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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

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.

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. ◆

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. ◆

 

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 
 

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

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]

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!

************************************************************************************

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

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
 

 

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?