January 22nd, 2012
By: Rabbi Baruch Meir Levin
Q. I lent my new Ipod to a roommate of mine in yeshiva, clearly telling him to “make sure it doesn’t get taken away”. Unfortunately it did get taken away, by the Mashgiach. Does my friend have to reimburse me for the Ipod?
Generally a sho’el – borrower is responsible to pay for all damages that incur to the item, even those that were beyond his ability to prevent. The Mechaber in Shulchan Aruch however rules that if someone borrows a horse to ride on a certain road and subsequently, while on that road, bandits come and steal the horse from him, he is patur from reimbursing the owner. The reasoning behind this is that since the owner specifically gave it to him to ride on this road, we assume that this includes a relief from all damages that come as result of this use. This p’tur is known as maisa machmas melacha.
Here too according to the Mechaber, if the Ipod got taken away as a result of your friend using it in the Yeshiva, he would be patur since you specifically gave it to him for that use.
As for the fact that you told him to “make sure it doesn’t get taken away”, it would depend. If indeed he was not as careful with it as he should have been and did not “make sure that it doesn’t get taken away”, this p’tur would not apply, since he did not use it in the manner that you told him to. Accordingly he would have to reimburse you for the Ipod.
However, if he was careful with it, as much as reasonably possible within the Yeshiva, and still in all it got taken away, he would be patur, since after all he did try to “make sure it doesn’t get taken away”. Even though generally, the mere fact of using an Ipod in a yeshiva that doesn’t allow one would be considered negligent, in this case since you specifically allowed him to use it in Yeshiva it would not be considered negligent of him as long as he used it in the manner in which you expected of him.
However if it got taken away as part of a general search that the Mashgiach conducted in the Yeshiva, and in fact would have got taken away even if your friend would never have used it, this p’tur would not apply. As explained before, the p’tur of maisa machmas melacha is only when the loss is a result of its borrowed use. He would therefore be responsible to pay just as a shoe’l is responsible for all damages to the item, even those that would have also happened had it been with the owner.
At times a Mashgiach may only confiscate an item for a certain period of time. For example, it may be his policy to return all confiscated items at the end of the z’man. If this were the case, we would not consider it as you have sustained a monetary loss, and thus your friend would not be required to pay you anything regardless of the circumstances.
It is important to mention that whenever a borrower gets something stolen from him in manner that he is exempt from paying for it, the halacha is that he is still obligated to try and retrieve it from the one who stole it. Here too, even if your friend is patur, he would still be obligated to do whatever he can to have the Mashgiach return it to him, if there exists such an option within the framework of the Yeshiva.
This article should not be seen as condoning the use of items in a yeshiva which the Hanhala disallows; it is only dealing with the monetary halachic consequences after the fact.
 עיין בחו"מ (סי’ ש"מ ס"ג) שפסק המחבר כשיטת הרמ"ה דפטור, והרמ"א שם הביא שיטת הרא"ש דחייב. והש"ך שם (סק"ה) כתב דהעיקר כהרמ"א דחייב. ומ"מ נראה דיכול לומר קים לי כהמחבר דפטור.
 עיין בסי’ רצ"א (סט"ז) המפקיד אצל חבירו כספים בערב שבת סמוך לבין השמשות אינו חייב לטרוח ולקבור אותם עד מוצאי שבת.
 עיין בנה"מ (סי’ ש"מ סק"ה) שכ’ דגם המחבר מודה דכל היכא שאפשר שיבוא להאונס כזה אפילו לא היה בדרך דלא הוי מתה מחמת מלאכה.
 והנה היה מקום לומר דאף בכה"ג, כיון דהמשגיח יש לו רשות לקחתו מצד תנאי הישיבה לא חשיב היזק כלל, כמו שפסק הש"ך (סי’ שפ"ח סק"כ) לענין מוסר, דמי שחייב ממון להמלכות ובא אחד והלשין עליו אינו חייב לשלם לו, והטעם הוא משום שלא הפסידו כיון דחייב מטעם דינא דמלכותא דינא.
אולם בנד"ד לכאורה חלוק, דהא אין על המשאיל חיוב לתתו להמשגיח אלא שמשגיח יש לו רשות לקנסו ולקחתו אם מוציאה. ועיין שו"ת הר הכרמל (חו"מ סי’ ט’ הובא בספר פתחי חושן) שדן במי ששאל ספר שהיה אסור להחזיק ע"פ חוק המלכות ובא הממונה לבית השואל וראה הספר שם והחרימו. והעלה שם שחייב השואל לשלם ככל אונס.
 עיין בסי’ ש"ז (ס"ו) די"א דבמכה שסופה להתרפאות פטור דלא הוי אלא שבת. וכתב שם הש"ך דהוי ספיקא דדינא והמע"ה.
 סי’ רצ"ד ס"ו. והנה המחבר כתבו לגבי שומר אבל פשוט דה"ה לגבי שואל.
January 22nd, 2012
By: Rabbi Baruch Meir Levine
Q. Due to a recent flood in our apartment some of the sheetrock acquired slight traces of mold on it. I repeatedly mentioned this to my upstairs landlord with every time him telling me that he will “look into it”. Eventually, my wife got very nervous about the mold and so we just got it replaced ourselves, at a cost of $700. When I asked my landlord to reimburse me, he said he wasn’t convinced that such a small degree of mold presented any problem, and was thus hesitant to pay for it. Do we have any halachic recourse in getting reimbursed for this expenditure?
