Story LineBeis Din or Not?Rabbi Meir Orlean
Mr. Nadel decided that he would daven vasikin every morning. For a number of months he upheld this practice scrupulously. However, as time wore on he found himself exhausted during the day and unable to concentrate properly while learning and at work.
Mr. Nadel approached Rabbi Dayan for advice. “I’m in a quandary,” he said. “I accepted the practice of davening vasikin, but it is negatively impacting my learning and work.”
“Davening vasikin is very commendable,” said Rabbi Dayan. “A vow is also a significant issue. The Torah states in Parashas Mattos: ‘He should not violate his word’ (Bamidbar 30:3). Here, however, the gain results in greater spiritual loss.”
“What can I do, then?” asked Mr. Nadel.
“Chazal teach (Brachos 32a) that although a person may not violate his word, others can annul his vow,” replied Rabbi Dayan. “This is called hataras nedarim. It is commonly done on Erev Rosh Hashanah but can be done throughout the year if the need arises, such as in this case” (Rema, Y.D. 228:15).
“Can you do it for me?” asked Mr. Nadel.
“A qualified expert (mumcheh) can annul a vow on his own,” replied Rabbi Dayan. “However, we are not in this category nowadays, so that we need a panel of three, like a beis din.”
“Should I make an appointment with the secretary of the beis din?” asked Mr. Nadel.
“No, there is no need for that,” replied Rabbi Dayan. “I can get two others to join me right now. Let’s see who is here.”
In the room were Rabbi Dayan’s oldest son and Mr. Nadel’s brother. “My son and your brother can join me and will serve as the ‘beis din’ for the hataras nedarim,” said Rabbi Dayan.
“Excuse me for asking,” said Mr. Nadel, “but I don’t understand. How can my brother serve on the beis din for hataras nedarim? A relative cannot serve as a dayan!”
“Hataras nedarim requires a panel of three, like a beis din, but it is not exactly a beis din,” answered Rabbi Dayan. “There are several practical ramifications.
“For example, even the most scrupulous relatives, such as Moshe Rabbeinu and Aharon HaKohen, cannot serve as dayanim for each other or together on a beis din for others,” continued Rabbi Dayan. “Nonetheless, the Gemara (Nedarim 77a) teaches that relatives can do hataras nedarim. Some even allow a husband to serve on the panel for hataras nedarim of his wife, but Shulchan Aruch rules that he may not” (C.M. 7:9; Y.D. 228:3, 234:57).
“What about other people who are not qualified to judge, such as women, children or wicked people?” asked Mr. Nadel.
“In this respect, hataras nedarim parallels judgment,” replied Rabbi Dayan. “Although relatives are qualified for hataras nedarim, women are not, since it says: ‘rashei hamattos’ — heads of the tribes. Similarly, children are not qualified until bar mitzvah, and it is preferable that they be visibly physically mature. It is questionable whether a thief can serve on the panel” (Aruch Hashulchan 228:10; Minchas Shlomo, Nedarim 77a).
“What other differences are there?” asked Mr. Nadel.
“The Gemara (ibid.) teaches further that although ideally adjudication should not begin at night and the dayanim should be sitting,” replied Rabbi Dayan, “hataras nedarim can be done at night or while standing. The common practice, however, is for the panel to sit, since we commonly use the mechanism of pesach (finding an ‘opening’) to render the vow mistaken, which requires more concentration” (C.M. 5:2, 28:6; Y.D. 228:4; Shach 228:9; Aruch Hashulchan 228:12).
“In what other ways are hataras nedarim and beis din similar?” asked Mr. Nadel.
“Some say that the panel should be odd-numbered, just like a beis din,” replied Rabbi Dayan. “Some also maintain that a majority suffices to rule the pesach (opening) valid to annul the vow, like in judgment, while others maintain that all three must agree” (Nachal Yitzchak, C.M. 3:4:1; Har Zvi, Y.D. 189; Minchas Shlomo, Nedarim 78a; see Kol Nidrei, ch. 13-15, 21).
