Archive for January, 2012
Sunday, 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.
Sunday, 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).
Sunday, 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.
Sunday, 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
||בית הוועד לענייני משפט