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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.

 

Whopping Wet Winter War     Issue #: 116

Whopping Wet Winter War Concluding a taxing wintery day of jury duty, envisioning the thrilling stru ...

Whopping Wet Winter War

Concluding a taxing wintery day of jury duty, envisioning the thrilling struggle for an inch on the Manhattan Subway, the stressed out crowd carefully pushed their ways down the black-iced stately stairway before the New York City Supreme Court building on 60 Centre Street.
 
His checkered scarf tightly wrapped around his face; Arnold‟s brown Florsheim‟s™ Cromwell dress shoes suddenly lost traction, and sent him for a hard nose dive, but not before the tip of his black totes® umbrella rib pierced an ugly snag in the flapping coat tails of Ben‟s blue Nautica; in no time - pulling Ben down hard to a sitting position on the cold wet concrete.  
 
The debacle compounded almost simultaneously, as Marc, trekking closely behind, stumbled hard over sprawled out Arnold, broke his ankle and inadvertently crushed his rented MacBook Air across Arnold‟s battered bleeding face.

Must Arnold pay for the damage his umbrella rib tip caused to Ben’s blue Nautica? 

Who pays for the MacBook; Arnold or Marc? 

If the MacBook caused Arnold to need additional stitches; is Marc liable? 

Who pays for Marc’s medical expenses?
 
 

What's the Halacha?

 

The Answer:  

Arnold is absolved from paying for Ben’s coat, Marc’s MacBook or Marc’s medical expenses. Marc is absolved from paying for Arnold’s additional stitches.

Detailed Explanation 

 

Whopping Winter Wet War invokes the following six laws.
 
1. A person is liable for both intentional and unintentional damages that he or she exacts on a third party‟s article whether due to negligence (פשיעה) or accidental mishap (אונס). 
 
However, one is absolved from paying for unintentional completely uncontrollable damages (אונס גמור) he or she causes [Choshen Mishpat 378:1, Sha"ch 2].
 
2. “A carpenter gripping a beam walked behind a potter holding a barrel.  The beam punctured the barrel. The carpenter is liable for the damages to the barrel. 
 
Exceptions: The carpenter is absolved, if the circumstances having caused the puncture were deemed as „completely unexpected/uncontrollable‟ or the potter made an unlawful short-stop and did not give ample warning” [Choshen Mishpat 379: 3].
 
3. One may not place an obstacle in public property. While one who does so is liable for physical damages duly incurred by people and animals; the Torah does not grant Beit Din the authority to collect payment for damages incurred by another's inanimate property resulting from the obstacle [Choshen Mishpat 410: 21, see Aruch Hashulchan 410: 26 for explanation].
 
4. A and B were on foot; one behind another. A inadvertently slipped (without negligence on his/her part) and was incapable of standing up [Shulchan Aruch] or warning [Rema] B, before B accidentally tripped over A. A is absolved from damages sustained by B.
 
5.  If A was capable of standing up [Shulchan Aruch] or warning B [Rema], but failed to do so before B tripped over AA is liable for the damages B sustains from A‟s body.

(Similarly, if C trips over B, B is liable for the damages C sustains from B‟s body, if B was capable of standing up [Shulchan Aruch] or warning C [Rema], but failed to do so.) [Choshen Mishpat 413: 1, 2]

6. When B stumbles over A; do we view B as having stumbled over an obstacle (whereby Beit Din may only collect for damages sustained to people or animals) or having been damaged directly by a human being (whereby Beit Din may even collect for damages sustained by inanimate objects)?  As valid arguments are made to both sides, we would respect the status quo with regards to forcing A to pay for damages sustained by A's inanimate property [Choshen Mishpat 413: 1]. 
 
Application 
 
1.  Arnold “carefully pushed his way down the stairs.” His subsequent fall and piercing of Ben‟s coat was completely uncontrollable. He is thus absolved from paying for the ripping Ben‟s blue Nautica  
 
2. “The debacle compounded almost simultaneously” suggests that Arnold had no time to get up or warn Marc.  Again, the debacle was completely uncontrollable and as such Arnold is absolved.  
 
