Restoring the Primacy of Choshen Mishpat. BUSINESS HALACHA in the CLASSROOM. Bava Kama. Perek Yud. A project of the Business Halacha Institute

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1 Restoring the Primacy of Choshen Mishpat BUSINESS HALACHA in the CLASSROOM Bava Kama Perek Yud A project of the Business Halacha Institute Under the auspices of HaRav Chaim Kohn, shlita

2 Laptop Liability Bava Kama 111b - Gazal VeAchal Hi, Levi, said his friend, Moshe. I ve got a project to work on for the next two months. Do you have a laptop that you re willing to lend me for the duration? Funny that you re asking, replied Levi. I just bought a new laptop. If you want to borrow my old one for two months, I d be happy to lend it. A week later, while Moshe was working on the laptop, his neighbor Baruch came by to visit. I see you got yourself a computer, Baruch said. When did you buy it? Actually, it belongs to my friend Levi, said Moshe. I borrowed it for two months to work on the project. While they were talking, Baruch accidentally knocked the laptop off the table. It fell to the floor and cracked! Moshe quickly picked up the laptop and examined it. It s ruined, he said to Baruch. It s completely smashed, and there is no way it can be repaired. You ll have to pay me for the laptop. It wasn t your laptop, said Baruch. I don t owe you anything. If Levi wants the money, let him ask me directly, or you can pay him and then I ll reimburse you. Moshe called Levi. I m so sorry. My neighbor broke the old laptop that you lent me, he said. I still wanted it as a spare, said Levi. You ll have to pay for it. My neighbor was the one who ruined the laptop, though, Moshe said to him. Ask him for the money. He won t pay me unless you ask him directly. I don t even know him, replied Levi emphatically. You borrowed the computer; you are liable for it. Either pay or get the money from your neighbor and give it to me yourself. But why should I pay if he damaged the laptop? argued Moshe. I don t have the money to lay out until he reimburses me. It s not fair to push me from one to the other, said Levi. Let s take it up with Rabbi Dayan. Levi and Moshe went to Rabbi Dayan. Who is liable for the laptop? asked Levi. Moshe, who borrowed it, or the guy who damaged it?

3 Laptop Liability, cont. The Gemara (B.K. 111b) addresses a similar case, replied Rabbi Dayan. If someone steals an item and then another person consumes it, both are accountable to the owner. The thief is liable because he stole the item. Nonetheless, the item still belongs to its owner, so that the one who consumed it damaged the owner s property. Therefore, the owner can collect in full from either party, or even a partial payment from one and partial payment from the other. The same is true in your case (C.M. 361:5). But I didn t steal anything, objected Moshe. I didn t do anything wrong. True, but a borrower is accountable to the owner for his item, even if it is lost through uncontrollable circumstances (oness), replied Rabbi Dayan (C.M. 340:1). Thus, you owe Levi. But since the laptop was Levi s property, Baruch is also liable to him, so Levi can collect from either of you. Can I demand payment of the laptop from Baruch now, or can only Levi do that? asked Moshe. Does Baruch owe me anything? Because you are responsible to pay for the laptop, and Baruch caused you a direct loss (garmi) by breaking it, he has accountability to you also, answered Rabbi Dayan (see Pischei Choshen, Geneivah 4:[34]). What about the fact that I don t have the use of the laptop to finish the project I am working on? asked Moshe. The Nesivos (341:11) suggests a novel idea regarding this, said Rabbi Dayan. Since you borrowed the laptop for two months, you have a legal right to use the item for that time; Levi cannot demand it back for the full two months. Therefore, the Nesivos suggests that the value of that usage, the laptop s depreciation, is owed to you, the borrower not Levi, the owner. This only applies, though, if the item s nature and the duration of the loan are such that the usage entails an accruable depreciation of the item (see Chukei Chaim Hichos She eilah 2:12; P.C., Pikadon 9:[14]).

4 A Burglar and a Buyer Bava Kama 113a - Dina DeMalchusa Yisrael Baum was browsing the Buy and Sell column in the newspaper for a gift for his mother. Brand new Kenwood dough mixer for sale, one ad read. $79! Oh, wow! said Yisrael. My mother has been wishing for something like this to make challah! Yisrael contacted the seller. Is the mixer completely unused? he asked. Yes, came the reply. It s untouched, still in the original packaging. Yisrael decided to buy the mixer and agreed to pay to have it shipped to him from another city upon the seller s receipt of payment. A week later, the mixer was delivered by mail in a large cardboard box. Yisrael opened the box and saw the mixer still sealed, with one small slit in the tape. He wrapped the mixer in gift wrap, attached a card to it, and placed it prominently on the kitchen table. When Yisrael s mother returned home, she was visibly pleased by the gift sitting on the table. She read the card with appreciation, and opened the wrapping paper. Oh! Mrs. Baum exclaimed. It s just what I wanted! As she took out the mixer, Mr. Baum was surprised to find another card sitting in the box. She opened the card, which read: Ben and Basya: Mazel tov on your marriage! Mrs. Baum was puzzled. Where did you get the mixer? she asked Yisrael. I bought it from an ad in the newspaper, he stammered. It was advertised as brand new, still in its original packaging. Hmm, said Mrs. Baum. I know a couple, Ben and Basya, whose apartment was robbed after their wedding. A lot of gifts were stolen. You mean said Yisrael. I can t believe it! Yisrael tried calling the seller, but received no response. I ll call the couple and ask if they got a mixer, said Mrs. Baum. Yes, was Basya s reply. We received a Kenwood mixer, which was stolen. That must be our mixer. We ve been in contact with the police for two months already. They said that it s unlikely to catch the thief, so we gave up hope of reclaiming it. What do we do now? Mrs. Baum asked her husband. Can we keep the mixer or

