Business Halacha Daily

 Questions? Comments? We love feedback! Email us at info@baishavaad.orgRav Yosef Dovid JosilowskyQuestion: A man told his new son-in-law that he would give him a silver menorah for Chanukah. As Chanukah approached, he no longer wanted to give the gift, but he gave it anyway because he had already given his word. Can he later claim that the gift was invalid because he was giving it under duress?Answer: If he merely said that he would give the menorah, it would not be considered an oath that requires him to do so. At most, it would be what is called an “unso d'nafshei”, meaning that he pressured himself into giving it against his will so to speak. The Gemara says that “unso d'nafshei” is not sufficient grounds to be mevatel a matanah.The Gemara talks about a case of a man who wanted to marry a woman, and she said that she would only marry him if he gifted her a certain item. Under duress, he agreed to give her that gift. When his children protested, he clandestinely gave the same item to them as a present as well. The Gemara says that his giving it to his children demonstrates that he only gave it to the woman because he felt pressured to do so. Since this is clear from his actions, the matanah is batul. Based on this Gemara, the Rishonim rule that a gift can be invalidated if it is clear from the circumstances that it was only given under duress. Otherwise, the gift is valid even if he was feeling pressured to give it.If the father-in-law had made an oath to give the menorah, there might be grounds to annul the matanah. The halacha is that a get given after someone made a shavuah to give one is not valid. For this reason, we are matir neder before a get is given to ensure that it is not considered to have been given forcibly.However, the Nesivos writes that this only applies to a get, and not to a matanah. The Rambam says that a person needs “ratzon” when giving a get, which means he has to give the get solely because he no longer wants to be married to this woman, and not for any other reason. If he is giving it in order to fulfill his oath, it is invalid. A gift, however, does not need specific ratzon. As long as it is not given as the result of an oness, it is valid. Therefore, a matanah given to fulfill a oath is valid.Other Acharonim disagree and say that a matanah also needs ratzon, just like a get, and if it is given in fulfillment of an oath, it too is not valid.

  Questions? Comments? We love feedback! Email us at info@baishavaad.orgRav Yosef Dovid JosilowskyQuestion: Two partners want to dissolve their partnership but are unable to come to terms on an agreement. One of them tells the other that if he doesn't agree to his terms, he will sue him in court. The other partner doesn't want to waste time and money in court so he agrees to sign, but he is issues a Modaah before signing. Is that mesiras Modaah valid?Answer: This seems to be a case that would be considered a mechira, a forced sale agreement that, without a Modaah, would be valid. The question is if it could be considered a Modaah of a true oness, a real duress which would invalidate it.The early Achronim discuss whether a threat to turn to a secular court is considered a real duress, because we don't know if the party will seriously take his adversary to court, and even if he does take that course of action, it is far from certain whether he would win or lose in court. On the other hand, we previously mentioned the opinion of the Maharsham, who says that the threat of dragging someone to court and forcing him to spend a lot of money on legal expenses is already a real threat, even if he may ultimately win. Furthermore, the Maharchash says that if a Modaah is made in reaction to such a threat, the very fact that one party found it necessary to make the Modaah proves that he felt threatened and forced to agree with the settlement. This would demonstrate that the transaction was done under duress and negate it.Accordingly, the best thing to do would be to have the witnesses write exactly what happened and give this over to the bais din. They will then determine, based on the specifics of the case, whether it qualifies as an oness that could overturn the settlement. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.orgRav Yosef Dovid JosilowskyQuestion: I want to reach a settlement with someone but I am worried that he will make a Modaah that will invalidate the entire deal. How can I protect myself from someone using the halachos of Modaah to negate a legitimate transaction?Answer: The Mahari ben Lev writes that the way to write an agreement that would be protected from a previous Modaah is to incorporate four things in the document:The party should admit that he made no previous Modaahs.Bittul Modaah: It should be declared that all previous Modaahs are batul and what is said today will override anything from the past. The Rosh rules that bittul Modaah is effective, and even if the Modaah states that it is meant to be mevatel a bittul Modaah, the bittul Modaah can be mevatel that too.The Rambam argues with the Rosh and rules that a bittul Modaah does not work; however, even the Rambam agrees that one can make a declaration that: “Anything I previously said that could be undo this transaction is now batul.” Once one makes this statement, all previous Modaahs are canceled. Therefore, this declaration should also be included in the shtar.The Rashba says that a solution to protect oneself from Modaahs is to invalidate the witnesses on the Modaah by saying that the party admits that any witness on a modaah is [as far as they are concerned] an invalid witness. This solution of invalidating the witnesses should be used in the shtar as well.An additional two ways that are commonly used to work around the power of Modaah in a settlement are as follows:In the agreement, they include a clause that any further disputes must be brought back to the same place where the settlement was made. This would mean that it would be nearly impossible to overturn, as any future complaints must be brought to the same body that issued the settlement.The agreement states that the claimant agrees to a “kabalas daas yachid”, meaning that any halachic opinion that validates the settlement must be adhered to. As we mentioned in a previous segment, the Maharashdam is of the opinion that a settlement cannot be invalidated by a Modaah. According to his opinion, the settlement is certainly valid. If the claimant agreed to abide by any opinion that validates the settlement, he will have to accept the Maharshdam's view.  

 Questions? Comments? We love feedback! Email us at info@baishavaad.orgRav Yosef Dovid JosilowskyQuestions: Two individuals have a din Torah and the Dayanim rule in accordance with one of the parties. Afterward, the one who lost the din Torah tells the winner privately that if he doesn't agree to a compromise settlement with him, he will go to a secular court and have the bais din overruled. Under duress, he agrees to the settlement, but before signing, he issues a Modaah that he does not really consent. Will this Modaah negate the settlement?Answer: Since the individual was given a clear ruling from bais din, there is no ambiguity regarding the amount he is entitled to. Therefore, any settlement he agrees to has the status of a matanah, a gift to the other party. Accordingly, a Modaah should definitely work to negate the settlement.In truth, the mere threat to go to court may not always be considered a real oness. Because neither side can be certain that they will win in court, we cannot automatically assume that the threat is serious enough to deem the settlement a forced one. Moreover, generally speaking, overruling the mutually agreed-upon arbitration of a bais din in a secular court is very unlikely. Having said this, if the person did go to the effort of issuing a Modaah, this indicates that he did feel pressured by the threat of going to court and the Modaah probably would work to cancel the settlement.Additionally, nowadays the expense of being taken to court and having to hire lawyers is in itself a very real threat, even if the outcome is uncertain. The Maharsham writes that even in his times, it had become common for litigants to turn to the secular courts even if they were unsure of the outcome. They did so because they knew that the court system is expensive and time consuming, and they hoped to wear down their adversary until he finally gave in to their demands. Therefore, he says that a threat to go to court could be considered a viable threat and it is certainly something that a Modaah would work for, even in a case of mechirah.  

 Questions? Comments? We love feedback! Email us at info@baishavaad.orgRav Yosef Dovid JosilowskyQuestion: Yankel is building an extension on his house and he hires a contractor to do the job. They agree that Yankel will pay cost price plus 15%. When the job is 75% completed, the contractor tells Yankel that his costs have gone up and he can only finish the work if they raise his rate to 20%. He says that he will not finish the extension unless they sign a new contract with the new terms.After the job is completed, Yankel comes to bais din with a Modaah that says that he was forced to sign the new contract and never really consented to it. Does he have to pay the contractor 15% or 20%?Answer: Bais din will assess whole situation to determine if the Modaah was warranted.It happens to be that, in this case, there is a possibility that no Modaah is needed at all. The halacha is that although a worker is usually allowed to back out of a job in the middle of the work, if it is a “davar ha'avid” (a matter that will cause the employer a large loss), the employer is allowed to trick the worker in order to convince him not to leave. He is permitted to do this by promising to pay him more, even though he has no intention of doing so. If it would be determined that this is a case of a davar ha'avid, Yankel would not be beholden to the new terms, even if he hadn't been moser Modaah.  On the other hand, there are cases where a worker has a legitimate complaint and is permitted to change the terms of a payment agreement. If that is the case here, he is not asking Yankel for a matanah; rather, this case would be comparable to a case of a sale, where each party is receiving something from the other. As we have said, a forced sale is valid, which would mean that Yankel would be beholden to the new terms and bais din would have to sit down and determine whether a Modaah could work in this instance to prove that he was forced into it.Another factor to consider is that some Acharonim say that a forced sale is only valid if it is an actual sale and not merely a “hischayvus”, where one party obligates himself to give something to the other. As we said, the reason a forced sale is valid is because we assume that the seller really does consent to sell when faced with the threats of the buyer; however, this reason may not apply in the case of a hischayvus, where the seller is not really receiving anything and, therefore, may not really consent.The Chochmas Shlomo uses this idea to explain the Gemara that says that Klal Yisroel has a “modaah rabbah l'ohraysa”, meaning that we can say that we were forced to accept the Torah. Although a forced sale is valid, this is still a good claim because receiving the Torah was a hischayvus, not a sale.

