Story LineCompensation FeeRabbi Meir Orlean
Mr. Baum and Mr. Deutsch had a monetary dispute. They approached a Rabbi in their shul, Rabbi Cohen, to judge their din Torah.
“Why don’t you turn to an organized beis din?” Rabbi Cohen suggested.
“We personally recognize your greatness in Torah and your honesty,” they replied. “We feel more comfortable adjudicating before you.”
“I don’t usually do this,” said Rabbi Cohen, “but if you insist, I agree.”
They arranged a date for the din Torah, but Mr. Baum was sick and had to cancel. They had trouble arranging an alternate date that was convenient for all, so the issue sat.
A few weeks later, Mr. Baum called Rabbi Cohen.
“I will be flying overseas tomorrow, and will be away for a few months,” he asked. “Is there any way we can meet tonight?”
“I have a relative’s wedding,” replied Rabbi Cohen.
“Can we possibly have the din Torah before the wedding?” asked Mr. Baum. “We very much want to settle the issue before I leave.”
“If it’s really important,” replied Rabbi Cohen, “I can leave work an hour or two early.”
“If that’s possible,” replied Mr. Baum, “we would appreciate it.”
Rabbi Cohen adjudicated. After the din Torah, he said: “I lost two hours of work, worth $300. Please compensate me for that.”
“You didn’t mention that you charged a fee,” said Mr. Deutsch.
“I didn’t expect to miss work,” replied Rabbi Cohen.
“But you didn’t say anything before we began,” objected Mr. Deutsch.
“I believe that my request is fair, but am willing to discuss the issue with Rabbi Dayan,” replied Rabbi Cohen. “I have a half-hour before I leave for the wedding.”
The three came to Rabbi Dayan. “I left work early to adjudicate between Mr. Baum and Mr. Deutsch,” said Rabbi Cohen. “Although I didn’t mention a fee, they should compensate me for my lost wages.”
“The Mishnah (Bechoros 29a) teaches that, in principle, a Dayan should not charge for rendering a verdict,” replied Rabbi Dayan. “Nonetheless, he should be compensated partially for his loss of work (k’poel batel).”
“A similar halachah applies to one who retrieves a lost item,” added Rabbi Dayan. “He may not charge for the effort itself, since this is the mitzvah of hashavas aveidah, but may charge partial compensation for any lost work. However, he can stipulate beforehand that he will retrieve the lost item only if he receives full compensation for his lost wages. Shulchan Aruch applies this to a Dayan, as well” (C.M. 265:1; 9:5).
“What if the Dayan didn’t state anything beforehand?” asked Mr. Deutsch.
“Sma writes that even if the Dayan did not stipulate anything, he is entitled to partial compensation, like hashavas aveidah,” answered Rabbi Dayan. “However, Taz rules that the Dayan is not entitled to any compensation if he did not stipulate beforehand.”
“Why?” asked Mr. Deutsch. “How is it different from hashavas aveidah?”
“Taz (9:5) writes that the litigants can claim that they would have gone to a Dayan who was not working and would not have charged them,” replied Rabbi Dayan. “Hashavas aveidah is different, since if the finder did not retrieve the item now, it would be lost forever, and is a case of clear loss (bari hezeikah).
“Taz (335:1) brings further proof from one who learns with another’s son without stipulating payment with the father,” added Rabbi Dayan. “Many exempt the father, since the person was doing a mitzvah and did not intend to be paid.”
“Whom do we follow?” asked Mr. Baum.
“Nesivos (9:4) and Aruch Hashulchan (9:7) follow the Taz, since another Dayan might not have charged,” replied Rabbi Dayan. “However, Shevus Yaakov (1:142) rules like the Sma, in accordance with the simple reading of the Gemara in Bechoros, since the litigants knowingly came before this Dayan, especially since nowadays it is known that Dayanim take a fee, so it is as though he stipulated” (Pischei Teshuvah 9:11).
From the BHI HotlineFix the Leak! Part 2
Q. Our upstairs neighbor’s pipe burst in the middle of the night, and by the time we awoke in the morning, water had already seeped into our ceiling and walls. The neighbors immediately shut the water supply to that pipe and called a repairman to fix it. Are they responsible to reimburse us for the cost of painting the ceiling and walls that were damaged by the water – or are they absolved because it is considered oness?
A. Although your neighbor was responsible for repairing the burst pipe (as we explained last week), he is not obligated to pay for the damage it caused, since he wasn’t negligent in causing damage to your apartment. (see Shulchan Aruch Choshen Mishpat 410:26-27).