5 A Burglar and a Buyer, cont. do we have to return it? I ll ask Rabbi Tzedek, he said. Rabbi Tzedek answered, According to the Gemara, the mixer belongs to you, but the required practice nowadays is to return it to the theft victim. Rabbi Tzedek then explained, A stolen item remains property of the victim and must be returned, so long as it is intact, even if the owner abandoned hope of reclaiming it (yei ush). However, if the owner abandoned hope and afterwards the thief sold the item, the purchaser acquires it according to the Gemara. The transfer of the item to the possession of the purchaser is a form of shinui (change) to the item (C.M. 353:2-3). Does it matter whether the sale took place before or after the yei ush? asked Yisrael. The Shulchan Aruch, based on the Rambam, does not differentiate, replied Rabbi Tzedek. The Rema, however, following almost all other Rishonim, requires yei ush first; this is the generally accepted ruling. The rationale is that unless the owner already abandoned hope of reclaiming his object, it entered the purchaser s possession illegally. Therefore, the purchaser also carries the obligation to return the object, unless the yei ush preceded the sale (Shach 353:4). Why, then, is it necessary to return the item nowadays? asked Yisrael. Dina d malchusa (the law of the land) requires returning any stolen object, replied Rabbi Tzedek. The Rema writes that nowadays the practice is to return any theft even after yei ush and shinui reshus, on the basis of dina d malchusa (356:7). Do we always follow the law of the land against the halachic ruling? asked Yisrael. Not always, said Rabbi Tzedek. However, here the Jewish practice also evolved to return the stolen item, so it became like a rabbinic institution (Shach 356:10). Furthermore, this law of the land does not completely contradict Jewish law, since Halacha also considers it meritorious to return a lost or stolen item even after yei ush. Therefore, the law of the land is followed here (see Ketzos 259:3; Chelkas Yaakov, C.M. no. 32).

6 If There's a Will, Is There a Way? Bava Kama 113a - Dina DeMalchusa The Bergers had a long and eventful life behind them. They had lost their families in Europe, but had managed to re-establish themselves in America, where they were privileged to have three sons and a daughter. One by one, as their families grew, their children moved away; only their daughter Bracha remained nearby, in a rented apartment a few blocks away. The close proximity allowed Bracha s children to spend many afternoons with their grandparents. On Shabbos, the Bergers would often join Bracha for a meal. When it became harder for the elderly couple to walk, they would often sleep over for Shabbos. One Motzoei Shabbos, Bracha mentioned to her parents that she was beginning to look for a house elsewhere. Their rented apartment would not suffice for the growing family indefinitely. Mr. Berger was not surprised, but could not conceal his pain at the thought of their moving away. He confided to Bracha, Don t worry about a house. We bequeathed our house to you in our will, since your siblings already have their own houses. The remaining money they will divide equally. We would love it if you could continue living in this neighborhood. Bracha had not been expecting this at all. The thought of living in the comfortable house in which she grew up, the thought of the backyard where her children played so frequently... Yet she caught herself. That s so, so kind of you. We would love to stay here. But I don t know if we can take the house based on your will. Mr. Berger was now surprised. Why not? As you know, Bracha began slowly, when there are sons, the Torah awards inheritance only to them; I am not entitled to inherit. Furthermore, the oldest one is a firstborn and entitled to a double share. Of course that is the default inheritance of the Torah, Mr. Berger assured her, but can t I draft a will disposing of my estate as I see fit? I don t know, said Bracha. It would be best to ask Rabbi Dayan about this. I ll call him right now and ask him, said Mr. Berger. Although a person can usually stipulate terms in monetary matters, answered

7 If There's a Will, cont. Rabbi Dayan, the Torah refers to the laws of inheritance as chukas mishpat, a statute that cannot be easily altered. People who are not immediate heirs cannot be designated as inheritors. Mr. Berger persisted, But civil law has defined laws of inheritance and gives legal validity to wills. And halacha gives credence to the law of the land (dina d malchusa dina). The issue of dina d malchusa in regard to inheritance has been discussed by poskim for centuries, replied Rabbi Dayan. The Rashba was asked this question almost 750 years ago, and he emphatically rejected the suggestion to follow the common law of inheritance against Torah law. The Beis Yosef (C.M. 26) and the Rema (369:11) both cite this ruling, and limit the concept of dina d malchusa dina to issues relating to the state itself, such as taxes, or to proper functioning of society. But I asked a lawyer about this, protested Mr. Berger. He said that many of his clients are religious Jews, and no one raised a problem in this regard. Not many people are aware of the halachic issues of wills, sighed Rabbi Dayan. Two Torah giants of the recent century, Harav Chaim Ozer Grodzenski, zt l (Responsa Achiezer 4:66), and Harav Moshe Feinstein, zt l (Iggros Moshe, E.H. 1:104), suggested innovative approaches to explain the common practice of honoring wills. However, both approaches are questionable. There is growing awareness of the need to draft wills in accordance with halacha. A gleam appeared in Mr. Berger s eyes. So there is a way of making a will conform to halacha? Yes, said Rabbi Dayan. However, it is best to do so through a Rav or beis din familiar with both the halachic and legal issues. We can set up an appointment for next week. Bring a copy of your current will with you. (Continued in next story)

