Story LineVested InterestRabbi Meir Orlean
Mr. Schorr, director of Torah Institute, was litigating with Mr. Gold before Rabbi Dayan.
“I granted the institution a 10-year loan,” said Mr. Gold. “Time is up, but they refuse to repay the loan.”
“What do you have to say?” Rabbi Dayan asked Mr. Schorr. “Is there any reason that you should not have to pay?”
“We borrowed the money,” replied Mr. Schorr. “However, two years later we had a meeting with Mr. Gold, and he agreed to forgo the loan. Therefore, we do not have to pay it.”
“Do you have any evidence of this?” asked Rabbi Dayan.
“We have a document signed by witnesses attesting to the fact that Mr. Gold canceled the loan,” said Mr. Schorr. “We asked them to come today to testify again.”
“Who are the witnesses?” asked Rabbi Dayan.
“One is Rabbi Weiss; he was a member of the kollel then,” replied Mr. Schorr. “The other is Mr. Green; he used to work for the institution as an accountant, but has since moved on.”
“I object to their testimony,” said Mr. Gold. “Both Rabbi Weiss and Mr. Green were associated with the institution and are liable to be partial toward it.”
“Do they have any remaining connection?” asked Rabbi Dayan.
“None at all,” replied Mr. Schorr. “Rabbi Weiss became a teacher elsewhere five years ago, and Mr. Green left three years ago and has a new job.”
“Still, at the time of the loan and the subsequent meeting, both were associated with the institution,” objected Mr. Gold. “Rabbi Weiss received a monthly stipend and Mr. Green was a salaried employee. They had a vested interest in exempting the institution. How can their testimony be valid?”
“Indeed, a witness who has a monetary interest cannot testify,” replied Rabbi Dayan. “This is known as nogei’a badavar” (C.M. 37:1).
“Is he like any other disqualified witness?” asked Mr. Gold.
“According to some authorities, a nogei’a badavar is inherently disqualified from testifying, like a relative,” explained Rabbi Dayan. “However, according to most authorities he is disqualified out of concern that he will lie due to his vested interest. Therefore, unlike a relative, a nogei’a badavar is disqualified only in regard to testifying to his benefit, but can testify for his detriment, since then there is no concern that he would lie” (Sma and Shach 37:1).
“Furthermore, witnesses generally must be qualified both at the time that the event occurred and at the time that they testify,” replied Rabbi Dayan. “Nonetheless, Shulchan Aruch rules that someone who was a nogei’a badavar at the time of the event but no longer has a vested interest can testify, since now there is no concern that he would lie” (C.M. 33:15).
“Shach, however, cites many other authorities who rule that one who was a nogei’a badavar at the time of the event remains disqualified even after he no longer has a vested interest,” continued Rabbi Dayan. “He leaves the issue inconclusive, but even according to him, if the witness testifies on behalf of the defendant who is in possession of the money, his testimony would now be accepted” (Shach 37:32).
“Is the document also valid?” asked Mr. Schorr. “If so, perhaps there is no need for them to testify now.”
“When a witness signs on a document, his testimony is considered focused at that time,” answered Rabbi Dayan. “Therefore, since Rabbi Weiss and Mr. Green had a vested interest when they signed on the document, the document is void, even though now they no longer have a vested interest” (Pischei Teshuvah 33:9).
“Can they testify now?” asked Mr. Schorr.
“The document is disqualified,” replied Rabbi Dayan. “Nonetheless, they can testify verbally, since they no longer have a vested interest and there is no concern now that they will lie on behalf of the institution” (Pischei Choshen, Eidus 2:34,37).
From the BHI HotlineMP3 Player
I borrowed my friend’s MP3 player to listen to a shiur. When I went to sleep I placed it on the floor next to my bed in the dormitory. In the morning, when the dorm counselor came in to wake me for Selichos, he didn’t see the MP3 player and stepped on it and broke it.