 Questions? Comments? We love feedback! Email us at info@baishavaad.orgRav Yosef Dovid JosilowskyQuestion: In the last segment, we said that witnesses who sign a Modaah have to know all the details of the situation and must be aware of how the individual is being forced into the transaction, which is why it is not so easy to negate a sale retroactively with a Modaah. What can someone do if he really needs a Modaah but the facts are not so clear to the witnesses?Answer: In a typical case when people arrive to be moser Modaah, even if we cannot be fully aware of the circumstances, we often see some form of evidence that causes suspicion. For example, the individual may have a text message from the other party that says that if he doesn't accept a settlement, he will be harmed.The reason Modaah was instituted is so that people who are forced into transactions against their will should have some recourse. The inherent problem with such a shtar is that, as a rule, a contract can only be written with the participation of both parties. A Modaah, however, is written by only one party, without the presence of the other. Tosafos explain that in this case, the chochomim enacted a special decree to save people from being forced into deals.The Avnei Choshen says that if the reason for a Modaah applies, but the witnesses don't know all of the details of the story, a shtar can be written that says explicitly that they saw some form of evidence that indicates that the party may be under duress to make the transaction against his will and, therefore, if this can be clearly proven at a later time, the sale will be negated. The shtar has to be carefully formulated so that it explicitly says that all of the facts have yet to be verified and it, therefore, cannot be used against the other party unless the fact that the individual was forced into the deal can be proven at some point.  

Questions? Comments? We love feedback! Email us at info@baishavaad.orgRav Yosef Dovid JosilowskyQuestion: We have stated that a forced sale is valid but the seller has a recourse of being “moser Modaah”. What does that mean?Answer: Being “moser Modaah” literally means to give over a yedia (a piece of knowledge) to witnesses i.e. to let them know what is really happening.The way it is done is that before someone makes a sale, he informs the witnesses that although he will be going through the motions of the sale, in reality, he is being forced into it and does not really consent to it.This declaration defines the sale that will happen later as nonconsensual and invalid.Question: If a seller can proactively arrange for a sale to be invalid by being moser Modaah, does that mean that every sale could be negated in this way?Answer: Rabbeinu Yona states that witnesses cannot sign a Modaah unless they know firsthand what the circumstances are that are forcing him into the agreement. In most cases, it is very difficult for witnesses to be able to say definitively that they know that. As a rule, if the Modaah doesn't say this, it won't be able to negate a transaction.  

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Dovid JosilowskyQuestion: I did a lot of business with someone and that person now owes me $100k. When I came to collect, he told me that he is only offering fifty cents on the dollar. He said that if I don't accept that, he won't pay anything at all. Is he a gazlan?Answer: Typically, the halacha is that a peshara (compromise) is like a sale in that a forced compromise is valid, just like a forced sale.However, that is only true if both sides agree to compromise because the actual ownership is in doubt. In this case, everyone admits that one party owes the other the full amount, but one side is forced to accept a compromise because the other informed him that he won't receive anything otherwise. This would be considered a gift, rather than a compromise, and a forced gift is not valid.However, the Maharashdam is of the opinion that even a settlement like this is considered a mechira, rather than a matanah, because the claimant is receiving a benefit from it. He says that if this were not the case, no settlement will ever be enforceable. Even in his case, where a man who was in debtor's prison for owing money agreed to settle with his own debtor in order to get at least some money from him, he rules that the settlement is valid. As long as the threat of non-payment is serious, the settlement cannot be invalidated even by issuing a Modaah.Although most acharonim rule against the Maharshdam, the question remains if the debtor can say “kim li” in order to allow a settlement to stand.Another consideration would be if the creditor signed a shtar mechillah. Without a Modaah it might be difficult to overturn such a shtar. However, there a Modaah might help because he can use it to demonstrate that he only agreed to the settlement under duress. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Dovid JosilowskyQuestion: Reuven asks his associate, Shimon, for a loan of $100k. Shimon only agrees to give the loan if Reuven signs over to him the deed of a property worth $500k that will serve as collateral until the loan is repaid. Reuven agrees to these terms.After a while, Shimon decides that he wants to purchase this property. He tells Reuven that he has two choices – either he legitimately sells him the property for its value, or he will keep it for himself without paying, as the deed has already been signed over to him in any case. Left with no other option, Reuven agrees to sell the property to Shimon.Sometime later, Reuven finds a shtar in which Shimon acknowledges that the property was originally given to him as a mashkon. Can he now use this proof to invalidate the sale?Answer: All of the Rishonim agree that if someone simply takes something and pays for it without doing anything else to force the sale, that is not considered the type of sale under duress that is valid in halacha. On the other hand, if there is a clear duress placed upon the owner until he agrees to sell, it would be valid. But in this case, it is not clear whether it would be the type of forced sale that is valid or not. The reason is that perhaps a forced sale is only considered valid when there is an “outside” duress at play, such as bodily harm. If there is no duress besides the forced sale itself, it could be argued that it is not a valid sale because we have no reason to assume the seller has consented. There appears to be an argument between the Rambam and the Ramban on this point, and consequently, it will be difficult to prove that the sale is invalid unless he declared a Modaah.   

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef Dovid JosilowskyQuestion: A fellow walks into someone's house, picks up an item that he wants, puts money on the table, and says, “I'm buying this item whether you like it or not.” Is this a valid sale?Answer: We said in the last segment that a forced sale is valid, and the Shulchan Aruch rules that this is true even if the seller does not say that he consents to the sale.There is a difficulty with this ruling in that it seems to contradict a Gemara in Bava Kama that defines the difference between a gazlan and a chamsan in that a gazlan steals without paying, while a chamsan does pay. The Gemara then asks: If someone gives money, people do not consider this to be a sin at all. Why is he classified as a chamsan? The Gemara responds that we are referring to a case where the seller never consented to the sale.This Gemara seems to be saying that a forced sale is only valid if the seller says that he consents. If so, how could the Shulchan Aruch rule against an explicit Gemara?The Nesivos Hamishpat explains that the Gemara is not talking about a sale that was forced by threatening to harm the seller. There, his expression of consent is not needed because we assume that he does agree to sell the item in order to save his life. This Gemara, however, is speaking about a case similar to the one in question, where someone simply took his friend's item against his will and paid for it. In this case, where the situation does not lead to the presumption that the seller probably consented to the sale, the Gemara says that his explicit consent is needed to validate the sale.Accordingly, we cannot say that the case in question is a valid sale unless the owner actually expresses consent to sell the item.

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rabbi Yosef Dovid JosilowskyQuestion: A fellow owns a house in a popular location. He is getting many offers to buy the house but he is not interested in moving. One day, someone walks over to him, pulls out a gun, and says, “Your house is worth $1 million. I am buying it right now.” Is this sale valid?Answer: The Gemara says that if someone is forced to sell something, the sale is valid. The Rishonim debate whether the seller has to at least express his consent to the sale. The Shulchan Aruch rules that as long as money is exchanged, the deal is valid, even if the seller never said that he agrees.The reason is, based on the circumstances, we can assume that the seller agreed to the sale in order to save his life, even if he didn't openly say so.Question: What if the buyer demands a discount? For example, what if he forces the homeowner whose house is worth $1 million to accept $900,000 for it?Answer: The Rishonim write that a sale due to duress is only valid if the item is being sold for a fair price. Whereas, if the buyer forces him to sell at a discounted price, the sale would not be valid. The reason for this distinction is that while a forced sale is valid, a forced gift is not. If the buyer forces the seller to give him a discount, he is essentially forcing him to give him a gift, which is not a valid transaction. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef GreenwaldQuestion: Reuven asks Shimon, a business professional, to join him for lunch in a restaurant in order to ask him some business-related questions. When the bill comes, Shimon expects Reuven to pay for his meal; however, it soon became clear that Shimon was not planning on doing so. Can Shimon tell Reuven that he should pay?Answer: The Poskim discuss a case where someone tells his friend to come eat a meal with him. Most Poskim say that if he doesn't expressly tell his friend that he will be sponsoring, it cannot be assumed that the meal is free.The exception to this rule would be if it is standard industry practice that someone seeking information pays for the entire meal of the other party. If that were the case, it can be assumed that he is paying for the meal. Otherwise, this assumption cannot be made.There are some Poskim who disagree and say that if someone invites his friend for a meal, even if he doesn't expressly say that it is free, it can be assumed that he won't charge for it. Since this a machlokes haposkim, the muchzik will have the upper hand. Still, as long as the meal isn't paid for yet, the one who invited his friend to the restaurant cannot be forced to pay on behalf of the invitee.Question: Can Shimon then say that if his meal is not being paid for, he will consider this a business meeting and will charge for the advice he is giving?Answer: If it is the norm in the industry to charge for this type of advice, then he could make that claim.