8 There is a Way! Bava Kama 113a - Dina DeMalchusa Rabbi Dayan, Mr. Berger, his daughter Bracha, and her husband Yehuda sat around the table as Mr. Berger began, In my will, I bequeathed my house to Bracha and distributed the remaining assets equally among the sons. Bracha was concerned that perhaps she cannot accept the house, since daughters are not entitled to inherit with sons, according to Torah law. She is correct that according to halacha, daughters do not inherit, responded Rabbi Dayan. Despite this, if the sons willingly agree to grant her the house when going through probate (the legal procedure of dividing an estate), she can accept it. Furthermore, some poskim have suggested reasons to validate secular wills de facto even if they do not conform to Torah laws of inheritance, although these reasons are subject to debate. In any case, you should prepare a halachically valid will. Do I have to redo my entire will? asked Mr. Berger. Not at all, smiled Rabbi Dayan. You can leave your will intact, but must fill out this additional document. He pointed to a paper sitting on the table in front of him. It is based on a centuries-old practice called shtar chatzi zachar - a document of a half-male. (Rama C.M. 281:7) Sounds like bio-technology, Bracha remarked with a quizzical look. Not at all, Rabbi Dayan laughed. Chatzi zachar does not mean biologically halfmale, but rather half the inheritance rights of a male. Throughout the period of the Acharonim, it was common to award the daughter half the inheritance rights of a son as a dowry. For example, if there were two sons and a daughter, each son would get 40 percent of the estate, and the daughter 20 percent. But we said that daughters cannot be designated as inheritors, interjected Yehuda. True, responded Rabbi Dayan. The shtar chatzi zachar did not declare the daughter an inheritor; the inheritance itself was defined according to Torah law. Nonetheless, the shtar chatzi zachar served as leverage forcing the sons to grant the designated share of the estate to the daughter. Fascinating, said Mr. Berger, but how was this accomplished? Rabbi Dayan continued, The father would obligate himself to leave the daughter a very large sum of money, payable one minute before death. However, this debt was conditional; if the sons would agree to grant the daughter a half-share of the estate,

9 There is a Way, cont. the debt would be null and void retroactively, and the daughter would have no further claim. Amazing! Yehuda exclaimed. After the father s death, the sons would have to pay the large debt to the daughter unless they agreed to grant her the designated share of the estate. Obviously, they would prefer to grant her the share, since otherwise she would collect everything anyway as payment of the debt. But why does she receive only a half-share? This was to uphold the notion that daughters do not inherit equally with the sons, explained Rabbi Dayan. Nonetheless, later poskim also mention a full-male document, which stipulates that the daughter be granted a full share. Still, how does this help me with my will? asked Mr. Berger. We re getting to that now, responded Rabbi Dayan. Current poskim have adapted shtar chatzi zachar as a halachic solution to modern wills. He picked up the document. In this document, you declare that the inheritance itself should be in accordance with Torah law. However, you acknowledge a large conditional debt, payable just before death, to various beneficiaries of your will. If the true Torah heirs grant each beneficiary the share outlined in the will, as will occur when going through probate, the debt will be retroactively void. Thus, your daughter will not take the house as an inheritance; the sons will have to grant it to her to avoid paying the large conditional debt. Does this also solve the issue of the firstborn son? asked Mr. Berger. I am concerned that leaving him double might cause jealousy within the family. Yes, said Rabbi Dayan. The inheritance itself is to follow Torah law, and the firstborn inherits in principle a double share. However, if he does not agree to grant the other brothers an equal share, as per the will, he will have to pay the debt. So I can leave my will intact, and attach this document to grant it halachic validity? Yes, said Rabbi Dayan. I should note that some poskim recommend designating a certain amount to be divided according to true Torah law. Come, take a pen, and let s complete and sign the document.

10 Cool Return Bava Kama 113a - Gezel Nochri Would you like to use our bungalow for Shabbos? Jack asked his neighbor, Ben. We have a simcha in two weeks and won t be at our bungalow. That would be great! exclaimed Ben. Is it hot there? It might be, replied Jack. I installed air conditioners, but have to return them this week. Oh, really? asked Ben. You borrowed air conditioners? No, said Jack, I bought them at Walmart, but intend to return them and get my money back. They let you return the air conditioners after using them for the summer? asked Ben, astonished. They have a no-questions-asked return policy, explained Jack. However, they have a 30-day limit on air conditioners instead of the usual 90 days, so I can t keep the air conditioners for the full summer. This whole idea sounds dishonest, said Ben. If you know that you don t intend to keep the air conditioners, it s not fair to the store if you buy and return them. That s what the refund policy is all about, said Jack. Not really, said Ben. The point of a return policy is for consumer satisfaction. If a product is defective, the customer can return it. Return policies expand this if the customer was not satisfied with the purchase in any way, such as if it wasn t as powerful, versatile or useful as he expected. But to buy something that you know ahead of time you don t want, just to get free use of it, seems like cheating. Why? said Jack. They can refuse to accept the return; if they choose to accept it, that s their business. What s wrong? You are misleading them, said Ben. When you purchase the item, they think you are intending to keep it, or at least give it a fair trial. You are also causing them a loss, since they will not be able to sell it new again. They probably return it to the manufacturer, said Jack. And what about the chilul Hashem involved? said Ben. Where is there chilul Hashem? asked Jack. I m not doing anything illegal. Chilul Hashem does not only mean doing something illegal, said Ben. It also means doing something that is of questionable moral or ethical character. You would

