By Rabbi Meir Orlian
Mrs. Feldman was making arrangements for the Shabbos shevaberachos of her daughter, Michal. “What cake would you like for desert?” asked Mr. Miller, the caterer.
“What are the options?” asked Mrs. Feldman.
“Standard is chocolate cake,” answered Mr. Miller. “There is also babka, seven-layer, or apple-sponge for a slight addition of $1 per person. You can have a fancy cake—almost like a miniature wedding cake—at an extra cost of $600.”
“Chocolate cake is fine,” said Mrs. Feldman.
“Fine. That closes the menu,” said Mr. Miller. “I’ll e-mail you the order.”
A few days, Mrs. Feldman called back. “I would prefer a nice cake, like seven-layer or apple-sponge,” she said. “I’ll leave it to your discretion.”
“OK, I’ll change the order to ‘nice cake,’” said Mr. Miller.
The Shabbos shevaberachos was celebrated joyously. For dessert, a miniature wedding cake was put out. On top was fine chocolate, formed into letters: “MazelTov, Shalom and Michal.”
Before you knew it, the cake was almost gone.
“What a beautiful cake!” Shalom commented to his new wife. “It’s like a miniature wedding cake!”
“Yes, it’s delicious,” replied Michal. “But I thought my mother didn’t order that cake. I’d better tell my parents.”
The Feldmans went to speak with the caterer. “A lot of people have commented how good the food is,” Mr. Feldman said, “but we’re confused about the fancy cake.”
Mr. Miller took out the order. “You changed the dessert to ‘nice cake,’” he said.
“I didn’t say, ‘fancy,’ just something nice instead of plain chocolate,” replied Mrs. Feldman.
“You’re right, I remember now,” said Mr. Miller. “I hope people enjoyed it.”
“They certainly did; it’s almost completely eaten!” Mrs. Feldman laughed. “We’ll have to add payment for it after Shabbos.”
“No need,” said Mr. Miller. “You didn’t order it; my error.”
“We wouldn’t feel right,” persisted Mr. Feldman. “Michal and Shalom were pleased and that’s what counts.”
“No, no,” insisted Mr. Miller. “I don’t do business that way.”
Meanwhile, Rabbi Dayan stopped by to wish mazeltov. “A fancy dessert cake, which cost $600, was served in error,” said Mr. Feldman. “Should we pay?”
“There is no contractual liability for the fancy cake, since it was not what you ordered (mekach ta’us), but it was eaten and enjoyed by the guests,” replied Rabbi Dayan. “Thus, you should pay for the benefit you received.”
“What do you mean by that?” asked Mr. Feldman.
“An animal that ate food in a public domain (reshus ha’rabbim) is exempt from damage payments, but has to pay for ‘what it benefited,’” explained Rabbi Dayan. “According to one opinion (B.K. 20a), this is the discounted value of barley animal food. In another case (B.K. 112a), a person who had borrowed an animal died. His heirs slaughtered the animal and ate from it, unaware that it was not theirs. They don’t pay the full value, but rather ‘what they benefited’—d’mei basar b’zol, meat at a discounted price” (C.M. 341:4 391:8).
“In a third case, someone sent engagement gifts to his kallah, which included edible items, but she backed out of the engagement,” replied Rabbi Dayan. “She must pay for what she ate as d’mei basar b’zol, which the Gemara (B.B. 146b) clarifies as a one-third discount. Rashbam (s.v. “v’shamin”) extends this to any case that one must pay for food eaten that he didn’t expect to have to pay for, as in the two previous cases” (E.H. 50:3).
“Why should we evaluate this way?” asked Mr. Miller.
“A person who benefits at another’s expense has to pay for the benefit,” explained Rabbi Dayan. “The benefit, though, is not necessarily the cost of the item, because he could have sufficed with something cheaper (had he known the cost). For example, a simpler cake would have sufficed here. Similarly, the heirs or kallah might not have wanted to pay for meat, and could have eaten bread instead (had they known the cost). Nonetheless, we presume that a person would be willing to buy something better at a one-third discount” (see AruchHashulchan, C.M. 363:21.)
