The Mitzvah Snatcher

CHAPTER 1

A QUICK DAVENING

Yankel is in the year of mourning for his father and meticulously fulfills his filial responsibility to “daven in front of the amud.” Finding himself one day at a Mincha minyan in an unfamiliar neighborhood, he races to the amud before anyone else gets a chance. After davening, a nicely dressed gentleman hands Yankel a business card and asks if he can speak to him for a second.

“Are you new in the neighborhood? I don’t believe we have ever met before. My name is Irving Friedman.”

“Mine is Yankel Schwartz. No, I don’t live here. I was just passing through and needed a Mincha minyan.”

“Oh, I would like to make your acquaintance. Could I trouble you for your phone number?”

Not suspecting anything, Yankel provides Irving Friedman with his home, business, and cell phone numbers. Friedman then asks him for his home address, which arouses Yankel’s suspicion. “Why do you want to know?”

“Well, I guess I should be straightforward with you,” Irving continues. “I want you to be aware that you owe me a huge amount of money. You see, I have the chazakah of davening at the amud during this minyan. By grabbing the mitzvah, you stole from me nineteen brachos of the repetition of Shmoneh Esrei and two Kaddeishim, for each of which you owe me ten gold coins. I have made the exact calculation on the back of my business card. If you doubt that you owe me this money, I suggest you discuss the matter with your own rav. Since you look like an ehrliche yid, I assume that you will attempt to pay me before Yom Kippur. However, if that is too difficult, I am willing to discuss a payment plan. You have my phone number on the card.” With this, Irving Friedman (not his real name) got into his car and drove off.

A bit bewildered at this surprising turn of events, Yankel looked at the business card in his hand. The front of the card had Friedman’s name, business address, and the title and logo of his business. On the back, Yankel found the following hand-written calculation:

Invoice:

19 brachos @ 10 gold dinar coins each =                  190 gold dinar coins.

2 kaddeishim @ 10 gold dinar coins each=                 20 gold dinar coins.

Total                                                                            210 gold dinar coins.

Based on my research, these coins are worth between $24 and $200 each, in contemporary dollars (see Shiurei Torah, pg. 302.) This makes a total outstanding debt of between $5,040 and $42,000.

I am willing to accept the lower sum, and I am willing to discuss a payment schedule.

Yours sincerely, I. Friedman

CHAPTER 2

Yankel was shocked. He presumed that Irving Friedman was pulling his leg. Yet, Friedman’s demeanor about the entire matter had been so business-like that it did not seem Friedman was playing a prank on him. “Five grand for one Mincha. He must be kidding!!” was all Yankel could think.

Yankel now realized that his running to the amud was very presumptuous. Usually, one goes to the amud when asked by a gabbai, unless one has a regular chazakah to daven at the amud during that particular minyan. Yankel realized that his enthusiasm to get the amud had clouded his reasonable judgment.

Back in his own shul and on familiar turf, Yankel davened maariv at the amud uneventfully and then noticed his good buddy, Shmuel. Besides being a good friend, Shmuel was more learned than Yankel and would be able to help him sort out what had happened. Yankel told Shmuel about the day’s events and showed him the business card.

“I know that the Gemara talks about charging someone ten gold coins for snatching a mitzvah, but I never heard of someone trying to collect it,” was Shmuel’s surprised reaction.

“Where do you think Friedman got this dollar figure?”

“He has a note on the card quoting ‘Shiurei Torah, pg. 302.’ This is a sefer on the subject of halachic measurements. I don’t have the sefer, but let’s see if the shul has a copy.”

Sure enough, the shul library had a copy of Shiurei Torah by Rav Avrohom Chayim Na’eh, one of the gedolei poskim in Eretz Yisroel about sixty years ago. Shmuel located the chapter where the sefer discusses the halachic sources for determining the value of “ten gold coins,” and indeed, Friedman’s calculations were based on the conclusions of Shiurei Torah.

“What should I do? $5,040 is a lot of money. Do I really owe him this much money because I davened Mincha without checking if someone else had a right to the amud?” Yankel asked his friend.

“Maybe discuss the issue with the Rav.”

CHAPTER 3

Still very disturbed about the matter, Yankel called Rav Cohen to schedule an appointment. By now, he regretted his rash Mincha davening, and realized that it is far more important not to infringe on someone else’s mitzvah than to daven at the amud.

At the appointed time, Yankel arrived at Rav Cohen’s office and explained the whole story, showing him the calculation on the back of the business card.

