Story LineRaising CashRabbi Meir Orlean
Mr. Klein had bought $40,000 worth of merchandise from one of his suppliers, Stein Supplies.
Although the invoice was past due, Mr. Klein had not paid. Month after month, he pushed off Mr. Stein. “I’m very tight now with cash flow,” he explained. “I expect business to pick up shortly.”
Mr. Stein waited patiently for a few months. Finally, he said: “I cannot wait any longer. I also have suppliers to pay.”
“I’m very sorry,” apologized Mr. Klein, “but business has worsened each month. At this point, I don’t have any cash to pay with.”
“You’ll have to take a loan or raise cash somehow,” said Mr. Stein. “What do you suggest?”
“I have a delivery truck that I can pay you with,” said Mr. Klein. “It’s worth $40,000.”
“That’s a start,” said Mr. Stein. “However, I don’t need another delivery truck. Sell the truck and raise cash! Then you’ll be able to pay me.”
“It will be difficult for me to sell the truck,” said Mr. Stein. “People know my situation and will take advantage of me.
“Besides, I have to leave the country next week for two months, and it will delay everything. Also, once I get payment for the truck, other creditors will want their share. I’ll give you the truck as payment, and you can sell it if you want.”
“I don’t want to sell a truck,” replied Mr. Klein. “I sold you merchandise and expect money for it! If you don’t have money, it’s your responsibility to raise the cash, even if you have to sell two trucks.”
“Why can’t I pay you with the truck?” argued Mr. Stein. “It’s worth what I owe, and I don’t have money.”
“I refuse to accept the truck as payment,” insisted Mr. Klein. “Raising cash is your problem, not mine!”
The two came to Rabbi Dayan. “I sold Mr. Stein merchandise,” said Mr. Klein. “He has no cash and wants to repay me with a truck. Can I insist that he sell it and repay with money?”
“A borrower is required to repay with money if he has it,” replied Rabbi Dayan. “However, if he does not have money, the Gemara (Kesubos 86a) teaches that the borrower can repay the lender with real estate or movable items, and he is not required to sell them himself to raise cash” (C.M. 101:1-2).
“Why is that?” asked Mr. Klein.
“Sma (101:1) explains that the borrower received money and therefore must return money, if he has it,” explained Rabbi Dayan. “Nonetheless, the lender was aware that the borrower might not have money to pay, and therefore relies also on other assets, particularly real estate.
“Yet the lender can elect not to accept the other assets and wait until the borrower has money,” added Rabbi Dayan.
“Furthermore, if the lender explicitly stipulated that the payment be with money, the stipulation is binding as with any other agreement” (ibid. 101:4; 101:10).
“Does this apply to all debts?” asked Mr. Stein.”
“Tosafos (ibid.) writes that, regarding wages, an employer is required to sell assets to pay money,” answered Rabbi Dayan. “This is because the employee relies on the wages for his household expenses, and the implicit agreement was to pay with money” (Shach 336:4; Pischei Choshen, Sechirus 9:1).
“Additionally, Ritva maintains that, regarding a purchase, the buyer must pay with money,” continued Rabbi Dayan. “Here, too, the implicit agreement was that he pay with money, and the buyer cannot require the seller to accept other goods for the merchandise that was sold” (C.M. 101:6).
“Some disagree with this, and compare a buyer to a borrower,” added Rabbi Dayan. “However, Aruch Hashulchan rules like the Ritva, that the buyer must raise cash to pay money, since this is the common commercial practice” (Darchei Moshe 101:2; Taz 101:6; Aruch Hashulchan 101:3).
“Thus,” concluded Rabbi Dayan, “Mr. Klein must pay with money, and it is his responsibility to sell the truck to raise cash.”
From the BHI HotlineMistaken Paint Job
Q. Reuven hired a painter to repaint the porch of his summer home in the Catskills. No one was in the colony to confirm which house was Reuven’s, and the painter mistakenly painted Shimon’s porch instead. The painter left an invoice for his work, but Shimon says that since he didn’t hire the painter, he should not be required to pay.
Is Shimon correct?
