Story Line‘Beyond My Control!’Rabbi Meir Orlean
“I’m going away for a month,” Ari said to his neighbor Shmuel. “Would you be able to watch my bike while I’m gone?”
“No problem,” said Shmuel. “Bring it over in the afternoon.”
When Ari brought the bike, Shmuel moved it to his backyard and leaned it against a tree.
“I’ll put it away later,” Shmuel said. “I want to straighten the basement today. Enjoy your trip!”
However, Shmuel got involved with other matters and didn’t have time to organize the basement. He forgot to put Ari’s bike away and it remained under the tree.
The following day was windy. Shmuel returned home from work and found that a large branch had broken off the tree and smashed the bike!
Ari returned from his trip a month later. “I’d like to pick up my bike,” he said to Shmuel.
“You’ll never believe what happened!” exclaimed Shmuel. “I didn’t get around to putting away your bike, and a large branch broke the following day and smashed it. There was nothing I could do about it.”
“Why was the bike outside, though?” asked Ari. “It could easily have been stolen from the backyard. It was negligent of you to leave it there unlocked!”
“I was busy that day and forgot about it,” said Shmuel. “In any case, the bike wasn’t stolen. It was smashed due to circumstances beyond my control, oness. I had no idea that the branch was weak.”
“That’s true,” acknowledged Ari. “Still, had you put the bike away in the basement, the oness wouldn’t have happened.”
“But the fact that a branch broke and fell down is not my fault,” argued Shmuel. “It wasn’t expected.”
The two approached Rabbi Dayan. “I asked Shmuel to watch my bike,” Ari said. “He didn’t put it away and a branch fell down and smashed it. Is he liable?”
“The Gemara (B.M. 42a) teaches the principle “Techilaso bi’peshia v’sofo b’oness — chayav,” replied Rabbi Dayan. “This means that if the guardian was initially negligent with the entrusted item, even if it was ultimately lost through oness, circumstances beyond one’s control, he remains liable.
“For example, if a person hid entrusted money in a place where there is danger of fire and it was stolen, or where there is danger of theft and it was burned,” continued Rabbi Dayan, “the guardian is liable. Had he placed the money in a properly secure place, such as a safe, it would have been protected; the oness might not have occurred” (C.M. 291:6,14).
“Still,” asked Shmuel, “ultimately, wasn’t the money lost through oness?”
“We view the oness that ultimately occurred as a continuation of the initial negligence, even if there is only a remote connection,” explained Rabbi Dayan. “Similarly, if the guardian left the item where it could be easily stolen and it was stolen by armed bandits, he is liable, since had he left it in a secure place, perhaps the bandits would not have come” (Sma 291:10,23; 303:15).
“What if the oness was completely unrelated to the initial negligence?” asked Ari.
“This is disputed in the Gemara (B.M. 36b),” replied Rabbi Dayan. “For example, someone left an animal where it could be easily stolen, but it died naturally. It would have died even had it been in a safe place; this oness is completely unrelated to the initial negligence. Rava exempts the guardian, whereas Abaye holds him liable. The halachah is according to Rava, that the guardian is exempt” (C.M. 291:9; Sma 291:15).
“There is a further dispute between later authorities regarding a rare oness that subsequently occurred,” added Rabbi Dayan. “For example, the guardian left the entrusted item outside, and it rained where rain is very rare in that season” (Shach 291:14; Machaneh Ephraim, Shomrim #30; Pischei Choshen, Pikadon 3:3-7).
“Thus,” concluded Rabbi Dayan, “since the oness here relates to the initial negligence of leaving the bike out, Shmuel is liable.”
From the BHI HotlineSeize, or Cease?
Q: A friend approached me and requested a favor. He wanted to rent a car for a week, but didn’t have a credit card. He asked if I could rent the car on my credit card and register him as an additional driver. I agreed to do the chessed, and we went about it in a way that avoided ribbis (see Business Weekly #202).
