How Does a Jew Litigate?

 

clip_image002Mendel Greenberg has been unable to resolve a matter with one of his suppliers. He has attempted to discuss the matter with him, but the last time he tried, the phone was abruptly slammed down. To his chagrin, Mendel realizes that he has no choice but to sue the supplier. Not knowing how to proceed, he makes an appointment with his rav to discuss what to do.

PROHIBITION OF USING NON-HALACHIC COURTS

After Mendel finishes explaining his predicament, his rav explains that it is absolutely forbidden for a Jew to submit litigation against a fellow Jew in a secular court, even if both parties agree (Gemara Gittin 88b; Rashi and Ramban, beginning of Parshas Mishpatim). This is known as the prohibition against using arka’os, or non-halachic courts. When a person chooses a civil court for one’s litigation instead of the Torah’s system, one implies that one does not believe that the system set up by Hashem is the best one. According to the Midrash, this is a chillul Hashem (Midrash Tanchuma, Mishpatim #3).

Unfortunately, even frum people sometimes assume that legal rights and responsibilities are governed by secular law. A Torah Jew must realize that every aspect of life is directed by Torah – including how one litigates. The true believer in Hashem understands that the only procedures to be followed are those sanctioned by the Torah.

In addition to the severe prohibition against using arka’os, someone who submits litigation to civil court will probably end up stealing by receiving money to which one is not entitled, according to halacha. The fact that a court ruled in the plaintiff’s favor, or that the defendant chose to settle rather than contest the court case, does not permit taking ill-gained money.

“I am well aware of the problem,” says Mendel to his rav. “I personally know frum people who use the civil courts to resolve their matters.”

“Every generation has its nisyonos, its tests, of its resolve to observe Torah,” his rav sighs. “In our grandparents’ generation, it was Shabbos. During our parents’ generation, there were many difficult issues such as tznius, shatnez and proper standards of kashrus. In our generation, I find that one of the weakest areas of proper mitzvah observance is the usage of civil courts.

“Let me share a very recent incident with you,” the rav continued. “Someone hired a frum lawyer to resolve a legal problem. I discovered that the lawyer had filed a lawsuit in civil court. ‘Which rav has permitted filing a civil lawsuit?’ I asked the plaintiff. It turned out that the plaintiff was totally unaware that there was any halachic issue, and had relied on the halachic know-how of the lawyer! I explained the severity of the prohibition involved, and the matter was transferred to a beis din.

“Look how serious this prohibition is,” said the rav, pulling a sefer off the shelf. “Listen to this Rambam: ‘Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rasha. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu’” (Hilchos Sanhedrin 26:7).

GOING TO JEWISH JUDGES

“Are Israelis allowed to use their civil courts that employ Jewish judges?” asked Mendel.

The rav pulled another sefer off his bookshelf and began reading the following passage from a sefer of the Chazon Ish:

“‘There is no halachic difference between going to gentile judges and going to Jewish judges who use non-Torah laws. As a matter of fact, it is far worse to go to Jewish judges who have traded away a Torah system for a worthless, empty system. Even if the city residents have accepted this court’s system and authority, their acquiescence has no validity. To force someone to follow this system has the status of stealing from them and of raising one’s hand against the Torah given to us by Moshe Rabbeinu’ (Chazon Ish, Sanhedrin 15:4). The identical ruling was issued by Rav Tzvi Pesach Frank and Rav Yitzchak Herzog.” (See Shu”t Tzitz Eliezer 12:82.

DINA DI’MALCHUSA DINA

“I have often heard that dina di’malchusa dina (secular civil law) determines halacha in business matters; isn’t it so here?” Mendel inquired.

Realizing that Mendel was not questioning his authority, but simply attempting to clarify this confusing issue, his rav gave him a patient reply.

“What you’ve just quoted is an incorrect understanding of dina di’malchusa dina,” he began. “Dina di’malchusa dina requires obeying rules of the government such as paying taxes and obeying traffic and safety regulations, and prohibits us from smuggling and counterfeiting. But it does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern relationships between Jews, nor does it supplant the Jew’s responsibility to bring his litigation before a proper beis din.”

“I must say,” continued the rav sadly, “that I find it peculiar that often the same person who quotes dina di’malchusa dina when it does not apply, happily ignores it where it does apply. Interpreting business halachos conveniently without checking it out with a rav is another example of an unfortunate weakness prevalent in our generation.

“But please let me clarify one point,” the rav continued. “When I say that dina di’malchusa dina does not apply in litigation, this should not be confused with the similar concept of minhag hamakom.

“Certain areas of halacha, such as the contract laws for buying and hiring, are governed by the concept of minhag hamakom – that normative business practice determines what is halachically accepted. When a person agrees to a contract, both parties assume that they will be following what is normally done, unless it is specified otherwise. For this reason, the halacha regarding sales and employee rights is often governed by accepted practice. And since normal practice is influenced by civil law, these areas of halacha are influenced by civil law. This is not because halacha recognizes civil law, but because of the influence civil law has on business practice.

“However,” the rav concluded, “it should be noted that certain areas of halacha, such as laws of inheritance, are not affected by secular law at all” (Shu”t Rashba, quoted by Beis Yosef, Choshen Mishpat end of Chapter 26).

“How should I begin the litigation I came here to discuss?” asked Mendel.

TWO KINDS OF BATEI DIN

“There are two kinds of batei din,” replied his rav. “An established beis din or an ad hoc beis din known as ‘zabla.’ Zabla is the acronym for ‘zeh borer lo echod,’ because each party chooses one of the dayanim (judges) who will judge the case, and then those two dayanim choose a third person to join them and form a beis din.”

Mendel realizes that zabla will probably not benefit him, since it is doubtful that the supplier will willingly submit to arbitration of any type. Therefore, he asks his rav how he proceeds to apply for a beis din to hear his case. The rav refers him to the mazkir, the bailiff or representative, of a nearby beis din. The mazkir issues a summons to the supplier to appear before a beis din.

“What do I do if the supplier comes to beis din and then refuses to obey the decision?” Mendel asked the mazkir.

“Every beis din insists that the litigating parties agree to be bound completely by the decision of the beis din they use,” explained the mazkir. “In addition, beis din proceedings are binding in civil law as arbitration agreements. This means that once the parties sign an agreement submitting their litigation to beis din for arbitration, the civil court will uphold the beis din’s decision. If one party subsequently fails to honor the psak of the beis din, the beis din will authorize the use of secular authorities, if necessary, to enforce its ruling.”

Ultimately, the supplier ignored the summons to appear before the beis din, a serious halachic offence in its own right. Halacha requires a Jew to respond to a summons to appear before a beis din. The fact that it is an unpleasant experience is no excuse for not responding.

In the vast majority of cases, the defendant has the right to request that the case be heard in a different beis din or to request that the matter be decided through zabla. However, he is responsible to convey this intent to the mazkir beis din.

WHAT IF THE DEFENDANT REFUSES TO GO TO BEIS DIN?

What does Mendel do? Unfortunately, Mendel’s situation is neither uncommon nor recent, and apparently occurred even at the time of the Gemara (see Bava Kamma 92b, as explained by Rosh). If this happens, the required procedure is to file the case with a beis din. The beis din summons the defendant to appear. If the defendant fails to appear or indicates that he will not appear, the beis din authorizes the plaintiff to sue in secular court (Choshen Mishpat 26:2). Under these circumstances, the plaintiff has not violated the prohibition of going to civil courts since his suit was authorized by beis din.

The usual practice is to issue a summons to the defendant three times before authorizing the plaintiff to sue in secular court (Beis Yosef and Sma to Choshen Mishpat, Chapter 26, citing Rav Sherira Gaon). However, it should be noted that this is the prerogative of the beis din. If the beis din feels that the defendant will not heed an additional summons, they may authorize the plaintiff to sue in civil court after receiving just one rejection. Sometimes, the beis din’s representative might simply phone the defendant to find out if he will honor beis din’s summons.

It should be noted that even if someone gets authorization to go to secular court, he is still not entitled to receive more in the settlement or ruling than he is entitled to according to halacha. Therefore, he should ask a posek how much of the award he is permitted to keep.

WHAT HAPPENED TO MENDEL GREENBERG?

Unfortunately, the supplier did not respond to the summons of the beis din, so the beis din signed a document authorizing Mendel to take his case to civil court. As noted above, going to civil court under these circumstances is permitted once authorized by beis din. Mendel has not made a chillul Hashem since he has demonstrated his desire to have his case adjudicated according to halacha. Here, it is the supplier who refused to be bound by beis din’s authority and has demonstrated his contempt for beis din, halacha and Hashem’s Torah, thereby creating a chillul Hashem.

Mendel chose an attorney he knew from shul to represent his case. When he met with the attorney, he explained all that he had learned about the prohibition against going to arka’os. The attorney himself was aware of Rashi’s statement that it is a tremendous desecration of Hashem’s presence to use civil courts. However, he had assumed that it only referred to courts of idol worshippers.

Now Mendel felt confident that he could convey some of his newly gained knowledge. “My rav told me that it is forbidden to use any secular court, and that a chillul Hashem is involved every time one goes to a court that does not recognize Torah as its law system.”

The lawyer suddenly realized that he had many shaylos of his own.

MAY A LAWYER FILE A LAWSUIT IN CIVIL COURT ON BEHALF OF A JEWISH CLIENT?

This is unfortunately a very common shaylah. A Jewish lawyer representing a Jewish client sues another Jewish client in civil court. May the lawyer file a lawsuit in secular court? Rav Tzvi Pesach Frank ruled that this is absolutely prohibited and that it is a major chillul Hashem to do so.

However, this situation provides the lawyer with a great opportunity to perform a kiddush Hashem. He can explain the advantages of going to beis din to his not-yet-observant client. Firstly, it is far less expensive and usually far more efficient, since most frum communities have batei din where a din torah can be arranged within days.

Of course, an observant Jew should not have to be told extraneous reasons why it is beneficial to go to beis din. For one, the only salient point should be that this is what Hashem wants one to do. Certainly, the reward for following halacha is infinitely greater than anything gained by violating halacha. However, since the non-observant client may not appreciate these considerations, the lawyer may convince the client in a way the client will understand.

MAY ONE TESTIFY IN SECULAR COURT ABOUT A CASE THAT WAS ALREADY DECIDED IN BEIS DIN?

Yes, it is permitted to do. Furthermore, it is permitted and a mitzvah for the dayanim of the beis din themselves to testify in secular court regarding their adjudication. There is a discussion in poskim whether it is a lack of kovod haTorah for the dayanim to testify as witnesses in a secular court. The conclusion is that it is not considered a lack of kovod haTorah as long as the secular court is honest (Shu”t Chasam Sofer, Choshen Mishpat #3).

MAY A LAWYER DEFEND A CLIENT IN CIVIL COURT, OR DOES THIS REQUIRE AUTHORIZATION FROM BEIS DIN?

If a Jew is sued in secular court, it is a mitzvah to defend one to the best of one’s ability, since the plaintiff violated halacha by suing in civil court. There is no need to get authorization from beis din.

IS IT PERMITTED TO SUE A NON-JEW IN CIVIL COURT?

A non-Jew is not required to submit his litigation to beis din. For this reason, a Jew may sue a non-Jew in secular court. Therefore, a lawyer can represent a Jew in his suit against a non-Jew.

MAY LITIGATION BE SUBMITTED TO A NON-JEWISH ARBITRATION BOARD?

There is a dispute among poskim whether one is permitted to submit a case to a non-Jewish arbitration board without authorization from beis din. It seems that Shach (Choshen Mishpat 22:15) and Aruch HaShulchan (22:8) permit this, if the arbitrator bases his decision on common sense and fairness, rather than on a non-Jewish system of law. The Nesivos HaMishpat prohibits using a non-Jewish arbitrator, even in such a circumstance.

Although suing in arka’os is strictly prohibited unless authorized by beis din, Shach and Aruch HaShulchan contend that there is a halachic difference between arbitration that bases its decisions on common sense and a sense of fairness rather than a system of law. In their opinion, arka’os is prohibited because one is substituting a different legal system and procedure for the Torah’s system. However, common sense arbitration is not viewed by anyone as a legal system, but simply as a practical, fair way of resolving conflicts. The Nesivos HaMishpat disagrees, contending that using any system not set up by the Torah constitutes the violation of using arka’os.

In practice, to circumvent this machlokes haposkim, one should summon the defendant to beis din. If he refuses to accept beis din’s authority, the beis din’s permission allows one to submit the matter to an arbitration board as well as a civil court.

