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| Issue #003 Tamuz 5768-July 2008
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| Debugging Over Dinner
“There it goes again. I’m telling you, there is something seriously wrong with this computer. We must bring it to be fixed.” Sensing his wife’s frustration, Mr. Levy agreed. “I’ll call a technician in the morning.” Afterwards he reconsidered. “One second! Didn’t we invite the Pinto family for dinner tomorrow night?” Why don’t I ask Mr. Pinto to have a look at it when he comes over? He’s a computer technician. I’m sure he’ll be glad to help!
The next night at dinner, found Mr. Pinto toiling over the Levy computer. After about a half hour he returned to the table with a grin. “Your computer is good to go. I will skip the soup and join everybody for the main”.
A week later Mr. Levy was shocked to receive a bill from his ‘good friend’ Mr. Pinto. The bill read “For services rendered” and was priced quite exorbitantly . “Can you believe he actually charged us for the work?” Mr. Levy asked his wife incredulously. “Do you think I have to pay him? I thought he was doing it for free. I had no intention of paying him. After all, we are friends”. “Humph” Mrs. Levy added indignantly. “Well if he really saw this as a business engagement why don’t we send him a bill for dinner? Do you know what such a meal would cost in a high class restaurant?!”
Upon reading the above story, one might conclude that the individuals in this case have extremely poor etiquette. At the very least, the Levy’s should have asked Mr. Pinto before he came over if he minded having a look at their computer. It is also likely that most of us would have the common sense to clarify that services were being rendered for a fee, before just sending a bill.
However, according to the Poskim the points being made by both the Levy’s and Mr. Pinto touch on some very practical issues that relate to us all.
Ramah [1] teaches: “If one performs a task or a favor for his friend; the recipient may not say ‘You surely did this for me as a favor.’ Rather, the recipient of the favor must pay the ordinary wages.”
Ramah in another location [2] quotes a similar but even more surprising Halacha in the name of the Terumas Hadeshen, “One who invites his friend to a meal saying, ‘Why don’t you eat with me’ may charge his friend for the meal afterwards, unless it was clearly stipulated, or otherwise obvious from the circumstances that he was offering to cover the cost of the meal.”
Nesivos HaMishpat [3] clarifies the first ruling with an important limitation. The worker may only charge for the work if he clearly intended to do so when he performed the work. However, he is not allowed to charge if he initially thought about doing it for free, and only decided afterwards to ask for payment.
Consequently, in the above case, the Levy family must pay the Mr. Pinto for his services although they had no intention of doing so when they actually ‘hired’ him. In contrast however, Mrs. Levy may not send a bill for her delicious meal. For unlike Mr. Pinto, she served the meal with no intention of charging for her goods and services.
[1] Choshen Mishpat (264:4) in the name of the Ran
[2] Ibid (246:17)
[3] Ibid (12:5) |
 CRANE COLLAPSE AND KNASOS
By: Rabbi Yitzchak Grossman
From
a recent AP story:
*****
Owner
of NYC building hit in crane collapse sues
By
SAMUEL MAULL Jun 20, 2008
NEW
YORK (AP) The owner of a building that was badly damaged in a deadly
crane collapse has filed a $100 million lawsuit against the crane
owner, contractor and others working on a new 32-story apartment
tower across the street. …
The
plaintiffs contend the crane … was “improperly and
hazardously welded” and that that was concealed from the city’s
Buildings Department.
The
investigation into the May 30 collapse has focused on a crane part
called the turntable. Investigators say it was taken off another
crane with cracks in it more than a year ago, rebuilt and installed
about a month before the accident.
*****
While this case is obviously being dealt with in civil court, examining the situation as it would be dealt with in Beis Din yields some highly interesting points. For example: What
conditions must be met for Halachah to hold the crane owner or
operator liable for the damage caused by its collapse? Must we
establish that he had been aware of, or had been warned of, the
danger? If a warning is required, must it be a formal notice from
Beis Din?
