Business Halacha Daily

 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.

Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Aryeh FinkelQuestion: Reuven is driving around at 4 am. He comes to a red light and stops. He doesn't see anyone around, so he goes through the red. Unfortunately, a kid on a scooter comes flying out of nowhere and is struck by Reuven's car. Boruch Hashem, the boy is unhurt. The scooter, however, is destroyed. Is Reuven liable to pay for the scooter?Answer: This case has to be broken down into two aspects. Firstly, a kid riding around on a scooter in the middle of the night is an unexpected occurrence; consequently, we have to determine whether this qualifies as an “oness”. Secondly, we have to determine whether the fact that Reuven ran a red light can be held against him.Had it been the middle of the day, perhaps it would be Reuven's responsibility to reasonably ensure that no pedestrians are approaching the intersection. At 4am, however, there is no reason to expect that a kid would be riding around on a scooter. Accordingly, if the light had been green Reuven would definitely be patur. While it is true that there is a general rule of “odom mu'ad l'olam” (a person is always held accountable for damages he causes through his actions), Tosafos and other Rishonim clarify that one is exempt in cases of “oness gamur”, when it was clearly unavoidable. Furthermore, the Rambam states that the rule of odom mu'ad l'olam only applies if the incident occurred on the property of the victim. If it happened on the property of the damager, or even on public property, this rule does not apply. Accordingly, if the light was green, the roadway is considered to be “the property of the damager” because he has the right of way, while the one who was damaged does not. It should be noted that the Chazon Ish says that the Rambam is only referring to cases where the damager was doing a normal action, such as walking or driving, and he hits someone on his property or on public property. Otherwise, for example, if a person were to trip and fall and break something on his way down, that would not be considered a normal course of action and the rule of odom mu'ad l'olam would apply even according to the Rambam.

The Laws of Torts Week 1Questions? Comments? We love feedback! Email us at info@baishavaad.org Rav Aryeh FinkelTEXT VERSION:Question: Reuven's neighbor went away for Shabbos. Before he left, he forgot to shut the hose that was running in his backyard. Over Shabbos, the water flowed into Reuven's property and flooded his basement. Is the neighbor liable as an odom hamazik?  Answer: He definitely could be chayav because of the rule of garmi, which is a form of direct causation of damage; however, there are some limitations to the halachos of garmi. For example, there is the opinion of the Shach who says that garmi is only a chiyuv d'rabanan, which allows for leniency in some cases.Odom hamazik, however, is a chiyuv d'oharaysa. A person is biblically liable for damages that he does through his actions. In this case, the neighbor just turned on the water. He did not actually cause the flooding by pouring water into Reuven's basement. Is what he did enough of an action to hold him liable as an odom hamazik?The Gemara in Bava Kama speaks about a case where someone releases water out of a pipe, which flows out and causes damage. It says that if the water strikes something in the first burst as it is running out of the pipe, it is called “kocho” – a damaging force caused by the person. Although he didn't touch the water and merely allowed it to come out of the pipe, it is considered as if he did the damage and he is liable as an odom hamazik. The Gemara in Sanhedrin discusses a similar case where someone opened a dam and cause the water to be diverted in a certain direction, thereby killing a person. The Rishonim use this Gemara to discern the halacha regarding damages. There, the Gemara says that only the initial spurt of water, known as “koach rishon”, is considered odom hamazik. The subsequent flow of water is called “koach sheni”, and is not considered odom hamazik.In the case in question, the flow from the hose would be considered koach sheni since it takes time for it to cause damage; therefore, it is not odom hamazik. Furthermore, even if a person would actually spray the hose directly into the basement, it might only be odom hamazik if he sprayed things like books, which get ruined right away. Whereas, if it hit hardwood furniture, which only gets damaged after it is saturated with water, it may not be considered active damage. Since such furniture is not damaged on contact, it is only destroyed by the koach shnei and, thus, is not odom hamazik.The Gemara discusses another case where a trespassing cow falls into a pit of water and ruins the water by dirtying it. It says that if the cow was dirty and ruined the water on contact, the owner has to pay for the damage. If, however, the cow was clean and only ruined the water by staying in it for an extended period of time, the damage is not considered to be a result of the cow's action; rather, it was damaged while the cow was stationary. Damage by a stationary object falls under the category of “bor”, which is only liable for damaging people or animals and not for damages to keilim (inanimate objects). Similarly, perhaps when one damages furniture by spraying it with water, the damage occurs while the water is stationary in the furniture. Thus, the water is akin to a bor and the owner would not be liable to pay for keilim – meaning he is exempt from paying for the furniture as an odom hamazik.According to all of this, the neighbor would not be liable in this story as an odom hamazik; however, as we started off by saying, he may be chayav becau