WHAT SHOULD A PLAINTIFF DO IF HE LIVES FAR FROM A BEIS DIN?

The mazkir beis din can telephone the defendant explaining that the case must be adjudicated by a beis din. If the defendant accepts this, then the beis din will attempt to facilitate the creation of an ad hoc beis din, similar to a zabla, formed from the most qualified individuals available locally. Under these circumstances, a shaylah should be asked whether one should submit the case to an arbitration board. If the defendant refuses to accept beis din’s authority, beis din will authorize that the case be brought to civil court.

Every profession requires its special halachic expertise. The mortgage broker must be familiar with the laws of ribbis, the psychologist with the laws of loshon hora and the businessman with the laws of ona’ah.. And all of them must remember the rules of avoiding arka’os and taking their litigation to batei din.

The pasuk states, “VaYehi David oseh mishpat utzedakah lichol amo,” “And David performed justice and kindness for all his people” (Shmuel II 8:15). The Gemara (Sanhedrin 6b) comments that this pasuk says something unusual. Justice and kindness are opposites.. If David performed justice, then seemingly he was not performing kindness.

The Gemara answers that a just decree resolving a din Torah performs both justice and kindness; justice for the plaintiff who receives his award, and kindness for the defendant by protecting him against the violation of holding onto stolen property. Thus, by ruling against the defendant, beis din is performing an act of compassion by protecting him from transgression. Careful attention to the rules regarding batei din will stand a person in good stead by guaranteeing that his life is always surrounded by kindness.

The Kosher Way to Collect a Loan

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This article was published originally in the American edition of Yated Neeman.

Although it is a very big mitzvah to lend money, some people are reluctant to do so because they know of loans that were hard to collect. Must I lend someone money if I am not sure it will ever be repaid? What can I do if I loaned money to someone who seemed very honest and sincere, but now that it comes time to repay, he informs me that he is penniless? What may I do and what may I not do to collect my money? How can I guarantee that I get my money back?

Our goal in this article is to answer all these questions.

THE MITZVAH OF LENDING MONEY

The Torah requires us to lend money to a poor Jew who needs it (Rambam, Hilchos Malveh 1:1). This is stated in the pasuk, Im kesef talveh es ami, es he’ani imach, “When you lend money to my people, to the poor person among you” (Shmos 22:24). Chazal explain that the word “im” in this pasuk should not be translated as “If,” which implies that it is optional, but as a commandment, “When you lend…” (Mechilta). The poskim even discuss whether we recite a bracha on this mitzvah just as we recite one on tefillin, mezuzah and other mitzvos (Shu’t HaRashba #18). Although the halacha is that we do not recite a bracha, the mere question shows us the importance of the mitzvah of loaning money.

It is a greater mitzvah to lend someone money, which maintains his self-dignity, than it is to give him tzedakah, which is demeaning (Rambam, Hilchos Malveh 1:1). There is a special bracha from Hashem to people who lend money to the poor.

I should not become upset if a poor person wants to borrow money from me shortly after repaying a previous loan. My attitude should be similar to a storekeeper: “Do I become angry with a repeat customer? Do I feel that he is constantly bothering me?” Similarly, one should not turn people away without a loan, but rather view it as a new opportunity to perform a mitzvah and to receive extra brachos (Ahavas Chesed 1:7).

RICH VERSUS POOR

One should also lend money to wealthy people who need a loan, but this is not as great a mitzvah as lending to the poor.

FAMILY FIRST

Someone with limited available funds who has requests for loans from family members and non-family members, should lend to family members. Similarly, if he must choose whom to lend to, he should lend to a closer family member rather than to a more distant one.

WHAT IF I KNOW THE BORROWER IS A DEADBEAT?

I am not required to lend money if I know that the borrower squanders money and does not repay (Shulchan Aruch, Choshen Mishpat 97:4). It is better not to lend if I know that the borrower will probably not pay back.

THE RESPONSIBILITIES OF THE BORROWER

Someone who borrows money must make sure to pay it back. One may not borrow money that one does not think he will be able to repay. A person who squanders money and therefore does not repay his loans is called a rasha (Rambam Hilchos Malveh 1:3).

The borrower is required to pay his loans on time. If his loan is due and he cannot pay it, he is required to use his household items, if necessary, to pay his debt (Nesivos 86:2=?). Similarly, he may not make significant contributions to tzedakah (Sefer Chassidim #454). He may not purchase a lulav and esrog if he owes money that is due but should borrow one (see Pischei Teshuvah, Choshen Mishpat 97:8). He must use whatever money he has available to pay his debts.

It is strictly forbidden for the borrower to pretend that he does not have money to pay his debts or even to delay paying them if he does have the money, and it is similarly forbidden for him to hide money so that the lender cannot collect. All this is true even if the lender is very wealthy.

COLLECTING BAD DEBTS

Most people who borrow are meticulous to repay their debts and on time. However, it occasionally happens that someone who intended to pay back on time is faced with circumstances that make it difficult for him to repay.

THE PROHIBITION OF BEING A NOSHEH

There is a prohibition in the Torah, Lo sihyeh lo ki’nosheh, “Do not behave to him like a creditor.” Included in this prohibition is that it is forbidden to demand payment from a Jew when you know that he cannot pay (Rambam, Hilchos Malveh 1:2). The lender may not even stand in front of the borrower in a way that might embarrass or intimidate him (Gemara Bava Metzia 75b; Rambam, Hilchos Malveh 1:3).

However, if the lender knows that the borrower has resources that he does not want to sell, such as his house, his car, or his furniture, he may hassle the borrower since the borrower is halachically required to dispose of these properties in order to pay his loan. (See Shulchan Aruch, Choshen Mishpat 97:23 for a list of what items he must sell to pay his debt.) Furthermore, the lender may sue in beis din for the rights to collect these items as payment.

(Technically, it is not the borrower’s responsibility to sell the items and bring the cash to the lender; he may give them to the lender as payment. The lender must then get a beis din or a panel of three experts to evaluate the property he has received. If he needs to hire experts to make the evaluation, the expenses are added to the debt. Of course, the lender and borrower can agree to whatever terms are mutually acceptable without involving expert evaluation, provided that no ribbis [interest] prohibition is created. The vast subject of ribbis is beyond the scope of this article.)

The borrower is often in an unenviable position. He owes money that he would like to pay, but he is overwhelmed with expenses and he simply does not earn enough money to pay all his creditors. He knows he could sell his house or his furniture to pay up, but he really does not want to do that to his family. He should try to appease the lender in whatever way he can – asking him for better terms or for a delay, and he should certainly try to find other sources of income and figure out how to trim his expenses. But he should realize that he is obligated even to sell his household goods to pay off his creditors. Someone who uses his money to purchase items that are not absolutely essential and does not pay back money that is overdue demonstrates a lack of understanding of the Torah’s priorities.

The lender may not enter the borrower’s house to seize collateral or payment. Some poskim contend that the lender may seize property that is not in the borrower’s house or on his person (see Pischei Choshen Vol. 1 pg. 96). There are poskim who contend that if the borrower has the means to pay but isn’t paying, the lender may enter the borrower’s house and take whatever he can (Shu’t Imrei Binah, Dinei Geviyas Chov Chapter 2; Pischei Choshen Vol. 1 pg. 100). One should not rely on this approach without first asking a shaylah.

If the borrower claims that he has absolutely nothing to pay with, the beis din can require him to swear an oath to that effect (Rambam, Hilchos Malveh 2:2).

A lender who feels that the borrower is hiding money or property may not take the law into his own hands, but may file a claim in beis din. If the lender feels that the borrower will not submit to beis din’s authority, he should ask the beis din for authorization to sue in secular courts, but it is forbidden for him to sue in secular court without approval from a beis din.

HOW CAN I GUARANTEE THAT I GET MY MONEY BACK?

It is unpleasant to be owed overdue loans. The lender is entitled to be repaid.

Is there a way that I can lend money and guarantee that I get in back?

First of all, the lender must make sure that he can prove the loan took place. This is actually a halacha forbidding lending out money without witnesses or other proof because of concern that this may cause the borrower to sin by denying that the loan exists (Gemara Bava Metzia 75b).

All of this is only protection against a borrower denying that he borrowed, which is fortunately a rare occurrence. What we want to explore are ways that the lender can fulfill his mitzvah of lending to a needy person, while making sure that the loan does not become permanent.

By the way, one may lend money to a poor person with the understanding that if the borrower defaults, the lender will subtract the sum from his tzedakah-maaser calculation (Pischei Choshen, Volume 1, p. 4).

CO-SIGNERS

The most common method used to guarantee the repayment of a loan is by having someone with reliable finances and reputation co-sign for the loan. In halacha, this person is called an areiv. In common practice, if the borrower defaults, the lender notifies the co-signer that he intends to collect the debt. Usually what happens is that when the lender calls the co-signer, suddenly the borrower shows up at the door with the money.

There are several types of areiv recognized by halacha. The most common type, a standard co-signer, is obligated to pay back the debt, but only after one has attempted to collect from the borrower. If the borrower does not pay because he has no cash, but he has property, the areiv can legitimately claim that he is not responsible to pay. The lender would need to summon the borrower and the areiv to beis din, (probably in separate dinei Torah) in order to begin payment procedures. Most people who lend money prefer to avoid the tediousness this involves.

One can avoid some of this problem by having the co-signer sign as an areiv kablan. This is a stronger type of co-signing, whereby the lender has the right to make the claim against the co-signer without suing the borrower first.

The primary difficulty with this approach is that it might make it difficult for the borrower to receive his loan, since many potential co-signers do not want to commit themselves to be an areiv kablan.

ANOTHER APPROACH

Is there another possibility whereby one can still provide the chesed to the potential borrower and yet guarantee that the money is returned?

Indeed there is. The Chofetz Chayim (Ahavas Chesed 1:8) suggests that if you are concerned that the proposed borrower may default, you can insist on receiving a collateral, a mashkon, to guarantee payment.

Having a loan collateralized is a fairly secure way of guaranteeing that the loan is repaid, but it is not completely hassle-free. There are three drawbacks that might result from using a mashkon to guarantee the repayment of the loan. They are:

1. Responsibility for the mashkon.

2. Evaluation of the mashkon.

3. Converting the mashkon into cash.

1. Responsibility for the mashkon.

When the lender receives the mashkon, he becomes responsible to take care of it. If it is lost or stolen, the value of the collateral will be subtracted from the loan (Shulchan Aruch, Choshen Mishpat 72:2). If the collateral is worth more than the loan, the lender might be required to compensate the borrower for the difference. (See dispute between Shulchan Aruch and Rama ibid.) The creditor is not responsible for the mashkon if it is lost and damaged because of something that halacha considers beyond his responsibility.

2. Evaluation of the mashkon.

When keeping the collateral to collect the debt, the mashkon must be evaluated by a panel of three experts before it can be sold (Shulchan Aruch, Choshen Mishpat 73:15 and Ketzos), or alternatively, sold with the involvement of beis din (Shach), to protect the borrower’s rights. Some creditors find this step tedious.

However, there are methods whereby one can use a mashkon to guarantee a loan and avoid having the mashkon evaluated afterwards.

When arranging the loan, the lender tells the borrower of the following condition: If the loan is not paid when due, the buyer agrees to rely on the lender’s evaluation of its worth (Pischei Choshen, Vol. 1 pg. 145).

An alternative way is for the lender to tell the borrower at the time of the loan: If you do not pay by the day the loan is due, then retroactively this is not a loan but a sale. The collateral becomes mine now for the value of the loan money. This is permitted even if the mashkon is worth far more than the loan without any violation of ribbis (prohibited charging of interest), since retroactively no loan took place but a sale (Shulchan Aruch, Choshen Mishpat 73:17).=

3. Converting the mashkon into cash.

At times, lenders have asked me for a method whereby they can be certain to get their money back, and I have suggested the collateral method. Sometimes I receive the following response: I don’t want to be bothered with selling the mashkon to get my money back. If I think the borrower is a risk, than I would rather not lend to him.

Do we have the same attitude towards other mitzvos we perform? Do we say that we only want to perform mitzvos when they are without complications? Certainly not! However, the yetzer hora convinces us that lending money is a good deed that I need only perform when it is convenient and when I feel like being benevolent, not when it is going to result in a hassle.

SHLEMIEL THE BORROWER

Nachman once came to me with the following shaylah:

Shlemiel used to borrow money from Nachman regularly, and although Shlemiel always paid back, he often did so long after the due date. Nachman wanted to know what he could do about this situation. He wanted to perform the tremendous mitzvah of lending money, but he wanted his money back in a reasonable time.

