As in his/her mind there is reasonable expectation that the in-laws will accept the gift, we deem him/her as a consumer who bought the article with a condition, who in turn, must pay for the merchandise regardless of whether it suffers any damage from an outside force after legally acquiring it [Choshen Mishpat 186: 1, Nesivos 1].

 

Finders' Fee     Issue #: 182

Finders' Fee Dr. and Mrs. Danny and Michelle Wein of Wickliffe, Ohio, were looking forward towards s ...

Finders' Fee

Dr. and Mrs. Danny and Michelle Wein of Wickliffe, Ohio, were looking forward towards spending their well-deserved retirement years surrounded by their five grown children and budding team of charming grandchildren in Lakewood, NJ. The young families were particularly close with one another and the prospect of including Grandpa and Grandma as an integral facet of their daily lives was a phenomenon the brood excitingly anticipated.

Danny and Michelle began searching for a suitable ranch house for purchase within a five minute drive of their kids.

One summer Sunday afternoon, while Michelle was munching on a well done hamburger during a block barbeque in their Wickliffe's Johnson Drive backyard, Yael Berger proposed two welcoming suggestions to Michelle, one, that they look into a prospect on Lakewood's Sterling Ct. and two, that they consider looking into Yosef Adler from Pittsburg,  PA for the granddaughter Adina.

Michelle jumped at Yael's leads and within two months Adina was engaged to Yosef, and Danny and Michelle were relocating to Sterling Ct.

 

Ø  According to Torah law does Yael receive a finder's fee for suggesting the ranch house and the guy?

What's the Law?

The Answer:

Barring local custom, Yael could not demand payment from the Wein’s.

Detailed Explanation

 

 

  1. A matchmaker, like a broker provides a service of bringing two parties together towards consummating a deal [Choshen Mishpat 185: 10 Rema].
  2. The chronicles of the vaad arba aratzos [1] recounts that the matchmaking process was customarily divided, if necessary into the following three stages: 1) bringing the two parties together and if necessary, 2) mediations/ negotiations and 3) steering the parties to consummating the engagement (or marriage – based upon the local custom [Rema ibid.]).

Thus, if matchmaker A brought the two parties together, but B mediated and steered the deal to the finish line, A receives one third of the fee and B receives two thirds of the fee [Pischei Teshuva Choshen Mishpat 185: 3].

  1. Each side is required to pay the requisite fee [ibid].
  2. Barring prior stipulations, business dealings generally follow the most prevalent local custom [Choshen Mishpat 331: 1, 2].
  3. What if the matchmaker (or broker) provided an unsolicited service?

One may generally charge a fee for providing an unsolicited service that the beneficiary would nevertheless have paid someone to do [Choshen Mishpat 375:1]. The exact configuration of the fee is subject to an independent discussion in its own right [ibid Sm”a 2].

If the beneficiary would have done the job on his/her own and never would have paid someone to do the job, the benefactor cannot demand payment for the service provided [Bava Metzia 101, Nimukei Yosef; Choshen Mishpat 375:4, Rema].

Note: At times, although the beneficiary would have preferred to personally perform the job, he or she would still be willing to pay a third party a minimal amount to avoid having to do it personally. In such a case, the unsolicited benefactor may ask the beneficiary for that minimal amount of compensation.

Thus, in societies where matchmakers still receive payment for their services, the benefitting parties would need to pay for benefitting from an unsolicited matchmaker’s services. In societies where it is not commonly accepted for matchmakers to receive a fee for their services (other than a gift expressing appreciation), unsolicited matchmakers subsequently may not demand payment for the services provided.

Application

The matchmaking as well as brokerage services are defined by at least bringing the two parties together to initiate negotiations.

Merely tipping off one of the parties and the latter subsequently pursuing the matter autonomously is an insufficient role for which payment cannot be demanded, unless of course, local custom dictates otherwise.

 

[1] The Council of Four Lands (Va'ad Arba' Aratzos) was the central body of Jewish autonomic authority for Russian, Polish and parts of Lithuanian Jewry from 1520 to 1764. Many distant communities also turned to the Council for various Halachic issues. Many of the Council’s enactments were widely accepted throughout Ashkenazic Jewry.

Florida Feud!     Issue #: 181

FLORIDA FEUDMarc Schiller from Rhode Island was a boating enthusiast and loved spending his winters ...

FLORIDA FEUD
Marc Schiller from Rhode Island was a boating enthusiast and loved spending his winters near the sundrenched Dumfounding Bay. All in all, Marc owned five adjacent condos in the Del Prado in Aventura, Florida. 

Leaving one vacant for his personal use, Marc authorized Richard Realtors to  lease the remaining four.  When Marc arrived in November 2013, he was in for an unpleasant surprise. His ex-brother-in law had leased one of his adjacent apartments through Richard. 
 
 Marc wanted to annul the lease.

WHAT'S THE LAW?

The Answer

If Richards did not inform the customer that he was working for Schiller, Schiller may not annul the transaction. Otherwise, he may annul the transaction. (See Detailed Explanation).

Detailed Explanation
 

Florida Feud invokes the following Halachos.

1. If the agent informs the customer that he/she is acting on behalf of a specified party, the customer understands that the grantor maintains the final say whether he/she wishes the deal to go through [Choshen Mishpat 185: 5]. 

2. Thus, there are times when the grantor may nullify the transaction upon discovery of a grantor’s unsatisfactory decision of critical issues; some of which may include the price or at times the nature of the customer [ibid. Chochmas Shlomo].

3. If the grantor authorized the agent to use his/her discretion in determining the selling price of the merchandise, as long as the agent’s decision was within reason, the grantor may not dissolve the transaction [Choshen Mishpat 185: 5, Rema, Sm”a].

4. People are generally particular about the nature and disposition of their neighbors. As such, if agent informs the customer that he/she is acting on behalf of a specified party, the grantor may nullify the transaction upon discovery of an unsatisfactory customer [Chochmas Shlomo].

5. However, if the grantor gave express jurisdiction to the agent to use his/her discretion in choosing the customer, the grantor is unable to void the transaction, unless the agent’s choice was undoubtedly unsatisfactory.

6. If the agent did not inform the customer that he/she was acting on behalf of another party, the customer assumes that the agent will have the final say. 
As such, the grantor may not nullify the transaction upon discovery of unsatisfactory issues [Choshen Mishpat 185: 5].

7. Note: It is questionable if the grantor may dissolve the transaction upon discovery of unsatisfactory critical
issues if the agent informed the customer that he/she was acting on behalf of a third party but did not specify the identity of the grantor.  Perhaps the customer reckons that by not disclosing the grantor’s identity, the agent took final responsibility for the sale to go through.  

Because of this uncertainty, in such a situation, we would respect the status quo of the merchandise and not compel the customer to relinquish it to the grantor. 

8. If the grantor had specifications that the agent did not meet, the transaction remains valid if the customer was not informed that the agent was acting on the grantor’s behalf. The agent would be liable to reimburse the grantor if a loss was incurred do to his/her bad judgment [Choshen Mishpat 182: 2]. 

Application

If Richards  informed the customer that Schiller was the landlord, Schiller may annul the transaction. 

Arguably, even if Schiller authorized Richards to use their own discretion in choosing the tenant, it could be obvious beyond reasonable doubt that Schiller would object to his ex-brother in law renting an apartment adjacent to his own residence.

If Richards did not inform the customer that he was working for Schiller, Schiller may not annul the transaction.  

However, there is room for discussion whether Richard would need to reimburse Schiller for his judgment. Should he have known about the relationship? What type of reimbursement is appropriate? Under such a circumstance, a competent Halachic authority should be consulted.