From the BHI HotlineSalesman’s Commission
I hired a sales agent and agreed to pay him a percentage of the gross sales that he generates as his commission. In retrospect, I didn’t realize how much money he would earn, and it seems that he exploited me (onaah).
Q: Am I obligated to pay him such a high commission? Since we never signed a contract, could I simply pay him a commission comparable to what other sales agents earn?
A: When an employee begins working after an employment agreement was reached, the terms and conditions of that agreement are binding even if they did not formalize the agreement with a kinyan or contract (Rosh, Avodah Zarah 4:2).
The relationship between a business owner and a sales agent is an employment agreement. Therefore, once he starts working the employer must pay him depending on their agreement, either a percentage of those sales as a commission or a set salary for his work.
When a sales agent is hired one cannot argue that the agreement is not binding since it involves something that does not yet exist (davar shelo ba la’olam). Although it is true that one cannot buy or sell something that does not yet exist (C.M. 209:4), that has no relevance to employment agreements. The employer is not selling the agent a percentage of future sales; he is committing to pay the sales agent a commission for his work. Since the employer’s obligation is rooted in his commitment to pay the agent his salary rather than selling a percentage of the future sales, it is not subject to the limitation of davar shelo ba la’olam (Ketzos 332:5, 6; ibid. 122:3, 4; Nesivos 332:5).
Your feeling that the amount of money you are paying the sales agent is excessive and unreasonable is common. We often hear this sentiment from business owners. At the outset, the business owner needs the sales agent to generate business and agrees to pay him a commission since he needs someone to make sales. Since the business owner cannot generate that volume of sales it is worthwhile for him to pay the sales agent a high percentage.
Once the customers are brought in, the business owner begins to wonder why he is paying so much money to the sales agent when he may not be bringing in additional customers. At that point the business owner questions whether the sales agent has exploited him by collecting such a large commission. However, the seemingly large percentage may not involve any exploitation since that may be the percentage that sales agents in that industry collect. Therefore, a business owner should not look negatively at the sales agent; he should instead appreciate the revenue that he generated.
However, if the sales agent is collecting a larger percentage than other sales agents in that industry and he is not doing additional work to justify the higher percentage, it is necessary to consider whether you can claim that it is onaah (exploiting).
The answer to this is that it depends. Employees who are paid by the hour are, for onaah purposes, treated like slaves since they have sold their time, and the Torah excludes slaves from the halachos of onaah (C.M. 227:33). [Although the halachos of onaah do not apply, the prohibition of onaah applies (Pischei Teshuvah 227:21) as does the prohibition of geneivas daas (Sema 227:33)]. If the employee is an independent contractor and has the freedom to do the job whenever he pleases (even though there is a deadline when the job must be completed), he is not considered a slave and the laws of onaah do apply (C.M. 227:36; cf. Rav Akiva Eiger, ibid.).
Money mattersTurning to the Guarantor#417
Q: At what point can the lender turn to the guarantor to collect from him?
A: The lender must sue the borrower first, even if he does not have known assets. Only after establishing that he has no assets can the lender turn to the guarantor. Regarding an arev kablan, who accepts direct liability, the lender can turn immediately to the guarantor, even if the borrower has assets, unless the borrower wants to pay (C.M. 129:8,15).
If collecting from the borrower entails significant expenses that would detract from the repayment — e.g., his assets are in a distant land — the lender can collect from the guarantor (C.M. 129:11).
When the borrower is not present, the lender cannot collect from the guarantor without a loan document, since perhaps the borrower repaid. Even if the lender holds a loan document, the borrower should be notified first, if it is reasonably possible to contact him (C.M. 129:10, 12).
The guarantor is not required to pay until 30 days after he becomes liable, even if he has available assets, unless initially stipulated otherwise (Shach 129:23).