I suggested to Nachman that he tell Shlemiel that the loan was available, but only if Shlemiel produced a mashkon and agreed to the above conditions. Since my suggestion, Nachman has been zocheh to fulfill the mitzvah of lending money to Shlemiel many times and not once has a loan been late! Think of how many brachos Nachman has received from Hashem because he is willing to subject himself to the “hassle” of transporting the mashkon to a secure place and being willing to sell it should the need arise!

Why do people view loaning money as an optional “good deed” rather than as a commandment? The Chofetz Chayim (Ahavas Chesed 2:8)= raises this question and mentions several excuses people make to avoid lending money. After listing these reasons, the Chofetz Chayim proceeds to refute each one of them. Simply put, the answer to this question is the old Yiddish expression, Ven Kumt to Gelt, iz an andara velt, “When people deal with their money, they tend to deal with things totally differently.” Truthfully, people find it difficult to part with their money, even temporarily. This is precisely why one receives such immense reward for lending. As Chazal teach us, lifum tzaara agra, “the reward is according to the suffering.”

The Rights of a Copyright Holder

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What is the halachic background to copyright law? Does the Torah have a concept of intellectual property rights, meaning that someone who creates or invents an item is owner of his invention? May a rav prevent people from taping his shiur? May one copy computer software or music disks?

We will IY”H provide the background and history behind these issues. Our purpose is not to paskin anyone’s shaylos but to introduce and explain the subject matter. An individual should ask his own shaylah from his own rav.

For our purposes, we are dividing the topic into three subtopics:

1. Copyright. Does a publisher have rights protecting him so that he has the opportunity to recoup his investment? Assuming that such rights exist, do they apply in all cases, or only if it is a new publication? For how long are his rights protected?

2. Intellectual property rights. Does someone who wrote a book or created an invention own rights to future sales of this book or this invention? If he does, for how long do his rights last?

3. Conditions of sale. Can a seller or manufacturer stipulate that a buyer may not copy the item sold?

WHAT RIGHTS DOES THE PUBLISHER HAVE?

One of the earliest published responsa on this subject deals with a very interesting sixteenth century case. One of the gedolei Yisrael of the time, the Maharam of Padua, Italy, entered a partnership with a non-Jewish publisher in Venice to produce a new edition of Rambam. Maharam invested a huge amount of time checking and correcting the text for this edition, included notes of his own, and apparently also invested significant amounts of his own money in the undertaking. A competing publisher, also a non-Jew, produced an edition of Rambam (without Maharam’s corrections and notes) at a greatly reduced price, apparently out of spite that Maharam had engaged his competitor. It appears that the second publisher might have been selling the set of Rambam at a loss with the intent to ruin the Maharam financially. The halachic question was whether an individual may purchase the less expensive edition of the second publisher.

The shaylah was referred to the Rama for decision, who ruled that the second publisher’s actions constitute unfair trade practices. Rama prohibited purchasing or selling the second edition until Maharam’s edition was sold out. Realizing that the non-Jewish publisher would not obey his ruling, Rama reinforced his ruling by placing a cherem (decree of excommunication) on anyone selling, buying or abetting the sale of the competing edition (Shu”t Rama #10). This was an effective way of guaranteeing that Jews did not purchase the less expensive (but inferior) edition.

Subsequent to Rama’s ruling, it became common practice for publishers to include in their works a cherem (plural: charamim) from a well-known posek banning the publishing of the same sefer, usually for a period of ten to twenty-five years. The purpose of these charamim was to make it financially worthwhile for the publisher to invest the resources necessary to produce the sefer. Thus, these charamam encouraged publishing more seforim and the spread of Torah learning.

Generally, these charamim protecting the publisher’s rights were accepted and obeyed. However in the early nineteenth century, an interesting dispute arose between the Chasam Sofer, the Rav of Pressburg, and Rav Mordechai Benet, the Rav of Nikolsburg, germane to the production of the famous Roedelheim machzorim. Two competing editions of these machzorim were produced, the first by Wolf Heidenheim, who had invested much time and money gathering and comparing manuscripts and texts. A Jewish publishing house located in a different city subsequently published a competing edition. Prior to Heidenheim’s issuing the machzorim, several prominent rabbonim had issued a cherem banning other publishers from competing.

The Chasam Sofer prohibited the second publisher from selling his machzorim and similarly banned people from purchasing them (Shu”t Chasam Sofer, Choshen Mishpat #41, #79). In his opinion, this case is halachically comparable to the edition of Rambam produced by the Maharam Padua.

Rav Benet disagreed, contending that there were several key differences between the cases. In his opinion, it is unnecessary to guarantee publication of machzorim by issuing charamim. Machzorim are a common item, and publishers know that they will profit from producing them. Thus, the entire purpose for which these charamim were created, to guarantee the production of seforim, does not apply. Furthermore, since non-Jewish publishers will certainly produce machzorim, issuing a cherem against competition will benefit the non-Jewish publishers, who will be faced with less competition, more than it will benefit a Jewish publisher such as Wolf Heidenheim. In addition to the above legal arguments, Rav Benet did not consider the second publisher to be unfair competition for a variety of reasons (Shu”t Parashas Mordechai, Choshen Mishpat #7, 8).

The Chasam Sofer responded by contending that since Heidenheim had invested time and money in checking and correcting texts, his business interest should be protected. Chasam Sofer even contended that Heidenheim’s monopoly should be allowed for the entire twenty-five years decreed in the original cherem, even after he had sold out his first edition. This was because the investment had been so great that it required multiple editions to recoup. This leads us to a new discussion.

WHAT IF THE FIRST EDITION SELLS OUT?

May a competitor produce a new edition if the first edition was sold out before the terms of the cherem have been completed? Some poskim contend that the cherem becomes void at this point. They reason that the purpose of the cherem has already been accomplished since the publisher successfully sold out his first edition. The goal is to encourage the production of more seforim, and that will be best accomplished by opening up the market to any publisher who is willing to produce the sefer (Pischei Tshuvah, Yoreh Deah 236:1, quoting Tiferes Tzvi. PT there also quotes Rav Efrayim Zalman Margaliyos as disputing this conclusion but does not explain his position.).

Support for this position can be brought from an interesting halachic decision rendered by the Rosh and quoted by Rama (Choshen Mishpat 292:20). In a certain community, there were an insufficient number of seforim available for people to study, but there were individuals who had private seforim that they were unwilling to lend. The local dayan ruled that these individuals were required to lend their seforim since their reticence was preventing Torah learning. Apparently, individuals challenged the ruling of their local dayan and referred the shaylah to the Rosh. The Rosh agreed with the dayan, although he stipulated that each borrowed sefer should be evaluated by three experts and that the borrower must provide the lender with a security deposit in case of damage or loss (Shu”t Rosh 93:3).

The question here is upon what halacha basis did the Rosh insist that these individuals relinquish their seforim? After all, it is an individual’s prerogative to lend his property. Clearly, Rosh contended that an individual’s rights are surrendered if people are deprived of Torah learning as a result. Similarly, the right of the publisher is rescinded after the first edition sells out if the result is that less seforim are available for study.

DOES HALACHA RECOGNIZE INTELLECTUAL PROPERTY AS OWNERSHIP?

This shaylah came to the forefront in the middle of the nineteenth century, also as a result of a din torah. Around 1850, a printer named Yosef Hirsch Balaban published a large-size edition of Shulchan Aruch with major commentaries, accompanied for the first time by the anthologized commentary, Pischei Tshuvah. (This is the Pischei Tshuvah that was referred to above in a note and is often quoted in these articles.)

Balaban was sued in beis din by a printer who claimed to have purchased exclusive rights to Pischei Tshuvah from its author. At the time Pischei Tshuvah had been printed only once, in a small-size edition including only the Shulchan Aruch and one other commentary. The plaintiff claimed that Balaban had violated his exclusive ownership rights to Pischei Tshuvah.

This writer is aware of three tshuvos on the shaylah, each reaching a different conclusion.

The Rav who precided over the din torah, Rav Shmuel Valdberg of Zalkava, ruled in favor of Balaban for the following reason. The original edition of Pischei Tshuvah did not include any statement placing a cherem against someone printing a competing edition. Rav Valdberg contended that this voided any copyright on Pischei Tshuvah. Furthermore, Rav Valdberg included two more reasons to sustain his ruling. One, the original edition of Pischei Tshuvah was no longer available. Thus even had a cherem banned a competing edition, it would have already expired once the first edition had sold out. Second, even if the first edition was still available for sale, Balaban’s reproducing Pischei Tshuvah as part of a multi-volume set of Shulchan Aruch was not competition for the original edition where Pischei Tshuvah had been published as a small, presumably inexpensive sefer. Rav Valdberg reasoned that no one interested in purchasing Pischei Tshuvah would likely purchase Balaban’s edition of Shulchan Aruch just for that purpose; instead he would buy the small edition (assuming it was available). Thus, he did not consider Balaban’s edition to be unfair competition for those looking to purchase Pischei Tshuvah.

According to Rav Valdberg’s analysis, the author of Pischei Tshuvah has no greater ownership to his work than someone publishing a different person’s work. His latter two arguments, that the first edition was already sold out and therefore the cherem expired, and that the multi-volume set does not compete with the one volume edition, would both be preempted if we assume that the author retains ownership over his work. Thus, Rav Valdberg did not believe that halacha recognizes intellectual property rights. Sho’eil uMeishiv (1:44) took issue with this point. He contended that the author of a work is its owner. Thus, Pischei Tshuvah retains his rights as author/owner whether or not a cherem was declared against competition. A cherem is to guarantee a publisher enough time to recoup his investment. An author is an owner, not an investor, and maintains ownership over the item produced which he is entitled to sell, regulate, or contract. This is called intellectual property rights.

A contemporary of the Sho’eil uMeishiv, Rav Yitzchok Shmelkes, also ruled against Balaban but disagreed with Sho’eil uMeishiv’s reasoning (Shu”t Beis Yitzchok, Yoreh Deah 2:75). Beis Yitzchok contends that halacha does not recognize intellectual property rights as inherent ownership. In Beis Yitzchok’s opinion, the author has a right of ownership but only because it is accepted by government regulation, what is called dina dimalchusa dina, literally, the law of the government is binding. Although halacha does not usually accept non-Jewish legal regulations, a civil law established for the wellbeing of society is sometimes accepted. Since intellectual property rights encourage initiative and invention that are in society’s best interests, halacha accepts these ownership rights to the extent that they are recognized by civil law.

There are several key differences between the position of Sho’eil uMeishiv and that of Beis Yitzchok. According to Sho’eil uMeishiv, the ownership of an author exists forever just as any other property that he owns. Upon his passing, they are inherited by his heirs, just like his other property. However in Beis Yitzchok’s opinion, the ownership rights extend only according to what is established by government regulation and expire after a number of years. Moreover, in most countries a copyright is valid only if registered, and it must also be indicated in the published work. Presumably this was not true in the Beis Yitzchok’s place and time, since he applied civil copyright law to Pischei Tshuvah even though the author had not indicated any copyright in the sefer.

Thus, whether halacha recognizes intellectual property ownership is a three-way dispute, Rav Valdberg rejecting it, Sho’eil uMeishiv accepting it, and Beis Yitzchok contending that it depends upon whether such ownership is assumed in the country of publication.

Incidentally, there is evidence that the Chofetz Chayim agreed with the Sho’eil uMeishiv’s position. The Chofetz Chayim left specific instructions detailing who owns the publishing rights to his seforim after his passing. He instructed that his seforim on loshon hora could be freely republished and that Mishnah Berurah may be published by anyone, provided that 4% of its volumes printed are donated to shullen and batei medrash. However, he stipulated that most of his seforim could not be republished without permission of his family members and that the proceeds from such publication should succor his widow for the rest of her life. Chofetz Chayim’s instructions imply that he considered his ownership to be in perpetuity. Furthermore, Chofetz Chayim did not publish any words of cherem or copyright inside his seforim. Thus, he seems to have presumed ownership over future editions of seforim on the basis of intellectual property (Shu”t Minchas Yitzchok 9:153), although it is possible that he based it on dina dimalchusa dina, following the opinion of Beis Yitzchok.

MAY A RAV PREVENT PEOPLE FROM TAPING HIS SHIUR?

On the basis of the above discussion whether halacha recognizes intellectual property rights, one might suggest that someone giving a shiur may restrict the taping of the shiur on the basis that he owns the shiur. However, in a responsa on the subject Rav Moshe Feinstein rules that a rav may forbid taping his shiur but for totally different reasons. They are:

The lecture may include material that should not be circulated without supervision.

