By Rabbi Meir Orlian

Mrs. Levine was clearing out her pantry. “Gadi, please take these boxes of cookies to yeshiva,” she told her teenage son. “You can give them to your friends. I’m sure they’ll be happy to finish them.”

Gadi distributed the cookies to his classmates. “Almost finished,” he announced. “One box left.”

“Can I have it for my brother?” Yisrael asked.

“Sure,” Gadi said. He handed Yisrael the last box. “Take this for your brother,” he said.

Just then, Gadi’s best friend, Ari, entered the room and saw the empty cookie packages all around. “What’s going on here?” he asked. “Is someone having a party?”

“My mother decided to clear out the pantry,” said Gadi. “She asked me to distribute the cookies.”

“I’m starving,” said Ari, laughing. “I could really use some cookies now!”

“Sorry,” said Gadi, “but I just gave the last box to Yisrael for his brother.”

“For his brother?” questioned Ari. “Where’s his brother?”

“He’s home,” said Yisrael. “I’ll bring it to him tonight.”

“Would you mind giving the cookies to Ari?” Gadi asked Yisrael. “Ari’s my best friend and he’s here now. Your brother won’t even know he missed anything.”

“I already took the cookies for my brother,” said Yisrael. “I can’t give them away without his permission.”

“But the cookies do not yet belong to your brother,” said Gadi. “They’re still mine until he receives them, so you can give them to Ari.”

“I’m not convinced that they’re still yours,” replied Yisrael.

Just then Rabbi Dayan walked in. “Let’s ask Rabbi Dayan,” suggested Ari.

The three boys approached Rabbi Dayan. “I gave Yisrael a box of cookies to take for his brother,” said Gadi. “Can he give them to Ari, or do the cookies already belong to his brother?”

Rabbi Dayan ruled: “Yisrael already acquired the cookies for his brother and he has no right to give them to Ari without his brother’s permission.”

Rabbi Dayan then explained: “This case is an example of the halachic concept zachin l’adam shelo b’fanav–it is possible to acquire (something) on behalf of a person not in his presence. When a person accepts a gift on behalf of someone else, the recipient of the gift acquires it immediately. The one who gave it can no longer back out or give it to someone else” (C.M. 243:1).

“What is the basis of zachin l’adam?” Yisrael asked.

“The Gemara (Kiddushin 42a) derives this concept from the division of the land of Eretz Yisrael, in which the leaders of each shevet received the shevet’s portion on behalf of the entire shevet,” explained Rabbi Dayan. “Tosafos explain further that zachin l’adam is an extension of the law of shelichus, agency. The person accepting the gift serves as an agent to receive the gift on behalf of the recipient” (Kesubos 11a; see, however, Ketzos HaChoshen 105:1).

“What if Yisrael’s brother is not interested in the cookies?” asked Ari.

“A person cannot be forced to receive something against his will,” replied Rabbi Dayan. “Therefore, the recipient has the ‘upper hand’ and can choose either to keep the gift retroactively or to refuse it.”

“Does that mean that every time I give you something for someone else it becomes his already?” asked Gadi.

“The application of zachin l’adam depends on the exact language used,” Rabbi Dayan concluded. “The language must indicate that the accepting person was meant to acquire the item immediately on behalf of the recipient, such as: ‘acquire,’ ‘take’ or ‘accept for’ so-and-so’ (zechei). However, if Gadi had said to Yisrael, ‘deliver’ or ‘bring’ the cookies ‘to your brother’ (holeich), the language does not indicate immediate acquisition on behalf of the recipient. In that case, Yisrael’s brother would not acquire the cookies until he received them. The term ‘give to so-and-so’ (tein) is questionable, and subject to dispute” (C.M. 243:2—3; 125:6—7).

From The BHI Hotline: Whose Robe?