Adler's Audi     Issue #: 179

Adler’s Audi When Dr. Jerome and Betsy Adler relocated from Flatbush to RBS, Jerome requested ...

Adler’s Audi

When Dr. Jerome and Betsy Adler relocated from Flatbush to RBS, Jerome requested from his brother-in-law David Berger, to sell his Audi A8 L W12 for the best price he could get. Jerome initially offered David a 20% commission.

After Jerome arrived in Israel, he contacted David and told him that  he’d felt compelled to go down to 15%. David made no overt fuss about it but turned around  the next day and bought the car for himself; giving himself an attractive price and skimming 15% off as well.

 

May Jerome change the terms on David?                 May David buy the car for himself?

May he choose an attractive price for himself?

What's the Law?

The Answer

Jerome may change the terms on David. David may not buy the Audi for himself.

Detailed Explanation

Adler’s Audi invokes the following Halachos. 

1. Terminating Agency

One way to terminate an agency that a grantor initially authorized; is for the grantor to inform the appointed agent of the change before the agent executes the task [Rambam Hilchos Geirushin 6: 17].

2. Self-Sale

The Gemara prohibits an individual appointed to execute a sale of an item from selling it to himself.

Two variant reasons with respective ramifications appear in the commentaries and Poskim. 


a) With regard to an item which lacks a definitive price, there is a conflict of interest when the agent sells it to him/herself. The seller – turned buyer  is not trusted to give a fair price for the purchase [Kesubos 98a Geonim]. 


b) One cannot act as two legal counterparts within one transaction. In order to affect a transfer of ownership, the seller must transfer the merchandise from his/her legal domain to the buyer’s legal domain. As the seller’s agent, the agent assumes the seller’s legal status. The “legal seller” must transfer the sale item out of the seller’s legal domain to affect a sale. Buying it for him/herself, won’t work. This would pose a problem even to the sale/purchase of an item with a definitive price [Kesubos 98a  Rashi, Tosafos, Ran].

As such, Shulchan Aruch invalidates a purchase attempt by an agent, even of an item with a definitive price [Choshen Mishpat 185: 2].  

While Sha”ch [ibid. 3] maintains that as long as we can ensure an honest deal, the agent can act as two legal counterparts within one transaction and as such, with regard to a sale item with a definitive price, the agent can keep the sale item for himself; Aruch Hashulchan [Choshen Mishpat 185: 2] and Shulchan Aruch HaRav [Hilchos Mechira 17]  maintain like Shulchan Aruch that one cannot act as two legal counterparts within one transaction.  [Note: Shulchan Aruch HaRav also raises the conflict of interest issue with regard to an item which lacks a definitive price.]

Application:

Dr. Adler authorized David as his agent to sell the Audi at a 20% commission. Subsequently, he annulled the initial authorization and reauthorized David to sell the car  at a 15% commission, by informing David of his change of heart. 

David encounters two issues by trying to sell it to himself. Firstly, there is a conflict of interest. The Audi did not have a definitive price. Hence, we do not trust him to give himself a fair price. Secondly, there is an issue with acting as two legal counterparts within one transaction which Shulchan Aruch prohibits.

As David encounters both issues, no authority would permit him to buy the car for himself. The question of whether he may choose an attractive price for himself becomes a moot issue

Slurpee & Pittsburgh Fries     Issue #: 178

Slurpee & Pittsburgh Fries Joey was famished. Twenty-three hours were left till Passover, and hi ...

Slurpee & Pittsburgh Fries

Joey was famished. Twenty-three hours were left till Passover, and his perspiring mother-in-law had not left the Passover Kitchen for nearly three days. Tonight, three months after his wedding party, Joey was on his own.

Joey called his wife Jane’s 17 year-old brother, Sam who was out on an errand and asked him to pick up a pizza pie for him and Jane. “I’ll pay you the $14 when you get back.” “Sure thing Joey” responded Sam as he instantly remembered that he had a two-dollar coupon sitting in his glove compartment. Sam was far from an unfamiliar chap in the lone kosher pizza parlor in Pittsburgh PA.

Sam arrived at Milky Way nearly at closing time and ordered the last pie. Figuring Jane would appreciate some ice, he ordered a coca cola flavored Slurpee for her. As Sam was waiting for the pie, the proprietor turned to him and said, “Hey Sam, Passover is at the door and we ought to clear out our remaining stock tonight otherwise we’ll have to dispose of it. Please, take the remaining 2 cheese and cherry knishes, 2 potato knishes and fries with you.” Sam conceded and headed home.

Experiencing an acute hunger pain while his eyes began to droop behind the wheel, he reached for the Slurpee and a slice. “Jane will wait for another time and I’ll tell Joey that there were only seven slices left. After all, I could have bought one piece for myself and then the rest for Joey and Jane.”

 

Ø  May Sam take the Slurpee?

Ø  If yes, does he need to get her a new one?

Ø  May he take a slice?

Ø  Must Sam pass the discount received over to Joey?

Ø  How much does Joey owe Sam?

Ø  Who takes the knishes and fries?


What's the Law?

The Answer:

Sam may take the Slurpee and need not buy Jane a new one. Sam may not take a slice for himself. He must pass the discount over to Joey. (If the coupon has a market value, he can charge Joey to pay for its market value.)

Generally, bonuses are to be split evenly between the grantor and the agent. If however, it is clear that Milky Way gave it specifically to Sam, which is doubtful, Sam would be able to hold the knishes and fries for himself.

Detailed Explanation

 

Slurpee & Pittsburgh Fries invokes the following Halachos.

1. Agency

One can authorize an agent to legally represent him/her or act on his/her behalf. After effecting this Power of Attorney, the results of the legal acts the agent performs (e.g. legal transfers of ownership) are attributed to the grantor [Choshen Mishpat 182:1, 188:2].

2. Cognitive Components of Ownership Transfer

Amongst the necessary components of affecting a legal acquisition of merchandise between a seller/giver and buyer/receiver, 1) there must be a legally performed medium of acquisition called a kinyan, 2) the seller/giver must intend to part with the article and bequeath it to the recipient 3) the recipient must intend to acquire the article.

If the seller intends to bequeath it to the wrong recipient, or the receiver is unaware[1] of the transaction, the transaction is invalid.

Nevertheless, an agent may affect a valid acquisition from the seller on behalf of his/her grantor even if the seller thought that the agent purchased the article for him/herself.

Explanation

Upon receiving authorization from an agent to act on his/her behalf, the agent assumes the  legal personality of the grantor whereby the  grantor acts vicariously through the actions of the agent.

Thus,  the seller who intends to sell the article to the “agent”, inevitably intends to sell it to the grantor.

3. Corollary

However, a third party who never assumed the legal personality of the beneficiary can only facilitate the transfer of ownership between two parties if the seller is aware that the agent is acting on behalf of the receiver and the receiver consents to receive the article. If one of these factors are lacking, the purported receiver does not assume ownership of the merchandise [Choshen Mishpat 183 Sha”ch 1].

4. Agent Arranged Discount

A sent B with money to make a purchase or a payment. B was able to arrange for a discount. The saved money belongs to A. B may not keep the difference even though he enabled the discount [Choshen Mishpat 183:9].

5. Division of Bonuses

A sent B with money to make a purchase or a payment.  B arranged for a clear bonus. The earnings belong to both A and B. Both A and B split the bonus [Choshen Mishpat ibid:6].

Two valid reasons are given for this:

1)    It remains unclear whether the seller meant to award it to the one who paid for the merchandise or the one who completed the purchase [Rash"i].

