By Rabbi Meir Orlian

Mrs. Friedman was in the supermarket. In tow were her five-year-old son, Boruch, and two-year-old daughter, Malka. She placed Malka in the seat of the shopping cart, and Boruch in the cart itself.

Mrs. Friedman walked up and down the aisles, choosing the items that she needed. She stopped by the jarred goods and put some jars of jelly into the cart. Someone else wanted to go by, so she moved the wagon closer to the shelf.

She turned her back to the wagon for a moment to check an item that was on sale.

Suddenly, she heard the clatter of shattering glass, five in a row! Mrs. Friedman quickly turned around and saw Malka swiping at the jars of jelly. Baruch had gotten up and was also leaning over threateningly.

“Malka! What did you do?” she exclaimed.

“The jelly falled,” Malka replied, with a puzzled look on her face.

“Not good, my dear,” Mrs. Friedman rebuked her. “You made the jelly fall and broke the jars. See what you did!”

One of the workers hastened over. “Please move away,” he said. “We have to clean away the glass immediately, so that people don’t get injured!”

Mrs. Friedman moved the wagon along. She kept to the middle of the aisle.

Mrs. Friedman called her husband. “I stopped the wagon in the aisle of jars,” she said. “Malka knocked some jars of jelly off the shelf and broke them. Do I have to pay the supermarket for them?”

“I’m not sure,” replied Mr. Friedman. “I’ll call Rabbi Dayan right away and ask.”

Mr. Friedman called Rabbi Dayan and reported the situation. “In almost all situations she is,” replied Rabbi Dayan. “The Mishnah (B.K. 87a) teaches that a child under bar mitzvah who damages is legally exempt, since he has no legal culpability. Nonetheless, Rema writes that a child who sinned should do some means of atonement when he matures. Thus, if he stole or damaged, it is proper that he or his parents pay” (C.M. 424:8; O.C. 343:1; Mishnah Berurah 343:9).

“This would not seem to apply to a very young child, though,” noted Mr. Friedman. “She has no intent at all to sin.”

“Even so, the mother is liable for a number of reasons if she negligently placed the child in a situation where damage was likely,” said Rabbi Dayan. “Some authorities compare this to a person who stands an animal (even not his) on someone’s grain. The person is liable for what the animal ate, since it is natural and clear that the animal will damage and eat the grain. The person is considered as damaging through eish (fire) or garmi (directly caused damage)” (Pischei Choshen, Nezikin 5:39[87]; Yashiv Yitzchak, vol. VII, C.M. #53).

“And if it is not clear?” asked Mr. Friedman. “Let’s say the child was not so close, but leaned over?”

“There would still be an obligation towards Heaven (chiyuv b’dinei Shamayim),” replied Rabbi Dayan, “for having brought about the damage (grama)” (Moznei Tzedek, vol. III, C.M. #32).

“Does the parent have a responsibility to watch over his children?” asked Mr. Friedman.

“A person is liable for damage done by his animals, since they are his property,” replied Rabbi Dayan. “This rationale would not apply to one’s children, though. Nonetheless, some authorities write that a parent has a responsibility as his children’s natural legal guardian to watch that they do not damage” (Teshuvos V’Hanhagos 3:477).

“Thus, your wife must offer to pay,” concluded Rabbi Dayan. “The store manager can choose to accept the offer or not, depending on the amount of loss and store policy.”

 

From The BHI Hotline: Rental Payments
For A Lost Bicycle

Q. I rented my friend’s bicycle for $10 a day. After a couple of days, it disappeared. What is my obligation? Do I have to pay for the missing bicycle? If so, am I obligated to also pay rent for the days I had the bicycle? If I am obligated to pay rent, how is that calculated? Do I pay according to the days I had the bicycle, or does my obligation encompass the number of days that transpired from when the rental began until I pay him for the missing bicycle?

A. Someone who rents an object is categorized as a shomer sachar–paid custodian–who is liable if the object is stolen or lost. Therefore, unless the loss is the result of an oness–unavoidable mishap–you must repay the owner for the stolen bicycle (C.M. 307:1). The obligation would be to repay the owner the value of his used bicycle at the time that it went missing, not the cost of a new bicycle (Nesivos 309:1; Minchas Pitim).

The question is whether there is an obligation to also pay rent for the bicycle.

Some suggest that the renter’s commitment to pay for use of the object does not apply when the object is lost or stolen, unless he has explicitly committed to pay the rental fee in addition to paying for the missing bicycle (Shach, C.M. 309:1). Others contend that this is true only when it was stipulated from the outset that if the bicycle is stolen or lost the renter will pay the owner in accordance with the bicycle’s value at the beginning of the rental term rather than its value when it went missing. If such a stipulation was agreed upon, the renter would not have to pay rental fees for the time he had use of the bicycle in addition to the cost of the missing bicycle.

Two rationales are offered to explain this halacha: 1. When the renter agrees to pay the value of the bicycle at the outset of the rental period if the bicycle goes missing, it emerges retroactively that the owner sold the bicycle to the renter at the outset, and thus he may not charge rent for what turns out to not have been his bicycle (Nesivos). 2. The intent of such a stipulation is understood to mean that in the event the renter will have to pay the cost of the bicycle, he will not have to make any rental payments (Beis Ephraim, C.M. 45—46).

When the rental agreement did not include the above provision (that he will pay the value of the bicycle at the time of rental) and the item becomes lost, there are those who maintain that he owes rent up until the time that it becomes lost. Before it was lost, the bicycle remained in the possession of the owner, and the renter must pay the owner for use of his object. The renter is not obligated to pay rent after the bicycle is lost since he is now obligated to pay for the bicycle, and it is considered as if the owner conveyed ownership of the bicycle to the renter (Nesivos). According to this opinion, even if the original agreement was a rental for a period of time, he only pays rent until the time it was lost.

Others contend that when renting for a specified period of time, the renter is obligated to continue paying rent for the agreed duration of the rental agreement, even after it is lost. Entering into a rental agreement obligates the renter to pay the full amount of the rental agreement (Beis Ephraim; see Nachalas Tzvi).

 

Money Matters: Poor Person, Service Provided

Based on the writings of Rav Chaim Kohn, shlita

  1. There is a preference to employ a poor person; this is the highest form of tzedakah (Avos 1:5; Y.D. 249:6, 251:6). Ketzos HaChoshen (81:3; 264:4) writes that a person who committed verbally to hire a poor person is legally bound, since it is like a pledge to tzedakah. Later authorities disagree, since the commitment was of a business nature, not of charity, unless the employer promised advantageous terms because of the worker’s need (Beis Shlomo, C.M. #17; Maharsham 1:38 and Mishpat Shalom 185:10[11]).
  2. A person who asks another to do work for which compensation is generally given cannot exempt himself from payment by claiming that his intention was to have the work done for free. Even if the service was provided without being asked (e.g., a shadchan who offered a shidduch), the beneficiary must pay, unless the person stated beforehand that he does not want the service or will not pay, or circumstances indicate that the service was provided gratis (Rema, C.M. 264:4; Pischei Teshuvah 264:3; Pischei Choshen, Sechirus 8:[64])

This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’malchusa to consider in actual cases.

Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, which is headed by HaRav Chaim Kohn, shlita, a noted dayan. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, please call the confidential hotline at 877-845-8455 or e‑mail ask@businesshalacha.com. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to subscribe@businesshalacha.com.

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