Strictly speaking, the responsibility that the halacha places on a landlord for repairs that become necessary during the course of the lease term is very limited. As such, the primary basis for requiring a landlord to make any repairs would lie in his obligation of conforming to the accepted practice among landlords in the area.
Whenever two parties enter into a rental agreement or for that matter any other financial agreement with one another, unless specified otherwise, we will assume it was done with the understanding that each party will follow the common practice of that particular agreement. This effectively obligates the parties to conform to these common practices. For example, even if the rental contract doesn’t mention a requirement for the tenant to give the landlord advance notice before terminating the lease, he would still be required to do so if that were the accepted practice in that area. Similarly, the landlord would be required to make any repairs that would be accepted for a landlord to do for that particular sort of rental.
As such, the answer to your question would not be halachic per se, but rather would depend upon whether or not the typical landlord in your community, would replace sheetrock with such mold on it, either on his own consideration or because the law required him to do so.
However, even if we cannot ascertain that it would be the accepted practice to make these repairs, your landlord may still be obligated to reimburse you, at least in part, for your expense.
This basis for this would be the halacha of yored, (loosely translated as an unsolicited worker). The halacha is that anytime one does work for another on his own initiative, and the work is of monetary value to the recipient, he, the recipient is required to pay the worker the going rate for this work, even though he never hired him to do so. In Chazal’s view, benefitting from such work without reimbursing the worker, would be tantamount to gezel – theft. Of course if the worker had in mind to do the work as a favor for the recipient this halacha wouldn’t apply.
In your scenario, even if the mold was not severe enough to require your landlord to repair it, chances are, he would end up having to do so before renting out the apartment to a new tenant. Hence, you have improved his property in a manner which will be beneficial to him and have the halachic status of a yored. Therefore, according to many poskim, your landlord is required to reimburse you the $700 for the project, provided, that is the going rate for such a job. Furthermore, even if you had done the work yourself and only paid for the material, he would still be required to pay you $700, since that is what he would have otherwise had to pay for this service.
Even if the circumstances were such that the landlord would have never find it cost effective to spend the $700 for these repairs, certainly he would have been willing to pay some amount of money in order to have the mold removed. As such, he would be required to reimburse you for this amount that he has benefitted.
However, in any case, since these improvements will only present a benefit to him when you move out, he would presumably not be required to pay you until that point.
 עיין ברמ"א (ס’ שי"ד סק"א) דאם נשבר דבר בהבית תוך ימי השכירות אם אמר לו בית זה אין צריך לתקנו. ועיין בקצה"ח שהקשה ע"ז ממה שכ’ המחבר (סי’ שי"ב סי"ז) ע"פ שיטת הרא"ש דאם הבית קיים אלא שמסוכן לדור בו חייב המשכיר לתקנו. ועיין בבהגר"א שכ’ דהוי מחלוקת המחבר והרמ"א. ועל כן יכול המשכיר לומר קים לי כשיטת המחבר. אולם אם המשכיר אינו מתקנו יכול השוכר עכ"פ לבטל השכירות.
 עיין בתשו’ הרשב"א (ח"ב סי’ רס"ח) שהאריך בענין זה, ובתוך לשונו כתב "וכן אתה דן בכ"מ במה שנהגו בממנות וכו’ אפילו לא הסכימו בפירוש בני המדינה אלא שנהגו כן סתמא, הוא מנהג חזק כאלו התנו בו בפירוש, ואפילו לא כתבו הרי הוא מן הסתם כאלו כתבו וכו’ " עכ"ל.
 רמ"א (חו"מ סי’ רס"ד ס"ד). והנה בנ"ד השוכר עשה הפעולה להנאת עצמו, והרמ"א כתב (שם גבי יורד לציל) דאם הוציא הוצאות בשביל עצמו ודרך אגב אף חבירו נהנה מזה אינו צריך לשלם לו. אולם עיין בתשובות והנהגות (להג’ ר’ משה שטערנבך שליט"א סי’ תפ"ט) שביאר דזהו דוקא כשלא הגיע לחבירו הנאה של ממוני גבך רק שנהנה מפעולתו אבל כשיש ביד הבעה"ב הנאה של ממוני גבך חייב לשלם אף כשכוונת היורד היה להנאת עצמו. וכעין זה מסיק בחבצלת השרון (חחו"מ סי’ ל’) ובפתחי חושן (הל’ גניבה ואונאה פ"ח הערה לב’). אולם עיין בתשו’ הרא"ש (הובא בטור סי’ רע"ה) דמשמע דאפילו בכה"ג פטור, ויש ליישב. ועיין עוד בנתה"מ (סי’ שמ"א סוסקט"ו.) שכתב דיש לחייבו כמו שותפין שכופין זל"ז בדבר שהוא לטובת שניהם.
 חו"מ (סי’ שע"ח ס"א) דבשדה העשויה ליטע אומדין כמה אדם רוצה ליתן, והיינו השבח אפילו כשהוא יתירא על ההוצאה. אולם כשההוצאה יתירא על השבח כתב בבהגר"א (סק"ט) דפילו בשדה העשויה ליטע אינו נוטל אלא השבח.