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef GreenwaldQuestion: Reuven pays a lot of money to fly in a famous singer to perform at his simcha. Shimon hears that this singer is coming to town and hires him to sing at his simcha as well. Reuven says that Shimon should pay for half of the plane ticket and related expenses because he is benefiting from having the singer in town. Is he correct? Answer: The Poskim discuss a case where Reuven invests money in a property that he believes to be his. Later, he discovers that he made a mistake and the property actually belongs to Shimon.The Nesivos Hamishpat says that Reuven cannot charge Shimon for his work because he did it for himself, not for Shimon. The Ketzos Hachoshen argues and says that since, at the end of the day, he improved Shimon's property, he can demand payment for his work.It would seem that our case is similar, as Reuven paid for the ticket for himself and Shimon derived benefit from that. It could thus be argued that the halacha would hinge on the machlokes between the Ketozs and Nesivos.However, I believe that in this case, everyone would agree that Shimon does not have to pay for any of the traveling expenses. In the Poskim's case, Reuven did work on Shimon's property and upgraded the property. In our case, Reuven didn't do any work “on Shimon's property.” He only did work for himself and Shimon happened to benefit from that. I believe that even the Ketzos would agree that Shimon does not have to pay for the travel expenses in this case.

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef GreenwaldQuestion: A contractor is building a home and decides on his own to install outdoor lighting to beautify the house at night. The homeowner says that he didn't need those lights and that he won't pay for them. A few weeks later, the contractor notes that those lights are turned on and used every night. Since the homeowner is deriving benefit from them, can the contractor come back to him and demand payment?Answer: This is a good example of a case where it would have been better for the homeowner to be truthful upfront.If he had originally claimed that he didn't really want the outdoor lights but he'll keep them now that they're already installed, it would be a case of aino asuya lita, and he would only have to pay the amount of value that is added to the house because it has these lights. He would not have to pay the full cost for that job.However, the Rishonim say that if a person says that he doesn't want something and therefore will not be paying for it, but then ends up using it, he is showing that he really did want it. In such a case, it is considered asuya lita and the contractor would be considered an employee who must be paid for the full job. In this case, not being genuine will come back to cost the homeowner. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org  Rav Yosef GreenwaldQuestion: A secretary took it upon herself to decorate her office, and installed some of her own paintings on the walls. When her boss sees it, he says he doesn't like them and, therefore, won't pay her for the full price. Instead, he says that he will pay cost-price for her paintings. She's insulted and says she'll just take them back. However, he doesn't want it removed because he is worried that doing so will ruin the walls. What is the halacha in this case?Answer: The Gemara says that if someone goes into a field and upgrades it, the owner can tell him to undo it and refuse to pay him. Alternatively, the worker can choose to take it back if he desires. If, however, the upgrade was something like planting a tree where uprooting it will negatively affect the owner, the worker cannot choose to take it back if the owner is willing to keep it and pay him for the cost. In other words, he can't be forced to ruin his ground by uprooting the tree. Since he does not want the tree, this would be a case of “aino asuya lita”, and he would only have to pay the amount that the value of his field went up because it now has this tree in it. That would seem to be the halacha in this case. Although the secretary believed that she was beautifying the office, the owner can't be forced to agree with her. If the only reason he doesn't tell her to take the paintings back is because doing so would damage the walls, it would be a case of aino asuya lita and he would only have to pay the amount that the office's value increased because it is now adorned with artwork, which would probably not be much.  

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef GreenwaldQuestion: I hired someone to paint my office. When he finished the job, I saw that the color was slightly different than what we agreed upon. I really prefer to redo the job entirely, but if Bais Din were to tell me that I need to pay for the job, I would just keep it as is. What is the halacha in this scenario?Answer: I was once asked a similar question; however, in that instance, someone's office was painted in a color that he felt was detrimental to his business. He had wanted a calm color and the painter had used a brighter, louder color, which he felt would harm his business. Since it would have to be repainted, the painter would not need to be paid for the first job, as one does not have to pay a yored whose work is not worth anything to him.The case in question is a borderline case because the owner says is technically okay with the job if he'll have to pay for it. The halacha in this case would be that he doesn't have to pay the painter as an employee because he didn't do the job he was asked to do; instead, he would only have to pay the value of having his office painted.Even if the owner says that he isn't interested in the job that was done and he wants the painter to undo it, that wouldn't really be possible with a paint job, as this is something that cannot just be undone. If one can make such a claim in a case like this is subject to a machlokes Acharonim. The Nesivos Hamishpot says that if it isn't possible to take the upgrade back, that claim cannot be made. The Chazon Ish disagrees and says that the owner always has the prerogative to make this claim and he can use it to refuse to pay for a paint job he doesn't want.If the case would go to Bais Din, the ruling would probably depend on who is the muchzik. If the painter hasn't been paid yet, the owner would be the muchzik and he would be able to exempt himself from paying if Bais Din sees that there is substance to his claim. If the painter has already been paid, he would be the muchzik and he could keep the value of the paint job. 

  Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef GreenwaldQuestion: A broker approaches a real estate investor and says that he has information about a good deal. The investor replies that he can tell him the details if he'd like, but he should know that he does not plan on paying him. The broker introduces the deal and it ends up going through. He then asks for payment. Does the investor need to pay him?Answer: The Acharonim say that even in a case of a field that is presumably asuya lita, if the property owner explicitly protests and tells the worker beforehand not to do the service and he does it anyway, he can't be forced to accept him as his employee and he cannot be forced to pay him. In this case, however, the investor did want the service, he just didn't want to pay for it. The Pischei Teshuva discusses this type of case and says if the individual does want the benefit but just wants it for free, it is not considered as if he protested and he would have to pay the worker if he received an obvious benefit.We still would have to determine how much he would have to pay. One could argue that this case is comparable to a field that is aino asuya lita since the investor had no intention of paying for this service. Practically, to someone in real estate who has his own contacts and sources, this piece of information may not have been that valuable and isn't worth that much. To someone new to the market who does not have many sources, this may be considered a hot tip that is very valuable. That all has to be taken into account.On the other hand, because he actually did go ahead and make use of the service, perhaps it is comparable to a field that is asuya lita, in which case he'd have to pay the lowest end of the going rate for such service. In any case, the investor would certainly not have to pay the full price the broker charges because they didn't originally make up a contract from the beginning.  

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef GreenwaldQuestion: After a heavy snowfall one winter day, I looked out my window and noticed my neighbor's son shoveling my driveway without being asked. He then came to my door and asked for $50 as payment. Do I have to pay him?Answer: We previously said that if someone is yored l'toch sadeh chaveiro, the property owner has to pay the value of the improvement to his property. The Gemara makes a distinction between a case where the field is “asuya lita” (set to be planted) and “aino asuya lita” (not set to be planted). Asuya lita means that everyone knows that the property owner is planning on hiring someone to plant his field at this time. Consequently, if someone steps in and does it, even if he was not contracted to do so, he becomes the de facto employee of the property owner and he must be paid as if he had been hired for the job. Similarly, if someone would know that a homeowner is looking for a painter to paint his house and he steps in and does it, he must be paid as an employee of the homeowner.This does not mean that the homeowner has to pay whatever amount the worker asks for; rather, he must pay the lowest end of what is considered a reasonable amount for that job. In this case, that would mean that if it was known that the homeowner was going to hire someone to shovel his driveway, he would have to pay the neighbor's child the lowest end of the standard cost for such a job.Whereas, in a case where a field is “aino asuya lita”, meaning that the owner was not necessarily planning on hiring anyone to plant his field, the worker who took it upon himself to plant is not considered his employee. In this case, the homeowner only pays for the value added to his property. This means that if the homeowner was planning on shoveling his driveway himself, he would not have to pay the neighbor's son for the value of the job. He would only have to pay him the amount of money he would be willing to pay to save himself the effort of not having to shovel the driveway himself.  

