Story LineDoes Might Make Right?Rabbi Meir Orlean
Lag BaOmer had arrived. Piles of wood stood high, ready to honor Rabi Shimon bar Yochai with bonfires late into the night.
In an empty lot, two groups had built tepees of wood for their bonfires. Between them lay a long, heavy log.
One group approached the log to haul it into their fire. As they gathered around the log, the adjacent group called out to them, “What are you doing with that log?”
“We dragged it here yesterday,” the first group replied. “We’re going to add it to our bonfire.”
“What do you mean?” argued the second group. “That log is not yours! We brought it here yesterday.”
“You’re a bunch of liars,” retorted the first group. “The log is ours!” They reached down to take the log.
The second group charged them and started pushing them away. “Don’t you dare take our log!” they threatened.
Voices flared and the two groups began making fists.
Mr. Gruen, who was standing by to supervise the bonfires, quickly came over. “What’s going on?” he asked. “Rabi Shimon would not appreciate violence, not to mention the danger of the fires burning nearby.”
“The log lying here is ours,” both groups shouted simultaneously. “They’re trying to steal it from us!”
“Well, who found it and brought it here?” asked Mr. Gruen.
“We did,” claimed both groups.
“Can either of you prove it?” asked Mr. Gruen.
Neither group could provide adequate proof.
“In that case, let the log stay here meanwhile,” said Mr. Gruen. “Each group should choose a representative, and we’ll go ask Rabbi Dayan what to do about the log.”
Mr. Gruen and the two representatives went to Rabbi Dayan. “There is a log between the two bonfires,” Mr. Gruen said. “Each group claims that the log is theirs. They almost got into a fight over it! What do we do?”
“When two people argue over ownership of an item and neither is in possession or has conclusive proof,” replied Rabbi Dayan, “the Gemara rules, ‘kol d’alim gavar — whoever is stronger wins’” (B.B. 34b).
“Why is that?” asked Mr. Gruen. “Since when does might make right?”
“There are two explanations,” answered Rabbi Dayan. “Rashbam (B.B. 35a) explains that since neither party is in possession or presents conclusive proof, yet the issue may still be resolved should one procure evidence, beis din does not rule, but instead steps aside and allows the parties to ‘fight it out.’”
“Rosh (B.M. 1:1; B.B. 3:22), however, explains that kol d’alim gavar itself is considered a ruling,” continued Rabbi Dayan. “Chazal rely on the presumption that the true owner will more likely succeed; he will make a stronger effort to secure or show his ownership (Sma 139:2).”
“What if the other party subsequently grabs the item back?” asked Mr. Gruen.
“Rosh and Shulchan Aruch write that once one party takes the item, he remains in possession even if the other party subsequently overpowers him, unless the latter brings valid proof,” replied Rabbi Dayan. “This follows Rosh’s explanation that kol d’alim gavar is a ruling that Chazal instituted in the absence of proof or possession (C.M. 139:1; 146:22).
“Shach (139:2), however, cites other Rishonim that if the second party subsequently grabs the item back, he can retain it,” continued Rabbi Dayan. “This seemingly follows Rashbam’s explanation that beis din does not get involved in the case” (Shita Mekubetzes, B.B. 34b).
“It seems inappropriate to rule kol d’alim gavar nowadays,” commented Mr. Gruen.
“Indeed, Shevus Yaakov (2:167) suggests that nowadays it is preferable that beis din divide the item or settle the dispute with a lottery,” replied Rabbi Dayan. “There are strict civil laws about violence, and potential trouble can come from ruling kol d’alim gavar.
“Thus,” concluded Rabbi Dayan, “whoever succeeds in taking the log first can keep it, but if there is concern for violence, an alternate solution should be arranged.”
From the BHI HotlineFix the Leak!
Q: My ceiling and walls suffered water damage, so I called a professional to identify the source of the problem. He found that my upstairs neighbor’s drainpipe was leaking, causing water to spill onto my ceiling and seep into my walls. After he fixed the pipe, I approached my neighbor and asked him to reimburse me for the cost of the repair. My neighbor claims that according to Halachah, he is not required to pay for the repair. Is he correct?