 חו"מ (שם) דאפילו בשדה שאינו עשויה ליטע מ"מ צריך לשלם לו ההוצאות עד שיעור השבח.
 כן כתב הנתה"מ בסי’ שמ"א (בסוף סקט"ו).
January 22nd, 2012
By: Rabbi Tzvi Price
For the last two years, I’ve been living in an apartment and paying rent of $750 a month. My landlord never discussed with me anything about a rental period and we never signed a lease. Today he informed me that starting tomorrow the rent will now be $875, and if I don’t agree to pay it, I should leave by the end of the week.
Q. According to Halacha, is he allowed to raise the rent like that?
Applying Civil Law
The first thing that must be determined in order to answer your question is whether or not any governmental ordinances apply to your apartment rental. Various sorts of laws and statutes restricting the rights of the landlord have been enacted by many local governments (Lakewood Township included). For example, many townships have made it illegal to raise the rent more than a specified percentage per year, usually somewhere in the range of 5 to 7 per cent. However, there are often exceptions and dispensations built into these laws, so it is important to find out the exact application of the civil law to your case.
Why does Beis Din consider these civil rent laws applicable to a rental between a Jewish landlord and a Jewish tenant? Shouldn’t Torah law apply here? A number of halachic authorities discuss whether or not the principle of dina d’malchusa dina (“the law of the land is the law”) gives halachic legitimacy to civil rent-control laws. Although there have been arguments made on both sides of that issue, both Chazon Ish and Igros Moshe rule that now that these laws are on the books and enforced by the civil authorities, they have attained the status of being a Jewish marketplace custom (minhag). It is for this reason that civil law regarding apartment rentals apply to rental agreements made between Jewish landlords and Jewish tenants. They argue that since the rental marketplace at-large customarily operates according to all the applicable civil ordinances, when a Jewish landlord and a Jewish tenant enter into a rental agreement they do so under the assumption that their transaction will also follow the general marketplace custom. Nevertheless, it is still possible for a situation to exist in which a self-contained Jewish rental marketplace has clearly not accepted civil ordinance as customary.
Applying Torah Law
In situations where it is determined that rent laws have not been enacted or are not applicable, or where those laws have not been accepted as customary in the Jewish rental marketplace, then Torah law as codified in Choshen Mishpat would determine the rights and obligations of the tenant and the landlord.
According to Halacha, neither the tenant nor the landlord has the right to change the price of the rental for the currently agreed-upon rental period even if the marketplace value of the rental has changed significantly. In other words, signing a year lease locks in the rent for that year.
However, in your situation no lease was signed and no rental period was agreed upon. In this case, the landlord does have the basic right al pi halacha to raise the rent as he wishes. However, if the new rental price demanded by the landlord is above the current fair market value of the apartment then the landlord is required to give the tenant a month’s notice before the raise in rent can take effect. If the new rent is not above the fair market value, then no prior warning is required and the new rental price takes effect at the beginning of the coming month.
Let us apply these rules to your case. You said that you are now paying $750 a month for your apartment and your landlord is asking for $875. If similar apartments to yours are now going for $875 a month, then your landlord can raise the rent immediately. Technically, he even has the legal right to inform you of the raise on the 31st of the month and it would take effect the next day on the 1st, though doing would seem not to be very menschlich. However, a raise in rent cannot take effect during the middle of a month – only at the beginning of the coming month. Your landlord cannot inform you on the 15th that he is raising your rent starting the 16th. This is because the default rental period for apartments is from the 1st of the month until the end of the month. Of course, it would be your choice to either pay the higher rent for the coming month or vacate the apartment before the month starts.
If, however, similar apartments to yours only go for $750, then, although your landlord has the right to raise the rent to $875, Halacha requires that he notify you a full thirty days prior to the rent increase taking effect in order to give you time to find a different apartment to rent. If you choose to stay in the apartment and pay the higher rent then you must start paying the new amount starting from the 1st of the coming month. If you choose to vacate the apartment, then for the thirty days after notification of the rental increase you may continue to pay rent at the $750 rate.
 See Shu”t Imrei Yoshor, chelek 2, siman 152, os 2, and Chaveles Hasharon, Ch.M., siman 8, and Shu”t Chibas Hakodesh (mGr”a Kletzkin) siman 81. And see Amek HaMishpat, Hilchos Schirus, siman 55, os 12.
 See Shu”t Ateres Shlomo (HaGaon R’ Shlomo Karelitz, zt”l) siman 88, os 1
 Chelek Ch.M. 1, siman 72
 Choshen Mishpat 312:10
 Choshen Mishpat 312:6.The landlord raising the rent is tantamount to requiring the tenant to vacate the premises. See Amek Hamishpat Schirus, siman 27, os 2. See Amek Hamishpat, Schirus, siman 4, os 4 that rules that in our times 30 days notice applies even in the winter months when vacant apartments are not as easy to find. However, if in a particular community it is known that no apartments are available during a certain time period, then a landlord in that community is not allowed to raise the rent above the market value during that time period even if he has given thirty-days notice.
 Choshen Mishpat 312:9
 See Amek Hamishpat siman 28 for a discussion regarding this halacha as it applies to a situation in which someone actually makes an offer to pay a higher rent than the current tenant is paying.