Subsequently, the rav may change his mind from the conclusions he reached in the shiur, or the shiur may include ideas that are conjectural.

He might be embarrassed later by the opinions he stated when he gave the original shiur (Igros Moshe, Orach Chayim 4:40:19).

In the same responsum, Rav Moshe rules that if the rav permitted the shiur to be taped, he may not prevent people from reproducing these tapes for sale (Igros Moshe, Orach Chayim 4:40:19). This implies that Rav Moshe holds that the rav cannot claim ownership of the shiur on the basis of intellectual property, certainly not to the extent held by the Sho’el uMeishiv.

Rav Moshe also rules that if someone is selling copies of a shiur, it is prohibited to make copies without permission of the seller. This takes us to the next subtopic in our discussion.

IS IT PERMITTED TO COPY A TAPE OR DISK?

Does a seller have the halachic right to stipulate that a buyer may not copy the item sold? This shaylah takes our discussion in a new direction. Until now, we have been discussing whether halacha prohibits publishing a competing edition to an existent work. Now our shaylah is whether one may copy what he purchased when the seller stipulates that he may not.

As we saw above, Rav Moshe rules that this is prohibited unequivocally and is an act of stealing, since you are using someone’s property in a way he has not permitted. Numerous other contemporary poskim also rule this way (see Mishnas Zechuyos HaYotzeir; cf. Shu”t Shevet HaLevi 4:202).

Some poskim contend that copying disks may not be considered stealing, although they also prohibit doing so for various other reasons. The line of reasoning why they do not consider it stealing is very instructive.

There are basically two ways that a seller can limit how a purchaser will use an item after the sale. The first is by placing a condition on the sale. If the buyer subsequently violates the condition of sale, the sale becomes invalid, and the buyer has used the item without permission. According to halacha, using someone’s item without permission is stealing. Thus, by voiding the condition of sale, the purchaser has retroactively made himself into a thief.

However, there is a strong argument against this position. If indeed the sale has been voided, then the purchaser is entitled to a refund of his purchase money. Since the seller has no intention of providing a refund to everyone who copies his tape or disk, clearly he did not intend this stipulation to be a condition that invalidates the sale.

There are two other ways that the seller can enforce rights not to copy his material. One is halachically referred to as “shiyur,” which means that the seller places a partial restriction on the sale. In this case it means that he sold the right to use the tape but not the right to copy it. Some poskim contend that one should assume that computer programs, tapes etc. are sold with these stipulations. It appears that Rav Moshe Feinstein held this way.

There is a second reason why it is prohibited to copy this material. Most computer software agreements specify that the programs are licensed, rather than sold. This means that the seller has rented the right to use the equipment but has never sold these items outright. Using the items in an unapproved fashion thereby constitutes using an item I have rented in a way that violates my agreement with the owner. Therefore, copying these items against the owner’s expressed wishes is certainly a violation of halacha.

In addition to the above reasons, many poskim point out that it is not good for a Torah Jew to use something in a way that violates the implied trust he has been given. There also might be a halachic issue of violating ve’ahavta l’rei’acha kamocha, loving your fellowman like yourself, since if you published software or disks you would not want someone else to copy them.

Based on the above discussion, most of us will realize that we have probably been following certain practices without verifying whether they are halachically permitted. It behooves us to clarify with the posek we use whether indeed these activities are permitted. For example, may I photocopy a page of a book for educational purposes? Does it make a difference whether it is being used for Torah purposes or for a secular use? (See Shu”t Shevet HaLevi 4:202.) May I make a copy of a tape or disk if I am concerned that the original will wear out? May I make an extra copy of a computer program and use one at home and one at work?

Clearly, a Torah Jew must be careful to follow halacha in all his financial dealings and arrangements. Ultimately, this is the true benchmark that measures what is considered kiddush Hashem in this world.

The Fateful U-Turn

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This article was originally published in the American edition of the Yated Neeman

 

ACT I – The Fateful U-Turn

Location: THE HIGHWAY

Reuven missed his exit off the highway. Since it was a bright, clear day, he decided to make a U-turn to get back in the right direction. Although this was illegal, he did not consider it dangerous since the road was virtually deserted, except for a car coming in the other direction which seemed to be quite a distance away.

Reuven was mistaken. His car collided with the other vehicle. Fortunately, no one was injured, but both cars suffered significant damage.

The other driver, Shimon, considered Reuven responsible for the damage to his vehicle, although Reuven insisted that Shimon must have been speeding for the accident to have occurred. Shimon insisted that he was not speeding.

To complicate matters, the car Reuven was driving was not his own. That morning, his friend Yaakov had asked Reuven to drive him to the airport using Yaakov’s car. On the way to the airport, Yaakov mentioned that since he was leaving for a week, Reuven could borrow the car while he was gone.

After the accident, Reuven discovered that Yaakov’s car had no collision insurance, and worse yet, no liability insurance for any driver except Yaakov. Thus, there is no insurance coverage for the damage done to either vehicle.

Because Reuven would never have driven the car had he known it was uninsured, he claims that he never assumed responsibility for the value of the car when he agreed to borrow it.

Is Reuven liable for the damage to both vehicles? Although Reuven is over his head in debt, if he is halachically obligated to pay either Yaakov or Shimon, he will do so. But if he is not required to do so, he feels that he is not in a financial position to make the compensation.

Reuven, Shimon, and Yaakov submit the shaylah to a beis din for arbitration. They schedule an appointment and come prepared to present their cases.

ACT II – THE COURTROOM

Location: The offices of the beis din.

On the appointed day, the three litigants appear in the beis din. Shimon claims that Reuven must compensate him for the damage to his car, and that Yaakov should also be liable as the owner of an improperly insured vehicle. Reuven claims that Shimon is responsible for all the damages since the accident happened because of Shimon’s speeding. Yaakov claims that Reuven damaged his vehicle and is therefore obligated to pay for its repair.

Yaakov presents his claim against Reuven first, stating that he has claims against Reuven for two different reasons:

1. First, Reuven should be liable as the borrower of the car even if the damage was not his responsibility.

2. Second, Reuven is liable as a mazik, one who damages, since his negligence caused an accident.

Let us examine the validity of each claim separately, and then we will see what Reuven countered.

SHO’EIL

A sho’eil, a borrower, is responsible for almost any damage that takes place to the item he borrows, even if the damage is accidental and not caused by the borrower. (There are two circumstances where a sho’eil is not liable, but they do not apply here, and I am therefore omitting them from our discussion.) Yaakov claims that Reuven is responsible to make full restitution for the value of the car since he borrowed it.

REUVEN’S DEFENSE

Reuven turns to the dayanim and explains, “I believe that I am not a sho’eil according to halacha, but I have the halacha of a socheir, a renter, notwithstanding the fact that I paid no money. Furthermore, I claim that even as a socheir I am not responsible for the damages sustained as I will explain.”

WHAT ARE THE RESPONSIBILITIES OF A SOCHEIR?

A socheir is liable for damage if the item is lost or stolen, or if he is negligent, but he is not responsible for accidental damage. There is also another major difference in halacha between a sho’eil and a socheir that Reuven uses as an essential component of his defense, as I will explain.

WAS REUVEN A SHO’EIL OR A SOCHEIR?

In order to analyze this question, we need to explain why a sho’eil carries so much responsibility. The Gemara mentions that a sho’eil’s liability is so great because he gains all the benefits of the loan without any responsibilities in return. (This is called kol hana’ah shelo, “all benefits are to the borrower.”) Since the borrower receives all the benefits, the Torah obligates him to compensate the owner for any damage whatsoever, even if it was beyond his control.

However, any time the lender receives some compensation, even non-monetary, the arrangement is not kol hana’ah shelo and the borrower is not liable for accidental damage. In our situation, Yaakov received a chauffeured ride to the airport in exchange for Reuven’s borrowing the car. Halacha views this as if Reuven rented the car from Yaakov, paying him for the rental by driving him to the airport. This is enough to make Reuven into a socheir rather than a sho’eil, and exempts him from paying for accidental damages (see Shu’t HaRan #20).

BUT WAS THIS A CASE OF NEGLIGENCE?

Yaakov objects to Reuven’s defense. “Even if I received some benefit and you are not a sho’eil, you are still liable as a socheir because the damage was caused by negligence!”

However, Reuven has done his homework. He knows that there is another distinction between a renter and a borrower that we will now explain.

DID REUVEN ASSUME RESPONSIBILITY FOR THE CAR?

Reuven claims he would never have driven the car had he known it was uninsured. Therefore, he never assumed any responsibility for the car’s value and he is not liable for the damage. Does this defense have any merit?

The Gemara discusses a case where someone assumed responsibility for an item assuming it was worth far less than it actually is. If the item is subsequently lost, he is only responsible for as much value as he originally thought the item was worth (Shulchan Aruch, Choshen Mishpat 291:4). Thus, Reuven can legitimately claim that he was not responsible as a socheir of the car because he never assumed responsibility for its value.

BUT WHY DID REUVEN INSIST THAT HE WAS NOT A SHO’EIL?

Reuven first claimed that he was not a sho’eil because Yaakov had received benefit. Only then did he claim that he wasn’t even a socheir because he had never assumed any responsibility. This seems like an unnecessary step in his defense – let him simply claim that he never assumed any responsibility, whether as a sho’eil or as a socheir.

The answer is that there is a halachic difference between borrowing and renting. A borrower becomes responsible for all the damages even if he did not assume responsibility; that is, the fact that he uses the item without providing the lender any compensation makes him responsible (Machanei Efrayim, Hilchos She’eilah #1; Milu’ei Mishpat 346:8; cf. however Nesivos HaMishpat 346:8, who implies that even a sho’eil is not responsible under these circumstances). However, a socheir’s liability is limited to how much responsibility he assumed.

WHY IS A BORROWER DIFFERENT FROM A RENTER?

A borrower is responsible because of the concept of kol hana’ah shelo, “all benefits are to the borrower.” The circumstances are what make him liable, not necessarily his agreement. (Although the lender can agree to exempt the borrower from all damages, in the absence of such an agreement, the borrower is responsible for all damages.) Thus, a borrower claiming that he never assumed responsibility or that he was unaware of the liability would not be a defense. However, a socheir’s liability results from his agreement to be responsible as a socheir. Therefore, claiming that he never assumed responsibility is a valid defense.

Thus, Reuven claims that he is not responsible for having borrowed the car based on the following reasoning:

1. He is not a sho’eil, but a socheir, since Yaakov received benefit from the “loan.”

2. As a socheir he can claim that he never accepted responsibility for the value of the car because he assumed that insurance was covering the financial liability.

WHAT ABOUT A MAZIK, SOMEONE WHO DAMAGED SOMEONE ELSE’S PROPERTY?

Reuven has successfully demonstrated that he is not obligated to pay as a borrower. However, this does not exonerate him from Yaakov’s claim that he damaged the vehicle. His defense against this claim was that Shimon caused the accident. Is this claim a sufficient defense? Moreover, is it Yaakov’s responsibility to prove who caused the accident in order to collect the damages from Reuven?

First we must clarify two shaylos:

1. If someone damaged property in a traffic accident, is he considered a mazik who must pay for damages?

2. When two parties are involved in a collision, how do we assign financial responsibility?

The following incident that happened over seven hundred years ago resolves one of our questions.

ACT III – SOME HORSEPLAY

Location: Thirteenth Century Germany

The Rosh (quoted by Tur, Choshen Mishpat 378:9) discusses the following din Torah:

During a wedding celebration, the groom was riding a very expensive mule that he had rented from a non-Jew for the occasion. (This was the thirteenth-century equivalent to renting a white Cadillac for a newlywed couple.) One of his well-wishers galloped up the street on horseback, unintentionally crashing his horse into the groom’s mule. Baruch Hashem, the groom emerged unscathed from the collision, but the mule suffered severe damage. Under civil law, the groom, as renter of the mule, was obligated to pay not only damages but also a sizable penalty. Must the reckless rider compensate the groom for the damages and the penalties?

The horse rider refused to pay, contending that he was exempt from damages since he was riding on a public thoroughfare. Furthermore, he had not done the damage; the horse was responsible. He claimed that this case is comparable to that of an animal that tramples on property while walking through a public area. In that instance, the halacha does not obligate the owner of the animal to pay if his animal tramples property left in a public area.