The relevant Halachos follow:
“A
wall and a tree that fall into a public domain and cause damage do
not generate liability … since they are not comparable to a pit,
for their initial establishment was not dangerous. …
If
they are unstable, Beis Din gives the owner a deadline to cut down
the tree and to demolish the wall. And how much time is he allowed,
thirty days. If they collapse before the deadline, the owner is
exempt, [but if they collapse] after the deadline, he is liable,
since he has delayed their removal.” [Shulchan Aruch CM 416]
Rema
comments that the owner is only liable if he has been warned by Beis
Din (as implied by Maran’s previously cited language):
“But
only if Beis Din has warned him, but without Beis Din, even if his
friends have warned him, that is insignificant.”
Rema
also rules that in an emergency, we compel him to act immediately:
“If
the matter is urgent and there is a concern that it will cause damage
to others, we do not give him a deadline, but we compel him to remove
the dangerous object immediately.”
Rema
adds a third point:
“And
all this applies where he originally built it properly, but if he did
not originally build it properly, and because of that the wall fell,
he is liable for the damage it causes.”
Is
an owner who has not been formally warned still exempt even if he is
perfectly well aware of the dangerous situation? Rav Avraham Chaim
Shor maintains that he is not:
“[The
owner is exempt,] for what could he have done, he is Anus, since he
did not know that they were unstable. But if it was generally known
and recognized that they were unstable, and they warned him, … he
is liable. And that which the Rashba [the source of the first
aforementioned Hagah] wrote … is referring to where [the danger] is
not generally that well known and recognized, and therefore as long
as he has not been warned by Beis Din, he may say ‘I thought that
they would not yet fall.'” [Toras Chaim on Bava Kama 6b s.v.
Ha’Kosel, referenced by Rav Akiva Eger in a gloss to Shulchan Aruch
CM 307:3]
As
proof of this distinction, Rav Shor cites a responsum of Rosh
concerning the following case: A tenant stored wheat in a warehouse.
The pressure of the wheat on the warehouse’s walls eventually caused
their collapse, which in turn caused the collapse of other structures
that had been supported by the warehouse, which then caused further
damage to the neighbors’ property. Rosh rules that if the tenant had
known of the deterioration of the walls and had been warned by the
neighbors to remove his wheat and had nevertheless failed to remove
it, he is liable for the ensuing damage, as we see in the
aforementioned Halachah of the tree and the wall:
“But
certainly, if the deterioration of the walls was recognized and
known, and the neighbors warned him to remove the wheat and he did
not remove it, he is Poshea, [as in the aforementioned Halachah] …
and so too in our case, since they warned him and he did not request
time to move the wheat and the walls collapsed, he is Poshea and he
is liable for all the damage that he has caused to the landlord and
to the neighbors, since it is considered ‘Giri Di’Lei’, that his
burden weighed heavily on the weak walls that could not support them
and thereby caused their collapse.” [Rosh, Responsa, 87:6-7,
cited in Shulchan Aruch CM 307:3]
Rav
Shor explains that although we have seen that the tortfeasor is not
normally liable unless he has received an official warning from Beis
Din, in this case he is, since the problem was generally known and
recognized.
Note,
however, that Nesivos [307:1] has a different resolution to the
apparent contradiction between the Rosh and the Rashba, and according
to his interpretation, it seems that the instability being generally
“recognized and known” is insufficient grounds for holding
the owner liable.
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The Halachos of Baal Talin Part II
-Itcha -“With You”
The Torah commands us not to delay a workers wages saying, “You shall not keep overnight the wages of your worker with you until morning.” The words ‘with you’ seem to be extra. The Talmud derives numerous important laws from this seemingly extra word.
