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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].

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.

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. ◆

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.

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. 

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.

Discover your timeless and deep-seated inner ethical barometer!

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About Project Fellow

Project Fellow-Yesharim based in Yerushalayim is a cutting edge, grassroots movement at the forefront of advancing global ethics awareness and bringing Jews closer to one another.

Via progressive,  engaging, and interactive educational methods, PROJECT FELLOW  tackles our consistent and compounding ethical dilemmas and provides clear, practical and time-tested guidance.

Over the years, Project Fellow has sponsored:  multi-level award-winning curricula, seminars, webinars, lectures, Jewish outreach programs and material, publications, weekly emails, and a growing array of ethics awareness programs geared for the professional, classroom and family settings.

The Yesharim Research Center serves as Project Fellow’s think tank, studying and analyzing relevant material.

PROJECT FELLOW is endorsed  by foremost Jewish deans, principals, teachers,  attorneys, and justices of law, business executives,  community  activists, outreach Rabbis, and influential leaders in major Jewish organizations.

For Questions or to schedule a class: email us @ info@projectfellow.org

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].

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.

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

 

 

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.

Valley Forge     Issue #: 105

VALLEY FORGE!  Canaan Valley, WV – home of United States’ 500th National Wildlife R ...
VALLEY FORGE!
 
Canaan Valley, WV – home of United States’ 500th National Wildlife Refuge, is a small oval bowl shaped valley located in Northeastern Tucker County, West Virginia and is known for its undeveloped breathtaking landscape, thrilling ski slopes and private communities, along with the parks of Blackwater Falls and Canaan Valley Resort & State Park.
 
Typically the slowest rental season, home rental rates,  through the local realty with room for twelve in the Timberline Resort Community range between $900 – $1200 a week during the month of August, while midwinter rates ranged between $1500 – $2000 per week. 
 
Though posted at $1200 on the realtor’s website, Leon independently placed  an advertisement for his home with room for twelve - in a Savannah, Georgia newspaper for a “bargain price of 2500 a week.” hoping to catch an unassuming summer vacationer. 
 
David Bernstein saw the ad in the paper, perused Leon’s virtual tour on his private blog, and sent a security check for 500. Arriving in Canaan Valley, David soon realized that Leon’s bargain was double the going rate. 
 
At the end of the week David made a direct deposit to Leon’s account for $700.

 
 
 
What is the Law?
 
 
The Answer:  David need not pay more than the fair market value.
 
 
Detailed Explanation
 
 
Valley Forge! implicates the following eight laws. 
 
1. A customer who discovers, within the time span necessary to ascertain the true value of the article (and return to the proprietor), that he or she paid more than 16% of the fair market value, may generally rescind on the sale and demand a refund  [Choshen Mishpat 227: 2]. 
 
2. A customer who discovers, within the time span necessary to ascertain the true value of the article (and return to the proprietor), that he or she paid 16% more than the fair market value , may not rescind on the sale, but may demand a refund  for the additional 16%.
 
3. A seller is prohibited from taking advantage of a customer by deceivingly overcharging  16% or more than the fair market value for the sale or rental of real estate as by moveable objects.
 
Nevertheless, the Torah excludes real estate transactions from some significant guidelines  of the prohibition.
 
Rema opines that a buyer/renter of real estate may only rescind  on the transaction upon the discovery of being deceivingly overcharged more than 100% of the fair market value. 
 
Whereas, Shulchan Aruch maintains that the buyer is left with no recourse regardless of the extent of deceit .
 
As valid arguments can be made to both sides, we would respect the status quo [Choshen Mishpat 227: 29, Sha”ch 51]. 
 
4. After the time span 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].
 
5. A consumer who noticed an unforeseeable blemish after the transaction was completed,  is entitled to recourse ad infinitum provided the consumer does not subsequently utilize the article. Otherwise, usage of the article indicates a consent to the deal [Choshen Mishpat 232: 3 Pischei Teshuva 1].
 
6. Similarly, a consumer who realized he/she was overcharged more than 16% and was unable to return to the seller immediately, loses the right to rescind by subsequently using the purchase [Nesivos  232: 5].
 

7. Is a consumer who has not yet paid in full likely to consent to the degree of overcharge after the time span 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 respect the status quo, and would not obligate the consumer to continue paying the full agreed upon price.
 
8. Similarly, using the article would not indicate a consent to the sale price as long as the customer remains in possession of some of the funds [ Pischei Teshuva 227: 2].
 
Application
 
Leon transgressed the prohibition of deceitfully overcharging David. Leon overcharged David more than 100% of the fair market value. David’s right for  to rescind is subject to debate and we would respect the status quo.  If David had paid in full, David would have no recourse. 
 
David waited until the end of his rental to take up the issue. Additionally, he used the flat for the duration of the time. Generally, such behavior indicates consent to the initial terms and  David’s should have forfeited his claim against Leon. Nevertheless, as he retained possession of the remainder of the funds, his usage as well as his procrastination did not signify a consent to the initial terms. In addition, we would respect the status quo and not require David to pay more than the fair market  value.