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| Issue #002 Sivan 5768-June2008
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The Friendly Landlord 
Picture this. You come home one Sunday afternoon ready for an afternoon of relaxation, and suddenly notice your landlord sitting there on the couch right in the middle of your living room. With his shoes off, and feet up on your glass coffee table, he lowers the volume on his headphones and lowers your Sunday paper just long enough to give you a short hello, and then goes back to reading.
“What are you doing here?” you ask in a polite tone trying to mask your annoyance. He coolly puts down the paper, pulls the property deed from his pocket and indignantly replies, “Excuse me, but if you read carefully you will see that this house belongs to me.” As your blood-pressure soars to new heights you contortedly respond “I know the house belongs to you, but since you rented it out to me, you gave up your right to use it anytime you wish. I would appreciate if you would leave as soon as possible.”
The case is crystal clear. The landlord is clearly in the wrong, and each moment he remains in the rental property without permission, he is stealing from his tenant. Yet, in essence, the same is true in the case of employment.
The Rambam[1] compares an employee who uses his time on the job for his own purposes, to wrongfully using that which he does not own. When an individual hires him/herself out to work for an employer, he is in essence “renting” out his capabilities, efforts and strengths. Therefore although in essence his body and all of his strengths are his own, when he accepts the job he relinquishes his rights to use them for his own benefit. For him to use his working hours to surf the net, play solitaire, or conduct a lengthy conversation with a friend (that is not business related) is not acceptable, just as our friendly landlord has no right to use the rented apartment.
It is important to note that there are acceptable leniencies regarding this sensitivity. Anything which is clearly “common practice” is permissible since it is understood that the employee was hired under those assumptions. For example, even though prolonged non-business related conversation is forbidden, one may say hello and greet a fellow employee in the hallway, speaking in a relaxed way which expresses common courtesy.
Another example of this is that, according to the halacha, a worker’s obligation to his employer may absolve him from having to recite the fourth blessing of Birkas Hamazon. [2] However, today the custom is to recite it. Therefore one who does recite this blessing has not made improper use of his work time. Similarly, today a normal “coffee break” is also considered acceptable, as long as it is in the realm of “the normal customary activity.” However, anything more than the “Minhag” must be limited.
[1] Rambam Sechirus 13-7 [2] Ibid
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| Of Pirates and Profits
By: Rabbi Yitzchok Grossman
ON MAY 27, 2008 ARTHUR MAX OF THE AP AMSTERDAM, NETHERLANDS REPORTED. . . A Dutch shipping company negotiated with Somali pirates seeking the release of nine crew members on a freighter that was hijacked in the latest attack on merchant shipping off the coast of Somalia The ship is chartered by a Danish company, Scan-Trans Shipping, and sails under a Panamanian flag of convenience. It departed Kenya on May 19 on its way to Romania. Its cargo was a decommissioned oil platform. . . Piracy is rampant along Somalia’s 1,880-mile coast, which is the longest in Africa and near key shipping routes connecting the Red Sea with the Indian Ocean. Somalia does not have a navy, and a transitional government formed in 2004 with U.N. help has struggled to assert control. . . The Amiya Scan was the sixth ship hijacked by Somali pirates in two months, said the Commercial Crimes Services of the International Maritime Bureau. Since Jan. 1, 24 ships have been hijacked in the Gulf of Aden, compared with 44 for all of last year. . . ***** The responsa literature of a particular culture in the area of Choshen Mishpat generally reflects the type of economic activity common to that culture. The responsa of the Ottoman Poskim are much concerned with commerce, maritime and overland, indicating that trade was a major component of the economic activity of Jews in the Ottoman Empire. Many of the responsa highlight the rather hazardous nature of the transportation of goods during the period. The land routes were susceptible to banditry, and the shipping routes to shipwreck, piracy and even mutiny. The preceding news story reminds me of this sensational responsum [Maharashdam HM 344]: ***** A boat in which R. Yosef and other Jewish merchants were traveling was captured by pirates, who seized the merchants and their merchandise. Through the mercy of God, the Venetian authorities captured in turn several of the pirates, and held them in lieu of the merchants and their merchandise. The pirates, exemplifying the notion of ‘honor among thieves’, were willing to release the merchants in exchange for their comrades, but they claimed that they were unable to return the property. The authorities relayed the pirates’ offer to the merchants for their consideration. The merchants who were in captivity were willing to accept the deal, even though it meant accepting the loss of their property, but one R. Yechiel, whose silk merchandise the pirates had taken but who was apparently not himself a prisoner, refused the deal, preferring rather to hold out for his  property.