2)    The bonus was earned through a mutual partnership: A's money and B's physical role [Ri"f].

Potential variance between these two reasons:

According to the first reason, B may keep the entire bonus if the seller specifically added the bonus because of B.

However, if we say that the bonus was earned through a partnership, B may never fully piggyback off of A's money.

6. Changing the Status Quo

“The onus of proof lies upon the party interested in altering the fund’s status quo” [Bava Kama 46]

The litigant who is in possession of the beleaguered funds cannot be compelled to relinquish them to his counterpart as long as there is a legitimate Halachic view supporting his claim. (His/her counterpart must “prove” that the Halacha supports his/her claim) See Choshen Mishpat Klalei Tefisa  §25: 20 for guidelines as to what is considered a legitimate view.]

Application

Joey authorized Sam to purchase a pie for himself and Jane. Once Sam executes the assignment, Joey automatically assumes ownership of the purchase. Sam would be stealing if he would take one of Joey’s slices.

Jane did not authorize Sam to purchase a Slurpee for her. Sam did so in his own volition. Thus, Sam is not guilty of theft if he suddenly needed the Slurpee for himself and he need not compensate her with another one either.

If Sam told the proprietor that he was purchasing the Slurpee for Jane, Sam would be unable to take it for himself subsequently. Sha"ch rules that once the proprietor knows that he is purchasing it on Jane's behalf, Jane would assume ownership of the Slurpee immediately.

Sam arranged for a $2 discount for Joey. The pie only cost Joey $12. Sam cannot pocket Joey’s remaining $2 for himself. If the coupon had a market value, perhaps Sam can charge Joey to compensate him for its value.

Milky Way was interested in giving away the food instead of disposing it. Arguably, they gave it to Sam because he was the last customer there before closing time, not because of the special relationship they had with him.

Milky Way awarded them with a bonus. A bonus is divided between the agent and the owner of the funds. Be it because it is questionable to whom they meant to award it or because of the partnership between the agent’s effort and the grantor’s money, in our case the bonus should be divided.

Were it clear that Milky Way intended to give it to Sam because of their special relationship with each other, Joey and Jane would have a hard time compelling Sam to share the bonus with them.

Why? According to Rashi’s school of thought, Sam could keep it if he knows clearly that the seller intended to award it specifically to him. According to Rif, even if the seller intended to give it specifically to Sam, Joey and Jane would receive their share in the pie because the bonus was partly generated on account of their money.

As both schools of thought are legitimate Halachic opinions, we would apply the dictum of hamotzi mechaveiro alav hara’ya and allow Sam to hold on to the knishes and fries for himself.


 

[1] Exceptions to this rule exist. A person’s property can act as an agent or legal arm to acquire ownerless objects that fall inside of which the owner will inevitably find there sooner or later.

A Battered Borrowed Buggy     Issue #: 170

 A BATTERED BORROWED BUGGY On April 4th 2013, David Stern borrowed Jerry Weiner's blizzard pear ...

 A BATTERED BORROWED BUGGY

On April 4th 2013, David Stern borrowed Jerry Weiner's blizzard pearl Prius Five for the weekend. David parked the Prius on the corner of Lotus St. and Tulip St. in Cedarhurst, NY. At 3:00 AM Friday morning, a grey Honda Civic swiped the side of the Prius, dented the doors and sped away. 
 
Later at 10:00 AM David was driving up Central Avenue. 
As he neared the intersection of Maple and Central Avenues, he spotted a ten-year-old red head running across the street after a basketball. 

David made a short stop, but the blue 2012 Ford F250 pickup truck behind him failed to break in time, severely damaged the back of the Prius and fled fast from the scene.
 
According to Torah Law, for which if any of the damages to the Prius is David liable? 

What's the Law?

The Answer:

Barring insurance policies, David is liable to compensate Jerry Weiner for the doors dented by the Civic but is absolved from paying for the back of the car damaged by the pickup truck (see detailed explanation). If he had paid already, it would be difficult to demand Weiner to return the money.

 

Detailed Explanation

The Torah qualifies four types of trustees, each with a varied degree of liability: See below for chart.
 
The Borrower receives absolute benefit from the property. The borrower receives the right to use of the article [Sha"ch - Choshen Mishpat 340:3] for free. As such, the lender expects the borrower to return the article regardless of what transpires. 

Hence, in addition to liability for damages and loss due to 1) negligence 2) theft or loss which could have been prevented, 3)the borrower assumes liability of covering general accidental damages beyond his/her control [Shemos 22:13].

Nevertheless, even a borrower is exempt from paying for damage that occurs during and/or as a result of ordinary use, or meisa machmas melacha [Choshen Mishpat 340:3 & Rema].  
 
There are three possible ways to quantify damages incurred in the course of normal usage. 

Quantification The article malfunctioned during normal  usage . 

Rationale The lender was negligent by giving a faulty article. 

Source Ramban 
 

*

Quantification The damage or loss must be at least remotely related to the intended job for which the article was borrowed.

Rationale The article was lent to use; not to keep stored. One must ascertain that the damage was not merely an accident which could have occurred even without using the article. (Conservative approach).
Source Rama”h

*

Quantification Any damage incurred during the normal usage of the article .
Rationale The article was lent to use; not to keep stored (Liberal approach).
Source Shulchan Aruch


Application:

As a borrower, David is liable to return the value of the Prius he borrowed even if the car suffered damage as a result of an unforeseen circumstance. 

The Honda Civic’s sideswipe would be a classic example. 

Nonetheless, David is absolved from paying for damages incurred to the car during the course of its normal usage.  While being hit from the back is not damage due to a malfunction, it was nevertheless a phenomenon which occurred during its normal usage and was at least remotely related to the fact that David was using the car for its intended purpose. 

As such, both Rema and Shulchan Aruch would absolve David from paying for the damage resulting from the pickup truck.

As the Ramban would not view such a circumstance as meisa machmas melacha, we could not compel Weiner to return money that was inadvertently paid by David for the damage caused by the pickup truck. [Rav Zvi Spitz Shlita]

T.L.C. Trustee Liability Chart

 

 

Negligence

Theft/Loss not due to negligence

Unforeseen/incontrollable accidents

Damage in course of normal use

1.

Unpaid trustee (Shomer Chinam)

Liable

Absolved

Absolved

Liable (may not use it)

2a.

Paid trustee

(Shomer Sachar)

Liable

Liable

Absolved

Liable (may not use it)

2b.

Renter

(Socher)

Liable

Liable

Absolved

Absolved

3.

Borrower

(Sho’el)

Liable

Liable

Liable

Absolved

 

 

Voided Vacation & Shul Seats     Issue #: 242

The El-Al Strike & Voided Vacation   Anticipation! Mr. and Mrs. Greenberg from Cleveland ...
The El-Al Strike & Voided Vacation
 
Anticipation! Mr. and Mrs. Greenberg from Cleveland Heights were looking forward towards spending their 2016 extended Thanksgiving vacation in Yerushalayim near their children and grandchildren. As in the past, they spent many months planning their annual coveted trip.
Their exciting itinerary was always planned to a T.
Sima's Sprawling Suites in Sanhedria Murchevet would be their anticipated lodging destination and though the suites were presently occupied, they even wired the money two weeks before they departed this time.
The Greenbergs were flying El-Al.
As a result of the El-Al strike and then some subsequent personal setbacks, the Greenbergs canceled their November trip and began to reschedule a trip for later on in the winter. El-Al refunded their tickets... But they paid for the Suites!
Sima's found another vacationer to take 13 out of Greenberg's 14 day term and under the circumstances, Sima's was willing to refund the Greenbergs for the other day.
 