 As indicated from the wording of the Teshuvos haRosh klal 1, siman 6
 Although the landlord cannot be legally stopped from charging more than the market value for his apartment he still may be transgressing an issur if he does so. Ramban in his commentary on Chumash (Vayikra 25:14) states that although in land sales (and rentals) the buyer (or tenant) has no legal redress when overcharged, there is still an issur on the part of the seller (or landlord) to do so. However, see Mishneh Lemelech, Hilchos Malveh v’Loveh, perek 4, halacha 1, which would indicate that there is no issur to overcharge in land sales.
January 8th, 2012
I am an interior designer and I charge $100 per hour for my time. I spend time with the customer discussing their preferences as well as visiting specific stores looking for the right tiles, furniture, and moldings etc. As I was shopping around one day (without my client), one of the local vendors offered me a “kickback” of 10% for every customer that I bring through the door. This is obviously very inticing as my customers spend tens of thousands of dollars every month. Presently, I am accustomed to shopping around at many different stores for my purchases. I assume if I had this arrangement I would use this store much more often, if not always.
Q. Am I allowed to take the “kickback” in addition to my fee from the customer?
Actually, as a matter of Halacha, accepting kickbacks can lead to a number of potential problems. It is important, that whenever a decorator, a builder, a buyer, or a referring professional entertains the thought of taking a kickback, they must use extreme caution so as not to transgress any of the following four potential issues:
Double Dipping. Many times, when a specific vendor is dealing with a decorator and offering a kickback, the added “expense” inhibits the vendor from offering the customer any type of reduction or discount which they would typically offer the average customer. Consequently, the customer is “paying” the decorator the lost discount on top of the negotiated hourly fee. Since that was clearly not the agreement1 the decorator is receiving a higher fee than was negotiated at the customer’s expense. This is obviously Gezel.
Embezzling the hourly fee. A decorator’s job is to represent and protect the client in an unfamiliar marketplace. She is expected to shop and negotiate on behalf of the buyer and work with the customer’s sole interests in mind. A decorator that allows their decision-making abilities to be influenced by a potential kickback is not fulfilling their obligation to the customer. The fee being charged would therefore be undeserved, and must be returned.
Lifnei Iver Lo Sitein Michshol. A person that gives an Eitza She’eino Hogenes; a suggestion that is unsuitable, transgresses the Issur of Lifnei Iver.2 The Toras Cohanim expounds and writes “Lest you say ‘I am giving him a good Eitza’ behold the [truth] is in the heart as it says ‘V’Yareisa Me’Elokecha’”. In addition, The Torah applies a unique curse to one that misleads the blind.3 Therefore, if a decorator recommends a certian vendor based on a potential benefit, if the Eitza is not proper they would transgress this Issur.
Shochad. The Issur to take a bribe in its simple form is directed to Dayanim. However, the Poskim write that the prohibition is carried over to anyone who has been put in an authoritative position to make decisions for, or in relation to others.
The Pilpula Charifta4 writes:
“….and I write this as instruction to those that have been placed in a position of authority over the general population, even though their decisions are not [involving] Din Torah, and they were not appointed for that reason, even so they should be careful not to accept presents to effect their decisions”
Rav Nissim Karelitz5 takes this one step further and Paskens that a teacher may not send an expensive Shloach Manos to a the administration of a school that is having difficulty making payroll and who issues paychecks to the teachers on an arbitrary basis. This would be viewed as shochad as the administrator may allow this financial consideration to influence his decision as to who would get their paycheck first.
In addition6, Moisdos must be careful not to allow financial considerations affect the quality of Chinuch. For example, if there is a child that should be dismissed from a school and the Hanhala does not do so because the parents are supporters of the Yeshiva, this may be a violation of “Lo Sikach Shochad”.
In summation, these issues can come to light in many areas of business and daily life. Whether it is a mortgage broker shopping for a loan, a stock broker who is pushing a specific stock, a real estate agent who is showing a client a number of different properties, or a store-owner or salesperson showing pieces of jewelry or articles of clothing. Extreme caution must be used to ensure we are looking out for the benefit of the customer and not being influenced by the level of the commission or kickbacks. As in many areas of Choshen Mishpat, if this arrangement is clearly explained to the clients, it would be acceptable.
This article has been written by The Bais HaVaad L’Inyonei Mishpat and is meant for awareness purposes only. A slight variation of the facts can significantly change the Halacha. For Choshen Mishpat related questions or services please contact The Bais HaVaad office located on 32 Fifth St. in Lakewood N.J. or call 1.888.485.VAAD(8223) or email info@BaisHaVaad.com
1 which is clear from the fact that the customer has the right to shop at a store that would not offer this benevolence to the designer at the customer’s expense
2 תורת כהנים פר’ קדושים (י"ט:י"ד) ע"ע מסילת ישרים (פרק י"א ד"ה בענין נתינת העצה)
3 דכתי’ "ארור משגה עור בדרך" (דברים כ"ז:י"ח)
4 על דברי הרא"ש פרק זה בורר בסי’ י"ז (אות ש’)
5 הובא בספר משפטי צדק (סי’ ט’ בביאור משפט ד"ה צריך הדיין ליזהר)
6 כך מוסיף שם מעצמו
February 16th, 2011
By: Rabbi Yitzchok Basser
I was at a Melava Malka for woman for a certain organization and heard an inspiring Drosha. I would like to make a generous contribution.
