Story LineVideo CutRabbi Meir Orlean
Mr. Wolf’s son was getting married. The photographer, Mr. Schott, was taking pictures before the wedding.
“Where is the videographer?” asked Mr. Wolf.
“He’s on his way,” Mr. Schott assured him. “He should be here soon.”
“I hope so,” replied Mr. Wolf. “People are starting to arrive, and the chassan’s tisch will soon begin.”
An hour later, the videographer still hadn’t arrived. “What’s going on?” Mr. Wolf asked.
“The videographer called and said that he was in an accident,” replied Mr. Schott. “Baruch Hashem, nothing serious, but it delayed him two hours. He’ll be here in ten minutes.”
“Now he tells me?” exploded Mr. Wolf. “Why didn’t he notify me two hours ago? I would have made some alternate arrangement. We lost everything until now from the video!”
“Almost everything is recorded in my photos,” Mr. Schott said soothingly. “He was probably very caught up with the accident. We’ll deal with the payment after the wedding and deduct something.”
Finally, the videographer arrived, just before the chuppah. “I’m glad to see you,” said Mr. Wolf, relieved. “I was afraid that we might not have a proper video of the chuppah!”
“There was nothing I could do,” apologized the videographer. “Someone hit me from behind. He made a serious dent in the back of my car and blew one of the tires. Until we settled everything, it took almost two hours.”
At the end of the wedding, Mr. Wolf sat down with Mr. Schott to negotiate payment. “We have to reduce the cost of the videographer,” said Mr. Wolf.
“We will deduct the two hours that the videographer was not here,” said Mr. Schott.
“That’s all?” Mr. Wolf exclaimed. “We lost memorable moments forever!”
“Rabbi Dayan is here and still talking to people,” said Mr. Schott. “We can discuss the issue with him.”
The two approached Rabbi Dayan, and Mr. Wolf explained the situation. “How much must I pay the videographer?” he asked.
“A worker who arrived late and did not complete the designated job can be compared to a worker who retracted,” replied Rabbi Dayan. “The Mishnah (B.M. 75b) teaches that although a po’el (time-bound worker) may back out without penalty in certain situations, when the work involves a davar ha’avud (where disruption or delay in the work causes an irreparable loss), he may not. Among the examples mentioned is a musician for a wedding, since his timely presence is crucial. The same is true for a videographer.”
“If it’s a davar ha’avud, shouldn’t he have to pay me for the loss and aggravation?” asked Mr. Wolf. “At least I should be able to deduct a significant amount from his pay.”
“Indeed, a worker who retracted in a case of davar ha’avud is liable for the damage up to the amount of his pay,” replied Rabbi Dayan. “Rema cites an opinion that he is liable even out of pocket, but qualifies that this is only where there is an actual monetary loss, but not davar ha’avud like a wedding, which does not entail monetary damage” (C.M. 333:6; Shach 333:39; Pischei Choshen, Sechirus 11:14).
“Moreover, if the worker retracted because of circumstances beyond his control (oness), even if davar ha’avud, he is not penalized,” added Rabbi Dayan. “He remains entitled to proper pay for the work that he did” (C.M. 333:5).
“Shouldn’t the videographer have notified me, though?” complained Mr. Wolf.
“Indeed, he should have,” replied Rabbi Dayan. “The employer can replace the worker if time is of essence for the job. Furthermore, Chazon Ish writes that the worker carries greater liability if he retracted from a job and caused a loss without notifying the employer. However, in this case, there is no liability, as I already explained” (Rabi Akiva Eiger 333:5; Chazon Ish, B.K. 23:25).
“Thus,” concluded Rabbi Dayan, “the videographer should have notified Mr. Wolf immediately of the delay so that he could have made alternate arrangements, but remains entitled to full pay for whatever hours he did work.”
From the BHI HotlineUnreliable Custodian
I owed Yehudah $1,000. I gave the money to Reuven, who was going to Yehudah’s city, to repay him. Reuven stipulated that he does not want liability if something happens to the money, and then Reuven lost the money.
Q: Who suffers the loss?
A: The first issue we will address is whether Reuven is liable. Generally, custodians are liable for negligence. However, a shomer can stipulate that he will be exempt from liability even in case of negligence (C.M. 296:5 with Pischei Teshuvah 5). Poskim discuss whether a shomer who states that he does not wish to be responsible intends to exempt himself from negligence. Some maintain that even regarding an unpaid custodian (who in any case is exempt from liability in cases of theft and loss), it is assumed that his intent is to exempt himself from mishaps that might occur while traveling but not to exempt himself from careless negligence. If he leaves the item in a public place where it is likely to be stolen, would he not be liable (Maharit 2, C.M. 116 and Bach 138)? Most Poskim, however, maintain that such a stipulation exempts him even in cases of negligence (C.M. 305:4, 72:7 and Shevus Yaakov 1:19).
Since Reuven is exempt, we must consider whether you are exempt from repaying Yehudah, since you gave the money to Reuven to deliver to Yehudah. There are two different scenarios to consider:
When the lender did not instruct the borrower to repay the money via an agent: If the borrower sent someone to repay the loan and something happened to the money and it did not reach the lender, the borrower remains responsible, even if the borrower sent the money with someone the lender considers trustworthy. Although a shomer is exempt if he shipped the object with someone the owner considers trustworthy, that is because it belongs to the owner and the shomer was not negligent since the agent is trustworthy. Regarding loans, the borrower remains responsible until the money reaches the lender or his agent, and if it doesn’t, he must pay again (C.M. 121:9 and 340:8).
When the lender instructed the borrower to send the money via an agent: If the lender instructed the borrower to return the money via an agent, regardless of whether he gave those instructions orally or in writing [seemingly email is also effective], the borrower is exempt if something happens to the money.
The specific instructions will affect the halachah, however. If the lender specified who should deliver the money, the borrower is exempt regardless of whether the delivery person is a gentile, insane or a minor (Nesivos 121:1; cf. Ketzos 121:1). Moreover, the borrower is exempt even if the specified delivery person denies receiving the money and even if that person is known to be untrustworthy.
If the lender empowered the borrower to choose a delivery person, the borrower is not exempt from liability unless he gave it to someone trustworthy (C.M. 121:1). What remains unclear is a case where the lender told the borrower to find a delivery person and the borrower chose someone trustworthy but exempted him from liability. Did the lender permit the borrower to send it with a delivery person who is exempt from liability or not? Therefore, one should obtain explicit permission to send the money in this manner.
If the lender simply instructed the borrower to send the money, and it is common to send money via the mail, the borrower is exempt if the money becomes lost in the mail (Aruch Hashulchan, C.M. 121:2). Nowadays people send checks by mail rather than cash, and it may be that common practice is to send it only through certified mail (Pischei Choshen, Halvaah 5:).
Money mattersRelease of Liability; Multiple Loans#415
Q: When there are two guarantors, does the release of one guarantor exempt the other partially?
A:When the guarantee is joint, so that each guarantor is liable for the full amount, even if the lender releases (mochel) one of the guarantors from his liability, the other guarantor remains liable for the full amount (C.M. 77:8; Bach 77:4).
If the lender did not stipulate that each is fully liable, so that there is a dispute whether he can collect the full amount from one guarantor when the other has assets, there is a further dispute whether the other guarantor is fully liable in our case of mechilah. However, if the guarantor who was released from liability lacks assets in any case, the other remains fully liable (Bach 77:9; Sma 77:20; Shach 77:2).
When the guarantor is liable to the lender for two borrowers and pays one of the loans, he or the lender should specify whose loan is being paid, so that the guarantor can demand compensation from that borrower (C.M. 132:5).