Story LineBroken BatRabbi Meir Orlean
We’re having Little League playoffs next week,” Eli said to his friend Avi. “Can I borrow your bat for batting practice?”
“Sure,” Avi said. “Take good care of it.” He gave Eli the bat.
Eli finished practice and started to leave. “Can I borrow your bat?” asked Aharon.
“It’s not mine,” said Eli.
“What’s the difference?” said Aharon. “I’ll bring it back to your house in half an hour.”
Eli hesitatingly agreed and left.
Moshe pitched the ball. Aharon swung hard. There was a loud “crack” and the ball went flying far.
“Great hit!” Moshe said.
“Yeah…” Aharon said. “But the bat cracked.”
“That’s strange,” said Moshe. “A bat is not supposed to crack when hitting a ball.”
“I know,” said Aharon. “Sometimes it happens, though. It could have been weakened by previous batting. It’s not even my bat. Eli borrowed it from Avi, and I begged him to let me use it.”
“You’re in a bit of a pickle now,” said Moshe.
“But I didn’t do anything wrong, or even unusual,” insisted Aharon. “You and the other players saw what happened. You pitched and I hit. That’s all!”
“I know,” replied Moshe, “but I don’t know whether that makes a difference.”
Meanwhile, Avi and Eli came by. “I heard that you have my bat,” said Eli. “I’d like it back.”
“I’m sorry to say…” began Aharon, “I was batting with it, and the bat cracked!”
“No way,” said Avi. “Bats don’t just crack. I’ll bet you banged it against the wall or something like that. Anyway, Eli had no right to give you the bat, so one of you owes me, regardless of what happened.”
Eli and Aharon looked at each other.
The four decided to come to Rabbi Dayan. “I lent my bat to Eli, who lent it without permission to Aharon,” said Avi. “Aharon claims it broke during batting practice. Who is liable?”
“It’s not clear that anyone owes you for the bat,” answered Rabbi Dayan. “It depends on who was present when the bat broke.”
“What do you mean?” asked Avi.
“The Gemara (B.M. 29b, 36a) teaches that a person who borrows an item may not lend it to another,” explained Rabbi Dayan. “Furthermore, although a borrower is exempt if the item was lost or damaged through regular usage (meisah machmas melachah), the initial borrower is usually liable if he lends to another, since the owner can claim that he does not trust the word or oath of the second borrower” (C.M. 340:1; 342:1).
“Then Eli should be liable!” exclaimed Avi. “I have nothing to do with Aharon.”
“If others were not present when the bat broke, that would be true,” replied Rabbi Dayan.
“However, as I mentioned, the primary concern is that the second borrower may have mistreated the borrowed item and the owner does not have to accept his word as to what happened. Lending to others is not considered inherent negligence, though, and the regular liabilities of a guardian remain, in principle.
“Therefore, if witnesses were present and testify that the item was damaged through regular usage, the borrowers are exempt,” continued Rabbi Dayan. “Similarly, if the initial borrower was present at the time and can swear to the owner, or if the owner regularly lends the second borrower items of similar value, indicating that he considers him trustworthy, the borrowers are exempt if the item became damaged through regular use, just as the first borrower would be exempt if the item got ruined through his own use” (C.M.291:26; Shach 291:47; 342:1).
“Where does this leave us?” asked Avi.
“It was wrong of Eli to leave the bat with Aharon,” concluded Rabbi Dayan. “Nonetheless, if Moshe and others testify that the bat broke through normal usage, the exemption of meisah machmas melachah applies, and nobody is liable. Otherwise, Eli would be liable, since Avi can refuse to accept Aharon’s word or oath that the bat broke through normal use.”
From the BHI HotlineDouble Dipping
My friend is a maggid shiur in a mesivta, and was planning to travel overseas for his son’s wedding. He asked me to substitute for him for a full week, and offered to pay me not only his $1,000 weekly salary, but also the $200 difference between his salary and mine, which I would forfeit by taking off the week from work.
When I returned to work, my employer surprised me. Although he generally docks pay for even one day off of work, at the end of that week he decided to pay me $600 – half of my weekly salary.