Q: Is the dorm counselor liable — for breaking the MP3 player — and considered forewarned concerning damages — adam muad l’olam? Am I liable for causing damage to the MP3 player indirectly –— grama?
A: The dorm counselor who stepped on the MP3 player is exempt. Generally, people are liable for inflicting damage, even if the damage resulted from an oness (circumstance beyond one’s control) (C.M. 378:1). However, liability requires some degree of negligence. Even when the actual damage resulted from an oness, a person is liable when he should have exercised greater caution. When an oness occurs in a circumstance in which there is no reason a person should have been more cautious (oness gamur), he is exempt (Rema, ibid. and 421:4). Therefore, since there was no reason for the dorm counselor to think that there was an MP3 player on the floor, he is exempt.
Those who maintain that one is liable for damages even due to a completely unexpected oness (see Shach, C.M. 378:1 and Business Weekly #326) nevertheless say that, if the damage results from the damaged party’s negligence, the mazik is exempt (Ramban, B.M. 82a). In this case, the damage resulted from the borrower’s negligence and thus the dorm counselor is exempt.
It is not considered negligent on the dorm counselor’s part for not looking where he was going. In fact, it is considered an oness gamur (C.M. 412:1) because most people do not look down at the floor to make sure that they will not step on anything (Rosh, B.K. 3:1). Additionally, people are occupied with their thoughts and as a result do not pay attention to where they are going (Meiri, B.K. 27b; Yam shel Shlomo, B.K. 5:44). Accordingly, if someone steps on something in the normal course of walking because he did not see the item on the ground, he is exempt. Since it is uncommon for most items to be placed on the ground, there is no reason for one to exercise caution to avoid damaging them, especially in a dark room (C.M. 412:2).
Accordingly, if Reuven asks Shimon to wake him and Reuven left his glasses on the floor and Shimon stepped on them, Shimon is exempt from paying. Reuven should not have placed his glasses where people could step on them (K’neh Bosem 1:124 and see Pischei Choshen, Nezikin 8:).
However, in a mikveh where it is common for people to place their glasses on their clothing or on the bench next to their clothes, if someone sits on them, the damage is not categorized as an oness gamur and he is obligated to pay (Mishpetei HaTorah 1:2:3, and see Business Weekly #346 regarding the method to appraise one’s glasses).
As far as your liability as a borrower is concerned, you must repay the owner for the broken MP3 player since a borrower is liable even in cases of oness and certainly when he was negligent (C.M. 340:1.) [Even those who maintain that one who borrows a mitzvah object is exempt from the liability of a borrower (Teshuvas HaRan 19 cited by Sma 72:21, and see Mishpetei Hachoshen, p. 414) agree that there is liability if the object is stolen or damaged due to negligence].
Money mattersLost Items#450
Q: I found a lost item on which I can presume yei’ush. Civil law requires turning it in to the police. Should I do so?
A: We have mentioned that according to most authorities dina d’malchusa does not apply to monetary laws between individuals.
Nonetheless, Rema rules that if the king decreed the return of lost items from a shipwreck, despite the inherent yei’ush involved, you must hand over your found item. Similarly, he writes that the practice is to return stolen items that you purchased even after yei’ush of the owner, in accordance with dina d’malchusa (Rema, C.M. 259:7; 356:7). Shach (356:10) objects to applying dina d’malchusa here, but explains that the Rema’s ruling is due to the common practice that evolved and was subsequently enacted by Jewish communities.
Ketzos (259:3), however, indicates that dina d’malchusa is applied here, since halachah also instructs returning lost and stolen items after yei’ush, lifnim mishuras hadin.
Therefore, you should turn the item in, especially in a place that is mostly Jewish. Some say, however, that if you can publicize and return the lost item properly, whereas the police may not, you should not hand it over to them (Pischei Choshen, Aveidah 2:; Hashavas Aveidah K’halachah 3:4).