Q: Must I consult my husband before I donate? What if I know that my husband generally is not so generous and falls short of the amount of Tzedaka that a person of his financial standing is obligated to donate. May I compensate for this by giving Tzedaka without his knowledge?
The Halacha is that a married woman may give a small amount of her husband’s money to Tzedaka without his knowledge. We can assume that the husband allows her to do so. The size of this donation depends on the financial standing of the household.
However, if the husband specifically said that he does not want her to make any donations, then she can’t give any money to Tzedaka. (Shulchan Aruch 248:4)
The Miserly Husband
Aruch Hashulchan (YD 248: 11, 13) rules that in a society where Bais Din is unable to compel people to give an appropriate amount of Tzedaka, a woman is permitted to be the one to force her husband to give by doing so without his knowledge. However, Aruch Hashulchan emphasizes that this can only be done based on the directive of the local Rav, who determines that according to this person’s wealth we would force him to donate this amount.
Shevet Halevi (Vol.5 132:7) disagrees with this ruling. He references the Halacha (YD 148:1) that even when Bais Din forces a person to give Tzedaka, they may only take his property in his presence, with his knowledge. Surely the wife, even if she is acting on the directive of the Rav, has no more authority than Bais Din.
If the Woman is the Breadwinner
It’s important to note that the above discussion is in the case that the husband earns the household money and the wife wishes to donate some of it to Tzedaka. Another issue discussed by the Poskim is when the woman is the primary breadwinner. Does she then have the right to give whatever money she chooses to Tzedaka?
The Halacha is that a man is obligated to support his wife financially. In exchange, Chazal decreed that whatever money the woman earns belongs to her husband. (However a woman has the option to waive her right to be supported by her husband, in which case she retains whatever she earns.) The question is if the husband does not actually support her, does he nonetheless acquire his wife’s earnings?
This question was addressed by the Maharit (Vol. 2 CM 67). He distinguishes between if the wife supported her husband from the outset of the marriage, and when the husband initially supported his wife. In the former case, the wife definitely retains the money she earns. In the latter case, there is a debate among the Acharonim as to the Maharit’s intention. Some explain that he is unsure who the money belongs to, while others understand him to mean that it belongs to the husband (see Pischei Choshen vol. 9 Ch 10, note 21).
The Chazon Ish (EH 70:6) rules that even if the husband supported his wife only at the very beginning of the marriage, he still retains ownership of all her subsequent income. Since he was providing for her when she earned her first paycheck, he acquired that paycheck. When he uses that money to support her, he has provided her needs with his own money. That entitles him to acquire the next paycheck. This cycle repeats itself, causing the husband to perpetually acquire his wife’s income.
It is noteworthy that there is some debate among the Acharonim in the event that the woman’s parents support the couple. Shu”t Giva’as Shaul (Siman 33) considers any parental support as discharging the husband’s obligation, enabling him to acquire his wife’s earnings.
However, Maharsham (vol. 4, 92) disagrees. He says that support given to the couple by the wife’s parents is intended solely to be for the wife’s benefit, and does not constitute support by the husband. However, money received by the couple as wedding gifts definitely belongs to the husband.
Another consideration is that even if the money does belong to her, there is further disagreement among the Acharonim whether she may keep it outright, or whether it must be invested in a manner that enables the husband to benefit from the profits that accrue (see Igros Moshe EH Vol. 1:106 per Gilyon Rabbi Akiva Eiger EH 80:1; cf Bais Meir ad loc who questions this premise). According to this opinion she would not be permitted to donate the money without her husband’s consent.
On a final note, Shevet Halevi (vol. 2, 118) quotes the Maharshal that although a woman generally is only permitted to make a minor donation to Tzedaka, if she is the breadwinner she can assume that her husband gives her permission to make any donations she wants. Even if technically the money is his, since if he were to protest his wife’s generosity she might discontinue earning money, we assume that he gives her permission to donate as she sees fit.
As far as a woman who is inspired to make a donation (without consulting her husband), it depends on the circumstances. If the family is well off, and a donation of this size is not considered a significant amount of money, she is permitted to assume that she has her husband’s permission to do so. However, if he has stated that he does not want her to donate to Tzedaka without consulting him, she may not do so even if he does not give an appropriate amount to Tzedaka.
If she is the breadwinner she may give as much as she sees fit, as we assume that her husband consents. If he specifically denies consent, there is a machlokes Acharonim as to who really owns the household money and it may depend on what happened at the outset of the marriage.
February 8th, 2011
By: Rabbi Yitzchok Rosedale, Rosh Chabura of the Bais HaVa’ad Cincinatti Morning Kollel
In 2002 I bought a property for $240,000. At the time I put down $40,000 as a down payment. In 2006, the property was appraised for $440,000 whereupon I decided to refinance the property and borrow an additional $200,000. I have since spent that money and did not pay maaser on those funds at the time. Unfortunately, as the real estate market crashed in 2009, I was not able to maintain the monthly mortgage payment and it became evident to the bank that the loan would default. I was able to negotiate a short sale so that the bank would accept a sale of $240,000 and forgive the remaining $200,000 of the loan. I indeed managed to sell the property for $240,000 and the bank forgave the rest of the loan.