But, technically; according to the letter of the law, can Greenberg compel a refund?
 
What's the Halacha?

The Answer
The Greenbergs cannot demand a refund. 
 
Detailed Explanation
Voided Vacation & Shul Seats invokes the following Halachos:

Means of Realty Acquisition
An acquirer may assume legal ownership of real estate from a seller/grantor via a variety of kinyanim which include 1) kesef/ money 2) shtar/ contract 3) chazaka/display of ownership 4) chalipin/  ceremonial article transfer {5) or any other developed prevalent means}.

Each of these means of kinyanim have their individual guidelines and regulations.

In many places, the custom is to require a combination of kesef/money and shtar/contract [Kiddushin 26a, Choshen Mishpat 190: 7].

This is indeed a contemporary prevalent custom with regard to long term real estate rentals. As such, advancing money alone is insufficient to concretize the deal.

So long as the contract has not been signed as well as the money advanced, technically the deal has not been sealed.

In contemporary business relations, it is common for short term vacation rentals not to demand contracts. In such a set-up, advancement of payment is sufficient to concretize the deal.

For our purposes, we will assume that Sima's did not require a contract.

However, there are three issues that we need to address.
  • What if the money was advanced before the date that the rental was supposed to begin? Do we view the money then as kesef kinyan?
  • Does the kesef kinyan need to be in existence at the time of the beginning of the rental term?
  • Is there a way to acquire the anticipated rental term while the tenancy presently belongs to a third party?
 
Definition: Kinyan Kesef: A New Financial Benefit
Rema rules that Kesef Kinyan must be a financial benefit initially given in exchange for a purchase.

Outstanding Loan Annulment
Thus if,
A wishes to purchase or lease real estate from B through kinyan kesef; but instead of A giving B money, A chooses to absolve B from repaying an outstanding loan and says, "Keep the money I previously lent you as payment for  the land of yours that I wish to buy," A does not[1]acquire the realty[2] through such means. Instead, A would need to perform an alternative means of kinyan.

[Sephardim should refer to a Sephardic halachic adjudicator as to the halachic veracity of a purchase attempted through absolving an outstanding loan.]

Why?

Legally; structurally and functionally, money acquired through a loan, belongs to the borrower. In Talmudic vernacular we call this phenomenon /milveh lehotza'ah nitnah, a loan is given to spend the money.

The borrower simply has a responsibility to pay the lender the value of the loan later.

(This is in contrast to a sha'aloh where the borrower assumes temporary ownership of the article's function but not its structure. The structure instead, remains the property of the lender.

For example, when A lends B his shovel; the shovel's structure always remains A's property.)

Thus, if B initially received the money as a loan, he/she previously benefited from the loan-money independently from the sale. There is no new sale money, neither physically or conceptually.

For kinyan kesef to acquire realty there must be new financial benefit through which A could acquire the realty in exchange.

Advocacy Fee Annulment
If people would pay money for successful advocacy for a loan annulment, then the sale can be effective if A tells B to sell the realty to A in lieu of the financial benefit A presently bequeaths to B by annulling the loan for free. "Sell me the land for the financial benefit of annulling the loan for free, that I am giving you in   exchange for the land."   
[Choshen Mishpat 195: 10, 204: 10].
 
Need the Money Exist?
Conceptually; but not physically.

The Poskim rule that if money was indeed pre-paid for the purpose of kesef kinyan, the money need not physically exist anymore at the time the land was to transfer ownership
[Choshen Mishpat 191 Sm"a 9, Taz, Nesivos 204: 8, 199: 3].

Why?
Since if for whatever reason, the sale ultimately fails to materialize, the seller is required to give the money back to the buyer, we view it as though the purchase money is still in "existence" at the time the land actually transferred ownership.

Thus, once the sale materializes and as such, the seller no longer has to return the money to the buyer; it is as though the buyer is fully relinquishing the money at the time of the sale
[Ketzos Hachoshen].  

Backing Out 1
In regions where it is customary that realty is acquired through money in tandem with a contract; even though the deal is technically not sealed until after the money is given and contract is received, once purchase money was transferred, even if the acquisition of the sales product has yet to occur, it is forbidden to indiscriminately back out of the deal.

Beis Din curses one who does indiscriminately does so. [Choshen Mishpat 204: 1, Pischei Teshuva 2].

Nevertheless, if the buyer decides to rescind due to an accidental occurrence or an inability to receive the full sale item, the buyer receives no curse. Instead, the seller is required to return the money [Choshen Mishpat 204: 2].

Backing Out 2
Does pre-payment secure the deal?

In regions where kinyan kesef alone suffices, can the buyer technically back out after he/she prepaid, but before the date the realty was scheduled to transfer ownership?

This Question expresses itself in three different situations.

  • Can a realty purchaser back out between the prepayment date and the scheduled date of ownership transference?
  • Can a realty renter back out between the prepayment date and the scheduled date of tenancy transference?
  • During the existing tenancy of tenant 1, can renter 2 secure an anticipated tenancy transference for a date following tenant 1's terminated lease?
The discussion herein will explore if and how one can acquire the functionality of the anticipated term before it materializes and if and when a present tenancy interferes with the attempt to acquire the anticipated functionality.
 
Scenario:
A maintains a lease of B's apartment # 42 from Rosh Chodesh Elul 5776 - Rosh Chodesh Elul (30 Av) 5777. During the interim, the apartment's functionality belongs to A.

30 days before the termination of A's lease, on Rosh Chodesh Av 5777, C arranges with B to rent apartment # 42; beginning Rosh Chodesh Elul (1 Elul) 5777.
 
Question
Is there a way for C to "seal the deal" while apartment # 42 is leased to A or is the apartment simply "under contract" between B and C until Elul 1; meaning that the sale is not final until A's term terminates?

Ramification
Ramifications being; if the apartment is simply under contract between B and C; then technically if A were to decide to renew his lease before the termination of his term, he would not be stealing from B.

If however, C succeeded in finalizing the deal on Rosh Chodesh Av, then henceforth, A can no longer renew the lease.

The Issues
Before we explore which means of acquisition might work, let us explain how it might be plausible to purchase the property's future functionality which has yet to materialize.

Generally, one cannot acquire a davar she'lo ba le'olam or something which does not yet exist [Choshen Mishpat 209: 4]. How then, can we contemplate acquiring the future functionality of the premises which does not yet exist?

How
Realty, like other property, can have numerous dimensions of ownership, which include but are not limited to 1) the structure 2) the present functionality [ability to use now] and 3) the anticipated functionality [ability to use later].

On face value, one might assume that anticipated functionality should be deemed a davar shelo ba le'olam.

However, the Poskim maintain that there is a way to sell/acquire the anticipated functionality.

Remarkably, there is a present dimension of ownership which provides for the anticipated future functionality.

This concept has much to do with the theory of time, whereby the fact that the anticipated, all but inevitable time did not arrive yet, is simply an external factor from the ownership of the realty's various qualities.

To effectively "seal the deal" for a future functionality ownership via prepaying at an earlier date, the potential buyer/renter purchases the present dimension of ownership which provides for the anticipated future functionality. Thus, when time arrives, the buyer/renter can actualize the previously purchased functionality.

Which Way?
Real Estate ownership and tenancy can be transferred by means of 1) money, 2) contract, or 3) chazaka, which is a display of ownership. 

As noted, in many places it is customary to require money and a contract together, especially when the purchaser is worried about the risk of securing a real estate purchase without a proof of ownership, for example when dealing with a seller whom the buyer has reason to suspect for dishonesty [Choshen Mishpat 190:7, 194: 1].

