Story LineDestabilized IncomeRabbi Meir Orlian
The rustic town of Oldsville drew crowds of visitors in the summer months. Among the tourist attractions was Yankel’s stable.
Yankel owned three fine horses, which he would charge visitors to ride through the cobblestone streets. Twice a day he would hitch one of the horses to a wagon that held eight passengers for a horse-and-buggy ride.
One afternoon, Feivel came to rent a horse. He ran up to one of the horses, and the startled horse kicked him in the leg. To add insult to injury, the horse then relieved itself, soiling Feivel.
Furious, Feivel pushed the horse. The horse, which was standing beside a low wall, lost its balance and fell over. It landed with a thud, and one of its legs smashed against the wall.
Yankel called the vet. “This leg is badly broken,” the vet pronounced, after examining the horse. “Such a break will never heal properly on its own. Without an operation, the horse will not be able to gallop or pull a wagon anymore.”
“You owe me damages for injuring the horse,” Yankel told Feivel. “There’s the $2,500 veterinarian’s fee, plus the loss of income from the horse for the remainder of the summer. If not for you, that horse would have brought in a net profit of $1,000 for the month.”
“How much is the whole horse worth?” argued Feivel. “Go sell the horse and I’ll pay the difference to buy a new one.”
“I’m not out to sell my horse,” Yankel retorted. “I’d like it back in shape.”
“All I care about is how much the horse was worth before, and how much it’s worth now,” said Feivel. “The difference is the damage. The rest is your issue, not mine.”
Is Feivel required to compensate Yankel only for the reduction in the horse’s actual value, or is he required to reimburse him for the horse’s medical bills and lost income as well?
The Torah (Shemos 21:19) requires a person who injures another to pay his medical costs (ripui) and reimburse him for his lost wages while recuperating (sheves). If an animal injures a person, however, its owner is not liable for ripui and sheves, and is required to pay only for the damage of the person’s permanent disability (nezek) (C.M. 420:3; 405:1).
Tosafos (Gittin 42b) writes that some similarly exempt a person who injures an animal from the resulting medical costs and from the owner’s loss of daily income. The Shach (388:39), based on the Mordechai, explains that these are considered grama (indirect damage), and the Torah obligates a person to pay ripui and sheves only in the case of human injury.
However, Tosafos cite the view of Rabbeinu Chaim Cohen that the loss of income is calculated as part of the nezek payment, since the animal is worth less on the market due to its inability to work now.
Shulchan Aruch and Rema rule in accordance with the opinion that exempts, but the Shach considers the issue an unresolved dispute (sefeika d’dina). Nevertheless, since the exemption is rooted in grama, a moral obligation for reimbursement would apparently remain even according to the view that exempts (C.M. 307:6, 340:2; Shach 307:5, 340:4; Pischei Choshen, Nezikin 11:6).
Moreover, later authorities (Yeshuos Yaakov and Chazon Ish, in his conclusion) rule – against the simple reading of the Shulchan Aruch – that the person who injured the animal is liable for impending medical expenses that reduce the animal’s current value on the market. Similarly, Nesivos writes that if the injury will not heal without medical intervention, the person who inflicted it is responsible to pay to restore the animal to its former state just as he would be liable for repairing any other property damage (Pischei Teshuvah 307:3; Chazon Ish, B.K. 13:8, 10; Nesivos 340:4).
Verdict: There is no direct monetary payment for ripuy – medical expenses to heal the horse. However, Feivel is liable for the horse’s loss of value, including loss due to impending medical expenses, and has at least a moral obligation to pay Yankel for loss of potential income.
From the BHI HotlineBuying Notes
Q. Last week, you wrote that in some cases, when someone pays off another person’s loan without the borrower’s knowledge, the borrower is not required to repay him.
Nowadays, it is commonplace for lending institutions to sell mortgages or other loans (referred to in the industry as “selling notes”). If Reuven took out a mortgage in a bank, and Shimon bought that mortgage from the bank, is that considered as though he paid off Reuven’s loan without his knowledge, which absolves Reuven from payment?