The poskim deliberate what the halachah would be had the neighbor continued using the water after he knew that the pipe had burst, knowing that it would continue to leak into his neighbor’s property. Would he then be obligated to pay for that additional damage?
The question is whether we can obligate him to pay because his water caused the damage and generally, one is liable when his possession damages another’s property (mamon hamazik). There are several different types of damage that can be caused by a person’s possessions. The Mishnah (Bava Kama 2a) teaches us that a person is required to prevent such an eventuality in several categories: shor (an ox, which itself has several subcategories), bor (a pit), and eish (fire). The two categories that could theoretically apply here are eish and bor (see Maharsha, Bava Kama, Mahadura Basra 6a for an explanation as to why shor cannot apply). The category of eish includes any sort of damage that occurs through the combined action of a person’s property and another force (such as wind carrying one’s fire into another person’s property), and bor refers to any obstacle that would cause someone to stumble or fall. One key practical difference between the two is whether the mazik is responsible for damage to objects. The Torah specifically limits liability in the category of bor to damage caused to a living being (human or animal), but damage caused by eish will make its owner liable for damage to objects as well (Choshen Mishpat 410:21).
If a person places a stone or a knife on top of a wall, and a wind that is typical for that climate blows it off the wall and it damages someone else’s possessions, we obligate the mazik to pay under the category of eish (Choshen Mishpat 418:1). Since seeping water is on the move, it would seem to fall under the category of eish, rather than bor, which is stationary.
Upon further analysis, however, we find cases in which a person can be liable for bor even if damage was caused by something that moved. The Rosh (Bava Kama 1:1) states that if someone left a faulty wall in place and it fell and caused damage, he is liable for the damage under the category of bor, because no external force was necessary for this damage to occur; the wall simply gave way. Similarly, since there is no external force involved in the water seeping into the downstairs neighbor’s property, but rather the nature of water is that it settles to the lowest point, this case might fall under the category of bor (See Kehillas Yaakov ibid. 4 for another reason why bor would apply, not eish).
Since this is a case of bor, the mazik would not be liable for damage caused to objects or real estate (see Rashba ibid. 10a, Minchas Pittim 410:21, and Imrei Yosher 2:21).
[The only time eish might apply in cases of water damage is if the water was pumped into the neighbor’s property, rather than seeping on its own.]
But even if we would consider water damage a subcategory of eish, beis din might not be able to obligate the mazik to pay.
When the Torah obligates a person to watch his belongings to avoid damaging someone else’s possession, it does not intend to impose limits on what a person may do in his own property, even if as a consequence someone else might suffer damage. Chazal instituted certain limitations to that rule, but only in cases in which it would not prevent a person from using his own property in an ordinary fashion. To prevent any chance of water damage, we would have to outlaw any use of water in an upper floor, which the Torah did not require. Therefore, Chazal only instituted that a person may, in certain circumstances, protest his neighbor’s use if it is causing damage to his property, but do not hold the mazik liable as long as he remained in his own property.
There are some Rishonim who obligate a person whose negligence in controlling his possessions caused damage to his neighbor’s property to pay for those damages, but since many others absolve him from payment, beis din cannot award damages (ibid. 155:33). Therefore, even if your neighbor would have continued using his water after realizing his pipe had burst, beis din cannot obligate him to pay (Nesivos 155:18).
Nevertheless, as is the case in all situations of grama, although beis din cannot force the mazik to pay for water damage caused to another, if he was negligent, he is required to pay in order to avoid Heavenly judgment (see Kovetz Zechor L’Avraham v. 6, 155:3).
Money mattersDefect Unknown to Sarsur#461
Q: I purchased an item, but did not open it until after the manufacturer’s warranty expired. It was defective. Can I demand a refund from the store owner?
A: A person who sells an item that is liable to be defective should check that it is intact. This is included in the prohibition against onaah. In principle, a defective item can be returned even if the defect is discovered years later (Prishah 228:5; Nesivos 60:4; C.M. 232:3).
Nonetheless, it is known that one who buys with intention to resell (sarsur) does not check the merchandise. Therefore, it is the customer’s responsibility to check if there is a defect.
If the customer did not check the item and there was a loss, whereas had he checked earlier and could have returned the item to the manufacturer before the warranty expired, the seller is believed that he was unaware of the defect, and the loss is the customer’s (C.M. 232:18).
In any case, the common commercial practice is to follow the warranty terms.