Obviously, I am entitled to the $1,000 my friend received from the mesivta, and to the $600 my employer generously decided to give me for that week I took off. My question is whether I can also keep the $200 my friend paid me to compensate for the difference between our salaries. He has no idea that my employer paid me for half that week’s work, and he had initially agreed to pay the difference between our salaries in order for me to agree to substitute for him, so perhaps the money is mine. On the other hand, since he only agreed to pay that difference as compensation for my loss, and I didn’t lose that amount, must I return the difference to him?
A. You are allowed to keep the $200.
The Gemara (Bava Kamma 116a) discusses a case in which a river sweeps away two people’s donkeys simultaneously. Reuven’s donkey is worth twice as much as Shimon’s, and Shimon offers to save Reuven’s donkey on condition that Reuven reimburse him for his donkey, which would likely drown in the interim. After Shimon saves Reuven’s donkey, they notice that Shimon’s donkey managed to emerge from the water alive.
The Gemara deliberates what the halachah is in this case: On one hand, we might say that at the moment when Shimon agreed to abandon his own donkey in favor of saving Reuven’s, he was mafkir (released possession of) his donkey, and Reuven was immediately obligated to pay him for it. When Shimon’s donkey reemerged, he took possession of it from hefker, but that does not absolve Reuven from paying for it. On the other hand, perhaps Reuven only agreed to pay the price of Shimon’s donkey because he assumed that it would die while his donkey was being saved, but he never agreed to pay for Shimon’s donkey if it survives. Now that Shimon’s donkey survived, perhaps Reuven should have to pay Shimon only for the time expended on the rescue, but not for the donkey (Shittah Mekubetzes, citing Rabbeinu Yehonasan).
The Gemara concludes that Rav says that “in Heaven they took mercy on him (i.e., Shimon).” Since it was unlikely that Shimon’s donkey would survive, and it was spared only by Heavenly mercy, Reuven is required to pay Shimon the full value of his donkey (Shulchan Aruch Choshen Mishpat 264:3).
The poskim explain that because his donkey is worth so much, Reuven agreed to pay Shimon to save it and abandon his own donkey, which would then likely drown. Once they made this agreement, it is considered as though Reuven hired Shimon to save his donkey, with the wage set at the full value of Shimon’s donkey. The fact that Shimon’s donkey happened to survive does not reverse that agreement, because the fact that Shimon did not suffer the financial loss he had agreed to risk was due to Divine mercy on his behalf (see Nesivos 262:3 and Ohr Samei’ach, Hilchos Sechirus 7:1).
Returning to your case, when you agreed to substitute for your friend, you did so under the assumption that you were forfeiting your salary from your employer for that week, and your friend agreed to compensate you for that loss. The fact that your employer decided to pay you has no bearing on your agreement with your friend, so you are allowed to keep the extra $200.
Other poskim explain the case of the Gemara in another way: When Shimon jumped into the water to save Reuven’s donkey and not his, he completely forfeited his rights to his donkey and made it hefker. When he then retrieved it as it stepped out of the water, an act of Divine mercy enabled him to acquire it anew from hefker – which is akin to him taking possession of someone else’s lost object (Chazon Ish, Bava Kamma 18:3).
According to this explanation as well, when you agreed to substitute for your friend, it was as though you forfeited your rights to the additional $200 you would have been paid by your employer, who had no obligation to pay you for that week, and your friend agreed to compensate you for that loss. The $600 your employer then decided to pay you has no bearing on your earlier agreement with your friend (see Shu”t Igros Moshe, Choshen Mishpat 1:37).
Money mattersDeviation From Instructions#464
Q: I gave a jeweler a diamond to sell for at least $10,000. Two months later, he sold it for $9,000, claiming that it is worth only that much and he cannot get the price I requested. What is the halachah?
A: A broker is an agent of the owner/seller. Therefore, he is not allowed to deviate from the instructions of the seller, even though his intention is for the benefit of the seller, and even if he knows the market conditions better (C.M. 185:1).
Therefore, if the owner set a minimum price, the broker may not sell for less, even if he was unable to sell at the price the owner stated. If the sale cannot be voided, the broker is required to compensate the seller for the difference (Sma and Aruch Hashulchan 185:1; Nesivos 185:2).
Conversely, if the broker sold at a price higher than was set, even if the owner had agreed to sell below value to raise cash, the gain is the owner’s.