Story LineTimber!Rabbi Meir Orlean
Sukkos was only a few days away; many people had already built their sukkos. Mr. Rhein went to his backyard to begin building. “Our tree grew a lot this past year!” he said to his wife.
“Will it interfere with the sukkah?” she asked.
Mr. Rhein look up at the tree. “Yes,” he replied. “One of the branches goes over the sukkah and covers a big part of it.”
“Can you cut the branch?” Mrs. Rhein asked.
“It will be hard for me,” said Mr. Rhein. “I don’t have the proper equipment. However, our neighbor Mr. Green likes gardening. He has a chain saw and can do it easily. I’ll ask him.”
The following evening, Mr. Green came to cut the branch. Under the tree was some lawn furniture. He moved it aside and climbed the tree. “Watch out,” he called down as he began cutting.
When the branch was almost completely cut, it broke off, twisting as it fell. It hit another branch, bounced off, and crashed to the ground 15 feet away. One end landed on a lawn chair and cracked it.
Mr. Green came down from the tree. “I’m sorry about the lawn chair,” he said. “I’ll buy you a new one.”
“That’s not necessary,” replied Mr. Rhein. “It’s not your fault that the branch fell in that way.”
“I damaged the chair, though,” insisted Mr. Green
“In any case, it wasn’t new,” said Mr. Rhein.
“But it was still usable,” argued Mr. Green. “You can’t fix it, so in any case you’re going to have to buy a new one.”
“Let’s take it up with Rabbi Dayan,” Mr. Rhein suggested.
“Must I pay Mr. Rhein for his lawn chair?” Mr. Green asked Rabbi Dayan. “And how much?”
“Did Mr. Green pay you for your services?” Rabbi Dayan asked.
“He did,” replied Mr. Green. “Does that make a difference?”
“It might,” answered Rabbi Dayan. “The Gemara (B.B. 99b) addresses the case of a shochet who slaughtered, but the shechitah was determined to be passul. A shochet who was paid is liable for the animal; one who was not paid is exempt.
“Similarly, the Mishnah (B.M. 80b) teaches that a paid craftsman who is entrusted with an item to work on is considered a shomer sachar on it,” continued Rabbi Dayan. “He is liable for theft and loss and exempt only for oness (circumstances beyond his control).
“I thought that a person who damages is always liable,” said Mr. Rhein, “even in cases of oness.”
“The Mishnah (B.K. 26a) says so,” replied Rabbi Dayan. “Nonetheless, Tosafos (B.K. 27b s.v. U’Shmuel) explains that the person is liable only if he carries some element of blame, even if not negligent (oness k’ein aveidah). A paid worker carries additional liability, as long as he could have prevented the loss (oness k’ein geneivah) with extra care. Even a paid worker, though, is not liable for damage completely beyond his control (C.M. 306:4; 378:11).
“Ramban (B.M. 82b) is more stringent,” added Rabbi Dayan. “He maintains that one who damages is liable regardless of the circumstances, unless the owner was remiss in allowing the damage. He concedes, though, that a worker — who acted upon instruction — is not liable for circumstances beyond his reasonable control.”
“What about our case?” asked Mr. Rhein.
“Circumstances were not beyond control, since you could have moved the chairs farther away,” answered Rabbi Dayan. “Thus, as a paid worker you are liable. There is possibly also an element of blame, so that even had you not been paid you could be liable.”
“How much must I pay?” asked Mr. Green.
“You are not liable for a brand-new chair, only for the value of the broken one,” replied Rabbi Dayan. “The chair should be evaluated at its worth when you broke it, which would depend on how old it was, partly based on the expected years of usage, and in what condition.”
From the BHI HotlineEsrog Shopping
This is a true story that happened recently. Someone took a few pieces of jewelry from a jeweler so that he could choose one of them. Thieves broke into his hotel room and forced him to hand them over.
Q: Is the customer responsible to pay for the jewelry (leaving aside factors such as insurance, security cameras, etc.)?
A: A similar question that is timely: I was deciding between a few esrogim and received permission to take them to a Rav to examine. Before returning them an accident happened and they became passul.
Q: Am I obligated to pay for the borrowed esrogim, or must the merchant suffer the loss?
A: Shulchan Aruch (C.M. 200:11; see also C.M. 186) rules that one who takes merchandise that has a fixed price to examine it is liable for that merchandise even if an oness (unavoidable mishap) occurs. Some authorities explain that he is liable because he is a loke’ach — purchaser. Since the merchandise has a fixed price, the customer purchased it with the stipulation that he may return it. Others contend that until the customer decides to purchase the merchandise, he is merely a borrower (sho’el) of the merchandise, since he benefits from having it in his possession (see Tosafos, B.B. 87b, d.h. Haloke’ach; Nesivos 186:1; and Business Weekly #358).
Some suggest that whether someone is categorized as a customer or borrower is situational (Nesivos 186:1, 2). If the customer’s interest in the transaction is greater than the merchant’s (zevinah charifah), he is categorized as a ‘borrower.’ Since the merchant can easily find other customers, the customer is the primary beneficiary of having possession of the item. If the merchant also desires the likelihood to facilitate a sale (zevinah metzia), the customer is a shomer sachar — paid custodian — who is liable if the item is stolen or lost but exempt if an oness occurs. If the merchant is looking to unload the merchandise as quickly as possible (zevinah d’rami al apai), the customer is categorized as a shomer chinam — unpaid custodian.
Even when the customer is not considered a ‘borrower,’ if it is clear that he will purchase the merchandise, he is categorized as a ‘purchaser’ and is liable. For example, if one intends to purchase the esrog if approved by his Rav, he is a customer and is liable even if an oness occurs (C.M. 200:11; Gra 34).
In the case of esrogim, if the merchant also benefits from the customer’s possession of the esrogim, the customer is not a sho’el; therefore his liability depends on whether he intended to purchase the esrog pending his Rav’s approval. Accordingly, if he took only one esrog for his Rav to examine, he is a purchaser and is liable even if an oness occurs. If he took two or three esrogim, he has not decided to purchase any of them and is exempt from liability if an oness occurs. However, if he took a few esrogim and after consultation with his Rav decided which esrog to purchase, he is liable for that esrog even if an oness occurs (Pischei Choshen, Pikadon 1:; Hayashar V’hatov 14:15).
It must be emphasized that the customer is minimally a shomer sachar or sometimes a shomer chinam, and if he left them on the table where his small children could reach them, he is liable due to his negligence. Additionally, if the merchant does not believe the customer’s claim that an oness occurred, they will have to compromise in lieu of an oath administered for shomrim.
Q: What is the halachic status of paper currency issued by the government? What happens if the government changes the currency or devalues it?
A: Establishing currency is included in dina d’malchusa. Therefore paper currency issued by the government as legal tender is considered cash, not shtaros (documents), even though it has no inherent value. Therefore oaths and guardianship apply to it; one can betroth a woman with it. Many maintain that it can be used for pidyon haben, even though loan documents cannot; some question this, since this mitzvah is between man and Hashem, whereas dina d’malchusa might be limited to interpersonal matters (Pischei Teshuvah, Y.D. 305:7; Minchas Pittim, C.M. 301:1).
If the government changes the currency or devalues it and establishes laws about payment of former debts from the new currency, the law is valid as dina d’malchusa. There is no concern of theft or ribbis according to most Poskim, even if the resulting payment is more than the initial loan (Rema, Y.D. 165:1; C.M. 74:7; Shach 74:28; Bris Yehudah 21:11).