Story LineButter BarterRabbi Meir Orlean
Shavuos was here. The Goldin family was about to sit down for a milchig meal and eagerly awaited the rare opportunity to eat challah with butter.
“Where is the butter?” Mrs. Goldin muttered to herself as she searched the fridge. “Well, it seems that we forgot to buy butter,” Mrs. Goldin finally said to her family.
“Maybe we can borrow from the neighbors?” suggested Mr. Goldin.
“I’ll try the Millers across the hall,” replied Mrs. Goldin.
Mrs. Goldin knocked on the Millers’ door. “Gut Yom Tov,” she said. “Do you have any butter to spare?”
“We bought extra,” replied Mrs. Miller. “We can give you some. We’re having milchig tomorrow and I forgot to buy cream cheese.
“We have a container of cream cheese, but we’d rather have butter on our challah,” said Mrs. Miller. “They’re worth about the same. If you’ll give me butter, I’ll give you cream cheese?”
“That’s fine with me,” said Mrs. Miller. “Take the butter now, and we’ll get the cream cheese from you tomorrow.”
Mrs. Goldin returned to her apartment. “I got butter,” she announced, “but agreed to give them our cream cheese instead.”
“But I want cream cheese now,” complained Simcha. “I’m sure other people have extra. I’ll find them a box of cream cheese for tomorrow.”
“I don’t know that you have a right to use the cream cheese anymore,” said Mr. Goldin. “Once Mommy traded the butter for the cream cheese, maybe it’s already theirs.”
“How could it be theirs?” asked Simcha. “It’s still sitting in our fridge! Anyway, what’s the big deal? I’ll use the cream cheese now and get another one for them by tomorrow.”
“I can’t allow you to use it now,” insisted Mr. Goldin firmly. “Tonight, we can ask Rabbi Dayan at the learning program.”
During a break between shiurim, Mr. Goldin and Simcha approached Rabbi Dayan and related their dilemma. “Could we have used the cream cheese?” Mr. Goldin asked.
“What a relevant question for Shavuos!” exclaimed Rabbi Dayan. “This halachah is rooted in Megillas Rus, which teaches us the halachah of kinyan chalipin — exchange.”
“I thought that chalipin was a symbolic exchange,” said Simcha. “Like with a handkerchief or pen.”
“That chalipin is a symbolic act indicating sincere intent to validate a transaction,” explained Rabbi Dayan. “It requires something similar to a shoe, e.g., an article of clothing or a functional utensil. Food cannot be used to facilitate chalipin” (C.M. 203:1).
“Nonetheless, the Mishnah (B.M. 100a, 46b) discusses chalipin of two animals,” continued Rabbi Dayan. “Some explain that an animal is similar to a utensil, since it can be used for work. However, Rabbeinu Tam maintains that there is a second form of chalipin, barter of equivalent items. This chalipin is valid with food as well, so that if one food item was given as barter for another, the other item is immediately acquired by the second party.”
“What is the halachah?” asked Simcha
“Rema cites two opinions whether barter with a food item immediately transfers ownership of the other item,” answered Rabbi Dayan. “The Gra sides with the opinion that it does, and the Mechaber seemingly indicates so as well” (C.M. and R’ Akiva Eiger 203:3; Gra 203:11).
“Some suggest that even according to the opinion that the other item is not acquired immediately,” added Rabbi Dayan, “the first party still has a binding obligation to give it” (Machaneh Ephraim, Hil. Davar Shelo Ba La’olam #3; Pischei Choshen, Kinyanim 7:16-17).
“Do the items have to be of equivalent value?” asked Mr. Goldin.
“Some indicate that the items must be evaluated,” replied Rabbi Dayan. “However, it seems that as long as the parties agreed to barter the items, either because of similar value or respective need, it is considered barter of equivalent items.
“Thus, when Mrs. Goldin took the butter,” concluded Rabbi Dayan, “according to most authorities, the Millers immediately acquired the cream cheese. At least, you have a binding obligation to give it to them. You could not have used it.”