Q. Is there any obligation to give Ma’aser on the money that I received from the refinance? In any event, do I have an obligation to give maaser now that the debt was absolved?
MAASER ON A LOAN
The basic requirement to pay maaser applies to net income that one earns. All business related expenses that are needed to generate this profit are deducted from the revenue and the remaining net income is subject to maaser. Therefore, if one borrows money from a bank to invest in a business that will generate net income at some point, there is no obligation to pay maaser on the funds that are borrowed from the bank since these funds must be paid back. Only once net income is generated, then there is an obligation to pay maaser on the net income.
In your case, when you borrowed the additional $200,000, you were still required to pay that money back to the bank and were therefore not obligated to pay maaser at that time. Furthermore, even when the bank forgave the debt of $200,000, that $200,000 is not considered new revenue and is therefore not subject to the requirement of maaser.
INCREASE IN VALUE
In a similar vein, R’ Moshe Feinstein maintains that when your property was appraised at $440,000, there was no immediate requirement to pay maaser on that capital gain even if you had not borrowed an additional $200,000 from the bank; only once the property is sold and would have yielded a net gain, then the obligation of maaser would apply. This is because a capital gain is only considered a gain once the actual money is realized.
A STOCK PORTFOLIO
This is applicable to someone who invests money in stocks. If the value of one’s stock portfolio rises, there is no immediate requirement to pay maaser until the stocks are sold and a net gain is realized. It is also interesting to note that when calculating a capital gain, a rise in value due to inflation does not create a maaser obligation. The gain is considered artificial in nature because the value of currency has decreased.
CREDIT CARD SETTLEMENT
If a person accumulated a large credit card debt of say $30,000 and the credit card company later agrees to settle the debt for $15,000, there is no obligation to pay maaser on the funds that were forgiven by the credit card company. [The reason for this is the same as above with regards to the forgiven bank debt. ]
A complication arises when a business generates a profit, but the owner decides to reinvest those profits into the business. Is there an obligation to pay maaser on those gains, or since they are being invested into the business and not spent on personal use, it is not subject to maaser until the owner takes a distribution from the business? Many Poskim are of the opinion that there is no obligation to pay maaser until the business entity distributes money into one’s personal spending account. Others are of the opinion that if the profits are reinvested in order to maintain the viability of the existing size of the business, there is no obligation to pay maaser. If however the money is being used to expand the size of the business, maaser would be required to be paid on the profit. Finally, there are other Poskim who maintain that as long as the business generated a profit, even if the profits were not distributed, those profits are subject to maaser. However, one is not required to sell any assets to pay this debt to maaser and one can defer this payment until monies are available.
 שו"ת חות יאיר (סי’ רכ"ד) וכן פסק הערוה"ש (סי’ רמ"ט סע’ ז’) ואהבת חסד (ח"ב פי"ח סק"ב) ושו"ת מנחת יצחק (ח"ה סי’ ל"ד אות ו’).
 שו"ת חות יאיר (הובא בפתחי תשובה סי’ רמ"ט סק"א). ובשו"ת שאילת יעב"ץ פקפק בזהה ודעתו דאין מנכה ההוצאות. והערוה"ש (שם) מיקל בזה, וכן פסקו באהבת חסד (שם) ובמנח"י (שם).
 כן פסק בחוט שני (הל’ יו"ט עמ’ שנ"א) דבתים או קרקעות וחפצים שעלה ערכן, א"צ לתת מעשר מתוספת ערכן שהרי אין רגילין ליתן מעשר מחפצים. ואפי’ אם בגלל תוספת ערכן מקבל בעל החפצים זכויות שונות, כגון קבלת הלואות גדולות וכיו"ב, הרי הוא נותן מעשר כספים רק מן הרווחים שבפועל יצא לו מן העסקים. וכל עוד שלא מכרן ומקבל דמים בעד שוויין, הרי הם כחפץ ולא כממון, עכת"ד. אולם, הגרש"ז אויערבאך זצ"ל (הובא בקול התורה חוברת ל"ט שנת תשנ"ו עמ’ צ"א) יש לו שיטה אחרת בדבר. וז"ל השאלה מי שלוה מעות מבנק ולקח עמו בנין לעסק, ואח"כ עלה הבנין בשוויות, והלך ולוה עוד הפעם מהבנק על סמך בנין זה, ושעבד רק הבנין להלואתו ולא שעבד שום בנין אחר, וגם לא שעבד גופו בכלום, והקרן והרבית של ההלואה החדשה משתלמים כל חודש ממעות השכירות שיוצא מהבנין. תשובה, מעצם התיקרות הבנין יש לתת מעשר. ובמקרה דידן שההלואה ניתנה על סמך השכר דירה שעתיד לקבל ורק זה משועבד, חשיב כאילו גבה השכר דירה מראש, ודינו לתת מעשר מיד בקבלת ההלואה, עכ"ל. הרי דעתו דחייב לעשר בכה"ג על התיקרות הבנין אפי’ לפני שמכרו.
 כן פסק הגרי"ש אלישיב שליט"א, וביאר הטעם דפטור ממעשר מאחר ואינו בעין. והגר"נ קרליץ שליט"א ג"כ פסק דפטור ממעשר ומטעם אחר, דהוי כמתנת מטלטלין שהמנהג שאין מעשרים ממנו (הובא בספר באורח צדקה פ"ט הע’ כ"ד). וכן שמעתי מהג"ר חיים כהן שליט"א דפטור בכה"ג משום דלא חשיב ריוח.