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef GreenwaldQuestion: A roofer was hired to install an attic fan. Unfortunately, he went to the wrong address and installed it in the wrong house. He sends a bill to the house where he installed the fan. Does the homeowner who never asked for the fan have to pay for it?Answer: When the Gemara speaks about cases of “nehene”, it typically is speaking about when one person takes something from someone else. In this case, the homeowner isn't taking the fan from anyone else; rather, he had it foisted on him. This is, therefore, not a case of nehene.Instead, this would be a case of “yored l'sadeh chaveiro”. This refers to a Gemara in Bava Metziah where someone goes into his friend's field and plants a tree or does any form of work that upgrades the property, without being asked to do so. The halacha in such a case is that if the homeowner wants to keep the upgrade, he would have to pay a certain amount, but he would not have to pay the full value of the service. Since he did not contract the worker to work in his field, he doesn't have to pay for the job as if he had. Instead, he only has to pay the amount that his property went up in value as a result of the upgrade, which is a relatively small amount.Additionally, he cannot be forced to accept the addition to his field, so he can tell the worker to take back the upgrade he made to his property. In this case, that would mean that he can theoretically tell the worker to take back the fan and fix the roof to be the way it was before. If he makes this request, it may not be worthwhile for the roofer to do all that extra work and he may just decide to leave it there for free.

 Questions? Comments? We love feedback! Email us at info@baishavaad.org  Rav Yosef GreenwaldQuestion: My friend heard that I have some extra space in my warehouse and asked if he could rent the space to store some boxes there. I declined because I wanted the space available in case I needed it. I went away for a few weeks and, when I got back, I saw that he had stored boxes there without my permission. Can I bill him? Answer: At first glance, this seems a classic case of Zeh Nehene v'Zeh Lo Chaser. The case the Gemara discusses involves a person who moves into his friend's house without him being aware and without causing any loss to the homeowner. This would be very improbable today because when someone moves into his friend's house or bungalow, he would inevitably cause the owner some expense through his usage of electricity and water. In the case in question, however, the friend is merely putting his boxes down in a warehouse. If he doesn't turn on the lights or water, he isn't causing any loss to the owner at all. However, the Shulchan Aruch rules that if a potential customer makes it clear that he would have been willing to pay the owner for the usage, he can be charged for his usage even if no agreement was ever reached. In this case, since the friend clearly indicated that he would have been willing to pay rent for the warehouse space, putting his boxes down is considered a consummation of that proposal, and he would have to pay if he did end up using the space.  

Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef GreenwaldQuestion: My neighbor has an open wireless internet connection. Can he charge me for using his WiFi without permission?Answer: In a general sense, using someone's wireless connection slows down his computer, so this would be a case of chaseir; therefore, he can charge you for having used it.The amount he can charge is subject to a machlokes Rishonim regarding whether we say that one who has hana'ah that caused the owner a loss can only be charged for the amount of loss that he caused, or if we say “megalgelim alav es hakol” and he can be charged the full value of the benefit he received. We pasken like the opinion that says “megalgelim alav es hakol”; therefore, you can be charged for the entire value of having used his wireless connection. It could be argued that if you would only use the neighbor's WiFi in the middle of the night when he is presumably asleep, you are not causing him any loss and, therefore, cannot be held liable. However, it would seem that even this is causing him a loss, as the efficacy and security of the connection is compromised when someone else is tapping into it. Going forward, he certainly can object to you using his wireless connection for free, even if you would not be causing him any loss. 

Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef GreenwaldQuestion: Is it permitted to take a shortcut through someone else's property without permission? Can a homeowner block people from walking through his property, or would this fall under the category of “middas Sodom” because the homeowner isn't losing anything by having people walk through his yard?Answer: Tosafos understands that the reason one can't charge someone who used his property in a case of zeh nehen v'zeh lo chaseir is because of the rule of “ain kofin al middas Sodom”, which basically means: What do you care if someone else derived a benefit as long as you aren't losing anything?The question is whether middas Sodom just means that you can't charge someone retroactively for enjoyment he had from your property, or if it also means that you can't prevent someone from using your property in the future.Tosafos says that the rule of middas Sodom does not mean that people do not have full property rights. Homeowners cannot be forced to let people trespass on their property. Although they can't charge them for having done so, they also don't have to allow them to do it in the first place.Moreover, it could be argued that in most cases allowing people to walk through someone's yard is a case a chaseir, as a loss of privacy is also a loss.Although the Rishonim do say that there is also a moral imperative not to be like the people of Sodom if there really isn't any loss, still, one cannot be forced to allow people to walk through their property.

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef GreenwaldQuestion: Reuven pays for two seats in his shul. He uses one for himself and the other one is meant for his son. However, his son prefers to daven elsewhere and rarely sits in his seat. Shimon notices the empty seat and begins to sit there every week. Eventually, Reuven tells him that since he is using the seat, he should pay for it. Is Reuven correct? Answer: This would seem like a case of zeh neheneh v'zeh lo chaseir. Since Shimon is not causing Reuven a loss, it would seem that he should be patur.The Gemara says that two conditions must be met in order to make someone pay for a hana'ah that he receives. 1. The owner must be having a loss in the sense that he could rent out the property being used if the other person wasn't there. In this case, since Reuven cannot sell the other seat, he would not be able to charge for its use. 2. The person having hana'ah can only be obligated to pay for something that would otherwise pay for. In this case, that would mean that Shimon would have to be the type of person who would pay for another seat if this one wasn't available. Whereas, if he is the type of person who wouldn't pay for a seat and would just stand in the back if there was no free seat available, the Gemara implies that he could not be obligated to pay.  Going forward, if Reuven continues to pay for the seat and he wants to use it to put down his talis bag or his coat and hat, he may prevent Shimon from sitting there in the future because he needs the seat for himself. Still, because Shimon is not considered a nehene because he wouldn't pay for a seat in any case, he may not be able to charge him for sitting there.However, practically speaking, although the Gemara implies to say that one can only charge the person having hana'ah if he is the type of person who would pay for such a benefit, the Poskim rule like the opinion of the Rif that this condition does not need to be met and one can charge someone for using something that is theirs and causing them a loss even if the person would not have been willing to pay for such hana'ah. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef Greenwald, Rav of K'hal Dexter ParkQuestion: I subscribe to a newspaper that is delivered to my house early every morning. I started to realize that the newspaper doesn't seem so fresh when I bring it into my house. One morning, I looked out my window and spied my neighbor reading my newspaper. I realized that he has been reading it every day before I take it inside. Can I charge him for reading my paper? Answer: This may seem like a case of zeh neheneh v'zeh lo chaseir, which would mean that the neighbor would be patur. However, one could argue that the fact that he made the newspaper not as fresh is considered “chaseir”. This would depend on how we define “chaseir”. What is considered “a loss”?According to almost all Rishonim if one causes a loss of even a minimal amount, the owner is considered chaseir. At that point, these Rishonim say, “megalgelim alav es hakol”, we make him pay the full amount of the benefit he received. Although there is a dissenting opinion, this is how we pasken. In this case, that would mean that if making a newspaper lose its freshness is worth even a shaveh perutah [or perhaps even less], the neighbor would have to pay for the value he received, which may well be something like 50% of the cost of the newspaper. 

Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef Greenwald, Rav of K'hal Dexter ParkQuestion: If someone offers someone else a ride, and they don't make up anything beforehand, is the passenger obligated to chip in towards the expenses of the trip? Answer: There is a rule of “zeh neheneh v'zeh lo chaseir.” If one person derives benefit from someone else, but the other person has no loss, the first person is not liable to pay. Regarding the gas and tolls, it would seem that this is a case of zeh neheneh v'zeh lo chaseir. The driver would have had to pay the same amount with or without a passenger. Even though the passenger is having a benefit from the ride, he isn't costing the driver anything; therefore, it would seem that he cannot be charged. However, the Nesivos Hamishpat says that zeh neheneh v'zeh lo chaseir is only patur after the fact. If one person derived benefit from someone else who lost nothing, the second person cannot demand to be paid retroactively. Going forward, however, he can ask for payment. This would mean that if two people are traveling together, they are both equally responsible to pay for the gas and tolls, and those expenses should be split 50-50. It would seem that wear and tear of the car, on the other hand, is not part of the traveling itself and is not an expense that the passenger is liable for. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef Greenwald, Rav of K'hal Dexter ParkQuestion: Reuven and Shimon are business partners. Due to a clerical error on behalf of the IRS, Reuven's personal taxes were charged to the partnership. Can Shimon demand that Reuven reimburse the business for the money that he should have paid individually? Answer: The Gemara talks about a case where the king's tax collectors take taxes from from grain that was not yet tithed, in lieu of money that was the owner was really supposed to pay. The Gemara says that even though the owner didn't really gain anything new – as he merely didn't have to give away some of his money – and he didn't actually take anything from maaser – as the tax collectors took the money, not him – he still is liable to reimburse the amount of the maaser. This chiyuv is called “mishtarshi”. The Ketzos Hachoshen explains that mishtarshi means that because one person's bottom line is bigger than it otherwise would have been because of his friend's expenditure or loss, it is considered as if the friend now owns part of his assets; therefore, the beneficiary will have to reimburse him the full amount that he lost because of him. Based on this rule, Reuven would be liable to reimburse the partnership for the money he gained by not paying his personal taxes. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Yosef Greenwald, Rav of K'hal Dexter ParkQuestion: A gift package of food is delivered to someone's office. Assuming it's for him, the person eats it. Afterwards, he discovers it was meant for the office next door. Does he have to pay for the food he ate?Answer: If it was an honest mistake that was no fault of his own, he is not liable as a mazik or a gazlan. However, he still is not fully exempt from liability.The Gemara discusses a case where someone inherits a barn full of cows from his father. He assumes all of the cows belonged to his father and he slaughters and eats one of them. Unbeknownst to him, that cow belonged to someone else and was only being kept in his father's barn.   The Gemara says that although the son is not a mazik, he is still liable because he derived enjoyment from someone else's property. He does not have to pay the full market value of the cow, but he has to pay the value of the pleasure he had. Chazal assessed this to be two-thirds of what the meat would have fetched in the market. So too, in this case the man who ate his neighbor's food would be liable to pay that basic amount. Question: Who does he have to pay that amount to? The man who the package was intended for or the one who sent the package? Answer: If it was a package that the office next door paid for, he would have to pay them. If they weren't paying for it, he would have to pay whoever did lay out the money for it. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Shmuel HonigwachsQuestion: Reuven lives in a development where the houses are situated fairly close together and everyone has windows that face each other's yards. One day, he decides that he wants to install a swimming pool in his backyard. Can he force all of his neighbors to either seal their windows or contribute towards the building of a fence?Answer: We previously discussed a case where two people purchase a property from one person, and they split the property into two. We mentioned that there is a disagreement between the Mechaber and Rema whether one of them can force the other to close off his windows due to hezek riya. We said that although the Rema rules that they can force each to close off any windows facing into their courtyards, we cannot force people today to do so since hezek riya is not such a concern for contemporary backyards.Regarding swimming pools, however, where there is a genuine concern of hezek riya, it stands to reason that the Rema's ruling could be enforced and the neighbors could be forced to seal their windows or contribute towards the building of a mechitzah.This may seem like an interesting conclusion, and truth be told I have not seen this ever being enforced, but that seems to be the halacha.

   Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Shmuel HonigwachsQuestion: In the last segment, we discussed a case where one neighbor purchases a home from a non-Jew. What if both neighbors bought their houses from non-Jews? How would that impact issues of hezek riya?Answer: If both neighbors originally purchased their homes from non-Jews, as long as the window existed beforehand, the halacha is that Reuven doesn't have any rights to force Feivel to do anything that he couldn't force John to do.This is actually the most common scenario with pools, as most neighborhoods that are built for Jews do not contain pools. Thus, in the common case where two neighbors purchased their homes from non-Jews, neither would be able to force their neighbor to close off a window. The laws of hezek riya would only apply if one of them wants to make a new window. Any window that existed before the homes were purchased from the non-Jews is permitted to remain. Of course, to stand and view the private affairs of a neighbor is always forbidden. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Shmuel HonigwachsQuestion: Reuven has a pool in his backyard. His neighbor, John, is a non-Jew, who obviously has no reservations about being the cause of hezek riya. John is now selling his house to a Jew. The new neighbor, Feivel, moves in and Reuven tells him that because his window faces Reuven's pool, there is a problem of hezek riya and Feivel has to either close off the window or pay to build a fence. Is Reuven correct?Answer: The Gemara says that a Jew who buys a house from a non-Jew has the same rules as the non-Jew he bought the house from. The Poskim debate whether this means that he gets the same halachic disadvantages of the non-Jew, or if he also gets the potential advantages as well. According to the opinion that he gets the advantages of the non-Jew, Feivel would not have to close off his window, just like the non-Jew could not be required to do that. According to the opinion that the Jew only gets the disadvantages of the non-Jew, however, he would be required to close off the window.The Rema rules that the Jew gets the advantages of the non-Jew, but the Shulchan Aruch disagrees and rules that he does not. Practically speaking, Reuven probably would not be able to force Feivel to close off his window. 

Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Shmuel HonigwachsQuestion: Chaim is building a pool in his backyard. His neighbor has an existing window that faced his yard. Now that the swimming pool is being built, the window will overlook the pool. Until now, when it just provided a view of the backyard, the window was no big deal. Now that he is making a pool, however, Chaim wants to force his neighbor to either close off his window or pay for a mechitzah to block the view of the pool. Is he able to do this? Answer: The general rule regarding hezek riya is that if a window is facing a neighbor's yard for a few years and he doesn't complain, a chazakah is established and the window is permitted to remain as it is. Some Poskim hold that even if someone opens a new window and his neighbor doesn't say anything, a chazakah is established to allow the window to be there.  However, it seems that the halacha would be different in this case because the neighbor's window did not really harm Chaim until this point. Until now, it was only facing a backyard and, as we previously stated, the common minhag seems to be that we do have windows overlooking other people's yards. Accordingly, it is understandable why Chaim did not object until now, which means that the neighbor did not establish a chazakah to do anything that might harm Chaim. Now that Chaim is making a swimming pool, and there is an issue of genuine hezek riya, he could force the neighbor to pay for a mechitzah or to close off his window.  

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Shmuel HonigwachsQuestion: Reuven needed a variance for a construction project. His neighbor, Shimon, claimed that he would be negatively impacted by that variance. He went to the zoning board and tried to stop it but the board ruled in favor of Reuven and granted the variance. Shimon still has one more venue to stop the variance from being adopted, which is to litigate. Is he permitted to go to court and assert his right to have the variance's approval revoked?  Answer: We previously explained that the Maharik says that one has a right to oppose a neighbor's request for a variance before a zoning board because the neighbor has not obtained what he wants yet. He compares this to a “metziah” and says that everyone has the right to stop someone from getting a metziah. That reasoning would only apply to something that the neighbor doesn't have yet. If he already received the variance and a neighbor now wants to sue in court to get it revoked, there would be a strong argument to say that the Maharik's ruling does not apply in that situation; therefore, I would posit that it would not be permitted. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Shmuel HonigwachsQuestion: We previously said that a neighbor has no standing in bais din to stop a yeshiva from opening in his residential neighborhood. If a yeshiva is building next door to a residential home, does the homeowner at least have a right to demand that they stain the windows facing his property so that the bochurim do not have view into his yard? Answer: We once had a din Torah where someone was opening a shul and said that he can do what wants because of the takanas chochomim that permits building shuls in any area. The neighbors asked that he should at least mitigate the damage by staining the windows and taking some other steps to allow them to retain their privacy. The Poskim I have seen on this topic say that even though you can't stop a shul from being built, you can force them to spend some extra money to mitigate the damage as much as possible by doing things like staining the windows. That was how we paskened and I believe that is the accepted halacha. 