11 Cool Return, cont. do well to discuss with Rabbi Dayan whether it s acceptable to buy something and then return it like you plan to do. Jack called Rabbi Dayan. May I buy air conditioners with intention to use and return them according to the store s return policy? Even though the store takes into account in its return policy that some people might do this, answered Rabbi Dayan, it is clearly wrong for a number of reasons. First of all, there is a serious issue of geneivas da as (misleading) in doing this. When you buy an item, you give the seller the impression that you are interested in buying it, at least on a trial basis, whereas you intend ahead of time simply to use and return it. This misrepresentation causes the seller a financial loss, so that it is a severe form of geneivas da as. Does geneivas da as apply also to a non-jewish seller? asked Jack. Yes, replied the rav. Stealing from a non-jew is prohibited, so misleading him to gain a benefit, especially when there are monetary ramifications, is also prohibited (C.M. 348:2; 228:6). Secondly, this ploy may well be considered a form of damage, continued Rabbi Dayan. You took a new item from the store and made it a used one, which the store or manufacturer will no longer be able to sell without remanufacturing (C.M. 378:1; Pischei Choshen, Nezikin 1:1). Thirdly, the concern of chilul Hashem is a most serious one, added Rabbi Dayan. The Mishna in Pirkei Avos talks of the severity of chilul Hashem, even if done unintentionally (Avos 4:4). Chilul Hashem is a sin for which even repentance, Yom Kippur and affliction do not completely atone for, until death. Questionable business behavior that raises eyebrows, even if completely legal, is a form of chilul Hashem (Yoma 86a). Conversely, integrity in business dealings is a source of Kiddush Hashem. Are there additional issues if the store is Jewish-owned? ask Jack. Since the Torah prohibits charging a fellow Jew interest, there is an additional problem of ribbis gaining free usage of the item in return for allowing the store use of the money for the month and also ona as devarim (Y.D. 174:1; Bris Yehuda 28:4-5), concluded Rabbi Dayan. From any store, though, it is deceitful and wrong.

12 Unmarked Bava Kama 113a - Gezel Akum Mr. Spitz was going through the mail. He picked up a large envelope, a wedding invitation. Can I soak the stamps off that envelope for my stamp collection? asked his son, Pinchas. Of course, said Mr. Spitz. The invitation was heavy and had required three stamps. Pinchas noticed that only two stamps were postmarked; the third was not marked at all. Look at this, Pinchas said to his father. This stamp is still good; you can reuse it. I don t think the post office allows you to reuse the stamp, replied Mr. Spitz. Using it would be considered cheating the government. How is it cheating them? argued Pinchas. If they didn t bother canceling the stamp, that s their problem! Anyway, the post office has no way of knowing whether it was already used or not. Reusing the stamp means that you re not paying for the letter that you will send, explained Mr. Spitz. Why not? asked Pinchas. As long as you put on a stamp, it s like paying. What if the post office had lost money and you found it and bought a stamp? Would that be considered not paying? I don t know if that s the same, responded Mr. Spitz. Money that was found has inherent value; the stamp is simply an indication that you paid the postal service for delivering the letter. Rabbi Dayan once gave a shiur in our yeshivah, said Pinchas. He invited us to discuss business halacha issues with him. Would you mind if we asked him? I d love to, replied Mr. Spitz. I enjoy reading his Business Weekly! Mr. Spitz and Pinchas met with Rabbi Dayan. If a stamp was not postmarked, asked Pinchas, is it permitted to reuse it? Reusing a stamp that was not postmarked is illegal and even punishable with a prison term, said Rabbi Dayan. It is also problematic halachically for one of three reasons, which may differ between the U.S. and Israel. Since reusing the stamp is illegal, many authorities consider this issue one of dina d malchusa, the law of the land, explained Rabbi Dayan. The government is entitled

13 Unmarked, cont. to pass laws relating to taxes and the financial functioning of the government. These laws achieve halachic authority as well and are binding on the Jewish citizens of the country also (see Mishneh Halachos 6:288). How might the U.S. and Israel be different? asked Mr. Spitz. There is a major dispute between contemporary authorities whether dina d malchusa applies in Israel, answered Rabbi Dayan. Some say it applies. Others disagree, because they base dina d malchusa on the government s consent for you to live in the land, whereas all Jews are rightful partners in Eretz Yisrael and are entitled to live there with or without the government s consent (see Pischei Choshen, Geneivah 1:[4]; Yechaveh Daas 5:63). On the other hand, when dealing with a Jewish postal service, there may be an additional element of hashavas aveidah (returning lost items), continued Rabbi Dayan. The unmarked stamp is like a lost item of the postal service which should be returned by not using it. Some consider the lost stamp abandoned property (yei ush), though, which you are not required to return. (See also Shevet Halevi 5:173.) What is the third issue? asked Mr. Spitz. Beyond the issues of dina d malchusa and hashavas aveidah, some authorities suggest that there may be an element of theft here, replied Rabbi Dayan. The stamp is not a government tax or a lost item of inherent value, but rather an indication that you paid for the service of delivering the letter. By reusing an unmarked stamp you are deceiving the postal service to deliver the letter and perform a service without paying them. This may be a form of theft, which is prohibited whether to Jew or gentile, private delivery service or governmental. (See C.M. 348:3; Shach 348:3; P.C., Geneivah 1:[1]; Oz Nidberu 6:74.)