 הגר"מ פיינשטיין זצ"ל מובא בספר אהלי ישורון.
 שו"ת אג"מ (יו"ד ח"ב סי’ קי"ד), הגרש"ז אויערבאך זצ"ל (קונטרס קול התורה חוברת ל"ט עמ’ פ"ז), שו"ת שבט הלוי (ח"ט סי’ ר"א), שו"ת וישב משה (ח"א סי’ ט"ז), וצדקה ומשפט (פ"ה הע’ ל"א).
 כן שמעתי מהגר"ח כהן שליט"א ומהג’ ר’ שמאול פירסט שליט"א (דיין דאגודת ישראל דאילנוי).
 כן שמעתי מהג"ר שמואל פעלדער שליט"א.
 הגרש"ז אויערבאך זצ"ל (הובא בספר באורח צדקה בתשובתיו בסוף הספר ס"ק ל"ג) וז"ל השאלה, חברה שיש לה ג’ שותפין ומחלקים רק חמשים אחוז של הריוח בסוף השנה, אכן השאר נשאר בהחברה כדי שירוויחו יותר ממנה, האם מחוייב הוא לעשר חלקו הנשאר בה"חברה". תשובה: יש לתת מעשר מזה שהעסק הוגדל שוויו ע"י ההשקעה, ודינו כמו במקבל מתנה שאינו חייב למכור בשביל המעשר. והוא הדין אם העסק התייקר בגלל איזה סיבה שהיא כגון שהסביבה התייקר, יש לת מזה מעשר.
December 19th, 2010
By: Rabbi Baruch Meir Levin
I recently borrowed a gown from a gemach for a family wedding. At the wedding someone accidently bumped into me and spilled a glass of juice over the gown. Unfortunately the cleaners were unable to get out the stain and the gown is now ruined.
Q. The gemach now wants me to pay them $800 for the value of the gown. Am I hallachically required to do so?
One who borrows an item is termed a Sho’el, and is responsible to pay for any damages to the item, even those of onsim (unavoidable damages). On the other hand one who rents an item is termed a Socher, and only responsible for genaiva v’avaida (loosely translated – avoidable damages even not due to negligence).
Now many gemachs charge a fee (usually $75 – 150) to “borrow” their gowns and as such these would not be considered loans but rather rentals. Even if the charge is only to cover the operating costs of the gemach, and even if it is termed “a donation”, nevertheless as long as the ability to use their gowns is contingent upon making a payment to them, they would be considered rentals.
Read the rest of this entry »
February 9th, 2010
By Rabbi Yehonason Dovid Hool
Reuven, an American tourist in Israel, wishes to borrow some Israeli shekels from his friend and fellow tourist Shimon, and arranges to repay the loan when they return to the US. Is there any Halachic objection to this arrangement, and if not, if Reuven repays the loan in US dollars should he use the exchange rate of the day of the loan or the day of repayment.
The halachos of Ribbis, the prohibition of paying interest, are numerous and complex, but we shall try to present a very brief summary with regard to the subject at hand.
The Torah forbids paying interest on a loan. So it would be forbidden to borrow $100 and repay $120. To borrow a kilo of flour and to return 1.5 kilo would likewise be forbidden. However, there should be no problem borrowing a kilo of flour and returning a kilo. Nonetheless, Chazal prohibited such loans (with exceptions, as will be explained), for the following reason.
In situations of inflation or deflation, the Halachah regards the currency as being stable and everything else as fluctuating. So if one borrows, for example, $100, one pays back $100, even if there was deflation in the interim and the $100 has more buying power than it did at the time of the loan. If, however one borrows anything other than currency, e.g. food, goods etc. there is a concern that in the interim there may be inflation, and the goods will increase in value, so that if one repaid the same amount of goods one would actually be paying interest. For example, if one borrowed a kilo of flour from a neighbor, and returned it a week later, and in the interim the price of flour increased, returning a kilo of flour would entail repaying the loan with something that is worth more than the original loan, which involves the prohibition of paying interest.
Therefore, in general Chazal prohibited lending anything other than currency, for fear that the value may increase before the repayment of the loan.
However, there are two leniencies built in to this prohibition. Firstly, if the price is stable, it is permitted, because there is no concern that the price will increase. Secondly, if the borrower has at least a small amount of the borrowed item, it is also permitted. For example, it would be permitted to borrow a kilo of flour if the borrower has at least some flour of his own at home.
What about different currencies? The consensus of opinion among the Poskim is that foreign currency that is not readily usable in the country where the loan is taking place is considered as goods rather than currency.
So to borrow American dollars in Israel would not be permitted unless the borrower owned at least one American dollar of his own. (It has been reported that, in the particular case of US dollars in Israel, Rav Elyashiv shlit”a was inclined to regard dollars as local currency since many significant transactions such as real estate dealings were quoted in dollars. However, since the weakening of the dollar in the last couple of years has caused the market to move towards shekels, it is doubtful whether this would still apply.)
Now we approach the question in hand. What if a loan took place in the local currency, but the repayment takes place in a different country in the local currency of the place of repayment? For example, one lends shekels in Israel with the repayment in US dollars in the US.