From the BHI HotlineLost Luggage
We went away for Shabbos and returned home by bus. When we arrived, one of our suitcases was missing from the compartment beneath the bus. A security camera at one of the bus stops showed that a passenger removed our luggage to reach his and forgot to put it back onto the bus.
Q: Is this person responsible for our loss?
A: A similar incident was addressed by the Rosh (Teshuvos 94:2). Reuven was traveling to a fair and Shimon asked Reuven to transport a pair of shoes. Reuven told Shimon to place them on his donkey. Along the way Reuven stepped away from the donkey, and the shoes were taken. The Rosh was asked whether Reuven is liable. The reason to exempt Reuven is that acceptance of custodial responsibilities requires explicit language to that effect. His statement “Place them on the donkey” is insufficient and consequently he is not even a shomer chinam (unpaid custodian). The Rosh answers that although Reuven did not use language to commit to be a custodian, he is nevertheless liable.
The reason is that when the phrase “Place it down” is used when they are inside a house, which is a safe place, Reuven is telling Shimon that he may place it there if he chooses. But when Reuven transports the shoes, he obviously accepts custodial responsibility for them. If he will not watch them, who will? Therefore, since he was negligent, he is liable (C.M. 291:2).
A simple reading of the Rosh implies that Reuven is liable because he was a negligent custodian. Some authorities prove, however, that even in a case in which Reuven is halachically not liable as a custodian — e.g., he did not make a kinyan — Reuven is still liable for damages. Since he moved them to an unsafe place, he is a mazik. It is comparable to someone who took a friend’s object and put it on the side of the road where it is not protected. This action is considered direct damage to the object (Nesivos 291:7).
Even though Reuven transported the shoes according to Shimon’s instructions, nevertheless, this permission is conditional on Reuven protecting them. Therefore, when Reuven left the shoes unattended by the side of the road, we realize that taking them from Shimon’s care in the first place was an act of damage and he is liable for the shoes.
It would seem, however, that some authorities opine that since he did not perform a direct act that caused damage he is only considered a grama (Rav Akiva Eiger, C.M. 291:2; Mishpat Hamazik 4:4).
In your case we might also consider whether the person who removed your luggage is liable as a shomer [in contrast to the Rosh’s incident, in this case removing the luggage from the bus may qualify as a kinyan if he is considered a shomer]. On the one hand, you never requested him, nor did he agree, to serve as a custodian for your luggage. On the other hand, he implicitly commits to watch the luggage since otherwise he does not have permission to remove it from the bus. Even though neither party consciously thought about this, it is mutually understood that a custodial relationship is created. Accordingly, he may be responsible when he negligently forgot to return it to the bus.
Even if one disputes this analogy, there is a moral obligation (latzeis yedei Shamayim) to reimburse you for indirectly causing you a loss that resulted from his negligence (Shach, C.M. 32:2).
Money mattersGuarantor of a guarantor#409
Q: I was asked to serve as a guarantor for the guarantor. Is such a back-up guarantor liable? Does he need to make a kinyan?
A: Just as a guarantor can commit verbally when the lender relied on him to grant the loan, a guarantor of a guarantor becomes obligated even without a kinyan if the guarantor accepted responsibility relying on the back-up guarantor. The commitment of the initial guarantor is parallel to the lender’s handing over money, so similarly, the reliance on the back-up guarantor obligates him (C.M. 131:14).
This is true whether the back-up guarantor committed to reimburse the guarantor should he be called upon to repay the loan, or whether he committed to the lender to repay the loan should the guarantor fail to pay it (Sma 131:27; Shach 131:16; see, however, Tumim 131:11).
Even if the initial guarantor committed after the loan was granted, and therefore requires a kinyan, the back-up guarantor does not, if he committed when the guarantor accepted responsibility, since the guarantee relied on the back-up guarantor.