Story LineCholent in the GarbageRabbi Meir Orlean
The Stein family was celebrating Shabbos sheva brachos. A large pot of cholent was simmering in the shul kitchen.
On a shelf nearby stood a cup of milk, left over from the morning. Someone walked by and knocked it over. Milk spilled onto the cover and down the side of the cholent pot. “Oh, no!” cried Mr. Fleishman, the caterer. “Milk got on the pot! What do we do?”
Mr. Fleishman turned to Boaz, his waiter. “Rabbi Isser lives down the block,” he said. “Go ask him about the cholent.”
Boaz ran to Rabbi Isser and told him about the accident. “Unfortunately, there’s nothing to do,” said Rabbi Isser. “The milk on the side of the pot gets absorbed. It’s all prohibited and needs to be disposed of!”
Boaz returned. “Rabbi Isser ruled that the cholent is prohibited,” he told Mr. Fleishman.
Mr. Fleishman decided to consult a more senior Rabbi. “I’m running out for a few minutes,” he told Boaz. “Keep the meal moving.”
The caterer consulted Rabbi Posek. “We had a problem with the cholent, and Rabbi Isser said that it is prohibited,” said the caterer. “Is there any room for leniency? It’s a terrible loss!”
Rabbi Posek considered the issue. “In a case of great loss, there is room to be lenient, if the milk is less than a sixtieth,” he said. “Let me discuss it with Rabbi Isser” (See Rama, Y.D. 92:6-8; 242:31).
After some discussion, Rabbi Isser agreed. The caterer ran back to Boaz. “The cholent is permissible,” he exclaimed.
“Sorry, I already dumped it into the garbage,” said Boaz. “Rabbi Isser said that it had to be disposed of.”
“Who asked you to do that?” exclaimed Mr. Fleishman. “I sent you to ask the she’eilah, but never expected you to dump the cholent! I’m going to hold you liable for the cholent and deduct from your pay; you damaged me!”
“What do you want from me?” argued Boaz. “I followed Rabbi Isser’s ruling!”
The two went to Rabbi Dayan. “Is Boaz liable for the cholent?” Mr. Fleishman asked.
“Shevus Yaakov (1:61) addresses a similar case,” replied Rabbi Dayan. “A person was sent with food that was questionable to ask the Rav, who ruled that it was completely prohibited. The person then disposed of the food. It turned out that the Rav had made a mistake, and the food was in fact permitted. The owner claimed payment from the Rav and/or the person.
“Shevus Yaakov rules that neither is liable,” continued Rabbi Dayan. “Shulchan Aruch (C.M. 25:1) writes that the Rav is not liable, since he did not damage directly and did not intend to damage (grama). Although the Rema cites an opinion that the Rav is liable, it remains a doubt and we cannot extract money when there is doubt (muchzak). Furthermore, the Shach (25:5) sides strongly with the Shulchan Aruch’s opinion.”
“What about the person who asked the question?” asked Mr. Fleishman. “He actively threw the food away and wasn’t told to do so!”
“Shevus Yaakov writes that the person is also exempt, since he disposed of the food based on the Rav’s ruling,” answered Rabbi Dayan. “Although he actively damaged, he is considered completely anuss (the damage is beyond his control). He carries less liability than a Rav who mistakenly ruled and also actively disposed, who is liable” (Pischei Teshuvah, Y.D. 242:17).
“Are there other examples of exemption for one who acted based on a halachic ruling?” asked Boaz.
“We find, similarly, that a guardian who transferred an entrusted item to others based on an erroneous ruling of beis din is exempt,” answered Rabbi Dayan. “Radvaz (1:299) explains that he is considered anuss. Similarly, renters who paid the wrong landlord based on beis din’s instructions are exempt” (Rema 297:1; Nesivos 140:10; Pischei Choshen, Pikadon 3:31).
“Thus,” concluded Rabbi Dayan, “since Boaz disposed of the cholent based on Rabbi Isser’s ruling, he is exempt.”
From the BHI HotlineThe Shredder Increase, Part I
A recent incident has set the art world abuzz. A painting was auctioned at Sotheby’s in London. As soon as the gavel came down, awarding the painting to the buyer who had bid $1.4 million for it, the canvas suddenly began to descend within the frame. Seconds later, thin strands of the painting were dangling from the bottom of the frame. The reclusive artist who painted the piece later revealed that he had installed a shredder in the bottom of the frame, though he did not disclose how he activated it to shred half the canvas at the exact moment the painting was sold.
