Rabbi Meir Orlean
Sukkos was only a few days away; many people had already built their sukkos. Mr. Rhein went to his backyard to begin building. “Our tree grew a lot this past year!” he said to his wife.
“Will it interfere with the sukkah?” she asked.
Mr. Rhein look up at the tree. “Yes,” he replied. “One of the branches goes over the sukkah and covers a big part of it.”
“Can you cut the branch?” Mrs. Rhein asked.
“It will be hard for me,” said Mr. Rhein. “I don’t have the proper equipment. However, our neighbor Mr. Green likes gardening. He has a chain saw and can do it easily. I’ll ask him.”
The following evening, Mr. Green came to cut the branch. Under the tree was some lawn furniture. He moved it aside and climbed the tree. “Watch out,” he called down as he began cutting.
When the branch was almost completely cut, it broke off, twisting as it fell. It hit another branch, bounced off, and crashed to the ground 15 feet away. One end landed on a lawn chair and cracked it.
Mr. Green came down from the tree. “I’m sorry about the lawn chair,” he said. “I’ll buy you a new one.”
“That’s not necessary,” replied Mr. Rhein. “It’s not your fault that the branch fell in that way.”
“I damaged the chair, though,” insisted Mr. Green
“In any case, it wasn’t new,” said Mr. Rhein.
“But it was still usable,” argued Mr. Green. “You can’t fix it, so in any case you’re going to have to buy a new one.”
“Let’s take it up with Rabbi Dayan,” Mr. Rhein suggested.
“Must I pay Mr. Rhein for his lawn chair?” Mr. Green asked Rabbi Dayan. “And how much?”
“Did Mr. Green pay you for your services?” Rabbi Dayan asked.
“He did,” replied Mr. Green. “Does that make a difference?”
“It might,” answered Rabbi Dayan. “The Gemara (B.B. 99b) addresses the case of a shochet who slaughtered, but the shechitah was determined to be passul. A shochet who was paid is liable for the animal; one who was not paid is exempt.
“Similarly, the Mishnah (B.M. 80b) teaches that a paid craftsman who is entrusted with an item to work on is considered a shomer sachar on it,” continued Rabbi Dayan. “He is liable for theft and loss and exempt only for oness (circumstances beyond his control).
“I thought that a person who damages is always liable,” said Mr. Rhein, “even in cases of oness.”
“The Mishnah (B.K. 26a) says so,” replied Rabbi Dayan. “Nonetheless, Tosafos (B.K. 27b s.v. U’Shmuel) explains that the person is liable only if he carries some element of blame, even if not negligent (oness k’ein aveidah). A paid worker carries additional liability, as long as he could have prevented the loss (oness k’ein geneivah) with extra care. Even a paid worker, though, is not liable for damage completely beyond his control (C.M. 306:4; 378:11).
“Ramban (B.M. 82b) is more stringent,” added Rabbi Dayan. “He maintains that one who damages is liable regardless of the circumstances, unless the owner was remiss in allowing the damage. He concedes, though, that a worker — who acted upon instruction — is not liable for circumstances beyond his reasonable control.”
“What about our case?” asked Mr. Rhein.
“Circumstances were not beyond control, since you could have moved the chairs farther away,” answered Rabbi Dayan. “Thus, as a paid worker you are liable. There is possibly also an element of blame, so that even had you not been paid you could be liable.”
“How much must I pay?” asked Mr. Green.
“You are not liable for a brand-new chair, only for the value of the broken one,” replied Rabbi Dayan. “The chair should be evaluated at its worth when you broke it, which would depend on how old it was, partly based on the expected years of usage, and in what condition.”