The other merchants demanded he relinquish his claim. “Will it be good in the eyes of G-d, that we should die for the sake of Reb Yechiel’s silk!” they cried.
*****
While the question itself is fascinating from a social and historical
perspective, Maharashdam’s answer is fascinating from a Halachic perspective.
He actually begins by agreeing with R. Yechiel, citing that ‘one may not save himself with the property of another'[1] This Gemara teaches us that Beis Din cannot compel the owner of property to forfeit it even for the purpose of saving someone else’s life.
Accordingly, R. Yechiel may tell them “save yourselves (at your own expense), and pay me for my silk!”.
However, Maharashdam concludes that since the silk is obstructing the salvation of the prisoners it has the status of a rodef [2] Consequently, Reb Yechiel is obligated to forfeit his
Silk.
Maharashdam arrived at this conclusion by analogizing this case to one of a man who loaded his donkey onto a boat before the passengers had boarded. After they set sail the donkey attempted to capsize the boat. A passenger on board pushed the donkey into the river, where it drowned.
When the case came before Rabbah, he exempted the passenger from paying for the donkey.
Abbaye asked Rabbah: “But has he not saved himself with another man’s property?” Rabbah responded: “It [the donkey] was originally a Rodef” …
*****
Rambam[3] rules similarly in a case of a ship that is in danger of sinking under the weight of its load.
Rambam exempts a passenger who lightens the load by throwing it into the sea because the load is like a Rodef. Rambam even says the one who does this has done a great Mizvah.
*****
While one might say these cases are not comparable, Maharashdam analogizes them citing the Gemara which teaches the great significance of redeeming captives, since captivity is equivalent to “death, sword and starvation[4].” He determines that since Reb Yechiel’s property is causing the merchants’ captivity, it has the status of Rodef. He adds that Reb Yechiel should be obligated to forego his claim and avoid being a Rodef because, in any case, there is little hope of retrieving the silk
[His actual analysis is considerably more detailed than our
presentation here.]
Maharashdam’s basic contention that the silk has the status of Rodef seems debatable. Unlike the donkey and the load on the ship, the silk is not the fundamental cause of the problem, since the
pirates did not seize the prisoners for the express purpose of obtaining the silk.
The Gemara[5] teaches that an obstacle blocking a victim who is fleeing from a pursuer may not be destroyed with impunity.
This implies that the silk does not have the status of Rodef, since it too is merely an
obstacle blocking their release.
[I have discussed this point at some length
in Kovez Nehorai, 5765, Machon Mishnas Rebbe Ahron, from p. 634.]
[1] Bava Kama 117b
[2] A rodef is one who is in the process of trying to commit unlawful murder.
[3] Last Halachah in Hovel U’Mazik
[4] Bava Basra 8b
[5] Bava Kama Ibid
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- The Mitzvah of Baal Talin-
- Paying Workers On Time
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- 1. It is a mitzvah to pay a worker in a timely fashion[1]. One may not delay payment, even if he only intends to do so for a short time[2].
2. One must pay his worker within the onah that the work was completed. For example, if the work was finished during the day, the employer must pay the worker before night. But, if the work was completed at night, the employer has until the morning (alos hashachar) to pay.
