Story LineReplacement CheckRabbi Meir Orlian
During the summer Chaim Segal worked as a counselor. At the end of the season, the camp director distributed salary checks to the staff.
Chaim took the check and put it in his pocket. When he got home, he looked in his pocket for the check, but couldn’t find it.
“I can’t find the check,” Chaim told his parents.
“Where did you put it?” his mother asked.
“I put it in my pocket,” Chaim replied.
“Finish unpacking,” she suggested. “Maybe it will turn up.”
Chaim finished unpacking, but did not find the check. He emptied all his pockets and his wallet once more, but still could not find it.
“I looked everywhere,” Chaim said, “but can’t find the check. What should I do now?”
“Call the camp office and tell them that your check is lost,” Chaim’s father said. “Have them put a stop on the check and ask them to issue a new one.”
Chaim called the camp office. “This is Chaim Segal,” he said. “I worked this past summer as a counselor, but can’t find my check. I’d like to ask that you place a stop on the check and issue a new one.”
“I’ll speak with the director,” the secretary said. “I’m jotting down your name.”
“Chaim Segal lost his check,” the secretary said to the director. “He’d like us to stop the check and issue a new one.”
“I hate when this happens,” said the director. “There are fees for stopping the check and it messes up the books. I feel that once we gave him the check, we fulfilled our responsibility. If he’s careless and loses the check — that’s his problem!”
The director picked up the phone and called Rabbi Dayan. “One of our counselors lost his check,” he said. “Do we have to issue a new one, or is it his loss?”
“There is a difference between cash payment and a check,” replied Rabbi Dayan. “When the employer pays cash, or makes an automatic deposit, he has completely fulfilled his responsibility to his employee. If the employee subsequently loses the money, it’s his loss.
“However, a check is not actual payment,” continued Rabbi Dayan. “Rather, it is like a debt document from the employer or an instruction to the bank to pay the bearer of the check that amount.
“Therefore, until the employee has deposited or cashed the check, the employer has not fully completed his obligation to pay him. The fact that the employee was negligent with the check does not exempt the employer of his obligation to pay.” (See Hilchos Mishpat 227:29 [33-35]; UCC §3-309, 3-310)
“What about the stop-check fee or other administrative costs in issuing a new check?” asked the camp director.
“You can demand that the employee cover these costs,” replied Rabbi Dayan. “Since you gave the check as agreed, you are not required to suffer any additional associated costs. This is true even if the check was not lost through the employee’s negligence.”
“What if the employee neglected to deposit the check for six months, past its expiration?” asked the director.
“The rules would be the same,” replied Rabbi Dayan.
“And if the employee transferred the check to a third party?” asked the director. “For example, if he gave it to someone he owed, but it was never cashed.”
“In this case, since the employee received its value, the employer would not have to give him another check,” replied Rabbi Dayan. “However, he would have to issue a new check to the third party, who took legal possession of the check.” (See Pischei Teshuvah, C.M. 54:2; Minchas Yitzchak 5:119-120; 7:131.)
From the BHI HotlineFood under the Bed
One of my bunkmates cleaned the bunk yesterday and placed my suitcase containing nosh under one of the beds. Another bunkmate claims that since the food was under a bed it is prohibited.
Q: Is the food prohibited for consumption? If so, is the one who placed it there liable?
A: Your first query regarding the permissibility of the food is subject to dispute. Shulchan Aruch (Y.D. 116:5) rules that it is prohibited to store food or beverages under a bed due to the presence of ruach raah. Some maintain that this prohibition is only l’chat’chilah, but the food does not become prohibited (Shevus Yaakov 2:25). Others contend that the food becomes prohibited as well, and many, due to concerns of spiritual danger, refrain from using it (Gra, Birkei Yosef; and see Darkei Teshuvah 116:35, 38. See also Minchas Yitzchak 4:117 regarding a baby carriage).
In your case, although placing another’s food under a bed is an act of hezek (damage), even though the prohibition is due to spiritual concerns, nevertheless, there are two issues that must be examined:
1. Is one liable for damages if there is a dispute whether the food is prohibited? If, while slaughtering, a shochet inflicts a wound to a friend’s animal and it is debatable whether it renders the animal a treifah, some authorities maintain that we cannot obligate the shochet to pay since the matter is subject to debate — even when the custom is to be stringent (C.M. 306:5). However, others contend that he is liable for those wounds which shochtim should know are customarily treated stringently (Shach 306:10). Accordingly, in your case, since many people are not aware of the prohibition of placing food under a bed, we cannot obligate the “mazik” (see Kehillas Yaakov, A.Z. 22 and Shaarei Yosher 1:9–10).
2. Is one liable to pay for hezek she’eino nikar — damages that are not detectable, i.e., the object hasn’t been physically altered but something was done to make the object prohibited? The Gemara (Gittin 53) rules that min haTorah one is not liable for hezek she’eino nikar but Chazal were concerned that people would abuse this halachah and inflict such damage, so they instituted that someone who intentionally inflicts hezek she’eino nikar is liable (C.M. 385:1). In your circumstance, since your bunkmate did not intend to cause the prohibition of your food, he cannot be forced to pay for the loss (see Shaar Mishpat 66:34).
Additionally, in your case the damage is indirect since it does not become prohibited immediately after it is placed beneath the bed; the prohibition occurs after one sleeps above the food.
According to some authorities when someone places a friend’s food under a bed, the food does not become prohibited since one cannot cause prohibition of property that is not his own (Rav Pe’alim 4:5, and see Halichos Shlomo, Tefillah 13:). Some write that in circumstances in which the mazik is not liable, the ruach raah, harmful spirit, does not descend on the food (Salmas Chaim 23). However, if he intentionally placed his friend’s food under a bed and thereby caused it to be subject to the Rabbinic penalty (or in a case of grama he has a moral obligation — chayav latzeis yedei Shamayim), the ruach raah would descend on the food.
In summary: If the food is placed under a bed with the intent to cause it to become prohibited, the mazik has a moral obligation to pay the owner. If he did not realize he was making the food prohibited, he is not liable.
Money mattersTestimony #270
Q: When is a person required to testify in beis din?
A: The Torah (Vayikra 5:1) states that if a witness withholds testimony he bears sin. Therefore, a person who knows testimony, who is qualified to testify, and whose testimony is of legal consequence, is required to testify if called upon by the litigants. According to some authorities, he is required to come and testify even if not called upon.
A single witness is also required to testify, since his testimony is of legal consequence in order to impose an oath. A relative, who is disqualified as a witness, is not required to testify, unless the litigants agree to accept him as a witness.
A witness who withheld testimony and thereby caused the litigant a loss does not bear an enforceable liability, but is liable b’dinei Shamayim. If the litigant grabbed payment for the loss from the witness, he must return it according to most authorities (C.M. 28:1; Pischei Teshuvah 28:1, 4, 6).