14 Tenant vs. Neighbor Bava Kama 114a - Bar Metzra Meir Goldstone sipped his ginger ale as the plane flew at 30,000 feet over the Atlantic Ocean. He was en route to Yerushalayim for his annual Lag B Omer trip. This year, his entire family was with him. This year, his youngest son would have his first haircut in Meron. And this year, he was going to sign a contract with Wasser Realty to purchase the apartment he d been renting for years. When the Goldstones arrived at their flat, Meir was surprised to see a note on his door. It was from his upstairs neighbor, whom he d never even spoken to. It was a request for a phone call or visit at his convenience, and it was signed simply, Your neighbor, Nate Schoen. Meir paid Nate a visit on Sunday evening. Nate invited him in. Shalom! I heard from Mr. Wasser this week that you plan to buy the apartment you ve been renting. That s correct, Meir smiled. Mr. Goldstone, I own not only my apartment, but also the apartment below you. I m not sure what you know about the halacha of bar metzra, but I have the right to purchase your unit, and I plan to do so. Meir was taken aback. He hadn t anticipated any problems with his purchase plans. After a lengthy discussion during which no conclusion was reached, the two men made an appointment to see a rav the following day. On Monday afternoon, Rabbi Jacobs listened to their story. and I ve been renting this apartment for six years, so I feel that I have the privilege to purchase it. Mr. Schoen owns the other units in the three-floor building, so he is challenging my rights, concluded Meir. The rav stroked his beard as he pondered the shaila. The halacha of bar metzra dictates that the owner of the adjacent property has the right to purchase that property ahead of other potential buyers, said Rabbi Jacobs. Even in the event that someone else has already purchased the property, the neighbor has the right to take possession of the property from him. Mr. Goldstone, you do not own the adjacent property, so it seems you have no right to purchase the flat if Mr. Schoen is interested in purchasing it. On the other hand, you have been renting and living in the apartment all these years, which could possibly give you a stronger

15 Tenant vs. Neighbor, cont. claim than Mr. Schoen s. There is an uncertainty in halacha regarding whether a tenant has the right of a bar metzra. Rabbi Jacobs swiveled his chair around and removed a sefer from the shelf behind him. Turning back to face the two men, he opened the sefer and continued. Shvus Yaakov (3:165, cited in Pischei Teshuva Choshen Mishpat 175:28) rules that if a neighbor and a tenant are both interested in purchasing property, the neighbor has first rights. The reason is that the neighbor is certainly a bar metzra, while there is a dispute whether a tenant qualifies as a bar metzra. Consequently, the one who has a definitive claim has first rights. "In the event that the property was already sold to the tenant and the neighbor wants to take it away from him as the bar metzra, we allow the tenant to retain possession of the property. This is because he has already purchased it, and according to some poskim, his claim to the property is stronger than the claim of the neighbor. Todah, said Mr. Schoen as he stood up. The rav held up one finger. There is a limitation to this is. If Mr. Schoen wants to purchase the property to expand his living space, he can invoke the rationale of this halacha which is to that which is upright yashar. However, if he is interested in purchasing the property as a real estate investment and will lease the property to others, then Mr. Goldstone, the tenant, has first rights, since the halacha of bar metzra is for living space and does not apply to business. Now it was Nate s turn to look surprised. Really, he exclaimed. I had no idea. I have no personal need for the flat, and I wanted to buy it to collect rent from a tenant. Well then, he said, turning to Meir, the apartment is yours. Hatzlacha!

16 Prime Suspect Bava Kama 114b - Suspected I arranged with Simon Kleinoff, the plumber, to clear the blockage in the kitchen sink this morning, Mr. Laks told his wife. Oh, great! she replied. Simon arrived at 10 o clock. He worked for a half hour, going in and out of the house to bring tools from his car. Mrs. Laks came into the kitchen and opened the drawer near the sink. Have you seen my ring? she asked Simon suspiciously. No, I haven t, Simon responded in a surprised voice. I left my ring in the kitchen drawer when I cleaned the kitchen this morning, Mrs. Laks confided to her husband, panic-stricken. There was no one else in the house other than Simon all morning, and he s been in and out to his car numerous times. Are you sure that you left it in the drawer? Mr. Laks asked her. Absolutely positive, she said. I also noticed that the drawer was ajar and had been rummaged through. Mr. Laks went over to Simon. My wife is missing her ring, he said. She is positive that she left it in the drawer near the sink this morning, and only you were in the house today. How dare you accuse me? said Simon indignantly. Your wife probably moved it and forgot where she put it. She is sure she left it in the drawer, said Mr. Laks emphatically. You have no evidence that I took it, said Simon, shaking his head angrily. Anyway, I just finished clearing the sink blockage. You owe me $150 for the repair and I ll be off. I m not paying anything, said Mr. Laks. I m holding the repair payment in lieu of the ring, until we discuss this with Rabbi Dayan. We d better do that, retorted Simon. Let s go right now! My wife left her ring in the kitchen drawer, and it was taken, Mr. Laks said to Rabbi Dayan. Mr. Kleinoff was working in the kitchen then and was the only other person in the house. What recourse do we have? A person who makes a definite claim but has no evidence or testimony can impose an oath (shevuas heses) on the other party who denies the claim, answered

17 Prime Suspect, cont. Rabbi Dayan. Although, in general, a person cannot impose an oath without a definite claim, Rema writes that a person can impose an oath if there is a strong basis (raglayim ladavar) for the claim, even if it is not definite (C.M. 75:17). What is an example of something that is considered a strong basis? asked Mr. Laks. Let s say someone was in your house. You find your money box broken and the contents stolen, and you suspect that person. You can impose an oath upon him, replied Rabbi Dayan. However, the Shach (75:63) questions the Rema s ruling. He concludes that it depends on the evaluation of the beis din; if they see sufficient basis for the allegation, they can impose an oath upon the accused. I understand that nowadays beis din is wary about imposing an oath, said Mr. Laks. Anyway, I want to withhold Mr. Kleinoff s wages! This is a complicated issue, replied Rabbi Dayan. The Sma (75:49) writes that if the plaintiff grabs payment from the suspected thief unobserved (so that there is no evidence that he grabbed), he can keep the payment. Shach (75:64) and Taz (75:17) vehemently disagree; a person cannot take money from another when there is an element of doubt. Pischei Teshuvah (75:20) cites varying opinions of later authorities. Bottom line: since the plaintiff is already in possession of the money, he can keep it when he has a clear basis for his claim (see Pischei Choshen, Geneivah 1:[13]). Then I should be able to withhold the wages, said Mr. Laks, since I am in possession of the money. It would seem so, provided that no one else was in the house and, due to the circumstances, your wife is sure that Mr. Kleinoff stole and not just that there is a good chance (see 408:2; Pischei Teshuvah 75:20).