3. Even when the prohibition of Baal Talin does not apply on a Scriptural- (D’Oraysa) level, it may still apply on a Rabbinic (D’Rabbanan) level.[4] We will begin with some examples of this differentiation and continue exploring this topic in the coming issues.
4. If the worker was hired by a shaliach (an agent of the employer), the employer is not considered to have violated the Torah precept of Baal Talin if the worker is not paid on time. However, the Rabbis forbid the employer from deliberately delaying payment in this manner if the funds are readily available. Similarly, the agent who hired the worker and delayed the wages does not violate Baal Talin as long as the worker was told that he works solely for the employer and not the agent. However, if the worker is not told that he is working solely for the employer, he may be under the impression that he works for the agent. In this case, the agent may not delay payment until the next day.[5]
5. Harav Naftali Nussbaum, Av Beis Din Nesivos Chaim of Yerushalayim ruled, that when one orders a cab from a car service (in Israel), the car service company is not considered his agent in finding him the worker (the driver). Rather, since the arrangement between the driver and the passenger is only finalized when they negotiate the fare, it is considered as though the employer (the passenger) has hired the cab driver directly. Therefore the passenger must pay the driver in accordance with the laws of Ba’al Talin.
In this circumstance the dispatcher has no connection with this business deal other than that he matches the passenger with the driver. This is because the drivers are independent and pay a monthly service fee to have the dispatcher send them clientele. There is no other relationship between them. (Note: This ruling does not apply to all car services. The ruling may vary based on the usual manner of doing business in that area. In The United States for example, most taxis and limos are owned by the company which in turn negotiates and settle on the price. Therefore Halacha would classify him as being hired through a messenger and would not be subject to the Scriptural Mitzvah of Baal Talin.)
6. In contrast, Harav Nussbaum also ruled, that when a mover delivers items from a store to a consumer’s residence, the consumer is not considered to have hired the mover personally. This applies even where they agreed that the consumer will pay the mover directly, and/or that payment is due on delivery. In this case the mover is employed by the store owner and merely acts as the storeowner’s agent. In contrast to the Halacha cited above in #5, the fact that the payment is made directly from the consumer to the mover in this case is irrelevant.
The reason the mover is considered to work for the storeowner and not the customer is that the purchased item belongs to the vendor until the item is successfully delivered to the consumer. Therefore in actuality the mover is delivering the storeowner’s item to the customer so that the customer may take possession. A proof of that is, that if the mover breaks the item in transit, the ultimate responsibility to provide a new one falls on the storeowner. In many cases the mover would be responsible to pay the storeowner for his negligence. However, should the mover not pay, for whatever reason, the vendor must still deliver a functioning item to the customer.
This being the case, there would not be any Scriptural obligation to pay on time. The customer would not be subject to Baal Talin since the mover is working for the storeowner. The storeowner would also not be obligated to deliver the funds since it was stipulated that the customer was to pay. However, there would be a Rabbinic obligation for the customer to pay as soon as he had the funds available.
[1] Tur Shulchan Aruch Choshen Mishpat (379)
[3] Tur Shulchan Aruch Choshen Mishpat (379:3)
[4] Shulchan Aruch Choshen Mishpat (339)
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The Bais HaVaad L’Inyonei Mishpat
is a coordinated effort of:
Kollel Ohel Yosef of Matersdorf, Jerusalem
The Jerusalem Institute for Dayanim
and
Kollel Zichron Gershon Lakewood, New Jersey
The Institute of Talmudic Law and Finance
The Bais HaVaad’s mission is to educate and assist the religious public with all Halachic financial matters. For further information or with any Choshen Mishpat questions please feel free to contact us at:
1-888-ITL- VAAD (485-8223)
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Yosef Y. Manela, CPA APC
5455 Wilshire Blvd.
21st Floor – Suite 2123
Los Angeles, CA 90036
Phone: (323)363-3553
Fax: (323)782-0828
:mail: info@ymanelacpa.com
www.ymanelacpa.com
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