Chazaka
Some types of chazaka include controlling access to the premises by means such as placing locks, widening entrances, enclosing the premises etc. or by improving the property.

The objective of a chazaka is to act with the premises as the owner
[Choshen Mishpat 192].

The Shul Seat
Most Poskim rule that using the premises in its appropriate way can be deemed a chazaka as well.

Thus, were A to place a siddur on his pew in shul for davening, it would be a sufficient means of "seat acquisition".

Note, that in Europe, it was not uncommon for people to own their seats in Shul.
[Aruch Hashulchan 192: 18].

Nesivos, on the other hand differentiates between the way to secure a seat purchase and the way to secure a seat rental.

Nesivos agrees that to secure a seat rental it is sufficient to use it the way it is normally used.

Thus, placing a siddur on the pew is sufficient to enable the congregant to secure his right to pray there.

In order to purchase real estate though, it is necessary to benefit physically from the premises as well. Thus, Nesivos requires, A would need to sit in the seat to acquire it. [Choshen Mishpat 192: 9, Nesivos chiddushim 11 biurim 6]
 
[see Choshen Mishpat 194: 1, Sm"a, for details as well as when chazaka does not work].

Interfering With a Present Tenancy

Chazaka
B cannot display "tenancy ownership" during A's tenancy; by performing a chazaka even if simply attempting to presently secure a future tenancy [Pischei Teshuva Choshen Mishpat 315].

Money
Kinyan Kesef or money can be used to acquire realty and its functionality.

Buyer
B may purchase realty from C through Kinyan Kesef during A's tenancy, but must respect the terms and conditions of the lease between C and A.

C
 does not own A's tenancy to sell it to  [Choshen Mishpat 312: 1].

Renter
B wishes to lease C's property from C (its anticipated functionality) for a tenure after A's term is done.

Can B acquire the realty's anticipated functionality through Kinyan Kesef during A's tenancy; or must B wait until C's term is complete in order to perform the Kinyan Kesef for the anticipated functionality?

Three Views:
1) Most Poskim maintain that one can sell/purchase the realty's present dimension of ownership which provides for the anticipated future functionality via Kinyan Kesef during the tenancy of an alternative tenant just as one can sell/purchase the realty's structure while a tenant is presently living there.  

Such an action does not interfere with the present tenant's tenancy [Pischei Teshuva Choshen Mishpat 315: 1].
 

Accordingly, were B to acquire the anticipated functionality through Kinyan Kesef during A's tenancy, there is no backing out of the deal.

2) Beis Yaakov maintains that so long as A's tenancy did not terminate, B cannot acquire the anticipated functionality even through kinyan kesef.
 
Accordingly, were B to have pre-paid for the ability to assume the lease following the termination of A's lease, technically, the landlord and B could rescind on the agreement.

We cannot censure any party for immoral behavior for rescinding the verbal commitment if unforeseen circumstances warranted doing so, even though it is noble to uphold one's word no matter what transpires. 
 
3) Chasam Sofer maintains that if contemporary business practice is to enable B to acquire the anticipated functionality through kinyan kesef even during A's tenancy, then Halacha would respect the common business custom
[ibid.].
 
 
Application
Assuming Sima's did not require a contract; Greenberg's advancement of the money was sufficient to effect the transference of ownership of the rental's functionality for the duration of the rental term.

This is true even if the money was forwarded to Sima's prior to the beginning of the term.

In fact, Sima's could even spend the kesef kinyan before the beginning of the rental term.  

Moreover, according to most Poskim, Greenberg's payment suffices to purchase the anticipated functionality even when performed during the tenancy of another tenant.

As such, technically, Greenberg cannot back out even if an unforeseen circumstance occurred. The deal is sealed unless there is an accepted or expressed cancellation policy.

In the same vein, although it was noble and descent of Sima's to refund Greenberg the money, unless there was a cancellation policy, Greenberg cannot compel them to do so.


[1] Note: According to Rambam, a purchase can be affected by annulling a loan. A G-d fearing individual must take this into consideration when considering walking away in the middle of a deal.
[2][Exception: if the pre-existing debt originated from a delinquent account for another purchase, (see Choshen Mishpat 199: 2).]
 

Zirconium?     Issue #: 079

Zirconium? Nestled along the verdant Judean hills, amidst the rolling aromatic lily gardens, th ...

Zirconium?

Nestled along the verdant Judean hills, amidst the rolling aromatic lily gardens, the young girls budded and blossomed, collectively forming a unique landscape of character, spirit, and personality. The Welder Women's School for advanced Judaic studies offered its intercontinental student body an earnest environment of growth and opportunity; nurturing care, comradery, and communal concern. Sharing amongst each other was commonplace and the accepted mode of conduct.

No wonder then, that as Ariella discussed her cousin's upcoming wedding, Ayala was only overjoyed to offer her friend to wear her cubic zirconium bracelet to pull her attire together, for the occasion.

The festivities and celebration lasted deep in to the night as the family and guests gave it their all. Ariella's emotional high ghastly took a sharp dip when noticing her borrowed bracelet had fallen off. Concerted recovery efforts led to no success.

Tearfully embarrassed and loaded with a feeling of guilt, Ariella asked Ayala if she knew the value of the piece. Calmingly, Ayala called her Mom in England to see if she knew. Breaking the piercing silence on the other end of the line, Ayala heard a deafening whisper,

 

 "Ayala dear, it was real!...

 

What's the Law?

 

The Answer

Ariella pays no more than for the value of a cubic zirconium bracelet.

 

Detailed Explanation

 

A. A trustee assumes liability by accepting to cognitively safeguard the trust[Choshen Mishpat 291: 2,3]

  

B. As previously noted, [See Issue 71] the degree of a trustee's liability is contingent upon the scale of benefit he/she derives while safeguarding the trust. (An unpaid trustee bearing the lowest scale whiles a borrower bearing the highest scale.)


The human mind willingly accepts higher grades of accountability in return for further benefits received [Ketzos HaChoshen 291: 4].

 

Conclusion

 

The origin for a trustee's liability is greatly rooted in his or her implied willingness to accept accountability for the entrusted chattel. (The Torah categorizes the grades of liability against the respective benefits received scale.)[Ketzos HaChoshen 291: 4]

 

♦ 

 

Zirconi um? implicates the following four laws. 

  1. A agrees to safeguard B's wristwatch after B informs A it is silver. A accepts liability for the cost of a silver wristwatch. Hence, A is accountable for the value of silver at the time of negligence, even if the watch turns out to be white gold [Choshen Mishpat 291: 4, Ketzos HaChoshen 291: 4 ].
  2. A agrees to safeguard B's gold bracelet for ten years. The value of gold tripled in time. At the time of assuming liability, A ought to consider the odds of appreciation; hence is duly liable for the increased appreciation value at the time of negligence [Ketzos HaChoshen 291: 4].  
  3. A agrees to safeguard B's diamond ring. At the time of assuming liability,  A ought to consider that the price range of diamonds and its' like, vary greatly. A is accountable for its true value irrespective of what A may have figured the diamond ring cost at the time of assuming liability [Ketzos HaChoshen 291: 4] 
  4. A agrees to safeguard B's standard looking wristwatch. B does not inform nor mislead A of its value.  A discovered post facto that the wristwatch was an antique.

Consider: On one hand when A accepted to safeguard a standard looking wristwatch, A could well assume that it was highly improbable for the watch to be an antique. On the other hand, the possibility did exist.

 

Dilemma: Does one subconsciously accept upon himself/herself liability commensurate with the probable value of the trust or the plausible value of the trust?

  

Extensive material has been written on this issue and particular cases should be presented to a competent Choshen Mishpat authority.