Even if Arnold had the capability to stand up or warn Marc, as there is a strong argument to view Arnold as a “stumbling block” Beit Din cannot exact payment for the damage to the “inanimate MacBook.”
 
3. Marc is absolved from paying for Arnold's additional stitches.
 
4. If Arnold had time to get up, he would have to pay for Marc‟s medical expenses. As he did not have time, he absolved.

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

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

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Teenage Terror     Issue #: 117

Teenage Terror  Dave and Barry were flaunting their newly discovered adolescent prowess. &ldquo ...
Teenage Terror
 
Dave and Barry were flaunting their newly discovered adolescent prowess. “ Dave. I’ve mastered the art of holding my alcohol. I’m leaving the room for a minute. Spike whatever you want on the laden table. 
 
Dave reached for the Arik, an Israeli/ Moroccan 95% alcoholic beverage and poured a significant quantity in Barry’s chicken soup.    Barry returned to the room; but before he could sit down to continue eating, Dave stood up tall and called out, “Barry! Come on, try me, give me your hardest shot!” Barry clutched his fist, and approached Dave. 
 
Dave tightened is abdomen muscles. Barry gave a powerful blow, knocked Dave to the floor, and continued eating. The next thing Barry remembered was lying next to Dave in the Emergency Room. Dave sustained a ruptured abdomen muscle, while Barry was diagnosed with alcohol poisoning.  
 
Is Barry liable to pay for Dave's medical expenses?
Is Dave liable to pay for Barry's medical expenses? 
 
 

 What is the Law?
 
The Answer:  
Dave is absolved from paying for Barry’s medical expenses. Barry is required to pay for Dave’ medical expenses.
 
 
Detailed Explanation
 
 
Teenage Terror invokes the following three laws.
 
1. It is forbidden to inflict physical pain or damage to oneself or to one’s friend [Rambam Hilchos Chovel Umazik 5: 1].
 
{Parenthetically; inflicting pain or physical damage to one’s body is permissible in order to spare oneself from a more severe physical (e.g. resetting a broken limb) or severe emotional pain (e.g. elective plastic surgery). 
 
Endangering one’s life though, is forbidden even to remove physical or emotional pain (e.g. dieting leading to anorexia) [Igros Moshe Choshen Mishpat II: 65, Riv’vos Ephraim VIII: 389].}  
 
2. We assume that an average person in a balanced state of mind is unwilling to undergo extreme pain or loss of limbs unless it is the best of two worst options.  As such, even when a victim says that he/she gives “permission” to an assailant to harm him/her, we assume he/she was not sincere, and the assailant remains obliged to pay for damages [Maseches Bava Kama 93a].
 
3. B was aware that A deposited a parcel of his food into B’s property. B did not watch his/her animal from eating the food. B’s animal ate the food and got sick. B cannot demand payment from A [Choshen Mishpat 393: 2, Sm”a 4].  
 
Application 
 
While Dave spiked Barry’s food, Barry knew the risk and should not have eaten it. 
 
Even if Dave told Barry to give him a blow, we assume he never meant to absolve Barry from paying for such an excruciating pain and significant damage.

Selected Laws Regarding Reperations for Abuse     Issue #: 239

For the purpose of this article,  we will refer to a person who inflicts bodily harm upon his/h ...

For the purpose of this article,  we will refer to a person who inflicts bodily harm upon his/her fellow as an “aggressor”, irrespective of his/her intent.

Prohibition

It is forbidden to hit/harm/raise a hand to smite another Jew [Choshen Mishpat 420: 1].

The Five Payments

The Torah requires an aggressor to pay up to five categories of reparations to the victim of his/her aggression when applicable.

The five categories include

1) irreparable damage | נזק

 2) pain | צער

3) medical expenses | ריפוי  

4) loss of employment |  שבת

5) embarrassment/emotional anguish | בשת .