18 A Burglar and a Buyer Bava Kama 115a - Yeiush VeShinui Reshus Yisrael Baum was browsing the Buy and Sell column in the newspaper for a gift for his mother. Brand new Kenwood dough mixer for sale, one ad read. $79! Oh, wow! said Yisrael. My mother has been wishing for something like this to make challah! Yisrael contacted the seller. Is the mixer completely unused? he asked. Yes, came the reply. It s untouched, still in the original packaging. Yisrael decided to buy the mixer and agreed to pay to have it shipped to him from another city upon the seller s receipt of payment. A week later, the mixer was delivered by mail in a large cardboard box. Yisrael opened the box and saw the mixer still sealed, with one small slit in the tape. He wrapped the mixer in gift wrap, attached a card to it, and placed it prominently on the kitchen table. When Yisrael s mother returned home, she was visibly pleased by the gift sitting on the table. She read the card with appreciation, and opened the wrapping paper. Oh! Mrs. Baum exclaimed. It s just what I wanted! As she took out the mixer, Mr. Baum was surprised to find another card sitting in the box. She opened the card, which read: Ben and Basya: Mazel tov on your marriage! Mrs. Baum was puzzled. Where did you get the mixer? she asked Yisrael. I bought it from an ad in the newspaper, he stammered. It was advertised as brand new, still in its original packaging. Hmm, said Mrs. Baum. I know a couple, Ben and Basya, whose apartment was robbed after their wedding. A lot of gifts were stolen. You mean said Yisrael. I can t believe it! Yisrael tried calling the seller, but received no response. I ll call the couple and ask if they got a mixer, said Mrs. Baum. Yes, was Basya s reply. We received a Kenwood mixer, which was stolen. That must be our mixer. We ve been in contact with the police for two months already. They said that it s unlikely to catch the thief, so we gave up hope of reclaiming it. What do we do now? Mrs. Baum asked her husband. Can we keep the mixer or

19 A Burglar and a Buyer, cont. do we have to return it? I ll ask Rabbi Tzedek, he said. Rabbi Tzedek answered, According to the Gemara, the mixer belongs to you, but the required practice nowadays is to return it to the theft victim. Rabbi Tzedek then explained, A stolen item remains property of the victim and must be returned, so long as it is intact, even if the owner abandoned hope of reclaiming it (yei ush). However, if the owner abandoned hope and afterwards the thief sold the item, the purchaser acquires it according to the Gemara. The transfer of the item to the possession of the purchaser is a form of shinui (change) to the item (C.M. 353:2-3). Does it matter whether the sale took place before or after the yei ush? asked Yisrael. The Shulchan Aruch, based on the Rambam, does not differentiate, replied Rabbi Tzedek. The Rema, however, following almost all other Rishonim, requires yei ush first; this is the generally accepted ruling. The rationale is that unless the owner already abandoned hope of reclaiming his object, it entered the purchaser s possession illegally. Therefore, the purchaser also carries the obligation to return the object, unless the yei ush preceded the sale (Shach 353:4). Why, then, is it necessary to return the item nowadays? asked Yisrael. Dina d malchusa (the law of the land) requires returning any stolen object, replied Rabbi Tzedek. The Rema writes that nowadays the practice is to return any theft even after yei ush and shinui reshus, on the basis of dina d malchusa (356:7). Do we always follow the law of the land against the halachic ruling? asked Yisrael. Not always, said Rabbi Tzedek. However, here the Jewish practice also evolved to return the stolen item, so it became like a rabbinic institution (Shach 356:10). Furthermore, this law of the land does not completely contradict Jewish law, since Halacha also considers it meritorious to return a lost or stolen item even after yei ush. Therefore, the law of the land is followed here (see Ketzos 259:3; Chelkas Yaakov, C.M. no. 32).

20 One Close Dayan Bava Kama 115a - Kibel Alav Rabbi Dayan reviewed his messages. One came from a lawyer, an avid fan of his weekly Choshen Mishpat column. It read: I very much enjoy reading your column. However, I was left perplexed by two recent articles and would appreciate clarification. One article discussed witnesses at a wedding and explained that relatives are not valid to serve as witnesses. Presumably, they are also disqualified to serve as judges. However, in another article about a bar mitzvah boy whose cousin stole the bentching, Rabbi Dayan judged his two nephews who came for a din Torah! Shouldn t Rabbi Dayan have recused (disqualified) himself from this case, as he was a relative of both parties? It was permissible, but he has a good point, Rabbi Dayan said to himself. He pulled a well-used volume of Shulchan Aruch Choshen Mishpat off the shelf and opened it to the relevant passage. Here it is, he said with satisfaction. He hit the reply button and began writing: Thank you for your insightful comment about my recent articles. You are correct that a relative or other person who is invalid to serve as a witness is also disqualified to serve as a dayan. Moreover, even certain people who are valid as witnesses are disqualified to judge, such as a friend or adversary (Choshen Mishpat 7:7-9). Despite this, it was permissible to judge my two nephews who came before me to judge them. This is based on a comment of the Maharshal, R. Shlomo Luria ( ), cited by the Shach (C.M. 7:5) in his commentary to the Shulchan Aruch. The Gemara (B.K. 115a) relates that Ravina judged a case involving his fatherin-law that was brought before him. Maharshal notes that when a dayan is willingly approached by the litigants to judge a relative of his, he is permitted to do so, just as Ravina did. He concludes that this is obvious since they accepted him, but some Rabbis avoid judging out of piety; justice suffers on account of this, when other qualified judges are not available. Rabbi Dayan hit the Send button and went on to answer other questions. Half an hour later, his inbox flashed a new message: Thank you for your response. Could you please clarify the source of the idea that it is possible to willingly accept a disqualified judge?