 

Application

 

Ayala assumed that her bracelet was cubic zirconium. Ariella had no reason to assume otherwise. In the girls' minds, it was not even plausible that the bracelet was real.  Thus, Ayala did not assume liability for more than the value of a cubic zirconium bracelet.  As such,  Zirconi um? Can be compared to law 1.

 

Consequently, Ayala is not liable to pay more than the value of a cubic zirconium bracelet.

 

TSUNAMI!     Issue #: 080

TSUNAMI!  Brisbain, Australia: "Look there, shrieked Adele from her second floor office window. ...

TSUNAMI! 
Brisbain, Australia: "Look there, shrieked Adele from her second floor office window. Help! There's a wall of water, the inland tsunami is approaching fast towards the parking lot! Help! Her heart began to race and she was shaking to the core. "I reckon within six minutes the water will overtake the lot." 

Six years of hard earned savings, I'll never recoup the loss. How will I ever repay her?

How will I ever be able to face her upon her return?

If only I would have taken public transportation today...If I race downstairs now, perhaps I can salvage my mother-in-law's SUV, or perhaps not...
 
Vacationing in Rio de Janeiro, Adele's mother-in-law asked her to watch out for her truck, and permitted her to drive it to work.
Time is not at a standstill.  As a trustee, what must Adele do?

The Answer
Adele need not risk her life. As a paid trustee, she is absolved from compensating her mother-in-law.

Detailed Explanation

Tsunami! Involves two points of discussion: 
1) Is Adele required to put her life in jeopardy to attempt to save her mother-in-law’s SUV? 
2) If the raging waters indeed overtook the SUV, is Adele liable to remunerate her mother-in-law?
To resolve these questions we must ,

1. categorize Adele’s level of assumed liability    

2. define the moral and financial responsibilities of such a trustee.

Background
1. A trustee is liable for the loss or damage of chattel (movable objects) or livestock  an owner entrusts under his or her jurisdiction. 
By accepting upon him/herself the responsibility to safeguard another’s belongings, the trustee is prohibited from dealing negligently with the article and is consequently liable for losses due to such carelessness. 
Beyond  negligence, any further degrees of liability, the likes of theft, loss, and damages due to unforeseen accidental circumstances reflect  various degrees of  benefit the trustee receives from his/her supervision[Exodus 22:6-14]. 

As noted, in Issue 79, the human mind willingly accepts higher grades of accountability in return for additional benefits received [Ketzos HaChoshen 291: 4]
A.      A gratuitous bailee, or an unpaid trustee, receives no benefit for providing his or her services.  Hence is liable for no more than damages or loss due to trustee's negligence [Choshen Mishpat 291: 1].
B.     A bailee for hire, or a paid trustee receives payment or side benefits for safeguarding the article: hence is additionally liable for theft or loss [Choshen Mishpat 303: 2].
C.       A renter pays for usage rights: hence is liable for theft or loss [Choshen Mishpat 307: 1]
D.   A borrower may use the article at no cost: hence assumes the highest degree of accountability and is liable even for accidental occurrences [Choshen Mishpat 340:1].

T.L.C. Trustee Liability Chart 

T.L.C. Trustee Liability Chart

 

 

Negligence

Theft/Loss not due to negligence

Unforeseen/incontrollable accidents

Damage in course of normal use

1.

Unpaid trustee (Shomer Chinam)

Liable

Absolved

Absolved

Liable (may not use it)

2a.

Paid trustee

(Shomer Sachar)

Liable

Liable

Absolved

Liable (may not use it)

2b.

Renter

(Socher)

Liable

Liable

Absolved

Absolved

3.

Borrower

(Sho’el)

Liable

Liable

Liable

Absolved

 


 
 

2. While a paid trustee must extend effort and even lay out money on behalf of the owner in order to prevent an impending danger, the trustee is not required to risk his/her life in doing so [Pischei Choshen 3:25:61]

Application
The inland Tsunami is an example of an unforeseen or incontrollable accident for which an unpaid trustee, paid trustee, or renter is absolved from paying; while a borrower is still liable to compensate the lender.

Adele is absolved from recompensing her mother-in-law if she functioned as an unpaid trustee, paid trustee, or a renter. She is liable to recompense her mother-in-law (provided insurance does not cover the loss) if she is functions as a borrower.
Adele’s mother-in-law initially requested her to take care of her truck. In return for her services, she allowed Adele to drive her SUV to work.  

Adele assumes an interesting position as a paid trustee entitled to use the entrusted article. As she received this entitlement in return for the services she provided she does not assume the high-liability-level of a borrower. Consequently, she would be absolved from compensating her mother-in-law for the lost SUV [Dayan Chaim Kohn].

Additionally, Adele would not be required to risk her life in order to try to save the SUV. 

Snow Down!     Issue #: 078

Snow Down! "Alan Berger and Ronny Stern were long time good-natured neighbors. In fact, thirty ...

Snow Down! 
"Alan Berger and Ronny Stern were long time good-natured neighbors. In fact, thirty years dwelling side by side affected a real family feeling between the two.
 
Alan owned a construction company, while Ronny managed two local nursing homes.
 
As the snow began to fall ferociously on the otherwise verdant New Jersey Township, Berger emailed Alan and offered the use of his trucks to clear the nursing home driveways before dawn, should he need to do so. "Come over before I hit the sack and pick up the keys," wrote Stern.
 
Scarves across their noses trying the brace the biting cold Alan and his two boys each took a truck at three o'clock in the morning and began to slowly dig their
ways out of Stern's driveway.
 
Alan pulled out of the driveway, parked his truck and ran inside to make for him and the boys a hot cappuccino for the way. Ten minutes later, Alan jumped into the truck again, tried to start the motor...but to no avail. Ironically, Alan began to sweat in the dead of the freezing night...Something went terribly wrong and the motor would not start. Snow down!
 
Time was ticking, access to the nursing home had to be availed for emergency vehicles - swiftly...and Stern was fast asleep.
 
Berger hired a local twenty-four hour mechanic to walk over and try to get the truck up and running.
 

Who pays the bill Alan or Ronny?                                                                    

 

WHAT’S THE LAW?
 

The Answer:
As long as the cause of damage remains in question, Alan initially cannot hold Ronny liable. Though if Ronny already paid the bill, he cannot compel Alan to reimburse him. 

However, if the mutually trusted mechanic ascertains the cause of the breakdown, Ronny is liable in case of an unforeseen accident yet absolved if damage occurred as a result of driving the truck in the snow.

 

Detailed Explanation

1. Of all trustees, a borrower holds the severest degree of liability. As a borrower, he/she derives absolute benefit from the entrusted property.  The borrower attains sole usage of the article [Sha"ch - Choshen Mishpat 340:3] without having to pay a fee. 
 
Hence, the borrower assumes complete liability, including damage due to  a)negligence b) theft/loss c) general unforeseen accidental damages beyond his or her control with the exception of paying for damage that occurs simply as a result of using the article in its intended use.  [Exodus 22:13].

By means of introduction, it is worthy to familiarize ourselves with the following two significant concepts.

2. The burden of proof rests upon he/she  wishing to alter the current status quo [Bava Kama 46a].  Though, as explained below, numerous considerations affect the classification of the current status quo.
 
For instance, consider the following two similar, yet starkly varying scenarios.

A. “Defendant (A), do you remember that I lent you three-hundred dollars a month ago, while sitting in Pierre Pizza Parlor on Pratt Boulevard? Could you please pay me back?”  “Quite frankly, Plaintiff (A) I do not remember if I you lent me anything.”  
 