Although contemporary Batei Din have limited authority as to which categories of reparations they can compel the aggressor to pay, all applicable categories remain the aggressor’s moral obligation to pay irrespective of whether or not the Batei Din can force him/her to do so [Choshen Mishpat 1, Choshen Mishpat 420: 44]. Thus, it is prudent for us to familiarize ourselves with the appropriate guidelines  of each category while appreciating that the guidelines for these five categories differ greatly.

The Guidelines

  1. The broadest category is payment for irreparable damage | נזק.

 A human being is almost always liable for paying for the damages resulting from his/her actions. As a being of higher intellect,  with a little more care, he/she could have avoided damaging a second party. In Tannaic vernacular we call this phenomenon  .אדם מועד לעולם

Thus, an aggressor must pay for irreparable damage even if the incident was an accident, an אונס . Though, most Rishonim do absolve the aggressor if the incident was a complete accidentcompletely out of the aggressor’s control אונס גמור  [Rema 421: 4].

  1. The middle category includes pain | צער, medical expenses |ריפוי, and loss of employment | שבת

The Torah introduces the categories of payment for  b) pain c) medical expenses d) loss of employment when people are fighting וכי יריבון אנשים [Shemos 21: 18] - insinuating that either the aggressor intended to harm the victim even if the ultimate result was unexpected or else the aggressor acted with gross irresponsibility.

An accidental incident however, where there was no intent to harm would not require the aggressor to pay for b) pain c) medical expenses 4) loss of employment, albeit required to pay for irreparable damage.

III. The most limited category of payment is embarrassment/emotional anguish | בשת .

Payments for embarrassment are only required when the aggressor intended on maliciously harming the victim. Moreover,  if the aggressor intended on harming an individual who would suffer a lower degree of embarrassment from the blow, but instead harmed one who suffered a greater degree of embarrassment, the aggressor is only required to pay the lower figure of  embarrassment payments –( of which he/she intended to harm) - to the victim [Choshen Mishpat 420: 36, 421: 1, 2, 14 based upon Devarim 25: 11].

Verbal Abuse

While the Torah simply discusses payments for embarrassment and emotional pain in cases of physical abuse [Choshen Mishpat 420: 39], Beis Din maintains the vested authority and  will compel an aggressor to pay for emotional trauma caused by verbal abuse, defamation, spreading false rumors and the likes as well [Choshen Mishpat 420: 38].

Defaming the Deceased

It is a grave sin to defame the deceased. One who did so must repent appropriately [see Choshen Mishpat 420: 38].

Medical Fees

Costs for a necessary altered diet due to the healing process is included in configuring the medical costs [Choshen Mishpat 420: 3].

Beis Din estimates the cost of medical care and bills a one-time fee to the aggressor [Choshen Mishpat 420: 18].

The aggressor cannot get away with bringing in a cheaper below-par doctor against the victim’s will [Choshen Mishpat 420: 22].

The aggressor can object to the victim demanding to “pocket the medical fees and claim that he/she will take care of things on his/her own” [Choshen Mishpat 420: 23].

Evicting Trespassers

A homeowner may physically remove a trespasser. A homeowner may physically harm a trespasser who refuses to leave or who poses an immediate financial threat [Choshen Mishpat 421: 6].

Aggressive Games

When A and B agree to play an aggressive game in which an injury could have been expected, they both appreciate the nature of the game that it is impossible to ensure that no one will get hurt in the thick of things. In all seriousness, they therefore inherently absolved each other from any potential reparations

Thus, were A and B to have agreed to play tackle football or rugby, which ultimately resulted in an injury inflicted by A to B during the normal course of the game,  A is absolved from paying B [Choshen Mishpat 421:5].

Self-Defense

To the degree that the blow or shaming is necessary, it is permitted to harm or shame an aggressor in self defense[Choshen Mishpat 421: 13].