Questions? Comments? We love feedback! Email us at info@baishavaad.org Can Neighbors Force a Yeshiva to Stain The Windows Facing Their Property?Rav Shmuel HonigwachsQuestion: We previously said that a neighbor has no standing in bais din to stop a yeshiva from opening in his residential neighborhood. If a yeshiva is building next door to a residential home, does the homeowner at least have a right to demand that they stain the windows facing his property so that the bochurim do not have view into his yard? Answer: We once had a din Torah where someone was opening a shul and said that he can do what wants because of the takanas chochomim that permits building shuls in any area. The neighbors asked that he should at least mitigate the damage by staining the windows and taking some other steps to allow them to retain their privacy. The Poskim I have seen on this topic say that even though you can't stop a shul from being built, you can force them to spend some extra money to mitigate the damage as much as possible by doing things like staining the windows. That was how we paskened and I believe that is the accepted halacha.

 Rav Shmuel HonigwachsQuestion: Yankel lives in a quiet residential area. He lives in a town where it is permitted according to the local laws to build yeshivas even in such an area. Berel wants to build a yeshiva in this neighborhood. Does Yankel have any right according to Choshen Mishpat to stop the yeshiva from opening in his area? Answer: The Gemara in Bava Basra says that even though, generally speaking, one can stop a store from opening in a residential area and bringing in a lot of customers, when it comes to a yeshiva there is a special takanas chachomim that does not permit preventing them from opening. The chachomim made this decree because they wanted places of Torah study to be located in all areas. Accordingly, according to halacha one may not stop anybody from opening a yeshiva in a residential area. The Poskim apply this rule to all mitzvos, such as opening a shul or a bais din. One would also be permitted to open such an institution in a residential area.  

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Shmuel HonigwachsQuestion: With a little effort, Reuven is able to see into his neighbor's window from his backyard. He now wants to extend the deck in his yard to make room for a large sukkah. From the new deck, he will have a much clearer view of his neighbor's window. Is he allowed to make this extension?  Answer: Most Poskim say that even if one could see into his neighbor's window, if he cannot see into them easily or clearly it is not considered hezek riya. Accordingly, if building a deck would make it easier for him to see in the windows, it would not be permitted. While it is a mitzvah to make a nice deck in order to be able to have a nice sukkah, in this case, it would be preferable to find another way to beautify one's sukkah. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org  Rav Shmuel HonigwachsQuestion: Reuven bought a house in a development. When he moved in, he noticed that the house he bought already has a window that overlooks his neighbor's backyard. Does he have to close off the window or is he allowed to leave it the way it is? Answer: In the halachos of hezek riya, the Halacha will often differ depending upon whom the house was acquired from and the sequence of how it was built. The Gemara discusses a case where two brothers inherited a property from their father. After dividing it, they are left with windows overlooking each other's yards. The Gemara states that they have no legal right to these windows. The Rishonim debate what this means on a practical level. Some say that the brothers can force each other to close off the windows. Others say that they cannot go that far, rather, they are permitted to build a wall on their own property that blocks the window, even though by doing so they are limiting sunlight to the other property. The Shulchan Aruch rules that they cannot force each other to seal the windows. Rema cites the other opinion that they can be forced to block the windows. Rema indicates that the same machlokes would apply in a case where someone purchases a house that has a window facing a neighbor's yard. Which would mean that according to the Rema, the purchaser can be forced to close off such a window, which is a rather unusual conclusion. As we've said previously, whenever there is another consideration at play, one can rely on the opinion that our yards are not comparable to the old courtyards because we do not use them for such private matters. Accordingly, perhaps the buyer could be lenient and rely on the Mechaber's opinion that he does not have to close off his window in this case.  

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Shmuel HonigwachsQuestion: We previously said that in typical circumstances one should not open a window that allows him to see into a neighbor's yard. What if the yard is already visible to a public area? For example, what if someone lives on a corner and his backyard faces the street? In such a case, if I live next door would I be permitted to open a new window that faces his yard since it is visible from the street anyway? Answer: I haven't seen this specific case discussed by Poskim, but the Gemara discusses a case where there is a street between two properties and says that it would be permitted to open a window overlooking the yards. One would assume that the same would be true in the situation in question. Since the yard is open to the street regardless and anyone walking on the street can see into the yard, the same consideration would apply and it would be permitted to open a window that faces the yard. We can also take into consideration the opinion that the yards of today are not like the courtyards of the past which were used for more private matters, and therefore, one can be lenient in this case. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org  Rav Shmuel HonigwachsQuestion: Reuven is making an extension to his house. After the extension is complete, the house will have a window that overlooks his neighbor's backyard. Is that permitted? Answer: The Mishnah and Gemara in Bava Basra discuss the concept of “hezek riya” (infringing on someone's privacy). It is stated that it is forbidden to open up a window that faces somebody else's yard. The question that contemporary Poskim discuss is whether the backyards of today are comparable to the a “chatzer” of the times of the Gemara. In those times, a chatzer was used for private matters. Accordingly, since it is likely that someone is doing something private in his chatzer, one may not open a window facing that place. Some Poskim, theorize that today's yards are not used for such private things and, therefore, are not subject to the laws of hezek riya. There does not seem to be a strong basis for that opinion; however, the Poskim say that if one has another consideration that would permit him to open a window, he can combine that with this opinion in order to permit it. In the situation in question, however, it seems that making this window would not be allowed. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org  Rav Aryeh FinkelQuestion: Yankel made a birthday party for his child, which included helium balloons. Afterwards, he released some balloons in the street. The balloons went straight up and struck some electric wires, which caused a short. What type of mazik is he?  Answer: This definitely is the hezek of aish. What Yankel did is no different than placing a stone in a place where wind can blow it and cause it to do damage. Aish, however, is exempt from paying for tamun, covered items. The question is whether Yankel is liable as an odom hamazik, which is liable for everything.In this case, we can suggest that Yankel is odom hamazik because the way helium works is that it is lighter than air, so it floats upwards. The laws of physics are that when one releases a stone, gravity pulls it downward. If someone lets go of a stone, even if he doesn't throw it, and gravity pulls it down and causes it to damage something, the person is liable as an odom hamazik. So too, if someone releases a helium balloon and the laws of physics dictate that it goes upwards, when it damages something above it the person would be liable for the same reason. The same would apply if someone is in a swimming pool and releases a pool tube under the water, which goes shooting up because of the force of the water and damages something, the person would be liable.Basically, if someone uses any of the fundamental laws of physics to cause direct damage, he is considered to have done an action of an odom hamazik and he can be held liable as such. 

Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Aryeh FinkelQuestion: I built an extension on my house and made a new laundry room. My wife put the first load of laundry into the new washing machine and set the machine on the cold cycle. When she opened it at the end of the cycle, she realized that the plumber had mixed up the hot and cold water pipes, which had caused hot water to come out of the pipe that should have been cold water. This ruined all of the clothing in the wash. Is the plumber liable for this damage?Answer: First of all, the plumber should not get paid for the job.Regarding whether or not he should be liable to pay for the ruined clothing, we would have to find a category of mazik to place him under.The Rishonim say that garmi only applies if the damage occurs at the time of the damager's actions. In this case, the plumber made his mistake well before the woman did the laundry; therefore, he cannot be held liable because of garmi.He also is definitely not odom hamazik as he did not do the damage directly.What he did could perhaps be classified as bor because when he mixed up the pipes he is akin to someone who dug a pit that can cause damage; however, bor is potur on keilim, so the plumber could not be held liable for damages to clothing because of bor.The most likely chiyuv would be aish. If someone places an object in a place where it is likely to be moved by an outside force and cause damage, he can be held liable for aish. The problem is that one is only liable for aish if the object he placed is the thing that ends up causing the damage. In this instance, the damage was actually done by the water. The plumber did not put the water into the machine. He merely installed the pipes in a way that caused the water to be diverted the wrong way.Thus, there doesn't seem to be a way to hold him accountable.I would add that when we said that the plumber cannot be held liable with the rule of garmi, this was presuming that he was not a professional. If the homeowner had hired a professional plumber, perhaps the man could be held liable. The Gemara says that if a professional gives bad advice which leads to a loss of money, that professional can be held liable through the rule of garmi. This would mean that if a professional plumber said that the pipes were hooked up correctly when they really were not, he could be held liable for garmi.