21 One Close Dayan, cont. Rabbi Dayan replied: The Maharshal is based on a Mishna (Sanhedrin 24a) that a person can accept upon himself even an invalid judge or witness as valid. This is because the Torah upholds most monetary agreements that a person willingly makes. When people willingly come before a disqualified dayan to judge their din Torah, they are implicitly agreeing to accept his ruling (see Pischei Teshuva 5:6). Therefore, while I could not coerce my nephews in justice, it was permissible to judge them when they came of their own accord. In practice, the dayan should follow his conscience, whether he can fairly judge the parties without being swayed. If he has concern, he should avoid judging when they can go elsewhere. A day later, Rabbi Dayan received a further follow-up question: Since the judge cannot coerce his relatives in justice, is the ruling binding, i.e., can the parties refuse to honor the ruling and turn afterwards to a qualified beis din? Furthermore, I thought a din Torah requires three judges. How could you have judged your nephews yourself? This is more complicated and involves a major dispute, mused Rabbi Dayan. He opened the Shulchan Aruch and delved for a few minutes in the yellowed pages. He then hit reply and wrote: When a person accepts a relative or other disqualified person to serve as a dayan, he can back out until the final verdict is issued, but not afterwards. However, he cannot back out if he initially confirmed the acceptance with a kinyan sudar (symbolic transfer of an object, such as a handkerchief, which demonstrates full intent). In addition, most authorities maintain that just as a person can accept a disqualified person to judge, he can agree to have a single dayan rule instead of three (SM A 22:6 and Pischei Teshuva 22:5). If the lone judge was also someone who is disqualified, there is a dispute between the Shulchan Aruch and Rama whether the verdict is binding if there was no kinyan sudar. The Shach considers the issue unresolved. Therefore, if a kinyan sudar was not done, it is not possible to extract payment from the defendant if he wants to adjudicate again in a qualified beis din (C.M. 22:1; Shach 22:3).

22 Your Loss or Mine? Bava Kama 115b - Shataf Nahar Chamoro Dan and Shai stood in the train station. They had just finished shopping and each one carried a bag, which he put down next to him. I bought a gift for my parent s 25th anniversary, said Shai. It cost me quite a lot of money, but it s for a very special occasion. As the train approached, two youths came up from behind them. The youths grabbed the bags and ran away. Dan and Shai, who were both trained in martial arts, were not cowed and immediately began chasing them. Dan was faster, and had almost caught them when the two youths split apart. Dan instinctively headed after his own bag, but realized that Shai s bag was much more valuable. Should I forget about my bag and try to save Shai s bag? Dan thought to himself. He made a split-second decision and turned with a burst of speed after the other youth, who was holding Shai s bag. The youth dropped the bag and fled down a stairway. Shai caught up shortly and congratulated Dan for retrieving the bag. Thanks for saving my my parents gift! he said. What about your bag, though? It looks like the other guy got away. I could have caught him, but realized that your bag was much more valuable, Dan said. I was expecting that you would reimburse me for my loss. I really appreciate that you saved my bag, and will definitely give you something for having chased the thief, said Shai. I just spent a tremendous amount on the gift, though, and can t afford to cover your shopping also. It was your decision to give up your bag and save mine. Besides, I was also chasing them, and I had alerted the police, so we might have caught the thief anyway. I went after your bag assuming that you d compensate me for my small loss, rather than risk losing your whole bag, responded Dan. And it s not likely that you or the police would have caught him in time. I hear what you re saying, said Shai. Let s ask Rabbi Dayan tomorrow in shiur. The following morning, Dan related the story in shiur, and asked: Was I supposed to have chased after Shai s bag? What about my loss? There is a mitzvah of hashavas aveidah, replied Rabbi Dayan, but if you are faced

23 Your Loss or Mine, cont. with your own loss and that of another, you are not obligated to retrieve your friend s loss, even if it is far greater than your own. Nonetheless, it is proper to consider your friend s need (C.M. 264:1). If I chose to save Shai s bag at the expense of my own, asked Dan, does he have to compensate me for my loss? That depends on the circumstances, answered Rabbi Dayan. If Shai was present and you went ahead and saved his bag without saying anything to him, he is not obligated to cover your loss. He has to pay only the value of your service in pursuing his bag. However, if you stipulated that he should cover your loss, Shai must pay the full value of your loss. In addition, he cannot claim afterward that his bag might have been recovered by the police (B.K. 115b; C.M. 264:3-4). What if Shai was not present when I decided to save his bag? asked Dan. You can stipulate before beis din or three other people, said Rabbi Dayan. If neither Shai nor any other people were available, or if circumstances did not allow you to stipulate that he should cover your loss, it is assumed that the friend would agree to cover the loss, as if it was stipulated (Rama 264:3; Sma 265:8). What if Dan had been unsuccessful in recovering my bag? asked Shai. The agreement to cover the loss is with the understanding that the bag will actually be recovered, said Rabbi Dayan. Therefore, if Dan did not recover the bag, he is only entitled to the regular value of his service in pursuing the thief, unless you explicitly agreed to cover his loss even if it would prove unsuccessful. If you were present and Dan did not say anything, you would owe him nothing, since he did not provide any service of value (C.M. 264:4; see Sma 264:12).

