Story LineRented Without PermissionRabbi Meir Orlean
The Siegels were celebrating their son’s aufruf. They had a small crowd, so they were going to cook themselves and eat the meal in the shul.
Their neighbors, the Kaplans, had a gemach of simchah items, which they would rent out for events.
“I’d love to get their simchah items, but the Kaplans are away for the month,” Mrs. Siegel said to her husband. “I tried contacting them, but haven’t been successful.”
“The items are in their garage, and we have a copy of the key,” said Mr. Siegel. “I could just take them.”
“Take the items without asking?” asked Mrs. Siegel incredulously.
“Why not?” replied Mr. Siegel. “They’re meant for rent, anyway.”
“I’m not comfortable with the idea,” said Mrs. Siegel, “but if you think it’s not a problem, go ahead.”
Mr. Siegel took an urn, three hotplates and some boxes of vases and flowers from the garage. He took them to the shul and set them up in the room where they were going to eat.
Mr. Siegel plugged in the urn. It heated for twenty minutes and then shorted. He tried another outlet, but the urn would not work. “It seems that something burned out,” Mr. Siegel sighed. He quickly borrowed an urn from another neighbor.
After Shabbos, Mr. Siegel placed the items on the curb to load into his car. Without warning, a branch fell from above, smashing the vases in one of the boxes.
When Mr. Kaplan returned, Mr. Siegel said: “We have some business to discuss.”
“What happened?” asked Mr. Kaplan.
“We took items for the aufruf from your gemach with intention to pay, but a bunch of things went wrong,” Mr. Siegel said. “The urn shorted and a branch broke while I was loading the boxes back into the car. I have to pay you for the urn and the vases of flowers, in addition to the regular rental fee.”
“It’s not really your fault,” said Mr. Kaplan. “It’s not clear to me that you have to pay.”
“I also took the items without permission,” insisted Mr. Siegel.
“They were intended for rent, though,” said Mr. Kaplan. “Let’s ask Rabbi Dayan.”
The two met with Rabbi Dayan. “Am I liable for the urn and flowers?” Mr. Siegel asked.
“The Gemara (B.K. 97a) addresses the case of a person who commandeered another’s boat,” explained Rabbi Dayan. “It concludes that if the boat was not intended for rent, he is considered a thief and liable for any damage to it, but not liable for rent. If the boat is intended for rent, the owner can demand either the rental fee or any damage due to usage, but not both, since a renter is not liable for damage due to normal use” (C.M. 359:5, 363:5; Sma 363:12).
“What is the logic that the owner has the option of charging rent or damage when intended for rent?” asked Mr. Kaplan.
“He can charge rent since the person benefited from the use,” answered Rabbi Dayan. “Alternatively, he can charge for the damage due to use, since Chazal treat the user partially as a thief, who is liable for damage, or perhaps like a mazik (Nesivos 308:4; Mishpat K’halachah, p.280).
“What about loss that was not from use?” asked Mr. Siegel. “The broken vases, for example.”
“Rema (C.M. 308:7), based on Terumas Hadeshen, rules that if the boat stands for rent, the person is not a thief,” replied Rabbi Dayan. “Therefore Acharonim write that he is not liable for external oness, only for damage due to use. If he were to take the boat against the explicit objection of the owner, some obligate him also in external oness (Ketzos 308:3; Chazon Ish, B.K. 20:4; Machaneh Efraim, Gezeilah #15; Pischei Choshen, Geneivah 7:5).
“Thus,” concluded Rabbi Dayan, “Mr. Siegel is not liable for the vase of flowers; he is liable for the urn, but does not have to pay rent for it.”
From the BHI HotlineDisappearing Diamond
Q: A woman gave her diamond ring to a jeweler to have the diamond placed in a new setting. Two weeks later, she suddenly noticed that the diamond was missing, apparently having slipped out of its new setting. Can she demand compensation from the jeweler for negligence?
A: There is no way to prove that the jeweler was in fact negligent in setting the diamond into the new ring. A person’s hands are constantly moving (see Taharos 7:8). It is conceivable, therefore, that even if the diamond was secured properly, at some point, the woman might have banged the ring against something and jarred loose one of the prongs securing the diamond, causing the diamond to slip out. Since in all monetary cases, the plaintiff is required to prove that the defendant owes money (hamotzi meichaveiro alav haraayah), beis din cannot require the jeweler to pay for the lost diamond.