 Questions? Comments? We love feedback! Email us at info@baishavaad.org  Rav Aryeh FinkelQuestion: Someone removed a railing from a second-floor balcony and someone else fell and got hurt. Is he liable as a mazik?Similarly, someone opened a safety gate on top of the stairs and a child fell and got hurt. Is the one who opened the gate liable?Answer: The chiyuv of bor is not only when one digs a pit; it is also when someone removes a covering from a pit. So too, it would seem that if there is a dangerous place that has protection in place, and someone comes along and removes the protection, he would be liable for uncovering this bor.However, the Mishnah says that if an ox trips over the edge of a pit and lands on the other side, rather than inside the pit, the one who dug it is not liable. The Acharonim explain that one is only liable for creating a bor if the damage occurs inside the actual bor. If the damage occurs outside the bor, the one who created it is exempt from liability. Similarly, the Gemara also speaks about a case where someone builds an incline in a public area and people walk up this ramp unaware and fall off and get hurt. Tosafos write that the one who built the ramp is only liable if he also dug a ditch next to it that the damaged people fell into. If they just fell onto the street, he would be exempt because the damage did not occur inside his bor.In the case of the railing that is removed from a balcony, the damage occurs when the person hits the street below, which is not inside the bor; therefore, it would seem that the one who removed the balcony cannot be held liable. The case of the safety gate however, may be different. The Chazon Ish describes a bor as something that is “meshuna m'tivo shel olam”, it is not the regular surface of the ground. Stairs may fall under the category of meshuna m'tivo shel olam, as they are different than the regular surface of the floor. If a person removes a baby gate, he is uncovering the stairs, which are dangerous for babies. Thus, the stairs are the bor that he created and if the damage occurs on the stairs, he may be held liable. 

  Questions? Comments? We love feedback! Email us at info@baishavaad.orgRav Aryeh FinkelQuestion: Someone is driving and suddenly stops in the middle of the road. The driver behind him isn't able to brake in time and hits him from behind, which causes substantial damage to the second driver's car. Is the car that is parked in the middle of the road considered a bor, which would mean that he is exempt from damages to keilim including the damage to the other car, or is he considered an odom hamazik, which would make him liable to pay for the damages?Answer: The Mishnah discusses a case where a potter trips while holding his pots and a person behind him falls over him and gets hurt. The Mishnah says that the first man is chayav to pay for the damages. The Rishonim argue whether the man is liable as a bor or as an odom hamazik, with the practical difference being whether he is liable on keilim. The Shulchan Aruch rules that he is chayav as a bor. This seems to indicate that when someone is in a stationary position, he is classified as a bor, not as an odom hamazik.On the other hand, another Mishnah says that if someone is carrying a beam in the street and stops suddenly, causing a barrel moving behind it to collide and break, the person is chayav to pay for the barrel. The Rishonim note that this indicates that the person holding the beam is considered to be an odom hamazik, who is liable on keilim, rather than a bor. This seems to contradict the other Mishnah.Rebenu Peretz and the Tosafos Rid resolve this contradiction by saying that if a person is lying prone on the floor and is not doing any action, he is considered to be a bor. Whereas, if he is standing and holding something, even though he isn't moving, holding the item in place is considered to be an action and the person is considered to be an odom hamazik.In our case, it would seem that if the road was inclined and the car would roll down on its own if the driver weren't sitting there and holding the brake, he would be considered to be doing the action of holding the car in place and would be an odom hamazik. If the road was flat and the car would be stationary or rolling very slowly even if his foot was not on the brake, the driver would not be considered to be doing any action; therefore, the car would only be a bor and the driver would be exempt on damages to the other car. [Of course, the victim may pursue a claim against his insurance. -ed. note] 

 Questions? Comments? We love feedback! Email us at info@baishavaad.orgRav Aryeh FinkelQuestion: Someone dug a hole in the middle of the street. A fellow walks by and falls in. The fall causes him to chip his tooth. This tooth happened to be an implant. Since bor is potur on keilim, would the digger be exempt from paying for the damage to the implant?Answer: The question is if something attached to a person is considered odom or keilim.It is clear from the Poskim that when someone receives an implant of an organ, such as a kidney, the new organ becomes part of the person for all relevant halachos. This is true regarding a living organ that continues to function inside the person who received the implant. In the case of a tooth, the implant is merely embedded into the person's mouth and is not a living organ; therefore, it is unclear if it becomes a part of the person.However, I believe that the owner of the pit would be obligated to pay in any case. In this case, the damage he caused is not to the tooth, it is to the person. The Gemara says that the way we evaluate the damage to a person is that we appraise the value he would have if he would be sold as a slave. If his value went down as a result of his injury, the damager has to pay the difference. If the value of a slave with a chipped tooth is less than the value of a slave with a full tooth, causing this damage would be considered nizkei odom and the digger of the pit would be liable for that. [See also Sdei Chemed Chametz 4:23 -ed. note]  

 Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Aryeh FinkelQuestion: Reuven owns a Roomba vacuum cleaner, which rolls by itself across the floor of his house. He brought it over to his neighbor's house to demonstrate to them how it works. During his demonstration, it vacuumed up a child's gold earring and they were unable to retrieve it. Is Reuven liable to pay for the lost earring?In a similar occurrence, a Roomba banged into a parakeet's cage and injured the valuable bird. Is the owner of the vacuum culpable for the injuries to the parakeet? Answer: The Torah says that a person is liable for damages done by his animals. While the Mishnah in Bava Kama lists various categories of animals that one is chayav for, obviously, a Roomba vacuum cleaner is not one of them. The Rambam clearly rules that any liability of animal damages applies only to live creatures; therefore, they would not apply to the case in question. One could suggest that the owner of the vacuum could be liable as a derivative of aish. If one places any object in a place where it is likely that wind will move it and cause damage, he can be held liable as a form of aish. In this case, the individual left his vacuum running in a place where it is likely to vacuum up an earring, which would place it in the category of aish.However, the Gemara says that if someone puts his friend's cow next to a third person's fruit and, as a result of this, the cow eats the fruit, the one who put it there is chayav, even though it is not his cow. The Rishonim discuss which hezek this is. They agree that it cannot be shein, as one is only liable for shein of his own animals. The Rashba says that it is aish. Tosafos disagree and say that it cannot be aish. The Acharonim explain that Tosafos hold that aish only applies in a case where the object is moved by an outside force like the wind, and not on its own. A cow cannot be aish because it moves of its own volition. So too, it would seem that according to this opinion a Roomba cannot either be considered aish because it moves from its own power. Thus, aish would also be ruled out in this case.It is possible that the owner of the vacuum can be held liable because of bor. While a bor is usually stationary, the Gemara in Bava Kama says that if someone owns a dead tree that falls down and causes damage as it falls, the owner is liable if he was properly warned. Tosafos say that he is liable because his tree is considered a bor. We see that even a moving obstacle in a public place is considered a bor. Accordingly, the Roomba can also be considered a bor. However, we know that a bor is not liable for damages caused to keilim, which would mean that we cannot obligate the owner to pay for the earring. The parakeet, however, is a living animal, and we could obligate the owner to pay for its injuries.  