There would appear to be a difference of opinion as to how to regard this loan.
Rav Yosef Gelber (Nesivos Sholom 162:1) is inclined to consider this as a loan of money, as this is the local currency at the time of the loan. As such, there would be no problem with the actual loan. When the time would come to repay the loan in the US, one could either pay the same amount of shekels that was borrowed or alternatively, pay the amount in US dollars at the exchange rate of the time of repayment.
(If you want to fix the repayment in US dollars at the exchange rate which is valid at the time of the loan, in effect the “lender” is buying dollars, and it would only be permissible if the borrower has somewhere in his possession the entire value of the loan in US dollars
December 29th, 2009
by Rabbi Yehonoson Dovid Hool
I have a dispute with Orange cellular phone Company. I want to go to the small claims court. I want to know if I have to take them to beis din 1st? I was verbally told that calls to a specific number were free, by an Orange Employee. I signed an electronic sign pad connected to a computer, and never saw nor got any contract. I made lots of calls to this number based on what I was told and I got a bill for close to $300 for calling the number. I told them of the error and they would not speak to me. I requested to go to court and they agreed. Later I got a lawyer’s letter I did not read demanding close to $800. A month later they put liens on my property and got the courts to ratify taking over $1000 from my account. I was told the only recourse is maybe through the small claims court. Do I have to go to Beis Din 1st & who do I file against?
Normally one may not go to Court unless one has first summoned the defendant to a Beis Din and he has refused to some.
However, if someone claims against you in a Court you may certainly go to court to defend yourself.
Furthermore, with public companies such as Orange there is virtually no chance that they will agree to an arbitration in Beis Din; indeed more often than not the company rules do not permit such a procedure without the approval of the board of directors. In such circumstances there is no need to apply for permission from Beis Din, and you may go straight to court.
Rav Moshe Shternbuch suggests that just in case, you add to your claim in Court a clause to the effect that “As far as I am concerned I would prefer arbitration in Beis Din.”
December 29th, 2009
by Rabbi Baruch Rubanowitz
About a year ago, someone who works at city hall said he could help us get a permit to do some work in our new house. Shortly thereafter, our contractor’s assistant called us and said that he could get us the permit, and that if we went through the other guy rather than through him, he would block it. He also told us he would gather much of the necessary architectural papers and plans since that would be very helpful, we agreed to do it through him.
A few months later he told us he was ready to start work on actually getting the permit and took from us half the payment that we had agreed upon. Now, many months later, he phoned us to tell us that in fact he cannot obtain the permit and we will have to go back to the first man.
1.Since he took half the money, is the contractor’s assistant liable for any damages that we may incur either in getting the permit (e.g., if man #1 now wants to charge us more since by now we have signed on the apartment and are “stuck,” whereas when we spoke to him last year we had not yet finalized the purchase) or if we cannot get the permit at all? For instance, is he responsible for paying us the difference between the cost of a house with the addition and the same house without the addition?
2.If so, since we have a short-term cash crunch, can we take back most of the money we gave him so many months ago or would this nullify his responsibility to us in any way?
Thank you for you time and energy.
Generally, issues regarding money cannot be fully presented in a letter (since I cannot ask questions of each party). Often a question regarding money and legal rights presented by one side will yield an inaccurate response, albeit by no fault of the questioner.
Nonetheless, I will try to give you some direction on this issue, as I understand you have a meeting shortly and wish to proceed with as much information as possible.
I wish to emphasize that this is not to be regarded as a psak on this case, but rather a learning session on some points that may be relevant to your case.
When a person offers to act as an agent to secure a deal, he cannot receive the agreed-upon compensation for his work unless the deal is actually closed. If the endeavor fails, he does not receive the agreed-upon fee. A good example of this would be a shadchan. A contractor also falls into this category.
Mordechai (Baba Kama 173) discusses a case in which Reuven asked Shimon to ask Levi, who lives in another city, to marry Reuven’s sister. Levi came but the shidduch did not go through. Shimon claimed his fee on the grounds that he brought Levi to Reuven’s city. The psak was that Shimon couldn’t claim his money unless it was agreed that he would be paid to bring Levi to the city even if the shidduch did not go through.
The Beis Yosef (185 mechudash 2) understands a Teshuva of the Rosh as saying that payment may be required even when a deal doesn’t go through. See Mishpat Shalom 185, which suggests a distinction between cases in which it is common for people to take risks and people may offer an agent money to do work even though they know the outcome is questionable, and cases where people don’t pay unless the job is completed. He also posits (based upon the Machane Efraim) that it could depend who suggested the job. If the contractor proposed that he do a job and was unsuccessful, then he would not receive anything. But if the contractor was asked to do the job and did what he was asked, then he should be paid, even though the deal didn’t go through. These possible factors may play a role in your situation. These factors are not universally agreed upon.
I do not see how the extortionist you were dealing with would be liable in a court of Torah law for any causative damages you may suffer due to his inability to get you the proper permit. If the new agent charges more money for the service, the first agent is not financially responsible. Nor is it his responsibility if you do not get the permit at all and your house is less valuable.
if you can recoup the money that you gave him, i recommend taking whatever you can get. you might be entitled to all of it, but it would be a battle against a muchzak.
||בית הוועד לענייני משפט