The Rosh ruled that there is a difference between an animal walking and a rider galloping on a horse. In the latter case, the rider himself is the damaging party, and the horse is the “tool” with which the rider damaged. A person is required to use a public thoroughfare in a responsible way, and galloping on a horse when other people are nearby is irresponsible. Since the rider acted irresponsibly, he must pay damages. (For reasons beyond the scope of this article, the Rosh absolved the rider from paying for the penalties that the groom incurred.)

When two cars collide, who is responsible for the damage?

Based on the above ruling, any damage performed by an automobile is considered damage performed by its driver, and the automobile is considered his tool. However, this does not tell us how we determine which driver is responsible, and for how much damage.

For this we will have to refer to an older discussion that traces back to the time of the Gemara.

ACT IV – A COLLISION

Location: Bavel, Seventeen Hundred Years Ago

The Gemara (Bava Kamma 32a; 48a) and the poskim discuss at length the case of two people colliding into one another on a city street, both of whom sustain injuries. Who is responsible to pay for the damages?

We will simplify a very complicated discussion by providing some general rules that apply to our case:

If one party acted responsibly and the other acted irresponsibly, and the two parties collided, the party who acted irresponsibly is liable for damages. Thus, if one person is running through the street and the other is walking, and the two people collide, the running person is liable since that is considered acting irresponsibly. (There is an exception. The halacha acknowledges that someone is permitted to run through the streets late Friday afternoon to get his Shabbos jobs done. This running is not considered irresponsible.)

If both parties acted irresponsibly, the poskim dispute how we determine liability. Rashi (Bava Kamma 48b s.v. chayovin) rules that when the two parties collided into one another, each person is liable for the damage he did. Thus if Levi and Yehudah collide, Levi is responsible for Yehudah’s injuries and Yehudah for Levi’s.

Tosafos (Bava Kamma s.v. shnayim) disagrees, contending that in a case where both parties acted irresponsibly and the damage was accidental, neither party must pay for damages, since the damaged party also acted negligently. However, if someone injured or damaged intentionally he must pay even if the other party was negligent.

How do we paskin?

The Shulchan Aruch (378:7) rules like Rashi whereas the Rama (421:8) rules like Tosafos.

Let us now apply the rules just mentioned to our case. By his own admission, Reuven made an illegal turn, which certainly qualifies as negligent driving. Thus, even if we accept Reuven’s claim that Shimon was speeding, it is still a case of both drivers acting irresponsibly. According to Rashi’s opinion, this would still make Reuven responsible for the damages to Shimon’s vehicle. In addition, Reuven would be responsible for the damage to the car he was driving since he acted negligently. Reuven is claiming that Shimon should be responsible for those damages, a claim that he cannot substantiate.

According to Tosafos, Reuven is claiming that both parties contributed to the damage and that therefore he is not liable for the damages to Shimon’s vehicle. However, he would certainly be liable for the damages that happened to the car that he was driving.

This is all assuming that we accept Reuven’s contention that Shimon was speeding. However, Reuven cannot prove that Shimon was speeding, and Shimon denies it. Since we know that Reuven made an illegal turn, the beis din ruled that Reuven acted negligently and is liable for the damage to both cars. Since there is no proof that Shimon was negligent, we cannot make any claim against him.

ACT V – EPILOGUE

Reuven was understandably disappointed with the beis din’s decision. However, as a G-d fearing Jew, he knows that he is bound by their psak. Thankfully, there was only property damage involved and he did not inadvertently suffer or cause any bodily harm. He now davens for Hashem’s help that he continues his driving career with no further incidents or accidents.

Planning in Advance – Advice for the Chesed Doer

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Sometimes performing chesed can end up causing unexpected financial distress. However, a little bit of prevention can go a long way in avoiding this unplanned mishap.

Question #1: The Automobile Delivery

Mrs. Rosenberg’s *(all names have been changed) son, Yanky, a very straight and serious yeshiva bachur, sometimes comes home from yeshiva driving cars that are not his own. He told her that he is doing a favor for a businessman who needs these cars transported from place to place. Mrs. Rosenberg wants to know if Yanky is running any risk should something happen to the cars while in transit.

Question #2: The Money Transporters

2A. Shifrah commutes to work along a route that includes two branches of a local business. The owner asked her if she could convey money back and forth between his two offices. Shifrah asks me if she bears any halachic liability while performing this favor.

2B. Yosef is traveling to Eretz Yisroel, and Mrs. Goldstein asked him to bring some Chanukah gelt to her nephew. Rabbi Friedman asked Yosef to bring some money to his daughter there, and Mr. Gordon requested that he transport money to his son. Although Yosef initially put all the money together, he later decided to separate it during the trip for added security. Upon arrival in Israel, he discovered that some of the money was stolen. Must Yosef replace the stolen funds? If he does not, how do we determine whose money was stolen?

Question #3: The Wonderful Women of N’shei.

The local N’shei chapter conducted one of their wonderful activities to raise money for tzedakah. For table décor, they borrowed some expensive vases. Sarah picked up the vases, and transported them to the hall. Rivkah was in charge of placing them on the tables, and Rochel was responsible to return them. Leah, who was in charge of final clean-up, discovered that Rochel forgot to take the vases and now finds herself in a predicament. It is too late to call anyone to find out where to take the vases. If she leaves the vases behind, no one will return them, and they will certainly be lost or broken. There is no room in her small, cramped house to keep these vases safely from her frolicking children even until she can find someone to pick them up tomorrow. What should she do? With no choice, she transports them to her own house, hoping for the best. She calls me the next day, reporting that unfortunately some of the vases were broken before she could return them. Is she liable?

In all of these cases, someone doing a big chesed may have unwittingly stumbled into a major liability. Should one avoid performing chesed because of such fears? Of course not! But one should be aware of one’s liabilities and how to limit them.

THE BASICS:

In each of the above cases, the person doing the chesed became a shomer, because he or she assumed the responsibility to take care of someone else’s object. We must first review the basic rules of shomrim, and then see how these rules apply in each of our cases.

The Torah presents us with three basic categories of shomrim:

A. The Shomer Chinam: This shomer is someone who takes care of an item without receiving any financial benefit at all, even indirectly — and who is not permitted to use the item. Although he is unpaid, this shomer is still responsible to pay for the item if it was damaged due to his negligence or if he used it for himself (which he is not allowed to), but he is not responsible if he took appropriate care and yet the item was damaged or disappeared (Shulchan Aruch Choshen Mishpat 291:1). However, even if the shomer chinam took care of the item responsibly, the owner can still request that the shomer swear an oath that he/she indeed was careful, that he/she did not use the item, and that he/she is not still holding it (Shulchan Aruch Choshen Mishpat 295:1-2).

B. The Shomer Sachar: This is anyone who takes care of an item in return for some financial benefit. This includes someone who rents something and also a craftsman who repairs an item, since in both of these cases the person is responsible to take care of the object and receives compensation for his work. A shomer sachar is responsible to pay if the item is lost or stolen, but he is not obligated to pay if the item became lost or damaged through an accident beyond his control (Bava Metzia 93a). Anyone who receives some benefit while assuming responsibility for an item is included in this category, including a repairman or a renter (Bava Metzia 80b).

C. The Sho’el: This is someone who borrows an item and receives benefit without paying. He is responsible to pay back for any damages that happen to the item, even if the damage is beyond his control. Since he is receiving benefit gratis, he is responsible to make sure that he replaces the item to its owner. There are two situations where the Sho’el is not obligated to pay, but we will not discuss them in this article.

Having discussed some of the basic halachos, let us see how these halachos affect the cases I mentioned at the beginning of this article:

Question #1: The Automobile Delivery

When Yanky Rosenberg needs to travel between cities, he often drives cars for a car dealer he knows. This arrangement seems to benefit both parties – it provides Yanky with free transportation and provides the dealer with an inexpensive driver. Mrs. Rosenberg, however, is concerned about Yanky’s potential liability . Her concerns are very valid because Yanky has the halachic status of a shomer sachar, since he receives transportation, which is definitely worth money, in exchange for transporting the vehicle. Therefore, if the car is stolen during the trip, Yanky is responsible in full for the automobile, and he is also responsible for any damage caused by his negligence. For example, if the car is involved in an accident while Yanky is driving, he is responsible for the damages if his negligence caused the accident.

After finding this out, Mrs. Rosenberg was very concerned as she does not want Yanky to be halachically responsible for the automobiles. I told her that there is a simple solution. Yanky can simply tell the car dealer that he is assuming no responsibility for the vehicles. Although the Torah rules that a shomer sachar is usually responsible for theft and similar losses, the two parties can negotiate a different arrangement if they both agree (Mishnah Bava Metzia 94a). Thus, every shomer has the right to negotiate his own deal to assume either less or more responsibility than the Torah usually assigns. If Yanky tells the automobile dealer that henceforth he is assuming no responsibility for the cars he drives and the dealer agrees, Yanky will no longer be responsible for any loss, theft, or damage caused by his negligence.

Of course, the owner may no longer want Yanky to transport the automobiles under such an arrangement. Alternatively, Yanky and the dealer may decide to negotiate an arrangement that limits Yanky’s responsibility. Whatever they decide, at least all parties will know what to expect in the event that there is an unfortunate incident.

Question #2: The Money Transporters

A neighborhood business owner asked Shifrah to transport money for him from one location to another. If Shifrah receives any compensation for this favor, such as the business owner pays for her gas, she becomes a shomer sachar who is obligated to pay for any theft, loss or negligence. If she receives nothing for her kindness, she is still a shomer chinam. Although her liability is far less, she is still responsible for the loss of the money if she is negligent. Furthermore, should the money be stolen, she may be obligated to swear an oath that she was not negligent. Since most religious people are hesitant to swear oaths, this could present a problem for Shifrah.

Should Shifrah avoid the entire issue and refrain from transporting the money?

I told Shifrah that she should tell the business owner that she assumes no responsibility for his money in any way, and that he absolves her of any need to swear if the money is lost or stolen even if she is negligent. Shifrah explained to the business owner what I had told her, and he agreed that she should carry absolutely no responsibility whatsoever for the money. Now Shifrah can transport the money as a chesed, knowing that she will incur no liability whatever happens.

Yosef, who is transporting money for people on his trip to Eretz Yisroel, did not tell Mrs. Goldstein, Rabbi Friedman or Mr. Gordon that he was not assuming responsibility for transporting funds. Thus, he was a shomer when the theft occurred. We need to determine whether he was a shomer chinam or he was a shomer sachar, who receives some benefit for being a shomer. If Mr. Gordon gave Yosef a ride home one day in the course of bringing Yosef the money, Yosef might become a shomer sachar for the entire sum of money entrusted him by Mr. Gordon if the ride was partially in exchange for transporting the money.

Even if Yosef qualifies as a shomer chinam, this does not mean that he has no liabilities. First, we must determine that he was not negligent according to halacha’s definitions. The halachic definition of negligence when taking care of money is very stringent. For example, the Gemara rules that one who is responsible for money must hide it in a place where a thief would almost certainly not find it, even if he does not hide his own money so securely. In the time of the Gemara, this meant that a shomer had to dig a deep hole in the floor of his house (remember that the floors were made of earth) and bury the money there, thus creating a hiding place that is almost impossible to locate. Storing the money anywhere else qualifies as being negligent and makes one liable. Later, when burglars began digging beneath houses in search of hidden valuables, Chazal ruled that burying valuables was considered negligent and the only responsible way to hide them was in certain specific hiding places in the wall of the house where one could not tell that the wall was hollow! (Gemara Bava Metzia 42a)

When transporting money for someone else, the Shulchan Aruch (Choshen Mishpat 291:20) rules that one must keep the money tied in a bundle in your hand or in a place that you can always have your eyes on it. However, placing someone else’s money for safekeeping in a seemingly secure place behind you, such as in a zipped-closed back pocket, is negligent. Presumably, today we would apply different definitions for what is considered a secure place. Thus, it is possible that transporting money for someone without keeping it in a money belt or some other very secure fashion may be negligent.

Even if Yosef is halachically not negligent, he still might be required to swear an oath that he secured the money appropriately and that it was stolen.

Assuming that Yosef is not responsible, we need to determine whose money was lost. This may depend on several scenarios. Where was the money put? Did he keep each person’s money in a different place? Did he keep his money together with their money?

At this point, I advised that all four parties (Yosef, Mrs. Goldstein, Rabbi Friedman and Mr. Gordon) agree to submit the shaylah to one rav who could then rule whether Yosef is obligated, and if he is not, how to divide the remaining money among the three claimants. Since they did not choose me to be their arbiter, I do not know what the final decision was.