B. “Defendant (B), do you remember that I lent you three hundred dollars a month ago, while sitting in Pierre Pizza Parlor on Pratt Boulevard? Could you please pay me back?”  “Quite frankly, Plaintiff (B) I do  remember that you indeed lent me the funds, but I do not remember if I paid you already.” 
 
A. Status quo: Defendant (A) is debt free. To compel defendant (A) to pay, the burden of proof rests with Plaintiff (A)
 
B. Status quo: Plaintiff (B) is due payment. To absolve himself from repaying the undisputed loan, the burden of proof rests with Defendant (B) otherwise, defendant (b) must pay [Sh"ach Choshen Mishpat 291: 44].
 
3. As noted above, a borrower is liable for unforeseen accidents but absolved from recompensing damages simply resulting from normal course of use.


Q. When the cause of damage is in question,[like in Snow Down!] upon whom does the onus of proof fall?

Alternatively, to whom does the status quo favor; the lender or the borrower? Simply put, is a borrower innocent until proven guilty or guilty until proven innocent? 

A. When does the borrower’s liability begin, upon borrowing the article or upon its loss? 

Assuming liability sets in from the onset of the bailment, the borrower is liable to return/pay for the object until he/she proves otherwise: guilty until proven innocent, or the status-quo favors the lender. Assuming liability sets in at the moment of loss, the borrower is only liable to pay for damages if the lender can prove that the damage was not a result of its normal course of use; the borrower is innocent until proven guilty; the status quo favors the borrower.
 
Persuasive and compelling support exists to substantiate both viewpoints.  As such, when the cause of damage is questionable [unforeseen accident/damage as a result of normal usage] , the lender would be unable to compel the borrower to pay without proving that normal course of usage did not cause the damage . Conversely, if the borrower already paid, he/she would be unable to demand the money back without proving that normal course of usage caused the damage [Sh"ach Choshen Mishpat 291: 44].
 
4. The competent opinion of a mutually trusted professional is valid proof to ascertain the cause of the damage.
 
Application:

Ronny borrowed Alan’s truck to use in the snow. Ronny is absolved from damages resulting from using the truck in the intended manner for which he borrowed it. Ronny is liable for any other damages even due to unforeseen circumstances. As a borrower, he is required to return the truck to Alan/ compensate him for damages during the course of the bailment.

If the mutually trusted mechanic ascertains that the truck broke down due to the use in the snow, Ronny is not liable. Otherwise, he is liable to pay for the repair. If however, the cause of the breakdown cannot be pinpointed, Alan cannot obligate Ronny to foot the bill. Yet, if Ronny already paid the bill, Ronny cannot compel Alan to reimburse him.

Pillaged!     Issue #: 073

Pillaged! The resolution of the Tagsatzung (Swiss Parliament of the twenty-six autonomous cantons) i ...

Pillaged!

The resolution of the Tagsatzung (Swiss Parliament of the twenty-six autonomous cantons) in 1678, allowed Swiss Jews to settle in the communities of the Surb valley. However, 98 years later, in 1776, Jews were further restricted to living strictly in Endingen and Lengnau.

Jewish residents were limited to enter but few professions, such as trade; and apartment houses were built with two separate entrances, one for Jews and one for Christians.

Whilst definitive legal and social demarcations segregated the members of the two faiths, community life was relatively safe and comfortable in the predominantly Jewish villages,

The winter of 1801 began an emotional period in the life of Hugo Bloch, president of the Endingen Israelitsche Gemeinde.  Moritz Loeb, a refined, and well sought after young man, offered Hugo's daughter Hanna his devoted hand in matrimony.

Securing his valued commitment, Hugo assured Moritz a handsome dowry of 25,000 Franc to be delivered sixth months later on the date of the nuptials. They agreed that Hugo would pay Edwin Kahn, a mutual friend to hold the funds in escrow until the anticipated wedding day.

In the interim, stormy clouds began to thicken overhead. With western winds shaking the ancient columns, the old guard struggled to stand their ground. Emancipation would be hard to come by. Enraged at Napoleon's attempt to bring equality to the snowcapped Alps, angry mobs responded with vengeance. They took up arms and fell upon the Jewish communities of Edingen and Lengnau. Within a few frightening days, they pillaged the Jewish homes of their riches and valuables.

Only the limited treasures hidden in underground vaults escaped the marauders hands. Edwin was one such lucky fellow.  His valuables and family heirlooms remained unscathed, yet Moritz's dowry met the same fate as Edwin's personal spending money. Lying alongside one another in a locked metal box beneath his bed, they were unprotected from the hands of the angry mob.

Moritz demanded that Hugo to return to the drawing table. Hugo claimed Moritz should take it up with Edwin. Edwin denied liability.

 

What's the Law?

 

The Answer

Edwin is fully liable.  If Hugo fails to collect the funds from Edwin, Hugo is responsible to reimburse Moritz with a new 25,000 franc.  

 

Detailed Explanation


Pillaged! implicates the following three laws.

  1. A bailee may not be negligent in his/her duties and is consequently liable for damage, theft, or loss due to his/her negligence regardless of whether he or she receives payment for his or her services.

Failure to ensure that the trust is not easily accessible to thieves is deemed negligence; the particular guidelines for which depend upon the security risks and due expectations of the time and place [Choshen Mishpat 291: 18].

 (A bailee must even thwart off thieves [Choshen Mishpat 291:8], though is not required to risk his/her life while doing so [Choshen Mishpat 303: 3])

Example:  Homes in Babylonia were generally not secured from thieves. Under such conditions, Shmuel the Talmudic giant ruled that the only responsible mode of guardianship for valuables would be underground.  When conditions worsened and thieves began to tap the ground for hollow spaces, the rabbis required increased levels of security [Bava Metzia 42a, Choshen Mishpat 291: 15]. 

Conversely, in more secure environments, as long as the trust is not easily accessible to thieves, one need not bury the valuables in the ground [Choshen Mishpat 291: 18] .

  1. A bailee would be required to duly upgrade his or her level of supervision commensurate with heightening security risks or else may notify the depositor in front of witnesses that he/she does not wish to continue safeguarding the article under the new conditions [Pischei Teshuva Choshen Mishpat 291: 6]. 

Example:  Repairing B's lawnmower, A locked it in his shed with a standard Medeco™ lock. In the interim, the neighborhood sheds with simple locks suffered from a rash of break ins. A is required to move B's lawnmower into his alarmed garage.

  1. A bridegroom is entitled to his dowry only following the nuptials [Pischei Teshuva Choshen Mishpat 70: 3].

Application

Moritz only receives ownership or the right thereof upon marrying Hanna. Thus, throughout the engagement, the money belongs to Hugo.  Consequently, Hugo appointed Edwin a trustee over the funds.

Though Edwin took extra precautions beyond the norm, over his personal valuables even under peaceful conditions, we may assume that hiding the money in his locked safe beneath his bed was a sufficient mode of protection against thieves.

However, as a trustee, Edwin should have been alert to the changing security risks. As the facts proved, when mobs of marauders ransack homes, a higher level of supervision is required. 

Thus, he was required to  move the dowry into his underground vault or else notify Hugo in front of witnesses that  he no longer wishes to safeguard the money under the new conditions.

Edwin's failure to relocate the money to the underground vault was a negligence on his part. Consequently, he was liable to reimburse Hugo the 25,000 franc.

Hugo remains responsible towards Moritz should Moritz go through with the marriage. Thus, irrespective of whether Hugo succeeds in collecting the reimbursement from Edwin, Hugo is required to deliver (a new) 25,000 franc upon the marriage date to Moritz upon his marriage to Hanna.