24 Bag Overboard! Bava Kama 116a - Shataf Nahar Chamoro "Hi, Benjy!" called Yehuda, Benjy s best friend. "Do you want to go boating with me at Island Park tomorrow?" "Sure," answered Benjy. "Pack lunch and a change of clothes; I'll bring the nosh," said Yehuda. "I have a great waterproof camera," said Benjy. "We'll be able to take pictures on the water." Benjy met Yehuda the next morning, and they drove to the park. After their picnic lunch, they headed to the water and rented kayaks. They put on life vests, tucked their bags into the boats, and set out. "I'll race you to that buoy over there and back," shouted Benjy. "Okay," laughed Yehuda. "One, two, three, go!" The kayaks surged forward, rolling in the waves. They reached the buoy together. "Let's go, sharp turn!" shouted Yehuda. As they leaned over to make the turn, a large wave rose... SPLASH! The kayaks capsized, tossing both of them into the water. Yehuda struggled for a few minutes and managed to right his kayak and mount it. He came to help Benjy, but Benjy said, "You'd better get our bags before they sink. I can wait a few more minutes." The bags had floated off in opposite directions and were already filling with water. Yehuda paddled swiftly away to pick up his bag. "My camera!" Benjy suddenly cried out. "You've got to rescue my bag first!" "My bag looks like it's about to sink," Yehuda called back. "If I get yours, mine might sink by the time I get to it!" "I can't afford to lose that camera," yelled Benjy. "It cost almost $400! Please go get it." Yehuda thought quickly. In his bag were a change of clothing and an MP3 player, worth about $100 altogether. "If you'll pay $100 to cover my bag, I'll go rescue yours." "Deal!" said Benjy. Yehuda set off after Benjy's bag, with strong, swift strokes. He was within ten feet of it when the final air seeped out and the bag sank. Yehuda dove in after it, but to no

25 Bag Overboard, cont. avail. The bag was gone. Yehuda returned defeated. His own bag was also gone. He helped Benjy right his kayak, and they headed back to shore. Two weeks later, Benjy showed Yehuda a new camera he had bought. "It's much simpler, but I couldn't afford to buy another expensive one," he said. "I'm sure it takes pictures just fine," Yehuda said sympathetically. "By the way, what about the $100 you promised me?" Benjy was startled. "Why should I pay? You didn't save my bag." "So what?" responded Yehuda. "You knew that I might not be able to rescue it, and I gave up mine trying to save yours." "I agreed to compensate you if you would save mine, but you didn't help me," argued Benjy. "I lost $400, and now you want me to pay another $100?!" "Let's ask Rabbi Tzedek!" they both agreed. Rabbi Tzedek ruled: "Benjy has to pay a reasonable fee for trying to rescue the bag, let's say $20. However, Yehuda cannot demand the $100, since he did not stipulate that Benjy should pay even if he fails to rescue the bag." Rabbi Tzedek explained, "A worker is entitled to payment if he fulfilled his duties responsibly, even if the employer did not ultimately benefit from his service. For example, a person who is hired to represent a client or run an election campaign is entitled to pay even if the client loses (Chavas Yair #154). On the other hand, a person who was contracted to accomplish a certain goal is not entitled to payment unless he accomplishes it (ibid). If a serviceman is contracted to fix something and is unable to, he is not entitled to payment unless he stated that he charges for labor, or that is the common practice. Because of this, most servicemen now stipulate that the initial charge is for the visit itself. In our case, we assume that Benjy agreed to pay the excessive amount only if Yehuda would succeed in rescuing the bag, whereas for the attempt he is willing to pay only a reasonable fee (C.M. 264:4 and Nesivos 264:3). If Yehuda wanted to secure the $100 payment regardless of the outcome, he had to stipulate this explicitly (SM"A 264:11)."

26 Not Publishable Bava Kama 116b - Lehavi Kruv Yanky Schwartz was a regular writer for a noted Jewish magazine. One day, the feature editor, Sam, contacted him. We re running a series on Jewish communal issues, Sam said. I d like you to write an article about violence in Jewish day schools. You re kidding, said Yanky. Is this really an issue? Unfortunately, the phenomenon is more common than you think, said Sam. Sometimes the best way to raise communal awareness is through an article on the subject. Yanky worked for a month on the article: researching the topic, interviewing principles and students, collating the material, drafting the article, editing and proofing it. He ed the finished article to Sam, who made some minor revisions and forwarded the article to the senior editor for approval. The senior editor, however, returned the article with the following comment: The article is well-written well and 100% correct. However, due to the broad-ranging readership of our magazine and the reputation of the relevant schools, the issue is too sensitive to be addressed in our magazine. Therefore, the article is not publishable. Sam forwarded the response to Yanky, apologizing for the inconvenience he caused. When Yanky received the response, he became irate. What do you mean? he wrote back to the senior editor. I spent a month working on this article, which Sam asked me to write, and now you decide that the topic can t be published?! Sam can only suggest topics for articles, the senior editor replied. However, he is not authorized to make final decisions about what is included for publication. All the same, he is my direct contact, said Yanky. I invested lots of time in that article. Whether you choose to publish it or not is your business, but you owe me for the article. I m sorry for the mistake, replied the editor, but you know that our policy is to pay only for articles that are published. But your feature editor was the one who told me to write about this topic, argued Yanky. Could we speak with Rabbi Dayan? Sure, great idea, answered the editor.