Story LineTheft: UnawareRabbi Meir Orlean
Unfortunately, Jeremy was not a scrupulous fellow. He was involved in various forms of theft, but always tried to evade responsibility.
One day he saw the gabbai of his shul, Mr. Prince, leave an envelope with money in his desk. “I left an envelope with money in shul today,” Jeremy told his friend, Yossi. “Would you be able to stop off this evening and take it? It’s in the gabbai’s desk.”
“No problem,” said Yossi. In the evening, he went to the shul and took the envelope from the gabbai’s desk.
The following day, the gabbai summoned Yossi to his office. “Last night someone stole money from the shul,” he said. “The surveillance camera shows that you took it.”
“Jeremy told me to take it,” replied Yossi. “If anyone is liable, he is!”
Mr. Prince called Jeremy in. “I understand that you sent Yossi to steal money,” he said. “You are responsible.”
“How can you hold me responsible?” argued Jeremy. “I didn’t do anything! Yossi didn’t have to listen to me. He’s responsible for his own actions.”
“I had no idea that the money wasn’t yours,” replied Yossi. “You said that it was.”
“You still can’t call me a thief,” insisted Jeremy. “I didn’t do anything.”
“Where is the money now?” asked Mr. Prince.
“I was mugged on the way to Jeremy,” said Yossi. “The money’s gone but I’m not guilty”
“You never got the money?” Mr. Prince asked Jeremy.
“No,” said Jeremy. “I refuse to accept blame as a thief!”
“I’d like to discuss this with Rabbi Dayan,” said Mr. Prince, “and I would like you both to come with me.”
Mr. Prince took the two of them over to Rabbi Dayan.
“Jeremy told Yossi to take money from the shul,” said Mr. Prince. “Yossi assumed it was Jeremy’s, but it was not. Is Jeremy liable as a thief?”
“The Gemara (Kiddushin 42b; B.M. 10b) teaches that there is no agency for sin (‘ein shaliach lidvar aveirah’),” replied Rabbi Dayan. “Although a person’s agent is like him, and the agent’s actions on his behalf are legally binding, this does not apply to agency for transgressions. Thus, when someone sends an ‘agent’ to steal or damage, the sender is not legally liable; the thief himself is held accountable” (Rema, C.M. 182:1; 348:8).
“Why is that?” asked Jeremy.
“The basic rationale is that each person is responsible to fulfill Hashem’s commands,” explained Rabbi Dayan. “Therefore, the excuse that ‘So-and-so sent me to steal or damage’ does not exempt the thief, since Hashem — Whose commands are superior — instructed him not to steal” (Sma 182:2).
“In this case, though,” pointed out Yossi, “I had no idea that the money was not Jeremy’s.”
“Indeed, according to one opinion in the Gemara, if the agent did not have a choice whether or not to obey, the sender is liable, since the rationale does not apply,” replied Rabbi Dayan.
“Tosafos applies this also to our case in which the agent was unaware that he was instructed to transgress, since he had no reason not to obey. Nimukei Yosef disagrees, though, and exempts the sender” (Shach 348:6).
“Similarly, some maintain that if the agent is known to transgress, the sender is liable, since the rationale does not apply. The sender was aware that the agent would fulfill his instructions and not heed the mitzvah,” added Rabbi Dayan.
“Others do not differentiate, since the agent remains obligated to heed the commandment and can choose whether to obey. Some also maintain that if the sender threatened the agent to force him to obey, the sender is liable for the theft” (Rema, C.M. 388:15; Shach 388:67; Pischei Choshen, Geneivah 4:24).
“Thus there is a dispute whether Jeremy is liable,” concluded Rabbi Dayan. “Nonetheless, he has a moral obligation to repay the theft that he caused, and if the money had reached his hands he would certainly have been liable for it, like any other lost item” (Pischei Choshen, Geneivah 4:23).
From the BHI HotlineForgotten Sale
Q: A grocery store owner signed a mechiras chametz contract authorizing the Rav of his shul to sell his chametz to a non-Jew. After Pesach, the Rav found this contract in his coat pocket, and realized that he had forgotten to sell the chametz in this grocery. Is the chametz now forbidden, and if it is, is the Rav responsible to pay for it?
A: The first thing we must determine is whether there was in fact no mechirah in this case.
Generally, the contract between a Rav who sells chametz and the non-Jewish purchaser states that the Rav is selling the chametz of all those who appointed him as their agent, even if he lost one of the mechiras chametz contracts or forgot to hand it over to the non-Jew.