Shredding half of the painting should have devalued it, but because this painting is now the first piece of art in history to be destroyed upon its sale, its value actually rose drastically after the artist’s prank.
Q: Our question is a theoretical one, since this case will not be adjudicated in beis din: Is the artist obligated to pay the buyer for having destroyed the painting? And would the halachah differ if a third party, not the artist, had pulled this prank?
A: The first aspect of this case is fairly straightforward. In order for this prank to be executed with such precise timing, the shredder must have been activated by remote control at the moment of the sale. Is damage set in motion remotely considered direct damage, or grama — indirect damage?
The answer is unequivocal: Activating a remote control is no different from shooting an arrow, which causes damage in a location other than the place where it was released. Just as we consider such damage to be a direct result of the shooter’s action, a person who activates a device via remote control would be liable for the resulting damage (see Mishpetei HaTorah, Bava Kamma 67, note 3, and Mishpat Hamazik 12:25).
The next factor to consider is who owned the painting when the shredder was activated. In both a direct sale and an auction, an agreement on the part of both parties to finalize a sale may be considered some level of kinyan, called “situmta” (Tur, Choshen Mishpat 201; Kesef Hakodashim, ibid.; and Chukas Mishpat, Mechirah, p. 269). Whether this is considered a final sale of the object or just an obligation to complete the transaction is dependent on the prevailing custom in the jurisdiction where the auction or sale took place.
In jurisdictions in which a winning bid is considered a final sale, the seller would be liable for damage he caused. In many jurisdictions, however, situmta is an agreement to complete the transaction. In such jurisdictions, the seller would not be required to compensate the buyer for the damage (and the buyer would not be required to pay for the object).
But what would happen if a third party damaged the painting, causing its value to rise? Would that third party be liable for the damage he caused, even if the value of the painting was not adversely affected?
A similar she’eilah has been discussed at length in the yeshivah world, based on a case considered by Harav Chaim Brisker (cited in Ohel Yeshayahu, Bava Kamma p. 478):
A person owned two identical rare stamps, the value of which we’ll set hypothetically at $500 each. Someone burned one of the two stamps and the owner brought him to a din Torah. The arsonist claimed that now that there was only one stamp of its kind left, its value had risen, and the owner had therefore not suffered any real loss as the result of his actions.
Some say that Rav Chaim Brisker ruled that if the value of the remaining stamp had risen sufficiently to replace the full loss — i.e., it is now worth $1,000 — then the arsonist would not bear any liability. But if the value had risen to replace only part of the full value of the burned stamp, the arsonist would be required to pay the full price of the burned stamp, because once he is a considered a mazik, he must make full restitution for the damage he caused.
Others say that Rav Chaim Brisker ruled that the arsonist owes the stamp owner the full value of the burned stamp regardless of the value of the remaining stamp, because a mazik is liable for the loss of the object he damaged, not for the loss to the total value of the owner’s assets (see Shu”t Ohr L’Tzion, Choshen Mishpat 11, who rules that the mazik is required to pay).
It would seem, however, that neither of these rulings would apply in our case, because the value of the painting — which still exists, albeit partially shredded — in fact rose, and therefore, the person who shredded it did not cause damage altogether (see Choshen Mishpat 403:1).
Money mattersEminent Domain#434
Q: The state appropriated my neighbors’ properties to build a highway, invoking “eminent domain.” My Jewish neighbor vehemently objected and declared that he does not forgo his halachic right. Is it permissible to use the highway, or is it considered theft?
A: The concept of eminent domain appears in Halachah as a classic example of dina d’malchusa. The Gemara (B.K. 113b) brings proof to Shmuel’s opinion that dina d’malchusa is valid from the fact that the king cuts down people’s trees to make bridges, and we commonly traverse them. Similarly, the Mishnah (Sanhedrin 20b) teaches that a king can breach a fence or destroy a house to make a road. Furthermore, the Gemara (B.B. 54b) teaches that the king can revoke possession of land from people who do not pay taxes (Hil. Gezeilah 5:17; Melachim 5:3; C.M. 369:2,10).
The implication is that the government does not even have to compensate the owner.
Thus, halachah recognizes the validity of eminent domain, and certainly if the government compensates with fair market value as required by law.