 Questions? Comments? We love feedback! Email us at info@baishavaad.org  Question: Yaakov and Yehuda are friends who enjoy playing pranks on each other. One day, Yaakov put down his cell phone on the edge of a table. Yehuda noticed this and called the phone, causing it to vibrate and fall of the table. It hit the ground and the screen shattered. Is Yehuda liable to pay for the damages?Answer: The question is if Yehuda is considered to have done a maisoh. If he didn't do any maisoh, it would be a grama and he would be potur in dinei odom and chayav in dinei Shomayim. If he did do a maisoh, he would be chayav as an odom hamazik.When someone calls a cell phone, radio waves are transmitted from the caller's phone to a phone tower and then to the receiving phone's antenna. If the phone is set to vibrate, the incoming waves cause it to shake, which is what knocked the phone off the table. Is this considered a maisoh?The Gemara speaks about a case where a chicken stuck its head into a pot and made a loud noise, which caused the pot to break. The chicken never touched the pot. All it did was transmit soundwaves, which broke the pot. The Gemara says that the owner of the chicken is obligated to pay for the broken pot. We see from this Gemara that kocho does not necessarily mean throwing an object and breaking it that way; rather, any force – even a soundwave – is considered kocho.Accordingly, creating a radio wave would also be considered kocho. If the wave that a person creates by pushing a button on his phone hits something and damages it, the one who created the wave would, therefore, be obligated to pay as an odom hamazik. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org  Rav Aryeh FinkelQuestion: My bank offered a $750 promotion to any account holder who keeps $20,000 in his account for 90 days. I deposited that amount of money and told my secretary to make sure not to pay any bills from that account for 90 days. She didn't listen and paid a bill from that account, which caused me to lose the $750. Can I demand that she reimburse me for the money?Answer: This case is similar to the story of the money manager who caused his client to lose his Earned Income Credit, which we discussed in a previous segment. We said that was a case of mevatel kiso shel chavero, not garmi, so the money manager is liable in dinei Shomayim but not in dinei odom. In this case, it would seem that the secretary caused a similar loss of profit for her boss, as he stood to make $750 that she caused him not to make.However, this case is different because when banks offer a promotion like this, the customer doesn't have to file a claim or do anything besides deposit the money and keep it in his account. The bank then automatically deposits the promotional money into the account. Once the $20,000 is in his account, everything happens electronically. The $750 is set aside for the customer and is almost already his. If the secretary causes that money to be lost, this could be considered more direct damage, which would be considered garmi; accordingly, she is liable to pay even in dinei odom. 

Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Aryeh FinkelQuestion: There is a threshold of how much investment income a taxpayer can have and still be eligible for the Earned Income Credit. Reuven told his money manager to make sure he doesn't go over that threshold, as it would not be worthwhile to lose out on the credit. The money manager disobeyed his instructions and made him some extra money on an investment which caused him to lose the Earned Income Credit. Is he liable to pay him for that loss?  Answer: This is certainly not an act of damage, but it might be garmi.The Poskim discuss a case called “mevatel kiso shel chavero”, which is where someone caused his friend a loss of potential income. An example of this would be if someone locks up his friend's merchandise so that he cannot sell it on the market day, thereby causing him a loss of profit that he could have made. The Poskim rule that this is a case of grama, which means that he is exempt in bais din but liable in dinei Shomayim. It could be argued that this case is the same, as the money manager is causing the client to lose a profit that he otherwise could have made.Moreover, one might claim that because an Earned Income Credit is given automatically by the IRS to any family that qualifies, the money is already his and is just waiting to be claimed. Thus, it is even more of a direct loss than mevatel kiso shel chavero, which is only a loss of potential profit that could potentially have been made. Accordingly, perhaps this would qualify as garmi and the money manager would even be liable in bais din. However, it seems more accurate that causing the loss of the Earned Income Credit cannot be considered garmi. Even though it is given electronically and is done automatically, the individual still must file his taxes and be found eligible. Many things can happen over the course of the year that can cause him to not qualify. Accordingly, the money isn't simply waiting for him to claim it. Therefore, it cannot be considered garmi and remains in the same category as mevatel kiso shel chavero.We would still have to consider the fact that the money manager is a hired worker and such professionals are sometimes held culpable because part of their contract is that if they cause a loss to a client by not following instructions, they are liable for that loss. That is a different question that needs to be addressed but, in any case, he is not liable because of garmi.  

 Questions? Comments? We love feedback! Email us at info@baishavaad.org  Question: A man owns a factory which doesn't allow employees to bring cell phones onto the floor. He has a big clock – the only clock on the floor – which everything runs in accordance to. He hired someone to put up the clock and that worker didn't set the time correctly. As a result of the clock being half an hour slow, deadlines were missed and earnings were lost. Does the worker who hung the clock have any culpability for the damages?  Answer: What basically happened here was that the person hired to put up the clock provided false information to people in the factory, and a loss resulted based on that information. This is a case of gamri.The Gemara discusses a case where someone goes to a professional coin dealer and asks if a specific coin is good. The professional confirms that it is good and, based on that information, the man accepts the coin. In the end, the coin turns out to have no value. The Gemara says that in certain cases the professional is culpable because the false information he provided caused the loss.The Gemara says that if the client tells the professional that he is relying on him, the person is liable because he knows that his opinion is being relied upon. The Nesivos Hamishpot adds that this is only true if the information is being provided free of charge. If the client is paying the professional for his evaluation, it is always understood that his opinion is being relied upon, and the professional does not have to be informed of this.Accordingly, if someone is facing a deadline and asks his friend what time it is, clearly telling him that he is relying on him to give him the correct time so that he can meet his deadline, and the friend answers that it is 4oclock, when it is actually 4:45, the friend is chayav to pay if the false information he provided leads to a monetary loss. In the case in question, the worker is being paid to put up the clock and setting it properly seems to be part of his job. If his job included taking care of the entire “clock project”, he is liable. If, however, he was only hired to put up the clock and setting it was not part of his job, he would be potur.  

Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Aryeh FinkelQuestion: A driver makes a turn and accidentally sideswipes a parked car. He leaves a note on the windshield with his phone number and starts to drive away. Suddenly, he sees another car plow into the same parked car and total it. The owner of the car has his vehicle declared a total loss by the insurance company and is given enough money to buy a new car. Now that he is covered for his entire loss, does the first driver owe him anything?Answer: The Rashash writes about a similar scenario. A person went into someone's house and broke some furniture, only for the entire house to go up in flames a short time later. Since the house and its contents would have burned anyway, is the man liable for breaking the furniture?The Rashash proves from a Tosafos in Bava Kama that a damager has to pay for what he did, regardless of what happens later. Tosafos is speaking about a case where someone threw a rock at a dish and someone else breaks it before the rock makes contact. In this case, the dish would have been broken by the rock in any case, yet Tosafos says that the one who broke it is liable for the damage he did.In our case as well, it's true that the owner received money for a new car, so the damage the first driver caused made no difference to him and caused him no loss. It could, perhaps, be argued that this driver is not liable because one person cannot receive two payments for the same damage. However, I believe that he is nevertheless chayav because the second damage is not related to the first in any way.To further explain: When the insurance company pays for a totaled car, they simply look at the year, make and model of the car and pay its value. This can be compared to the owner “selling” his car to the insurance company for however much they will give him. This would be similar to a scenario where someone scratches a car, and then the owner finds a buyer who doesn't care about the scratches and is willing to pay the same amount the owner could have gotten before it was scratched. Clearly, this would not exempt the damager from paying for the scratches he made. In this case as well, the fact that the insurance company is willing to “buy” the totaled car for its full value does not mean that the one who made the scratches isn't liable for the damage that he did.Therefore, it would seem that the driver who sideswiped the parked car is obligated to pay for the damage he caused.

Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Aryeh FinkelQuestion: I went away for the summer and rented out my house to some tenants. I informed them that I wouldn't be coming home until a few weeks after they left; therefore, I asked them to turn off the air conditioner before they leave. They did not do so, and instead left the air conditioning running at 65 degrees for the three weeks until I came home. This led me to have a very high electric bill. Are they obligated to pay for this?Answer: It is possible that the tenants are liable because of the rule of garmi; however, garmi comes along with some leniencies, so that's a difficult avenue of liability to pursue. What we can determine is whether or not they are liable as an odom hamazik by leaving on the air conditioning and causing a colossal waste of electricity.The Gemara speaks about a case where a person releases water and, thereby, causes damage, and says that such a person is an odom hamazik. Releasing electricity would seem to be similar to releasing water and would also fall under this category. However, the Gemara says that one is only liable as an odom hamazik if the water damages as a “koach rishon”, the first burst of water. The subsequent flow of water is considered “koach sheni”, and is no longer categorized as an odom hamazik. In the case of the air conditioner, once it is running for a few minutes it definitely is considered koach sheni, which would seem to mean that the tenant cannot be held liable for the wasted electricity as an odom hamazik.However, Rav Shlomo Zalman Auerbach points out that the rule that koach sheni is not considered an odom hamazik only applies to cases where the water flows forth and damages something else. Whereas, if the damage in question is that of the liquid itself that flows out, it would be considered his direct action. For example, if someone opens a tap to let wine out of a barrel, he definitely is liable to pay for all of the wine that is lost – even the liquid that flows out as a koach sheni. Here too, the electricity that is released by leaving on the air conditioner is the actual thing that was “damaged”; therefore, it can be compared to the wine in the example above and the tenant could be held liable as an odom hamazik.