Q: I went to purchase a robe and found one I liked, but it wasn’t my size. I asked the owner whether she had it in my size, and she informed me that someone had just taken home that size, but if she does not like it she will return it. The owner called that customer, who informed her that she decided not to buy it. I promptly paid for the robe. However, a few minutes later the woman called to say that she had decided to keep the robe.

Who has the right to the robe–the original customer or me, since I already paid for it when the other customer decided not to keep the robe?

A: Shulchan Aruch (C.M. 200:11; and see C.M. 186) rules that one who takes merchandise that has a fixed price from a craftsman to examine it is liable for that merchandise even if an oness (unavoidable mishap) occurs. Some authorities explain that that person is liable because he is a loke’ach–purchaser. Since the merchandise has a fixed price, the customer purchased it with the stipulation that he may return it. Others contend that until the customer decides to purchase the merchandise, he is merely a borrower (sho’el) of the merchandise, since he benefits from having it in his possession (see Tosafos, B.B. 87b; Nesivos 186:1; and Kehillas Yaakov, Nedarim 24).

Authorities disagree about his liability after he indicates that he does not intend to complete the purchase. Some contend that once indicated, he becomes an unpaid custodian (shomer chinam) and is liable only for negligence. Others assert that since he had the right to acquire the item, he is now categorized as a paid custodian (shomer sachar) (C.M. 200:11 with Sma 31). Rashbam (cited ibid. by Tur and Sma) argues that the customer is liable even for oness until the merchandise is returned. According to some, the rationale is that although he decided not to purchase it and thus is not the “owner,” nevertheless, he remains a borrower (sho’el) until he returns it to the owner (Nesivos 186:1, 2).

According to these opinions, since the potential customer is a borrower, the craftsman is the owner who may sell it. Moreover, even according to those who categorize him as a purchaser, which would prevent the craftsman from selling the merchandise, once he informs the craftsman of his intent to return the merchandise, the sale is voided and the craftsman may sell his merchandise to another customer.

Others explain that the potential customer’s liability for oness even after canceling the purchase is that the purchase is not canceled until the merchandise is returned, and until that time he remains the “owner.” Accordingly, he retains the right to reverse his decision to cancel the transaction and can force the craftsman to sell him the merchandise. Therefore, once a mishap occurs that prevents him from returning the object, the sale agreement cannot be canceled, and he must pay for the unreturnable object (Divrei Mishpat 186:2; also see Divrei Chaim, Shluchin 18).

Accordingly, in your situation, since the original customer had not yet returned the robe, she retains the right to change her mind and make the purchase.

It seems, however, that since the customer was aware that someone else was interested in purchasing the robe, once she indicated her intent to return it, she wants the merchant to sell it so that the merchant will not have a complaint that she caused the merchant to forfeit a sale. Therefore, the sale to the second customer is valid.

Money Matters:
Payment Of Wages

Based on the writings of Rav Chaim Kohn, shlita

Q: What are the mitzvos and prohibitions related to payment of wages?

A: Payment of wages is like any other monetary obligation. Therefore, cheating a worker of his wages is tantamount to stealing from him. Furthermore, there is a specific prohibition against withholding wages: “Lo sa’ashok es rei’acha–You shall not cheat [i.e., withhold wages from] your fellow” (Vayikra 19:13; C.M. 339:1—2; Sma 339:4).

Moreover, there is a mitzvah to pay wages in a timely manner and there are prohibitions against delaying payment: “B’yomo siten scharo, v’lo savo alav ha’shemesh–On that day you shall pay his hire; the sun shall not set upon it” (Devarim 24:15); “Lo salin pe’ulas sachir itecha ad boker–A worker’s wage should not remain with you overnight” (Vayikra 19:13). Even when these prohibitions don’t apply, Mishlei (3:28) admonishes one not to delay unnecessarily: “Do not tell your fellow, ‘Go, and return, and tomorrow I will give you,’ when you have [the wages in hand].”

These pesukim underscore the importance the Torah attributes to prompt payment of wages. v

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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