Rav Cohen noticed a halachic flaw in Mr. Friedman’s argument, but felt that Yankel would benefit more if he found out this information a bit later. The sage knew that this was not the first time that Yankel’s impetuous nature had gotten him into trouble. This situation might help him realize not to be so rash.

Rav Cohen introduced Yankel to the halachic issues involved. “As we know from the Chumash, someone who shechts a bird has a mitzvah of “kisui hadam,” to cover the blood with dirt. The Gemara (Bava Kamma 91b) tells us a story of a shocheit who shechted a bird and then, before he had a chance to fulfill the mitzvah of covering the blood, someone else covered it, thus snatching the mitzvah. The shocheit brought the offending party to a din Torah where the great Tanna Rabban Gamliel presided. Rabban Gamliel ruled that the ‘mitzvah snatcher’ must pay ten gold coins for taking someone else’s mitzvah.”

“But in that case he is being fined for taking away his mitzvah, not for the bracha,” Yankel countered.

“Actually, the Gemara (Chullin 87a) asks exactly this question. The Gemara cites a case where someone grabbed someone else’s right to lead the bensching. In the time of the Gemara, when a group of people bensched together, one person recited the entire bensching aloud, and the others listened attentively and answered amen when he finished each bracha. By hearing the brachos of the person reciting the bensching, they fulfilled their obligation to bensch.

“In this instance, someone else began bensching other than the person who had the right to bensch. The Gemara discusses whether the person who bensched must compensate for one mitzvah, which is ten gold coins, or for four brachos, which is forty coins.”

Yankel, now keenly aware of the difference between ten coins and forty, lets out a sigh.

“How does the Gemara rule?” asked Yankel, hoping that the Gemara would rule in his favor and save him a lot of money. After all, if the Gemara rules that the entire bensching is only one mitzvah, his nineteen snatched brachos, which are only one mitzvah, are worth only ten gold coins. However, if the Gemara rules that he must compensate per bracha, he must pay 190 gold coins. By some quick arithmetic, Yankel figured that this saves him at least $4,500! He had never before realized before how much a Gemara discussion might be worth.

Rav Cohen realized what was going through Yankel’s head. “Well, there are other issues that impact on your case, but …. the Gemara rules that he must pay forty gold coins.”

The ramifications of this ruling were not lost on Yankel. “But what is he paying for? He didn’t take anything.”

“That is a really good question,” responded the Rav patiently. “Rashi (Chullin 87a) explains that the mitzvah snatcher is paying for the reward that he deprived the other person of when the mitzvah was taken away.”

“I didn’t know you could put a price tag on a mitzvah’s reward,” Yankel blurted out. “The reward for a mitzvah is priceless!”

The Rav could not miss this opportunity. “If that is so, then you are really getting a very good bargain.”

“Why?”

“What is worth more, the mitzvos one observes, or the money being paid as compensation?”

“Put that way, I must admit that it is a bargain. But it is still a very expensive bargain!”

Yankel continued. “Are there any other instances of collecting money for someone taking away a mitzvah?”

“The Gemara discusses a din Torah raised by a person whose tree was overhanging a public area and could cause potential damage. Before he could trim the tree, someone else chopped down the problematic branches. The owner placed a claim in beis din against the chopper for snatching his mitzvah. The beis din sided with the owner that his mitzvah was indeed snatched.”

“Shmuel told me that he never heard of anyone collect money for snatched mitzvos. Is there any discussion after the time of the Gemara about collecting for snatched mitzvos?”

Tosafos discusses a case when someone was ‘called up’ for an aliyah, and another person went up for the aliyah instead, thus snatching two brachos away from the person who had a right to them.”

“What chutzpah!” blurted out Yankel. Then, realizing the hypocrisy in his reaction, he added. “I shouldn’t be the one to talk. If I had a little less chutzpah, I wouldn’t have gotten into such hot water.”

“Whatever happened to this aliyah snatcher?” queried Yankel.

“How much do you think he should have paid?” replied the Rav, cunningly waiting for the best time to reveal the rest of the story.

“Well, based on the bensching case where he paid forty coins for four brachos, I would imagine the aliyah snatcher should pay twenty coins for two brachos, one before and one after the aliyah.”

“You are catching on really well,” complimented the Rav.

“Well, if I do end up financially poorer for this experience, at least I should end up a bit wealthier in Torah learning,” concluded Yankel. “But what do the poskim rule?”