A. Chazal taught (Bava Metzia 101a) that a person is required to compensate someone who provided him a service that brought him some sort of benefit, even if he never requested that service. Therefore, if a person plants trees in someone else’s field without permission, although what he did was incorrect (Teshuvas HaGeonim, Chemdah Genuzah 40), if the field was supposed to be planted with trees, the owner is required to pay him the local wage for such work. If the field was not supposed to be planted with trees, but the value of the field rose because of the trees, he is only required to cover the costs of the raw materials used to do the work, [in addition to the minimum hourly wage in that locale (Shach 306:5)]. If the rise in value of the field is less than the price of the raw materials, the owner is required to pay only for the actual difference in value, which is the amount he benefited, not for the outlay invested by the person who planted the trees (Shulchan Aruch Choshen Mishpat 375:1, with Minchas Pittim).
Applying this principle to our case, Shimon certainly isn’t required to pay the full price of the painter’s work, but he is likely to have to pay the value of having his porch freshly painted. This amount is difficult to estimate, so in most cases, the two parties will have to agree on some sort of compromise.
If Shimon was planning to hire a painter to paint his porch anyway, he is required to pay the going rate for this work. If the paint job was done at a higher level, but Shimon was not planning to pay for the more expensive method, we cannot obligate him to pay more than he intended to pay for the job.
Even if Shimon claims that he had no interest in repainting his porch, beis din will estimate how much a person would be willing to pay to have a freshly painted porch rather than a worn one, because in most cases, for the right price, a person would agree to have his porch repainted. Similarly ,if the painter used superior materials, we can assume that had Shimon been offered these better materials for the right price, he would likely have agreed to pay for it, so he has to pay the amount he would have agreed to pay to have that level of work done.
Again, since it is difficult to estimate, in hindsight, how much a person would have been willing to pay for this work, the two sides will have to compromise.
If Shimon was planning on doing the repainting himself, he is required to pay for the materials and for the minimal amount he would be willing to pay to have someone else do the work (Choshen Mishpat 375:4).
There is another precedent in halachah that we must consider. In the case of the field, if the owner claims he had no interest in investing in this field at all at this point, he can tell the person who planted to uproot the trees and remove them (ibid. 375:2 and 6; Sma 4) – unless it is obvious that in truth, he wants the work done, and is merely trying to force the one who did it to compromise for a lower price, in which case we require him to pay (ibid. Sma 13).
In our case, there is no way for the painter to undo his work, and if he does, he won't be able to recover the paint he used. Some rule that in such a case, the owner cannot say, “Remove what you did” (Nesivos 306:7 and 375:2), so he must pay for the benefit he derived. Others say that this is only true if it was supposed to be painted and it is obvious that he isn't sincere when he instructs the worker to undo his work, and is merely seeking to absolve himself from paying. Therefore, if the owner had no intention of painting, he can certainly absolve himself by claiming that he is not interested in keeping the benefit (Minchas Pittim).
Many poskim rule, however, that even in a case in which the work cannot be undone, beis din should determine whether Shimon benefited from the work he didn’t commission, in which case we require him to pay for that benefit, or if he had no need for it at all, in which case he is absolved from payment (Erech Lechem 375:6; Chazon Ish Bava Kamma 22:6 and Bava Basra 2:6).
Q: What is the broker’s responsibility as a worker or agent of the seller?
A: A broker who receives a fee to sell an item is like an employee, and is required to work for the benefit of the employer, such as procuring the best price or conditions for him. If the broker deviated from the seller’s instructions, in some situations the seller can void the sale, and the broker is not entitled to his fee. If the broker caused a loss, he is liable and must compensate the seller, as discussed last week (C.M. 185:1).
If the broker took the item, but the seller retracts and no longer wants to sell, most Poskim allow him to cancel the agency, since the broker is like an agent and cannot serve against the seller’s will. Some compare the broker to a kablan employee who received an item to work on, where the owner’s right to retract is limited (Nesivos 185:3, 333:1; Minchas Pitim 185:4; Ulam Hamishpat 185:1; Chazon Ish, B.K. 23:26).