In all likelihood, then, this grocer’s chametz was sold.
But let’s examine the hypothetical case in which a Rav did not include all the chametz of those who appointed him their agent to sell their chametz. Would he then be liable for the chametz he failed to sell?
Chazal decreed that chametz that belonged to a Jew during Pesach is prohibited, as a penalty for having transgressed the prohibitions of bal yera’eh and bal yimatzei. Although it would seem that this penalty should not apply to someone who kept chametz in his possession inadvertently (shogeg) or was forced to do so (oness), Chazal in fact did apply the penalty even to cases like these, out of fear that if they penalized only those who deliberately kept their chametz, people would be more lax about keeping chametz and more likely to transgress (O.C. 448:2). Therefore, although for the grocer it was oness, the chametz would be forbidden after Pesach if the Rav did not include it in his sale, and the grocer would have to destroy all of it.
Would the Rav have to reimburse the grocer for the resulting financial loss?
Two precedents indicate that there is no obligation to pay:
A Jew who steals chametz from another Jew and keeps it over Pesach may return it after Pesach and claim that he is returning it as is (harei shelcha lefanecha), even though the owner is forbidden to use it (Shulchan Aruch, Choshen Mishpat 363:1).
If a shomer (guardian) did not sell chametz he was asked to safeguard, the Poskim (Shach ibid. 7; Magen Avraham 443:5; Pischei Choshen, Pikadon, note 104) debate whether he is required to compensate the owner for his loss. But even those who would require the shomer to pay might exonerate the Rav in our case, because he was not a shomer (Shaar Hatziyun 443:16).
In both of these cases, a person responsible for someone else’s chametz not being sold over Pesach is absolved from paying for it, which would seem to indicate that the Rav should similarly be absolved.
Nevertheless, the Rav might have an obligation to pay because this is a case of garmi (direct causation), since the grocer was relying on the Rav to sell his chametz (see Shulchan Aruch, C.M. 306:6, and Mishpat Hamazik 17:9).
However, since the chametz will generally not become forbidden (as we will explain shortly), the Rav will not be required to pay (Shulchan Aruch, ibid. 306:5).
There are several factors that combine to render the grocer’s chametz permissible for use:
Some authorities suggest that chametz kept in a case of oness becomes prohibited only if the owner also failed to be mevatel (nullify) his chametz. A person who nullifies his chametz has already fulfilled his Torah-level obligation to remove chametz from his possession, so he is not subject to the penalty levied on those who own chametz on Pesach. Some Poskim rule that we can rely on this heter in all cases (see Aruch Hashulchan 443:3 and Mekor Chaim 14), while others apply it only in cases of significant financial loss (Mishnah Berurah, ibid. 25; Bi’ur Halachah, s.v. Afilu).
Some Poskim rule that since the circumstances causing the oness are so unusual that it would never occur to anyone to prevent such an eventuality, Chazal did not levy a fine on the owner for failing to rid himself of the chametz (Beis Meir, cited in Mishnah Berurah 448:9; see Kovetz Mibeis Levi 15, p. 85).
In this specific case, since the grocer tried to sell his chametz, we have no reason to levy a penalty that was instituted in order to prevent people from failing to eliminate their chametz (Shu”t Shoel Umeishiv, Mahadurah Kama 2:41, cited in Shu”t Maharsham 6:2, and see Shu”t Chasam Sofer 133).
As noted above, however, in all likelihood, the chametz was sold, and no case needs to be brought against the Rav.
Money mattersUndercutting the Market#458
Q: A new superstore opened in our neighborhood, selling well below the prices of all other stores in the area. Is undercutting the market viewed positively in halachah?
A: In general, one who sells below the market rate is viewed positively, since this will lead other sellers to lower prices, and reduce the market rate for consumers (C.M. 228:18).
However, some authorities limit this to foodstuffs, which are essential for consumers, whereas for other commodities they maintain that it ruins the market and causes losses to owners of smaller store (Erech Shai 156:5; Aruch Hashulchan 228:14). Others, though, certainly do not differentiate if the other sellers can compete with these lower prices (Chochmas Shlomo 228:18; Pischei Choshen, Geneivah 14:14).
Nonetheless, many authorities prohibit predatory pricing, when the goal is to eliminate competition by selling at a price that others cannot compete with and that cannot be economically justified, sometimes even at a loss. This causes great loss to other store owners, and also raises concern that after eliminating competition, prices will be raised again (Hilchos Mishpat 228:18).