And are there any other halachic issues that arise with regard to purchasing notes?
A. If someone purchases a loan from a lender in a halachically valid manner, the borrower may not claim that the buyer paid off his loan. Rather, the buyer takes the place of the original lender and may demand payment for the loan (Sm”a 128:2 and Shach ibid. 2).
However, the halachos regarding the sale of loans are complex, and the matter must be handled carefully.
If the original loan was formalized with a shtar (contract), it can only be sold through a process of “kesivah umesirah,” which means that the original lender transfers the actual contract and a written addendum stating that the buyer is acquiring the loan document and the liens associated with it. If this process is not completed, the purchase of the loan is invalid (Shulchan Aruch, Choshen Mishpat 66:1).
If there was no contract formalizing the loan (milveh al peh), then the transfer of the loan must take place with all three parties present (maamad shloshton). At that meeting, the original lender must inform the borrower that he is required to pay the amount due to the buyer (ibid. 126:1).
If the loan was not transferred according to the above halachic processes, some rule that it is considered as though the buyer paid off the loan, and the borrower is not required to reimburse him, as explained in last week's column (Shu”t She’eiris Yosef 58).
This ruling is generally irrelevant to our times, however, for several reasons:
- The consensus among the poskim is that if the original lender was a non-Jew, and according to secular law the sale of the loan is valid, it is binding in halachah as well. Since the loan was from a non-Jew, the borrower became bound by the secular laws governing the non-Jew’s business, and he cannot free himself from his obligations through a halachic claim (Shulchan Aruch, Choshen Mishpat 66:25, according to Shach 128:2 and Nesivos ibid. 1).
- Nowadays, most lenders spell out in the loan documents that they have the right to transfer the debt to another debtor, which would be valid even in halachah (ibid 66:26).
- Even when such a clause is not spelled out clearly in the loan documents, because selling mortgage notes is a common practice, it is governed under the rubric of situmta, which lends halachic legitimacy to standard business practices. Although some poskim maintain that situmta does not apply to the sale of loans, when combined with dina d’malchusa dina (the law of the land is halachically binding), the acquisition through situmta is valid (Nesivos 201:1).
The poskim deliberate whether a Jew may purchase a loan if the borrower could have negotiated for a reduction or settlement with the non-Jewish lender, or is about to declare bankruptcy that would release him from the loan (see Shaar Mishpat 128:2; Shu”t Divrei Chaim, Choshen Mishpat 2:6, Divrei Geonim 66:29 for one side of the debate, and Shu”t Beis Shlomo Choshen Mishpat 131; and Shu”t Maharsham 2:84 & 3:184 for the other).
We must emphasize that anyone who deals in loans must be very careful not to violate the halachos of ribbis. Most loans accumulate interest, and a Jew who buys the loan of a Jewish borrower is not allowed to charge interest accruing from the moment of purchase; he is only allowed to accept payment for the principal and whatever interest accrued before the purchase of the loan from the non-Jewish original lender (see Yoreh Dei’ah 168:20; Shu”t Divrei Chaim, Yoreh Dei’ah 2:56).
Money mattersInitiating Shadchan#471
Q: I suggested someone to my friend. A shadchan followed through with the families in concluding the shidduch. Am I entitled to part of the shidduch fee?
A: Strictly speaking, some say that the brokerage or shadchan fee is only for closing the deal, so that the initiator is not entitled. Others say that if the initiator’s efforts were essential in enabling the shadchan to conclude the shidduch, he is entitled to part; even if an additional shadchan played an essential role in the middle, he is entitled to part of the fee (Pischei Teshuvah, C.M. 185:3).
Regardless, poskim write that the practice is to give a share to the shadchan who initiated. Some write further that the practice is to give to the initiator even if he merely suggested the name to the parties without further effort. Some add that even if others had suggested the shidduch, the initiator is entitled to his part, since the shidduch began through his efforts (Aruch Hashulchan 185:12; Pischei Choshen, Sechirus 14:8).