Story LineUnsuccessful RescueRabbi Meir Orlean
Benjy and Yehuda arranged to go boating in the park. “I have a good camera that is waterproof,” said Benjy. “We’ll be able to take pictures on the water.”
After some ball-playing and lunch, the boys headed to the water and rented kayaks. They put on life vests, tucked their bags into the boats and set out.
“I’ll race you to that buoy over there and back,” said Benjy. “One, two three, go!” The kayaks surged forward, rolling with the waves.
The two reached the buoy together. “Let’s go; sharp turn!” shouted Yehuda. As they leaned over to make the turn, a strong wave rolled across...
“Splash!” The kayaks capsized, tossing the two of them into the water.
After a few attempts, Yehuda managed to right his kayak and mount it. He came to help Benjy, who said, “You’d better get the bags before they sink. I can wait a few more minutes.”
The bags had floated off in opposite directions and were already filling with water. Yehuda paddled away to pick up his bag.
“My camera!” Benjy suddenly cried out. “You’ve got to rescue my bag first!”
“My bag looks like it’s about to sink,” Yehuda called back. “If I get yours, mine might have sunk already!”
“I can’t afford to lose that camera,” yelled Benjy. “It cost almost $400! Please get it.”
Yehuda thought quickly. In his bag were a change of clothing, old shoes, and a wallet with some cash, worth about $100 altogether. “If you’ll pay $100 to cover my bag, I’ll go rescue yours.”
“Deal!” said Benjy.
Yehuda set off after Benjy’s bag, with strong, swift strokes. He was within ten feet when the final air seeped out and the bag sank. Yehuda dove after it, but to no avail. The bag was gone.
Yehuda returned defeated. Meanwhile, his own bag was also gone. He helped Benjy right his kayak, and they paddled back to shore.
“What about the $100 you promised me?” Yehuda asked.
Benjy startled. “Why should I pay? You didn’t save my bag.”
“So what?” responded Yehuda. “You knew that I might not be able to rescue it, and I gave up mine trying to save yours.”
“I agreed to compensate you if you would save mine, but you didn’t save it,” argued Benjy. “I lost $400, and now you want me to pay another $100?”
“Let’s ask Rabbi Dayan!” they both agreed.
Rabbi Dayan ruled: “Benjy has to pay a reasonable fee for trying to rescue the bag, about $20. However, Yehuda cannot demand the $100, since he did not stipulate that Benjy should pay even if he fails to rescue the bag.”
Rabbi Dayan then explained: “A worker is entitled to payment if he fulfilled his duties responsibly, even if the employer did not ultimately benefit from his service. For example, a person who is hired to represent a client or run an election campaign is entitled to pay even if the client loses” (Chavas Yair #154).
“On the other hand, a person who was contracted to accomplish a certain goal is not entitled to payment unless he accomplishes it,” continued Rabbi Dayan. “A serviceman who is contracted to fix something and is unable to is not entitled to payment, unless he stated that he charges for labor or that is the common practice. Because of this, most servicemen now stipulate that the initial charge is for the visit itself.
“In your case,” concluded Rabbi Dayan, “Benjy presumably agreed to pay the excessive amount only if Yehuda would succeed in rescuing the bag, whereas for the attempt he is willing to pay only a reasonable fee. If Yehuda had wanted to secure the $100 payment regardless of the outcome, he would have had to stipulate this explicitly” (C.M. 264:4; Sma 264:11; Nesivos 264:3).
From the BHI HotlineTravel Agent
I contacted a travel agent to purchase a ticket so that I could travel to Eretz Yisrael for Lag BaOmer. Two weeks later I discovered that the agent made a mistake and scheduled my flight for the wrong date. I contacted the credit-card company and baruch Hashem they refunded my money.
Q: The price of the flight, however, has gone up. Is the travel agent obligated to pay the difference between the cost of the first flight and the second fight?
A: Halachah does not require the agent to reimburse you for the higher cost of the new ticket. There are several issues to consider when discussing liability in such a case.
Arev – guarantor: Some Poskim rule that when ploni gives almoni money to purchase merchandise to resell for a profit and almoni fails to purchase the merchandise, he is obligated to pay ploni for the lost profit. Considering that ploni entrusted almoni with his money to purchase the merchandise, and that almoni knows that if he does not do so, ploni will not earn a profit, almoni commits to guarantee and compensate his friend if he does not carry out his responsibility (Ritva, B.M. 73b; Chasam Sofer, C.M. 178; Nesivos 176:31, 183:1, 304:2, 306:6 and 333:3).
Others reject this reasoning and contend that in such a case almoni does not guarantee ploni’s profit, and is exempt from liability (Nachalas Tzvi 292; Imrei Yosher 1:86; Mishpat Shalom 176:14; Maharsham 1:77; and Imrei Binah, Halvaah 39). One becomes a guarantor when his assurance is the reason the other party spent or risked money. When one merely agrees to help someone make a profit but he does not spend or risk any money, he does not become a guarantor (Chazon Ish, B.K. 22:3).
Agreement to Compensate: Perhaps the agent is responsible due to some common practice (minhag) that service providers are responsible when their error causes an additional expense for the customer. For example, someone commits to cultivate another’s field for a share of the profits, and they stipulate that if the worker does not cultivate the field, he will pay the owner his share of the expected profits. If the worker does not perform his job, he must pay the owner of the land the expected profits. Furthermore, even if this was not explicitly stipulated, if that is common practice in the industry it is binding (C.M. 328:2). However, some Poskim state that these rules are limited to those industries where the service provider makes such a commitment. In businesses where there is no such practice, the customer cannot demand reimbursement (Imrei Binah ad. loc.).
Mazik/Menias Revach Barur – Preventing Certain Profits: The Yerushlami (B.M. 5:3) infers from the fact that the tenant farmer is liable only when it was stipulated that generally, one who prevents another from profiting (mevatel kiso shel chaveiro) is exempt. For that reason, if the two parties did not stipulate anything, the tenant farmer would be exempt from liability in causing the owner to lose out on potential profits (Shach 292:15).
Later authorities debate whether one is liable when the potential profit was almost certain (Chavos Yair 151; Machaneh Ephraim, Malveh V’Loveh 41) or not liable, since there was no object that was damaged (Shach 292:15; Ketzos 333:2; and Nesivos 333:2).
In conclusion, since there is a disagreement regarding each rationale, it is not possible to force the travel agent to compensate you. Additionally, when travel agents request that customers review their tickets upon receipt, the agents cannot be held accountable for errors.
Money mattersThe Evening Babysitter#364
Q: We returned from a wedding at 11:00 p.m. and owed the babysitter $30. If we didn’t have exact cash, may we pay her later in the week?
A: Since the job finished during the night, payment is due then. However, one violates the prohibition to delay wages only if the employee wants the wages immediately. Therefore, if the babysitter is fully willing to receive payment afterward, there is no violation. (Nonetheless, if you pay that night you fulfill a mitzvah.) Even so, you should not delay payment unnecessarily, but pay as soon as possible (C.M. 339:4, 8-10).
Furthermore, although a person does not violate if he does not have money available, if the babysitter wants payment that night and you can withdraw money from an ATM machine, you must do so, even if inconvenient. If you have only a $50 bill, you should exchange it or give her the large bill and let her return the change later. [Alternatively, you can write a check, and, if she wants, have her return it when you have cash.]