When I received my credit card statement at the end of the month, I was astonished to find that I was still being charged for the rental car. When I called my friend, he apologized, but then stopped answering my phone calls. I went to the car rental office and explained the situation. They suggested that I take their spare key, locate the car, and return it, and they would then terminate the rental and stop charging my card.
That night, I strolled around my friend’s neighborhood, found the car and returned it to the rental agency. My friend had left his computer in the car, and I took it as a mashkon (collateral) to ensure that he would repay the full amount charged by the rental agency.
The next day, my friend called the rental agency to inform them that the car had been stolen. They told him that I had returned the car, and that he could call me to retrieve his computer.
Was I allowed to seize his computer as a mashkon until he repays me?
A: When someone uses his friend’s credit card to purchase something, the bank that issued the credit card does not recognize him as a party in the transaction. Instead, the bank views the charge as though the cardholder instructed them to pay the seller (in this case, the rental agency) for the transaction, and it holds the cardholder liable for that amount. Essentially, then, you lent your friend the amount he charged to your card, because he is liable to you, not to the bank.
At the outset of a loan, a lender may demand a mashkon as collateral. But once he already loaned the money, the Torah (Devarim 24:10) prohibits him from demanding a mashkon in the words: Lo savo el beiso la’avot avoto — You shall not enter his home to take collateral (codified in Shulchan Aruch, C.M. 97:6). Although the Torah specifically mentions entering the borrower’s home, the halachah is the same if the lender stands outside the borrower’s home and demands collateral against his will. Furthermore, he may not accost the borrower outdoors and seize an item he is holding (Sma, ibid. 7, following the ruling of Rambam and Shulchan Aruch).
What if a person did not seize a mashkon from the borrower but accessed an object that was already out of the borrower’s domain? For instance, if the borrower gave the lender (or someone else) an object to safeguard, and the lender now wants to seize that item as collateral for the loan, is he allowed to do so?
The Shulchan Aruch (C.M. 4:1) rules that this is permissible, and Poskim deliberate whether this would also pertain to an object belonging to the borrower that was sitting, unguarded, in the public domain (Chiddushei Harim 97:3; see Kesef Hakodashim). The Yeshuos Yisrael (4:3) argues that the lender may not seize the borrower’s belongings that are being safeguarded by someone else or are in the public domain; he considers this akin to taking them directly from the borrower’s property.
Although these halachos would seem to indicate that you acted incorrectly in seizing the computer, in your case, you were in fact permitted to retrieve it from the rental car, for two reasons:
1) You didn’t really seize anything from the borrower. You simply returned the car, which you were entitled to do to avoid further charges on your credit card. The mitzvah of hashavas aveidah then obligated you to take your friend’s possessions from the car and return them to him.
Since you were permitted — and even obligated — to take possession of those objects, you are now allowed to keep them as a mashkon.
2) The prohibition against seizing a mashkon is limited to cases involving a loan (see Shulchan Aruch, ibid. 97:14). By keeping the car longer than the week you agreed to, your friend became a mazik by racking up debt on your credit card without your permission. In such a case, you are entitled to seize a mashkon, as long as you are willing to settle the case with him as soon as he makes himself available (ibid. 4:1; see Business Weekly #198).
Money mattersElectronic Scales#454
Q: Is there a need for adding a little “bonus” (hachraah) when weighing with an electronic scale?
A: We mentioned last week that the seller should tilt the scale slightly to the customer’s benefit (hachraah) or add a little sechorah.
Some justify the practice nowadays not to add. They maintain that where the practice is not to add, everyone is mochel and buys with this understanding, so that hachraah is not required, since the main purpose of hachraah is to avoid cheating the buyer. Nonetheless, they conclude that a G-d-fearing person should add something (Maharam Shick, C.M. #30).
Some point out that electronic scales automatically calculate the price based on the weight and don’t allow adding to the scale, negating hachraah. They suggest that the seller can set the empty scale to a slight minus or lower the price slightly, so that hachraah is factored in. Furthermore, according to the aforementioned Maharim Shick, hachraah is not required when this is the common practice (Pischei Choshen, Geneivah 14:).