“Thus,” concluded Rabbi Dayan, “you should pay $400 for the cake, two-thirds of its price.”
From The BHI Hotline: Frog, Part 1
Q: A class of fourth-graders was playing baseball at a public park when Chaim announced, “I found a frog.” As he was about to scoop it up, Menachem ran over, grabbed it and lifted it up. After arguing over who owned it, they approached their rebbi to determine the rightful owner. The rebbi knows that seeing an object does not constitute a kinyan, but also knows that there is a kinyan of dalet amos. Does it apply in this case?
A: It is not uncommon for one person to find a lost object and before he has a chance to take possession of it, another person grabs it first. The first person claims that he found it first and just because he did not lift it up that should not detract from his ownership of that object. The second person will obviously claim that finding something is meaningless until one actually takes possession of it (see NachalasYisrael, B.M. 10b).
In order to avoid such disputes, Chazal enacted kinyan dalet amos—a proprietary act, which grants ownership to the first one within four cubits of the lost object as though it had already entered his physical domain (C.M. 268:2). However, there are a number of limitations to this kinyan.
This kinyan is not effective in a public domain (the halachic definition of a public domain for Shabbos is not relevant in this case—see Harav Akiva Eiger, ibid.) or in a friend’s domain. It is effective only in public areas that do not contain crowds of people. It would seem that a public park is an area where the kinyan would be in force.
Furthermore, it is also only effective for objects that the finder would otherwise be able to lift, e.g., inanimate objects and animals and birds that cannot avoid capture, either due to injury or because one is close enough to the animal that it would not be able to avoid capture (Sema 268:17). Kinyan dalet amos is not effective for creatures that could escape (C.M. 268:4). Therefore, if the first student would have been able to lift the frog, kinyan dalet amos is in force.
It is important to note that even in circumstances in which the first student does not acquire the frog—for example, in a public domain or in someone else’s field—nevertheless the issue of ani mehapech b’chararah applies. When one person has invested effort to purchase something and a second person comes along and purchases it ahead of him, that second person is categorized as wicked (rasha).
There is a dispute whether this prohibition also applies to items that could not be acquired elsewhere, such as unique items. The classic example of this situation is finding an ownerless object in the street. We cannot tell the second person to find another one, since other lost objects are likely not available, just as we cannot tell the second person to purchase another item if the item is unique.
Although halachah follows the lenient opinion (Rema 237:1), nevertheless, pious people (ba’alei nefesh) avoid taking something that someone else intended to acquire for himself (Shulchan Aruch HaRav, Hefker 10). This is especially true when it may not be considered an extraordinary opportunity as in the case of the frog, since there are likely other frogs available.
Next week, iy’H, we will discuss whether intent is necessary for kinyandaletamos and whether the enactment applies to children.
Q: I have seen some sefarim or CDs that state that the right to copy is excluded from the sale. What does this mean?
A: Some authorities, notably Harav Zalman N. Goldberg, shlita, have suggested that if the author would explicitly exclude from the sale the right to copy, one who copies would be considered a thief and liable to pay even according to the opinion that halachah does not recognize ownership of intangible intellectual property.
This notion is known as shiurb’mecher (limitation of sale). It is possible to sell an item for certain usages but not for others. For example, a person can sell his tree, but maintain ownership regarding its fruit; a person can sell his house, but maintain ownership regarding the dwelling or air rights (C.M. 209:7; 212:3). Similarly, the author can sell the book for reading and the disc for listening, but not for copying. Thus, using the book or CD for copying would be stealing it, since the book or CD was never sold for this usage.
Other authorities question the application of this notion, which we will address next week, b’ezras Hashem.
(See Pischei Choshen, Kinyanim 20:; Emek Hamishpat, ZechuyosYotzrim 38:1-2.) v
This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dinad’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 firstname.lastname@example.org. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to email@example.com.