But let’s examine what the halachah would be if the jeweler could be proven to have been negligent in resetting the diamond. Would he then be required to pay for it if it subsequently fell out of the setting? Clearly, a professional is required to perform to the highest level of his capability, and if he is negligent and causes a loss to the person who hired him, he must compensate him for that loss. We find, for instance, that a paid shochet whose negligence causes an animal to become a neveilah during the shechitah is required to compensate the owner of the animal (Choshen Mishpat 306:4).
The case of the jeweler differs from that of the shochet, however, because the loss does not occur as a direct result of the negligence, but afterward as a result of his earlier negligence. We therefore must consider the likelihood of the diamond getting lost due to his negligence. If there is clear causation of damage (bari hezeika), it would qualify as garmi (direct causation of loss — which does require compensation). In this case, however, causation of loss is not a given. The diamond could have remained in the setting despite the jeweler’s negligence, and even if it did slip out, the woman could have noticed it falling. It would likely qualify as a case of grama (indirect causation), in which beis din cannot require compensation (see Shimru Mishpat 1:84).
Another reason why the jeweler might be responsible for the loss is that when he receives the ring for resetting, he becomes a shomer (custodian) of the object (Choshen Mishpat 306:1). A shomer is responsible even for a grama, as we can determine from the fact that a shomer chinam (unpaid custodian) is responsible for the loss of the object he agreed to safeguard if he was negligent in guarding it — although that negligence is no more than a grama (see Shu”t Ritva 199, cited in Beis Yosef, Choshen Mishpat 66:41; and Shulchan Aruch Harav, Orach Chaim 143, Kuntres Acharon 2).
Under ordinary circumstances, a shomer is no longer held responsible for an object once he returns it to its owner. It would seem, then, that when the negligent jeweler returned the ring, he was absolved of any further responsibility.
We find instances, however, in which we do hold someone responsible for their actions even after they have returned an object to its owner. Someone who stole an animal, for example, and then returned it to the flock without informing the owner has not absolved himself of responsibility for that animal, because now that the animal is used to being away from the flock, it is more likely to escape. The owner has to be informed that it has been returned so he can be on guard for that possibility (Choshen Mishpat 355:2).
We might say, therefore, that since the jeweler’s negligence made it more likely that the diamond would get lost, he had a requirement to warn the owner when he returned it that she guard it carefully.
It is possible that the halachah that applies to a thief who has trained the animal to escape would apply to a shomer who has been negligent causing the further loss of the object (see Shu”t Mahari”l Diskin, Pesakim 197).
Until this point, we have discussed the possibility of beis din ruling that the negligent jeweler must pay. But every perpetrator of a grama should recompense the person he wronged “latzeis yedei Shamayim” — to absolve himself from the rule in Heaven, where he could face punishment for not paying for causing another person’s loss (Bava Kamma 55b). Therefore, if the jeweler was negligent, it would be proper to compensate the customer, latzeis yedei Shamayim.
Money mattersEmployee Benefits#431
Q: I hired employees, but did not state in the contract that they are entitled to the legally required employee benefits. Am I required to provide these benefits because of dina d’malchusa?
A: According to many authorities, dina d’malchusa applies to laws that are for the social welfare of society. Others maintain that it does not apply to laws between individuals, against Torah law, even when for social welfare (Rema, C.M. 369:11; Shach 73:39).
Nonetheless, even according to those situations in which dina d’malchusa does not apply, it often generates a common commercial practice. On contractual issues, such as those between employer and employee, buyer and seller, or landlord and renter, it is not feasible to stipulate everything. Therefore, the common commercial practice is binding in these areas, whenever not stipulated otherwise (C.M. 330:1; Shach 356:10).
The Poskim give great weight to the common practice in employer/employee relations. In most situation, employee rights rooted in civil law also become the common practice, so that they are halachically binding and you must provide them (Pischei Choshen, Sechirus 10:36; Igros Moshe C.M. 1:72).