By the way, this shaylah could have been resolved very simply if Yosef had told Mrs. Goldstein, Rabbi Friedman and Mr. Gordon that he was not assuming any responsibility for the money, as I advised Yanky Rosenberg and Shifrah to do. In this situation, one would only have to resolve how the recipients divide the remaining money.

THE WONDERFUL N’SHEI LADIES

We still need to determine which, if any, of the wonderful N’shei ladies is responsible to pay for the broken vases.

To review the case: Sarah borrowed vases for a N’shei function and transported them to the hall. Rivkah was responsible to place them on the tables, and Rochel was supposed to return them, but she forgot. Leah discovered the forgotten vases, took them home against her better judgment, and some of them were broken before she could return them. Who is liable for the vases?

Again, here too a bit of advance planning would have been very helpful. When Sarah went to borrow the vases, did she clarify that she was borrowing them on behalf of N’shei? Did N’shei authorize her to make the organization responsible? Who within N’shei can authorize making the organization responsible for borrowing an item?

If we can determine that Sarah was authorized to borrow the vases on behalf of N’shei, and the lender understood this and agreed to it, then Sarah would not be personally responsible for the vases. However, if no one clarified these issues, Sarah is the legal borrower of the vases.

Did Sarah have permission to give the vases to someone else? If she did not, then she is responsible regardless of who was subsequently negligent with the vases. However, if the lender understood that other people would be using the vases, then Sarah is not the only party responsible, and Rivkah would become responsible as soon as she began placing the vases on the tables (see Shulchan Aruch, Choshen Mishpat 291:22).

But then, you’ll tell me, Rochel should be responsible for not returning the vases!

However, here we have an interesting problem. Although Rochel forgot to pick up the vases and return them, she technically never became responsible for the vases. This is because of the following halacha in the laws of shomrim. According to most opinions, a shomer only becomes responsible when he or she picks up the item or if someone places the item in his or her jurisdiction. This is called that the shomer made a kinyan on the object. Since Rochel never picked up the vases and never made a kinyan on them, she never became responsible for them (Shitah Mekubetzes, Bava Metzia 98b, quoting Raavad; Shulchan Aruch, Choshen Mishpat 303:1).

There is a dissenting opinion that contends that the responsibility of a shomer can occur without making a kinyan on the object, but only in the following way. The shomer assumes responsibility for the item and the person who owns it or was previously responsible for it stopped assuming responsibility for the item. According to this opinion, the fact that the shomer assumes responsibility for the item and the owner walks away makes the shomer responsible (Rosh, Bava Metzia 8:15; Rama, Choshen Mishpat 340:4; see Shulchan Aruch Choshen Mishpat 291:5 who cites both opinions).

However this did not happen here, since Rochel did not assume responsibility for the vases at the time that Rivkah relinquished responsibility.

Thus, at the time that Leah found the vases on the table, no one was assuming responsibility for them. The responsible party at this moment is either Sarah, who originally borrowed them, or Rivkah, who was the last person to take responsibility. This would depend on whether the lender of the vases assumed that several people would be in charge of them. If the lender understood this, then the responsibility transferred from Sarah to Rivkah, and if not, Sarah remains the responsible party.

Thus, when Leah found the vases, she was doing a favor either for the organization, the owner of the vases, for Sarah or for Rivkah. In any of these instances, she did not want to assume responsibility, but simply wanted to save them from certain loss or damage. Does this release Leah from legal responsibility?

I have been unable to find clear sources that discuss this particular shaylah. I discussed this shaylah with some prominent poskim, and received differing opinions. One contended that Leah is indeed responsible for the vases, notwithstanding her hesitation at taking them. Another assumed that Leah is not responsible since they would have been certainly lost had she not taken them and she took them only because she felt that maybe this way they would not be destroyed.

I suggested to these wonderful women that they establish a future policy that the organization assumes responsibility for any items borrowed on its behalf, and that they arrange that any losses of this type be subtracted from the profits that the benefit brought in.

As we can see, the laws regarding responsibility for items are very complex, and sometimes lead to surprising conclusions. Among our cases, each participant was performing a chesed that could easily have created a large financial responsibility. This helps us highlight the importance of taking care of the property of others. While we certainly shouldn’t hesitate in performing acts of chesed, recognizing and preparing for the halachic ramifications of our actions is undoubtedly worthwhile. Of course, if one’s act of kindness unfortunately results in an unexpected predicament, he or she should not regret the act of chesed performed but rather accept to better protect oneself in the future.

What I Borrow, I Must Surely Return

In Parshas Mishpatim, the Torah teaches us the responsibilities we assume when watching or borrowing other people’s property. Personal experience has demonstrated that most people are unfamiliar with the halachic obligations entailed in borrowing.

SHE’EILAH VS. HALVA’AH

Hebrew uses two different words for borrowing, she’eilah and halva’ah, which describe two different types of transactions with major legal distinctions. She’eilah means borrowing an item that will itself be returned. In a she’eilah, the pikadon, the item loaned, remains the property of the lender, and the borrower has rights to use it. (The borrower is called the sho’el and the lender is called the mash’eil.)

Halva’ah, on the other hand, refers to an item that will not be returned. Rather, the borrower uses the item and returns its value or a replacement item. Although often people think that only borrowing money is considered halva’ah, borrowing eggs is also halva’ah since they will be eaten and different eggs will be returned. Similarly, borrowing any item that will not be returned intact is halva’ah. In a halva’ah, the borrower becomes the owner of the loaned item and assumes financial responsibility to repay the lender. Once the borrower receives the loaned item, the lender loses his legal right to ask for the item back. (An exception to this is if the item is loaned in error, for example, if I loan someone an item that is more valuable than I intended.) This is in contrast to an item given as a she’eilah where the borrower assumes responsibility to care for the item and returns it intact when the loan is over.

At times, borrowing money can be she’eilah and not halva’ah. For example, if I borrow a rare coin for an exhibit, it is understood that I do not intend to spend it and that I will return the same coin. Therefore, it has the laws of she’eilah.

OTHER DIFFERENCES BETWEEN SHE’EILAH AND HALVA’AH

There are many other halachic differences between she’eilah and halva’ah. For example, the borrower of a halva’ah that has no specific repayment deadline automatically has 30 days to repay the loan (Choshen Mishpat 73:1). However, an item lent as a she’eilah without specifying a length of time must be returned as soon as the owner wants it back (Shulchan Aruch, Choshen Mishpat 341:1).

Charging money for she’eilah is not prohibited; this is called rental. In this case, the “borrower” is now a “renter” and is less responsible for the item than a borrower is.

However, charging for a halva’ah is considered interest and is prohibited because of ribbis. It should be noted that in the case mentioned above where a coin was borrowed for an exhibit, one may charge a rental fee for the coin without incurring the prohibition of ribbis since it is a she’eilah and not a halva’ah (Yoreh Deah 176:1). (There are specific other rules that must be followed in these circumstances to avoid ribbis that are beyond the scope of this article.)

The following story illustrates a case where money was loaned as a pikadon and not as a halva’ah.

Reuven was negotiating a business deal which required investing a significant amount of his capital. The potential partner insisted on proof that Reuven could produce the required funds. Although Reuven had sufficient resources for this purpose, it was easier for him to “rent” money from a third party as a pikadon. The agreement was that he would not use the money and would return the very same banknotes to the lender.

Two shaylos are involved in this case. 1. Is this act geneivas da’as, deception, since Reuven is showing the partner someone else’s money? (This shaylah will, IY”H, be discussed in a future article.) 2. Is there a problem of ribbis?

Reuven may rent the money because he does not have the right to spend it; rather, he must return it intact. Therefore, the transaction is a she’eilah and not a halva’ah, and there is no ribbis prohibition.

We will discuss the halachos of ribbis at a different time, I”YH. For the rest of this article, we will focus on the halachos of sho’el, someone who borrows an item that will itself be returned.

RESPONSIBILITIES OF A BORROWER

In general, someone who borrows an item becomes fully responsible for its welfare. As the Torah says, if he borrowed an animal and it became injured or died, the borrower must repay, even if he was not negligent.

I borrow a friend’s laptop computer for a business trip. I take exceptional care of the laptop since it is someone else’s property, even making certain to put it in the hotel safe when not using it. While I am away one day, a fire breaks out in the hotel and the computer is irreparably damaged. Although the damage was accidental, I am still obligated to pay for the computer.

But why should I be obligated if something happened that was beyond my control? The damage was no fault of mine!

Although the details of hilchos sho’el are basically a g’zeiras hakasuv, a declaration of the Torah, there is a rationale behind these rules. When I borrow something, I receive a pure gain from the transaction since I can use the item without giving the lender anything in exchange. Therefore, the Torah obligates the borrower to ensure that the owner receives his item back, even when the borrower is not responsible for the damage (see Gemara Bava Metzia 94b; Shu”t HaRan #20).

We will later discuss two circumstances where the borrower is not responsible to compensate for the loss.

CAN I LIMIT MY RESPONSIBILITY?

Someone wants to borrow my car, but does not want to be responsible for anything that might happen to it. According to halacha, while he is borrowing my car, he is responsible if it is stolen, suffers damage from a storm or fire or is hit by another car.

Can we arrange to absolve the borrower from this responsibility?

Yes. The two parties can agree to limit the borrower’s responsibility to whatever level they are comfortable with. This is referred to as a tnai she’b’mamon, condition included in a business agreement, which is fully valid in halacha. The Mishnah states that a borrower may stipulate that he is not responsible to pay for damages even if he is negligent (Bava Metzia 94a).
SOME INTERESTING SHAILOS

Someone once asked me the following shaylah. Their yeshivah bachur son traveled back and forth between their hometown and his yeshivah, often transporting automobiles for a frum car dealer. Each side considered this an ideal arrangement – the son had free transportation and the dealer had his shipping needs serviced very inexpensively. However, I pointed out that although the son is not considered a “sho’el” (who is responsible even for accidental damage, as explained above) since the dealer also gains from the arrangement, the son is still responsible for the total value of the car if he acts negligently. (Whether he is responsible to replace the car if it is stolen is dependent upon details that are beyond the scope of this article.)

Needless to say, his parents were rather concerned about their son assuming this level of financial responsibility. I explained that their son should negotiate with the dealer exactly how much responsibility he was accepting.

My wife was once asked to transport a large sum of money on a journey. Although she was doing the other person a complete favor, she would still be responsible for negligence. We told the person that she was assuming no responsibility whatsoever, and he agreed. Since we made this condition, she could not be held responsible no matter what happened.

Similarly, someone who borrows an item may specify to the owner that he is not assuming full responsibility for the borrowed item, and this absolves him if the owner agrees. Of course, the owner may not want to lend the item if the borrower does not assume full responsibility.

DOES THIS ARRANGEMENT NEED TO BE IN WRITING?

No, an oral agreement or understanding between the two parties is perfectly sufficient. The main advantage of a written agreement is to prevent misunderstanding or disagreement about the terms of the agreement.

But one second! Doesn’t the Torah require the sho’el, borrower, to pay for damages? How can the Torah’s instructions be pushed aside?

There is a major difference between the financial rules established by the Torah and its prohibitions. In business arrangements, two parties may create their own terms. Thus, an employer can agree to give his employee benefits beyond what halacha requires and be obligated to provide them. Similarly, when a couple marries, the husband assumes responsibility to support his wife. However, if the two choose to marry without this responsibility, they may do so (Gemara Kiddushin 19b).

However, two parties cannot make a business agreement that violates a Torah prohibition. Therefore, one cannot create a contract that charges interest, ignores the Shmittah time limit for collecting debts or authorizes using non-halachic courts for adjudication. These cases all involve Torah-ordained prohibitions, and therefore cannot be eliminated by a “deal” between the two parties.

WHEN IS A BORROWER NOT RESPONSIBLE FOR DAMAGE?

I mentioned above that there are two circumstances whereby the borrower is absolved from paying for the damage. The Gemara calls these two cases “be’alav imo” literally, “the owner is with him,” and “meisah machmas melacha,” which means “the loaned animal died because of the work.”

The basis of each of these two pturim, absolutions, is totally different and both need to be explained.

BE’ALAV IMO

Be’alav imo means that if the lender was working for the borrower when the pikadon was borrowed, the sho’el is absolved from paying for any subsequent damage. According to the halacha, this applies only if the owner was working when the she’eilah began. However, if the owner began work after the loan was begun, the borrower is fully responsible (Bava Metzia 94a).

This rule sounds very strange. What is its rationale?