Rav Cohen decided it was now time to let Yankel in on the secret. “There is a dispute in this question between Rabbeinu Tam and his nephew, Rabbeinu Yitzchok. Rabbeinu Yitzchok rules exactly like you contended – the aliyah snatcher must pay twenty gold coins. However, Rabbeinu Tam ruled that he is not required to pay at all (Tosafos, Bava Kamma 91b s.v. vichiyavo).”

Yankel was on the edge of his chair. Maybe Rabbeinu Tam would be his savior!

“How did Rabbeinu Tam get him off the hook?” was all Yankel wanted to know.

Rav Cohen leaned toward Yankel, asking him, “Which act earns more reward, reciting a bracha or answering amen?”

“I would assume reciting the bracha,” responded Yankel, “But because of the way you asked the question, I must be wrong.”

“Indeed, the Gemara (Berachos 53b) declares that it is greater to recite amen than to recite the bracha. Rabbeinu Tam understands this to mean that the person who answers amen receives more reward than the person who recites the bracha! He therefore concludes that the person who snatched the aliyah need not pay, since the person who should have received the aliyah would receive even more reward for reciting amen to the bracha. Remember, the compensation is for losing reward, and the aliyah snatcher did not take away any reward.”

“One second,” blurted out Yankel, “The guy who covered the blood also didn’t stop the shocheit from reciting amen. Why did he have to pay?”

“That is a really good question that the later poskim ask. There are two very different approaches to explain why Rabbeinu Tam agrees that the blood coverer must pay the shocheit. Some contend that he recited the bracha in a way that the shocheit did not hear the bracha and that is why he must pay. According to this approach, had the shocheit heard the bracha, he would not collect compensation for losing his mitzvah.

Others contend that the shocheit has two different claims, one for the mitzvah and the other for the bracha. Answering amen provides an even greater reward than reciting the bracha, so the shocheit does not collect for missing the bracha. However, the shocheit still lost the reward for performing the mitzvah, and for this loss he deserves compensation (Sma 382:7; Shach and other commentaries ad loc.).”

“Is this why Shmuel said he never heard of someone trying to collect ten gold coins for a snatched mitzvah?”

“No. Actually, the reason for this is a bit complicated,” began the Rav. “Technically, only a beis din whose members received the original semicha that Moshe Rabbeinu conferred to Yehoshua can enforce a financial claim. Since we no longer have this semicha, this would mean that no one could ever collect damages or a bad debt. To avoid this problem, Chazal instituted that one can collect damages or debts through any beis din. However, Chazal instituted this method of collecting only when a person suffered out-of-pocket losses, as he does in the case of a bad debt or an injury. When someone took another person’s mitzvah, however, although this is a real loss, there was no out-of-pocket loss. The result is that a mitzvah snatcher owes money and should pay it, but there is no way to force him to pay the debt (Tosafos, Bava Kamma 91b s.v. vechiyavo). However, since there is definitely a moral obligation to pay, the aggrieved party is permitted to seize property as payment.”

Yankel nodded, showing that he understood. “In conclusion, according to many opinions, I owe Mr. Friedman a considerable amount of money. Does it make any difference that I was unaware that he had the right to the amud and didn’t know that I could become obligated to pay a huge sum of money?”

“It should not make any difference, since you owe him for taking away his reward, which is something that you did whether you realized it or not.”

“Do I also owe him for the two kaddeishim? These are not brachos,” inquired Yankel.

“It would seem that Mr. Friedman considers them to be mitzvos, and from his perspective he is probably right. It is true that whether one snatched someone else’s bracha or his mitzvah, one is required to pay compensation for his lost reward. However, it is not clear from the poskim whether one must pay for depriving someone of a mitzvah that is not min haTorah (Yam Shel Shelomoh, Bava Kamma 8:60).”

“What about the fact that he said amen to my brachos. Does that get me off the hook? Do we paskin like Rabbeinu Tam?” The hope in Yankel’s voice was very obvious.

“Actually, there is a big dispute among poskim. Many rule like Rabbeinu Tam, but this is certainly not a universally held position (see Shulchan Aruch, Choshen Mishpat 382 and commentaries).”

“What does the Rav paskin in this situation?”

I would suggest that one follow the decision of the Taz (end of Choshen Mishpat 382), who says that you should contact Mr. Friedman and apologize, and offer some compensation (Aruch Hashulchan 382:7).”

Yankel phoned Irving Friedman. After a few pleasantries, he apologized for having taken the “amud” from him that fateful afternoon, and discussed the conversation he had with Rav Cohen. He offered him some financial compensation, but far less than $5000, which Friedman accepted, and that was the last time Yankel “chapped” an amud without asking beforehand.

 

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.