Take Off! Pre - Tarmac     Issue #: 071

Take Off! Pre - Tarmac Mark Green O.T.D., a Philadelphian native specialized in geriatric Occupation ...
Take Off! Pre - Tarmac
Mark Green O.T.D., a Philadelphian native specialized in geriatric Occupational Therapy. His keen understanding of his clientele, cheerful optimism, honesty, warmth and professional approach earned him repute across the country.  Renowned for his innovative communication and memory skills - training methods to decelerate the progression of dementia, Green was invited to lecture at the Orlando Conference of Professional Care Management Providers.
 
Mark settled down at Gate B-16 in Philadelphia International 45 min before boarding time and flipped out his ASUS™ laptop to review his PowerPoint presentation. Green though, struggled to keep his eyes open.
 
Directly across the three yard aisle, sat the graying Dr. Stern preparing his own dissertation on CBT (cognitive behavioral therapy) for PTSD (posttraumatic stress disorder) patients. "I'm hopping over to Starbucks and will be back shortly. I will bring you back a Cappuccino. " Green said to Stern. "Please do keep an eye on my belongings." The two exchanged friendly smiles and Green was off.
 
Green returned to the gate fifteen minutes later, eyed Stern standing on line,  waiting to  board the US-AIR flight, both carry-ons at his side...but Mark's ASUS™ was gone.
 
Stern had been staring down at his iphone replying to an email looked up and the ASUS™ had taken off.
 
What's the Law?
 
 
 
The Answer
Dr. Stern is absolved from paying for Green's ASUS. 
 
Detailed Explanation
 
Background
A trustee, legally known as  a bailee, is liable for the loss or damage of chattel or livestock a bailor entrusts under his or her jurisdiction. The bailor/bailee relationship is called a bailment [Exodus 22:6-14]. 
(The degree of liability is contingent on the degree of  benefit the bailee receives from his/her supervision. 
A.      A gratuitous bailee receives no benefit for the service he/she provides to the bailor: hence is liable for no more than damages or loss due to bailee's negligence
B.      A baillee for hire receives payment: hence is liable for theft or loss
C.       a renter pays for usage rights: hence is liable for theft or loss
D.      A borrower receives usage rights at no cost: hence is liable even for accidental occurrences) [Ibid. See Issue # 24 for Bailee Liability Chart]. 
   
☞ Take Off: Pre-Tarmac implicates the following law.
Generally, a gratuitous bailee and a bailee for hire assume responsibility and consequential liability upon meeting  three sequential requirements [Choshen Mishpat 291: 2,3]

1.  The bailor requests the bailee to cognitively supervise the deposit,
1.1     "Can you please watch my article?" is an example of a request for cognitive supervision.
1.2     "Can you please keep an eye out for my belongings?" is an example of request for a mere associative level of supervision.

2.   The bailee consents to cognitively supervise the deposit
2.1 Conversely, a request/consent for mere associative supervision lacks the basic ingredient for affecting a bailment. 
2.2 Note: Circumstances often indicate whether a cognitive or an associative supervision was expected/accepted irrespective of the language employed. 
   
3.     The deposit legally transfers into the bailee's jurisdiction
[Means of legal transfer include
3.1     Bailee lifting the deposit
3.2     moving the deposit into the bailee's property or
3.3     in a semi-populated area; positioning the deposit  within the bailee's exclusive four cubit radius.] 
 
Application 
Stern was preoccupied with his personal business. Green simply told him to keep an eye out for his belongings. At best, Green requested an associative supervision from Stern. 
Similarly, Stern exchanged a friendly smile. A friendly smile does not indicate consenting to cognitively supervise Green's belongings. 
 
Green's ASUS remained three yards away from Stern.  While the waiting area may be considered a semi-populated area, three yards is not within Stern's exclusive four cubit radius. Thus, Green's ASUS never transferred in to his jurisdiction.
 
Although, Mark Green offered Stern to pay him with a Cappuccino for his services, he failed to meet most of the basic requirements to affect a "bailment". Consequently, Stern never assumed responsibility to cognitively supervise Green's belongings and remains absolved from the mishap due to his negligent lack of supervision.

May You Ever Lie?     Issue #: Special Edition 01

May You Ever Lie? VaHashem Elokim Emes. Hashem is reality[1], the Emes[2]. All existence is from Him ...

May You Ever Lie?

VaHashem Elokim Emes. Hashem is reality[1], the Emes[2]. All existence is from Him alone[3]. Lo yiyehe lecha elohim acheim al panai[4]. There is no other source to success, but Hashem. Thus, while falsehood might seemingly offer instantaneous success, it is nothing but a mirage and a fleeting temptation.

Hashem created us so that we could merit enjoying His Shechina[5]. One merits bracha from Hashem by aligning one’s Middos with the Middos of the Omnipotent, whereby becoming compatible with His Blessings[6]. Thus, one who acts truthfully will merit bracha in his or her life.

In fact, the Sefer Chassidim[7] promises that one who chooses[8] to live within the realm of reality and takes care to speak and think only the truth will likewise merit that Hashem will ensure that his or her words and thoughts will indeed reflect reality. In other words, Hashem will actualize the brachos and thoughts of a truthful individual.

In contrast; liars and cheats are abhorred by the G-d of Truth[9]. They are simply unworthy and incapable of beholding the Shechina’s countenance[10]. Thus, while initially, a liar may enjoy a luring gain, which is in fact the nature of sinful temptation[11], he or she will ultimately encounter a life of misfortune[12].  Hence, the Be’er Hagola[13] testifies, “I write this for generations, ‘I saw many who became wealthy because of deceit, but ultimately lost it all and left no blessing for their children’.”

Truthfulness is not merely a noble mode of conduct for children, tzaddikim and simpletons. Tanach is replete with biblical[14] and rabbinic[15] exhortations to deal truthfully and desist from deceit. One of the first questions that the Heavenly tribunal will grill us on is, “Were you honest in business?”[16]

The Quandary

Bilaam referred to our Avos as Yesharim, just[17]. Accordingly, R. Chiya bar Aba quotes R. Yochanan as terming Sefer Bereishis- the life lessons of our Avos- as the Sefer Yesharim[18].  

Amidst a barbaric and egocentric environment[19], our Avos battled their evil inclinations[20] and consistently guided their lives in accordance with the just Middos of Hashem, whereby introducing humanity to kindness, truthfulness and G-dly ethos[21].

This brings us to a number of enigmatic tales of how our Avos, the paradigm Yesharim, seemingly employed deceit to advance numerous causes. The Torah is teaching us that under certain circumstances, falsehood could and should be employed.

Our challenge will be to probe through Tanach, Tamudic and Rabbinic literature in order to accurately identify the circumstances where speaking the untruth is permissible.

Avraham made a pact with Sara to present themselves during their travels as siblings instead of as husband and wife in an effort to spare his life[22]. Yaakov presented himself to Yitzchak as the firstborn in order to manipulate Yitzchak, into conferring the brachos upon himself instead of Eisav[23]. After Yaakov died, the brothers lied to Yosef and told him that their father instructed that he forgive them and deal kindly with them posthumously[24]. And perhaps most of astonishing of all, Hashem Himself lied to Avraham and said that Sara doubted the Angel’s prediction that she would bear a child. While she said, “and my husband is old[25],” when Hashem reported the comment to Avraham, He altered her words as though she said, “and I am old.[26]

So when may one lie?

Were we to simply justify Avraham’s sly dealings with Pharaoh and Avimelech by employing Dovid Hamelech’ description of an eved Hashem[27] who uses trickery to outsmart the criminal in order to uphold justice, in the spirit of וְעִם עִקֵּשׁ