A: Although a simple perusal of the Halachah in the Gemara and Poskim might lead one to believe that your neighbor is correct, in reality he is required to pay for the repair.
The Gemara (Bava Metzia 117a) rules according to Rabi Yosi, who maintains that the general rules of dealing with neighbors requires each neighbor to ensure that his possessions will not be damaged by his counterpart, except in cases in which the mazik is inflicting damage with his own body, in which case we obligate the mazik to stop causing that damage.
Accordingly, if an upstairs neighbor pours water directly onto his downstairs neighbor’s property, he is liable for the damage, because he has inflicted the damage directly. If, however, he pours water onto his own floor and the water seeps through the floor and then into his neighbor’s house, his direct action ended when he stopped pouring the water. Since the seeping water is not his direct action he is permitted to pour water onto his floor, and the downstairs neighbor must take measures to protect his property from damage, even though it is obvious that the mazik’s actions are indirectly causing the damage (Shulchan Aruch, Choshen Mishpat 155:4).
It would seem, then, that since your neighbor is not directly causing the damage – rather, his faulty pipe is leaking slowly into your house – it would be your responsibility to repair the pipe in order to protect your property.
But there are several reasons why your neighbor is responsible for the repair.
- The Poskim limit the obligation to protect one’s property to cases in which it would be impossible for the upstairs neighbor to prevent the damage unless he didn’t use water altogether, and the downstairs neighbor can easily prevent the damage by installing a concrete ceiling that would absorb the water. (In earlier times, people used much less water in their homes, so a cement ceiling between the two properties would have been enough to prevent water damage to the downstairs property.)
If the downstairs neighbor cannot prevent the damage through a minimal investment, but would have to incur a large expense to prevent the leak, and the upstairs neighbor can easily repair the problem, the upstairs neighbor would be responsible to prevent the damage (see Nesivos 155:3, based on Shulchan Aruch 155:20). If that is true in the case of the installation of a ceiling between the two floors, which benefits the downstairs neighbor as well, then it is certainly true in your case, in which your upstairs neighbor is the one who truly benefits from the repair to the broken pipe (see Mishpetei Hachoshen p.185).
- The reason we generally require a person to protect his own property from damage is that we cannot limit his neighbor from standard use of his property. In earlier times it was considered an ordinary practice to wash one’s hands directly onto the floor, where it was eventually absorbed. Halachah therefore placed the burden on the downstairs neighbor to prevent that ordinary water usage from damaging his property.
Nowadays, norms have changed; we pour water only onto surfaces or receptacles that have a drainage system, not directly onto the floor to be absorbed (see Chazon Ish, Bava Basra 14:13). We therefore expect an upstairs neighbor to ensure that his water is not leaking into his neighbor’s house. Furthermore, when someone uses a lot of water, as is the practice nowadays, we expect him to repair a faulty pipe (see Rema 155:4 and Aruch Hashulchan 6).
- Since the generally accepted practice in shared-living structures is that the owner of a faulty pipe is responsible for fixing it (unless it is a shared pipe, in which case the cost is split between all the residents), the residents are considered to have agreed at the outset that the upstairs neighbor would fix the pipe if it broke. Even if they do not have an official contract stating as such, they agreed to live in the structure according to local custom.
In summation, although your neighbor was correct that Halachah would ostensibly exempt him from paying for the repairs, in reality he is responsible for the repair to the leaky pipe.
Money mattersBuying on Consignment (Sarsur)#460
Q: I received merchandise on consignment, and it was lost through oness (circumstances beyond my control). Am I liable for it?
A: A person who accepts merchandise with the express understanding of reselling can retract and return it if he does not find buyers.
While you hold the merchandise with the intention to sell, you are liable for any oness that occurs to it, since at that point you are considered a buyer (or borrower). While the merchandise is being returned, though, you are liable only as a shomer sachar (Nesivos 185:3; 186:1-2).
Similarly, if a sarsur takes the merchandise to another city to sell, if it is lost through oness on the way there, he is liable.
However, if he did not find customers and is returning with the merchandise, he is then a shomer sachar and exempt if it is lost through oness, unless it is also common to find buyers while returning (C.M. 186:2; Sma 186:4).
If the common commercial practice is otherwise, or the consignment contract states other terms, they are binding.