 Questions? Comments? We love feedback! Email us at info@baishavaad.org  Question: If someone passes away suddenly and leaves behind a considerable estate, who is in charge of that estate according to Halacha?Answer: If there are adult children, they take over the estate. If the children are minors, an apotropus can be appointed to serve as the executive of the estate.There are four ways to appoint an apotropus:The best way would be if the father appointed the executor before his passing. This apotropus can make decisions in regard to the estate even once the children get older and whatever he does on their behalf is binding. Whether and how they can depose him if they so choose is a separate discussion.If the father did not appoint anyone for this position, Bais din can step in and appoint an apotropus as long as the children are ketanim. One difference between the father and a bais din is that the father can appoint anyone he chooses, even a non-Jew, to be the executor, whereas bais din can only appoint a person who meets very specific criteria.  Additionally, only a bais din that is appointed by the city or one that is comprised of Gedolei Hador can appoint an apotropus, so it would be tricky to do that nowadays.A third possibility is called “yesomim shesamchu”. If someone steps forward and begins looking after the estate, and the orphans rely on him, he gets the status of apotropus. This could be their mother or uncle or really anyone they rely on to act as the de facto executor.A fourth option is a court-appointed executor, which is recognized by halacha because of the rules of dina d'malchusa dina and minhag. A legal executor will have the halachic status of an aputropus and will be recognized in Bais din. This is usually not an issue arka'os because the problem of arka'os is when a dispute between two Jews is taken to be settled in a secular court. In this instance, it is a legal matter that we need to find someone whom the banks and the like will recognize as an authority; therefore, we work with the system and whomever they appoint as executor becomes the apotropus and has the right to buy and sell on the orphans' behalf. 

 Questions? Comments? We love feedback! Email us at info@baishavaad.org  Rav Baruch FriedQuestion: One of the people who is considered by halacha to be unable to participate in commerce is a “cheresh”. I have a business partner who is deaf and hears through a cochlear implant. Does he have the status of a cheresh?Answer: Generally, this question is not so relevant because just like there is a takanah of Chazal that a child who understands commerce can engage in business transactions, so too, Chazal enacted that a cheresh who understands commerce can be involved in business. The one exception, however, is real estate. A true cheresh cannot engage in property transactions.If someone with a cochlear implant is involved with real estate, we would have to determine if he is considered a cheresh.Acharonim have long dealt with the question of someone who is technically a cheresh yet is obviously smart and acclimated. As a rule, they are hesitant to say definitively that such a person can ever have the status of a pikeach.In other areas of halacha, if someone cannot hear but he can speak, many Rishonim say that he is considered a pikeach according to halacha. Again, however, they say that real estate is an exception and he cannot engage in transactions involving property.Rav Moshe Feinstein has a teshuva about a person who can speak but cannot hear at all without the aid of a machine (similar to a cochlear implant). He says that such a person is in the category of a medaber v'aino shomea, he can speak but cannot hear, which renders him a regular bar daas for all matters with the exception of doing commerce with real estate.This means that even if the person understands real estate very well, he technically still has the status of a cheresh and he cannot sell or buy properties. Essentially, an apotropus would have to be appointed to manage his transactions on his behalf. The laws of who can and cannot be an apotropus are complex but if he has a business partner, that partner might become his de-facto executor and make deals for him.Even without an apotropus, if a cheresh does sell karkah, the deal is valid as long as no one protests. If the parties are worried that someone may protest at some point in the future and negate the deal, they should technically have an apotropus appointed to mitigate this concern. 

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Can a Camp Withhold Payment from a Worker If His Father Owes Them Money?Rav Baruch FriedQuestion: A bochur spent a summer working in a camp. At the end of the summer, he goes over to the director and asks for his pay. The director informs the boy that his father still owes the camp money, so he is withholding his paycheck to cover the balance, and he should feel free to ask his father to pay him directly. Can the camp do that?Answer: First of all, it is definitely not a good way to be mechanech.The camp's justification may be based on Shibudah d'Rebbi Nosson. The director could be saying we owe you money and your father owes us money, so you can get your payment from him. That is clearly wrong. Shibudah d'Rebbi Nosson means that if someone owes you money and that person doesn't have money to pay, the creditor can go to a person who owes the debtor money to collect from him instead. It does not mean that a debtor who does have money to pay can tell his creditor that he isn't going to pay him because someone else owes him money and he should go collect from that person instead.  If the camp's argument is that the son's wages actually belong to his father, that might be a better claim. There is a big machlokes amongst the Rishonim regarding whether a father has the right to the wages of his adult child who are being supported by him. The Rema rules that he does. Accordingly, the camp may claim that since the son's wages really belong to his father, and his father owes the camp money, they are keeping those wages as payment for the money they are owed. The counterclaim to that would be that the father's right to the son's wages is not a din d'ohraysa. Rather, it is a takanas chochomim that was put in place to prevent eivah, i.e. if the father is supporting his son, and the son is making money and keeping it for himself, this could lead to enmity from the father towards the son. Therefore, the chochomim decreed that the son's earnings can be claimed by the father.  Since this is a takanas chochomim for the father's benefit, so long as he is not interested in taking possession of the son's wages, they rightfully belong to the son. Thus, it would seem that the boy would have the right to take the camp to a din Torah to demand his paycheck. Questions? Comments? We love feedback! Email us at info@baishavaad.org 

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