We generally divide mitzvos into two categories, bein adam lachaveiro, mitzvos between us and our fellow men, and bein adam laMakom, mitzvos between us and Hashem. We are not surprised when mitzvos bein adam laMakom are beyond our comprehension and based on gezeiras hakasuv, decrees of Hashem in His Torah. For example, we never question why the Torah commanded holding an esrog on Sukkos and not a lemon – we know that the Torah’s mitzvos are beyond our comprehension. Nor do we ask why the flimsy schach on a sukkah must come from plant growth. We understand that these halachos are gezeiras hakasuv.

However when we it comes to bein adam lachaveiro, we expect to understand them. Indeed, most halachos of civil law are very comprehendible and include relatively few halachos based on gezeiras hakasuv. However, there are some exceptions and the rule of be’alav imo is one of them. The Torah states that under these circumstances, the borrower need not pay, even though we cannot comprehend the difference.

Nevertheless, several rationales have been suggested for the law of be’alav imo. In other words, even though it is a gezeiras hakasuv, we can derive certain hashkafic concepts from these laws. However, we must realize that these rationale should not be considered as “reasons” for the mitzvah. After all, do we think that we can comprehend the reasons for Hashem’s mitzvos? As the Sefer HaChinuch explains, the words ta’am hamitzvah should be translated as the taste of a mitzvah, rather than the reason for a mitzvah. This is because we can never explain why Hashem gave us mitzvos. We can only suggest ideas that will help us grow while we observe the mitzvos that Hashem has granted!

Similarly, the ta’amim given to explain be’alav imo should be understood as tastes, ideas that illuminate these halachos.
That being said, we can now present a ta’am suggested for the law of be’alav imo. Some explain that since the owner is being employed by the borrower, the borrower does not assume that he is responsible for the item borrowed. Rather, he assumes that the owner is taking care of his own item (Chinuch, Mitzvah 60). Under these circumstances, the Torah does not require the borrower to pay for damage done to the loaned item.

MEISAH MACHMAS MELACHA

The other occasion when a borrower is absolved from paying is “meisah machmas melacha,” literally, “the loaned animal died because of the work.” This is based on a logical concept that if the borrower had express permission to use the borrowed item for a certain purpose, he should not be penalized for utilizing it for that purpose (Tosafos; Nimukei Yosef).

There is an alternative explanation for meisah machmas melacha that contends that the borrower has the right to assume that a borrowed item can withstand normal wear and tear. If the pikadon did not withstand normal use, then we presume that it was inferior and the borrower is not responsible for the loss (Ramban; Sma 340:3).

A LOANED CAT

The Gemara discusses a strange case of someone who borrowed a cat to rid his house of unwanted mice. A din Torah was called when the mice killed the cat instead and the mash’eil claimed that the borrower must pay him for his loss! The Gemara concludes that the borrower is exempt because there must have been something wrong with a cat that was overpowered by mice (Bava Metzia 97a).

The following case is discussed by poskim. The residents of a threatened town borrowed weapons to defend themselves. They were defeated and the weapons were confiscated. Must they pay for the weapons?

The poskim dispute this issue. Some rule that they are exempt because the items were borrowed specifically for use in self-defense and the loss is categorized as meisah machmas melacha. Others contend that they are obligated to pay since the weapons were not inferior (Sma 340:8 and Shach ad loc.).

I was recently asked a shailah about someone who borrowed a power saw that was damaged during use. Is this considered meisah machmas melacha?

The halachic issue is to determine whether the borrower used the saw in a normal fashion, in which case he would be exempt from paying, or whether he perhaps abused the appliance, in which case he is obligated.

A FEW UNFAMILIAR HALACHOS ABOUT BORROWING

I have discovered that there are several halachos of which even knowledgeable people are unaware.

If I borrowed an item for a specific purpose, may I use it for something else?

In most instances, the answer is no. It is prohibited to use the pikadon for a different job without permission, even for a job that involves less wear and tear than the task for which it was borrowed (Shulchan Aruch, Choshen Mishpat 341:7). Some poskim permit using the pikadon for a job that is clearly less taxing on the tool, but all agree that I may not use it for work that might be equally stressful (Taz 340:1; Sma 341:20).

RETURNING THE BORROWED ITEM

Many people are unaware that a borrowed item is not considered returned until the lender knows about it (Choshen Mishpat 340:8). Therefore, if I borrow a hammer from my neighbor and return it to his house, I have not discharged my obligation until he knows that it has been returned. If it becomes damaged in the interim, I am still responsible to pay!

I borrowed a sefer from someone. When I came to return it, his children told me that the owner had gone on vacation. Consequently, I am responsible for the sefer until he finds out that I have returned it to his house.

BORROWING COLLATERAL

Reuven borrowed money from a non-Jewish bank and placed a valuable painting in the bank’s vault as collateral. Knowing that the painting was worth far more than the loan, Shimon asked Reuven if he could borrow some money from the bank, using the painting as collateral for his loan as well. Both Reuven and the bank agreed. Subsequently, a massive explosion at the bank destroyed the painting. According to secular law, neither Reuven nor Shimon were obligated to pay back the loans since the collateral was not returned. (Incidentally, according to halacha, if the lender was Jewish, he would be obligated to repay the loan since the lender was not at fault for the loss.)

However, Reuven wants Shimon to compensate him for the painting, claiming that Shimon benefited from his loss. Reuven claims that Shimon “borrowed” the painting as collateral, since without it Shimon could not obtain his loan. Therefore, Shimon should have to compensate Reuven since he borrowed an item that he did not return. Does Reuven have any basis for his claim?

According to halacha, Shimon has no responsibility to compensate Reuven. The painting was in the bank’s vault because of Reuven’s loan, not because of Shimon’s (Mordechai, Bava Metzia #371; Rama, Choshen Mishpat 340:1).

However, if Reuven had never borrowed from the bank, but Shimon had used the painting as collateral, Shimon would indeed be responsible for it.

We have touched on some of the halachos involved when borrowing. This certainly indicates how much we have to know in order to observe them correctly. We should always bear in mind that the Gemara advises someone who wants to become a great tzaddik to ensure that he is highly familiar with all the halachos of damages!

The Dry Cleaner and the Gown

The female voice on the other end of the line sounded very familiar. Her voice was full of anger and disappointment. It took me a few minutes to discern what she was trying to communicate.

Once I identified the voice, I realized that it was that of a woman I knew well who is usually very rational. I also began to understand why she was so upset. Mrs. Stein had been expecting to wear a specific, elegant dress for a family simcha and had brought it to the dry cleaner to get it ready. While she was there, she pointed out some stubborn spots on the delicate fabric.

“The dry cleaner managed to remove the stubborn stains,” Mrs. Stein told me, “but my gown’s color washed out in the process! The gown is now absolutely unwearable!  I want the cleaner to pay for the damage in full!”

“I try not to judge a business dispute without hearing the other person’s side of the story,” I told her.

“That’s fine,” she responded. “I’ll ask the cleaner to call you up to explain his side of the story.”

“Are you willing to accept my ruling in this situation?” I asked her.

“Certainly!” she replied.

While awaiting the cleaner’s call, I reviewed the appropriate halachos. If someone hires a workman or artisan to process or repair an item and the workman damages it in the process, he is obligated to pay for its full value and he does not receive payment for his work (Shulchan Aruch, Choshen Mishpat 306:2; 3). As an example of this halacha, the Mishnah discusses the case of someone hired to dye cloth who left the cloth too long in the dye vat and damaged the cloth. The dyer must pay for the value of the cloth he ruined (Mishnah Bava Kamma 100b).

OTHER EXAMPLES

If you hired a builder to demolish a property, and specified that you want to reuse the stones in the subsequent reconstruction, if the builder destroyed building stones in the process, he must repay the value of the stones (Rama, Choshen Mishpat 306:2).

If you hire a carpenter to repair a cabinet, and the carpenter breaks it, he must pay for the damage (Rambam, Hilchos Sechirus 10:4; Shulchan Aruch, Choshen Mishpat 306:2).

Therefore if the cleaner damaged the gown, he is indeed responsible to compensate Mrs. Stein for its full value. This is assuming that the cleaner has no notice posted in his shop that he is not responsible for garments that he damages. According to halacha, if the repairman notified his clients in advance that he does not assume responsibility for damage, he absolves himself of responsibility.

THE CLEANER VERSION

The dry cleaner’s phone call interrupted my research. His version of the events was somewhat different from Mrs. Stein’s.

“Mrs. Stein pointed out the stains she wanted removed,” he told me. “In retrospect, I regret that I did not specify to her that the solvents used to remove the stains could change the gown’s color. I do not remember whether the garment was wearable with the stains or not, but I know that people do not usually leave stains on their nice garments.”

“Was the garment ruined?” I asked the cleaner. “Not at all,” he answered, “I am willing to show it to any expert on women’s clothes. We saw the stains and assessed that the best way to remove them was to clean the entire garment evenly with a specific solvent. This is a standard procedure in this type of situation. When you dry clean this way, if the color is affected, the entire garment changes to a consistent new color. I would love to show you the garment to see the masterpiece we created!”

The dry cleaner’s interpretation of events had us dealing with a very different shaylah! He contended that he used his best professional judgment in removing the stain, and the result was an altered, but perfectly satisfactory and useful garment. According to this understanding, he is entitled to full compensation for his efforts since he did what Mrs. Stein hired him to do and there was no damage to the gown, according to him, but rather, an improvement!

I now found myself in a predicament. I knew this dry cleaner well, and as far as I know, he was a very reputable person. Although he could have been covering up for his mistake, I had no reason to suspect him. On the other hand, Mrs. Stein was also a person I respected; a tremendous baalas chesed – the classic “pillar of the community.” Should I suspect that one of them is not telling the truth?

The fact that I heard two very different versions of the events from the two parties did not mean that either one of them was, G-d forbid, lying or dishonest. Each of them saw the events that transpired his or her own way. This is human nature; we tend to see and color events through our own eyes, regardless of the fact that someone else’s interpretation may vary considerably from ours.

This is the reason why it is very important for every person to have a good friend who gently challenges our assumptions. It is difficult, and maybe even impossible, for us to be objective about ourselves. A good friend can help us regain our objectivity when we become emotionally wrapped up in ourselves. In this case, if Mrs. Stein had asked a good friend for an honest evaluation, perhaps the friend could have helped her calm down. Similarly, the dry cleaner may have benefited by having someone point out to him that his interpretation of the events and facts may have been somewhat flawed.

Although this helped me understand the human side of the dry cleaning interaction that took place, it did not help me establish the facts. The question still remained – did the cleaner damage the gown or not?

There was indeed one other possibility, that both sides were right. The dry cleaner did what he thought was best, which was to clean the gown even though its color might fade slightly. However to Mrs. Stein, this result was unacceptable. It is possible that had she been told that her gown might fade she would have rejected this method of dealing with the problem.

If so, a third set of halachos applies – where the artisan did perfectly good work, but it was not what he was hired to do and not what you want. Perhaps our case is comparable to the case in the Mishnah (Bava Kamma 100b) of someone who hired a worker to dye cloth red and he dyed it black.

In that case, the resultant product is worth more than it was when he started, but the owner did not want black cloth, just as Mrs. Stein did not want a faded gown.

Does the worker receive compensation in this case? Is he liable for all damages?

The above mentioned Mishnah cites a dispute about someone who hired a worker to dye cloth red and he dyed it black. Rabbi Meir rules that the worker pays the hirer for his cloth and keeps it, regardless of whether the finished product is worth more or less than the original cloth. Rabbi Yehudah disagrees, contending that this arrangement benefits the negligent worker too much. Let us assume that the finished black cloth is worth far more than the original un-dyed cloth was worth. According to Rabbi Meir, the dyer would benefit from all this profit. Rabbi Yehudah contends that this is unfair – the worker should not benefit from his negligence. Instead, Rabbi Yehudah contends that any benefits go to the owner, and this is the final halacha. (The actual formula whereby we determine how much, if anything, the worker gets paid is somewhat halachically complicated, see Rambam and Raavad, Hilchos Sechirus 10:4; Shulchan Aruch, Choshen Mishpat 303:6.)

Thus, we now have three possible interpretations of what happened.

1. The dry cleaner ruined the garment and should pay damages (Mrs. Stein’s version).

2. The cleaner did the best possible job possible under the circumstances and made an unusable gown perfectly usable. Therefore, Mrs. Stein should pay him in full (the dry cleaner’s version).

3. That the cleaner exceeded what Mrs. Stein authorized him to do, in which case he would be entitled only to whatever increase in value there is. According to Mrs. Stein, there is none, the gown is not worth more than it was in its stained but un-faded phase.