I. If the worker does not request his wages, the employer has not violated the prohibition of Baal Talin [1].
II. The pasuk states “lo salin peulas sachir itcha.” The word ‘itcha’, with you, teaches that the Torah forbids delay of a worker’s wages only when the delay is solely due to the employer’s desire to hold back the money against the will of the employee. If the worker does not request his money he is clearly not bothered by the delay, and the delay is not attributed solely to the employer.[2] However, if the worker does not request his wages because he is too embarrassed to demand payment, the employer has violated the prohibition.[3]
III. Some authorities maintain, that the employer must still pay immediately even if the worker has not asked for his wages and the actual obligation of Baal Talin is therefore mitigated. [4]
IV. The laws of Baal Talin still apply even if a worker demands his wages through a shaliach.[5]
V. The extra word itcha also teaches that the employer only violates the prohibition when he has money with him. If the employer does not have money when the worker demands his wages, he does not violate Baal Talin.[6] However, if he obtains the funds before the end of the proscribed deadline for timely payment, he must notify the worker. If this is impossible, or if it impossible for the worker to return to collect the money, the employer must bring the money to the worker.[7]
VI. If the employer deposited money with someone to be watched as a pikadon, or he lent money to an individual, and the time for paying his worker has come, the employer must ask for the money back in order to pay his worker.[8] Therefore, if one deposited money with a gemach or a bank, he must recover it in order to pay his workers on time.
VII. Many authorities are of the opinion that if an employer has items which are commonly sold he is required to sell them in order to pay the worker if he does not have enough money on hand.[9]
VIII. Some authorities rule that if the employer has no money on hand and no merchandise to sell he must take out a loan, if possible, in order to pay his worker. This is especially true if the worker is an ani, a poor person.[10] Others disagree saying that he is not required to take out a loan. Rather, it is considered to be a midas hachassidus, an act of piety.[11]
IX. An employer is not required to suffer a great financial loss in order to pay his worker on time.[12] However, he would be required to accept a small loss.[13] Therefore, the employer is not required to prematurely redeem certificate of deposit or similar investments since often that would mean the very significant loss of all the interest that has accrued.[14] A similar ruling applies to the selling of stocks and bonds at a loss.[15] If the loss is minimal however, he must incur the loss to perform the Mitzva. If one does not want to incur this minimal type of loss, one should take out a loan instead in order to pay on time.
X. Although one does not violate the prohibition of Baal Talin if he does not have money to pay his worker, one may not hire a worker if he knows he will not have the money to pay on time. However, if the worker knows beforehand that the wages will be delayed it is permissible.
XI. The Chofetz Chaim rules that if an employer plans on being away on a trip until after the required time of payment he must set money aside and make the necessary arrangements in order to pay his workers on time.[16]
1 Mishnah, Baba Metzia 111. Toras Cohanim on Parshas Kedoshim, Shulchan Aruch
2 S’MA s”k 19
3 Ahavas Chesed, chapter 9. heara 29. The reasoning is that his actions prove that he does not want to overlook the money
4 See Shaar Mishpat, 2, in the name of the Zohar. His words are quoted in the Pischei Teshuva 7 and in Ahavas Chesed, 11.
5 Rav Akiva Eiger. This opinion disagrees with the Halachos Ketanos, Chelek 2, teshuva 31. See the Aruch Hashulchan, 12, who rules like Rav Akiva Eiger although this is a matter of discussion amongst the Achronim.
6 Baba Metzia, 112. Shulchan Aruch, 10.
7 Ahavas Chesed, Ibid, heara 30-31.
8 Ahavas Chesed Ibid 7.
9 Ahavas Chesed, Ibid, in the name of the Ritva and the Sefer Hachinuch.
10 Ahavas Chesed, Ibid, heara 21.
11 Shulchan Aruch HaGraz, Siman 8, in the name of the Arizal. It is also brought down that the Arizal would not daven mincha until he had obtained money for his workers.
12Sefer Hachinuch Mitzva, 588.
13 See the Ahavas Chesed, heara 21, who learns this way.
14 HaGaon Harav Naftali Nussbaum and HaGaon HaRav Y. Silman ruled accordingly.
15 HaGaon Harav Naftali Nussbaum and HaGaon HaRav Y Silman ruled accordingly. HaGaon HaRav Zafrani also was of this opinion unless it is absolutely not customary to sell this type of item. In that case it is more comparable to an item which is not designated for sale
16 Ahavas Chesed, 10-12. See also Sefer Hachinuch, Mitzvah 588, who writes that a person should have the money to pay his workers in hand before hiring them.
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