But I am a rabbi and not a prophet. What was I to do? How could I possibly determine what happened?

Furthermore, there was a more important issue at stake. Whenever I am involved in these types of litigation, I am not satisfied to simply determine the halacha, but I want the two parties to leave b’shalom. To me, this is the most important result – that there should be no lasting ill feeling afterwards.

I thought of a course of action that would accomplish this purpose. First, I asked my wife if she would be willing to look at Mrs. Stein’s gown to see whether she considered the garment un-wearable. Of course I realized that although I value my wife’s opinion, she was not going to make the final halachic decision. However, I was looking to see what she thought and consequently which direction I might take in resolving this shaylah.

In truth, this was the most difficult part of the shaylah. How was I to determine whether the gown was now ruined goods or not? For one woman a garment may be un-wearable and to another it could be perfectly fine. The halacha in such a dispute places the burden of proof on the person who wants to collect the money.

I also asked my wife the following question, after first explaining to her that there was a halachic reason why I needed the information (and therefore no loshon hora was involved). I asked her, “Is Mrs. Stein the type of woman who would be bothered by things that others would not notice?” My wife answered that Mrs. Stein is a very discerning dresser. Thus, I realized that it might be that even if the dry cleaner did what most people would consider the correct course of action, Mrs. Stein would not be happy with the results. On the other hand, it might be that the dry cleaner assumed that the garment was fine, but most people would consider it damaged.

Then I called Mrs. Stein to see if she would mind showing the damage to my wife. My wife felt that although the gown was definitely faded, most women would have worn the garment as is, although a discerning dresser like Mrs. Stein might find the new color unacceptable.

I called the dry cleaner and asked him whether he would be willing to bend over backwards to placate a customer.

“Of course,” he responded, “I never gain anything from an angry customer. Do you know how many people might hear a story like this?”

I assured him that I would try my utmost to be sure that Mrs. Stein obeyed the rules of loshon hora. She is a very fine woman and meticulously observant of halacha.

Mrs. Stein agreed to come to my office to discuss the matter. First I engaged her in some small talk, and then moved the conversation over to the matter at hand. I knew Mrs. Stein to be a woman who was cautious of loshon hora. I just hoped that she did not forget to be careful while she had been so agitated about her damaged gown.

Indeed, she told me that she had told only one person, other than me, about the ruined gown. She had deliberately decided to tell a friend who does not know where she takes her dry cleaning so that there would be no loshon hora problem. I was extremely impressed about her care in observing halacha under this highly stressful circumstance.

Baruch Hashem, there had been no loshon hora said about this matter. Now to make shalom

I explained to her that I had spoken to the dry cleaner, and that he regretted having not asked her before he used the particular cleaning solution. I also told her that he had used it evenly on the entire garment so that if it would discolor the garment it would leave it in a pretty shade. I then added that I felt the dry cleaner was not guilty from a halachic point of view, but that he was eager to make some restitution anyway because he did not want her to be angry with him.

Mrs. Stein stopped and thought about it. “You know, he has always been so accommodating. I was just surprised and disappointed by him. I suppose not everyone is as fussy as I am. I would be very satisfied if he would make sure to hang up a note to himself in his shop to make sure that he asks every customer before he does something like this again!!”

I had not expected that making shalom would be so easy. I guess that sometimes when you try to do a mitzvah, Hashem makes it easier! And my wife tells me that Mrs. Stein wore a different outfit to the simcha, which was absolutely stunning.

Practical Halachos of Civil Litigation

A Jew lives his life hoping to manage his business relationships without ever resorting to litigation. Someone involved in a “misunderstanding,” should try to discuss the matter with the other party and if the matter remains unresolved, he should try discussing it with the guidance of a third party, possibly a Rav.

However, what happens if someone tried doing this and the problem remained unresolved? For such situations, the Torah commands us to establish batei din.

One may use either of two kinds of batei din. Either the parties can bring their litigation to an existent beis din or alternatively they can create an ad hoc beis din using a system called zabla. Zabla is an acronym for zeh borer lo echod, which means that each party chooses one of the dayanim who will judge the case, and then the two dayanim choose a third person to join them and form a beis din (Sanhedrin 23a). In either system, the two parties agree that they will be bound by the decision of the beis din that they use.

The Gemara (Gittin 88b) teaches that a Jew may not submit litigation against a fellow Jew to a secular court. This violation exists even if both parties agree (Ramban, beginning of Parshas Mishpatim), and is known as the prohibition against using Arkaos, secular courts. Using court systems not sanctioned by the Torah creates chillul Hashem, a desecration of Hashem’s name by implying a denial of Hashem and His Torah (Midrash Tanchuma, Mishpatim #3). Because the Torah created a system of courts, someone who uses a non-Torah source of litigation acts as if he denies the authenticity of the Torah, chas visholom, and the authority of He who commanded us to set up Torah courts.

In the words of the Rambam (Hilchos Sanhedrin 26:7), “Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rosho. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu”. (See also Rashi’s comments on Shmos 21:1). Someone who brought litigation to a secular court without halachic permission (as described later) may not serve as chazan for Yomim Norayim (Mishnah Berurah 53:82). In addition, he will invariably end up with property that is not his according to halacha and transgress the violation of gezel, stealing!

What if the Other Party Refuses to Go to Beis Din?

This problem is unfortunately neither uncommon nor recent, and apparently occurred even at the time of the Gemara (see Bava Kamma 92b, as explained by Rosh). When such an unfortunate event happens, the aggrieved party follows the following procedure: The plaintiff files with a beis din, which now summons the defendant to appear in beis din. If the defendant fails to appear in beis din or indicates that he will not appear, the beis din authorizes the plaintiff to bring his suit to secular court (Choshen Mishpat 26:2).

Under these circumstances, the plaintiff has not violated the prohibition of going to civil courts since beis din authorized his suit. Rav Sherira Gaon notes that, in his community, the custom was to summons the defendant three times before authorizing the plaintiff to sue in secular court (cited by Beis Yosef and Sma to Choshen Mishpat, Chapter 26). This is the usual practice, although it is not required.

It should be noted that even someone who was authorized to sue in secular court is still not entitled to more than he would have been entitled according to halacha. Therefore, after winning his case in secular court, he should ask a posek whether he may keep the entire award and/or how much of it he may keep.

What Happens if I am Summoned To Beis Din?

The answer is very simple: Respond to the summons. A person who receives a notification summoning him to beis din, is halachically obligated to respond. In the vast majority of cases, he has the right to request that the case be heard in a different beis din where he may feel more comfortable. He may also request that the matter be decided via zabla.

Being summoned to beis din may be an unpleasant experience, but that gives a person no right to ignore the summons.

Question I have been Asked:

“Someone told me that the prohibition against secular courts is only if the judges are idolaters. Is there any basis to this?

No. The poskim explicitly rule that it is forbidden to go to any secular court and that there is chillul Hashem every time one goes to a court that does not recognize Torah as its law system. (See for example, Tashbeitz 2:290; Chazon Ish, Sanhedrin 15:4).

May I Go to A Secular Court If the Judge is Jewish?

To answer this question I will quote the Chazon Ish: “There is no difference in halacha between going to judges who are not Jewish and going to Jewish judges who use non-Torah laws. As a matter of fact, it is far worse to go to Jewish judges who have traded away a Torah system for a worthless, vain system. Even if the city residents have accepted this court’s system and authority, their agreement has no validity. To force someone to follow this system has the status of stealing from them and raising one’s hand against the Torah given to us by Moshe Rabbeinu” (Chazon Ish, Sanhedrin 15:4). The identical ruling was issued by Rav Pesach Frank and Rav Yitzchok Herzog (see Shu”t Tzitz Eliezer 12:82).

But I Thought that Dina Di’malchusa Dina means that the Civil Law Determines Halacha in Business Matters?

This is an incorrect understanding of dina di’malchusa dina. Dina di’malchusa dina requires us to obey rules of the government such as paying taxes and obeying traffic and safety regulations, and prohibits us from smuggling and counterfeiting. Dina di’malchusa dina does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern the relationships between Jews, nor does it supplant the responsibility incumbent upon the Jew to bring his litigation to a proper beis din.

Dina di’malchusa dina should not be confused with the following application. In some areas of halacha, particularly the contract law rules for buying and hiring, there is a concept of minhag hamakom – that normative business practice determines what is halachically accepted. For this reason, the halacha regarding sales and employee rights are often governed by what is accepted normal practice. Since normal practice is heavily influenced by secular law, the halachic practice in these areas is influenced by the secular law. This is not because halacha recognizes the secular law but because accepted business practice is influenced by secular law.

However, there will always be interpretations, questions of applicability, and various other halacha considerations that must be done via beis din. Beis din will take into account when and how to apply the rules of dina di’malchusa dina.

It should be noted that areas of halacha such as laws of inheritance are not affected by secular law at all (Shu”t Rashba quoted in Beis Yosef, Choshen Mishpat end of Chapter 26).

May a Lawyer File a Lawsuit in Civil Court on Behalf of a Jewish Client?

This is unfortunately very common. A Jewish lawyer represents a Jewish client who has litigation against another Jewish client. May the lawyer file a lawsuit in secular court? Rav Pesach Frank ruled that it is absolutely prohibited for the lawyer to file suit in secular court, and that it is a tremendous chilul Hashem to do so.

However, this situation provides the lawyer with a tremendous opportunity to perform a kiddush Hashem. He can explain to his not-yet-observant client the advantages of going to beis din – that it is less expensive and usually far more efficient. (Most frum communities have batei din where a din torah can be arranged within days.) Of course, to an observant Jew, the only selling point necessary is that this is what Hashem wants us to do. Certainly, the reward for proceeding according to halacha is millions of times greater than anything gained by going against halacha. However, since the non-observant client may not appreciate these considerations, the lawyer may convince his client by pointing out advantages of going to beis din that the client understands.

If the defendant fails to respond to the summons of the din torah, then the beis din will authorize the plaintiff and his lawyer to take the case to secular court. This action will be permitted because it was authorized by the beis din, as I explained above.

What Can I Do if I think that the Defendant will not Obey the Ruling of Beis din?

Beis din proceedings can be made be binding on the parties using an “arbitration agreement” that is recognized in civil law. Once the parties agree to use beis din for their arbitration, if one party subsequently fails to honor the psak of the beis din, beis din will enforce its ruling through the use of secular authorities if necessary. This will be binding in secular court because the litigants accepted the authority of the beis din as binding arbitration.

May One Testify in Secular Court That a Case was already Decided in Beis din?

Yes, it is permitted to do. Furthermore, it is even permitted and a mitzvah for the dayanim of the beis din themselves to testify in secular court regarding their adjudication. There is an interesting discussion in poskim whether it is a lack of kovod haTorah for the dayanim to testify as witnesses in a secular court. The Chasam Sofer permits it as long as the secular court is honest (Shu”t Chasam Sofer, Choshen Mishpat #3).

May A Lawyer Defend A Client in Secular Court?

If someone is sued in secular court, it is a mitzvah to defend his case to the best of one’s ability, since the suing party violated halacha by suing in civil court.

What Should I Do if the Defendant is Not Jewish?

A Jew is permitted to sue a non-Jew in secular court. Therefore, a lawyer can represent a Jew in his suit against the non-Jew.

What Happens If I Live Far Away from a Beis din?

The simplest solution is to have the representative of a beis din (usually called the mazkir beis din) contact the defendant to explain to him that he is required to have the matter adjudicated by a beis din. If the defendant refuses to accept the authority of beis din, then the beis din will authorize the plaintiff to submit his matter to a secular court.

Can I Submit the Matter to an Arbitration Board?

If beis din has authorized that the matter be brought before a secular court, then it is permitted to submit the matter to an arbitration board as well. (There is a dispute among poskim whether one may submit a case to a non-Jewish arbitration board without authorization from beis din. Shach 22:15 and Aruch HaShulchan 22:8 seem to permit this if the arbitrator bases his decision on common sense and fairness, rather than on a non-Jewish system of law; Nesivos HaMishpat prohibits even such a circumstance. However, a simpler solution to this issue is to summon the defendant to beis din, and get permission to adjudicate the matter through a secular court or arbitration board.)

Unfortunately, there are even frum people who sometimes assume that legal rights and responsibilities are governed by secular law. A Torah Jew must realize that Hashem’s Torah is all-encompassing, and that every aspect of his life is directed by Torah. The true believer in Hashem and His Torah understands that every aspect of his life is directed by Hashem and that the only procedures we follow in any part of our lives are those that the Torah sanctions.

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