By Rabbi Meir Orlian

“May I borrow your car for the evening?” Yehudah asked his neighbor Daniel. “I want to visit a friend in another town.”

“You’re welcome to use it,” said Daniel. “It’s an old car, though, not worth much, so I have liability insurance but no collision coverage.”

“That’s OK,” said Yehudah. “I don’t expect to get into an accident.”

Yehudah stopped along the way to eat. He parked on an incline, so he applied the parking brake. When he resumed driving, he forgot to release the brake. After driving on the highway for about 20 minutes, he smelled the odor of something burning. He stopped and checked the engine, but it seemed fine, so he continued driving.

Only when he reached his destination did Yehudah notice that the parking brake had been on. “You might have damaged the brakes!” his friend said. “You can’t drive home until they cool down and you check them.”

After spending two hours with his friend, Yehudah got into the car and tried the brakes; they seemed to respond. “I’ll take a spin around the block,” he said.

“The brakes seem all right,” Yehudah told his friend. “I’m going to head home.”

On the way, Yehudah tested the brakes and they responded properly. At one point, a truck in front of him slowed down. Yehudah hit the brakes, but they didn’t respond! He veered onto the shoulder and crashed into the barrier. Fortunately, he was not injured, but the car was totaled.

“You were negligent to drive with the parking brake on,” Daniel told him. “You clearly burned the brakes.”

“It’s unlikely that the brake failure was due to the parking brake, since the brakes only grasp the back wheels,” replied Yehudah. “Also, I tested the brakes afterward and they responded. They probably failed for some other reason, unrelated to me.”

Yehudah and Daniel came to Rabbi Dayan. “Is Yehudah liable for the car?”

“Yehudah is liable,” ruled Rabbi Dayan, “since some possibility remains that his negligence contributed to the brake failure.”

“Could you please explain?” asked Yehudah.

“A borrower is liable–even if the borrowed item was lost through circumstances beyond one’s control (oness)–unless the item failed through normal use (meisah machmas melachah),” explained Rabbi Dayan. “Thus, the Rambam (Hil. She’eilah 1:1) writes that if a person borrowed an animal to ride on and it died while traveling, the borrower is exempt.”

“However, the Rosh (B.M. 8:4), cited by the Tur and Rema (C.M. 340:3), qualifies this,” continued Rabbi Dayan. “He maintains that the borrower is exempt only if the animal died because of the work, e.g., it tripped or was overexerted and overheated. However, if there was no indication of stress, the borrower cannot swear that the animal died because of the work; maybe it died naturally. Thus, he remains liable.”

“What is the root of this dispute?” asked Yehudah.

“Beis Yosef defends the Rambam’s position that we cannot obligate the borrower out of doubt when it may have died from work,” replied Rabbi Dayan. “Furthermore, since the animal died en route, it likely died from the work; the borrower simply swears that it died while traveling. The Shach (340:7), however, sides with the Rosh and Rema. He explains that the borrower must swear with certainty what happened to the animal. Furthermore, since no exertion was noticed, we cannot presume that the animal died due to the work.”

“The Ketzos (291:11; 340:4), based on the Ra’ah, argues that when it is not known what happened to the item, the borrower is exempt (eini yode’a im nis’chayavti),” added Rabbi Dayan. “However, he agrees that if the borrower was initially negligent he remains liable (eini yode’a im peraticha), and certainly if the loss can be remotely linked to the negligence (techilaso b’peshia v’sofo b’oness), as in our case.”

“Thus,” concluded Rabbi Dayan, “Yehudah remains liable unless it is ascertained that the brake failure was completely unrelated to the negligence with the parking brake.”

From the BHI Hotline:
Delaying Salary Payment

  1. I recently made a shidduch for one of my children. At the l’chayim, the shadchan wished me mazal tov and left. It later occurred to me that he probably came for his shadchanus fee and I was so busy with the simcha that I forgot. The shadchan lives in a somewhat distant neighborhood, so it would be difficult for me to go to drop off the money. Am I required to make the effort to drop off the money to avoid violating bal talin (delaying paying an employee’s salary) and to fulfill ‘b’yomo titen s’charo’ (the mitzvah to pay an employee on completion of his term of employment)?
  2. An employer does not violate the prohibition of bal talin unless the employee requests his salary. If an employee leaves without requesting payment, the prohibition is not violated (C.M. 339:10). The Torah states, “An employee’s salary should not be withheld by you.” In other words, the prohibition is violated when the employer decides to withhold his employee’s salary, but if the employee never requests payment he is thereby agreeing to accept payment at a later date, so the prohibition is not violated (Sma 339:16).

However, it is not necessary for an employee to verbally ask to be paid. If an employee appears before his employer but does not verbally ask to be paid because he is too shy, it is considered as though he requested payment. This is because it is evident from his behavior that he wants to be paid at that time (Ahavas Chessed 9:11).

Therefore, in your case, since it appears that the shadchan came expecting to be paid, it is as if he requested payment and the prohibition applies. According to some authorities, even when an employee does not request his salary and the biblical prohibition would not be violated, it is prohibited to withhold his salary (Pischei Teshuvah 339:7).

On the other hand, it is not necessary for an employer to pursue his employee to pay his salary; the employee must come to collect. (See B.K. 46b: “The one who is in pain goes to the doctor.”) Therefore, if an employee requested payment and at the time the employer did not pay him, but later the employer contacted the employee and informed him that the money is available and the employee does not return, the employer does not violate bal talin.

There is no source that indicates that the employer has an obligation to go to his employee to pay him. The Torah only commands that an employer not withhold an employee’s salary; thus if the employee does not come, the employer is not withholding his salary (Ahavas Chessed 9:11 with Nesiv Chessed 31, Kesef Kodashim 339; cf. Mishpetei Tzedek, Garmizan 149).

It also essential to note that the prohibition of bal talin does not always apply for a shadchan. When one contacts a shadchan and asks him or her to find a shidduch, the shadchan is an employee and bal talin applies. If the shadchan initiated the shidduch on his own, he is not an employee; his payment stems from the fact that he has provided a beneficial service (hanaah) (C.M. 264:4 and Gra 264:13; 185:13). Since the obligation to pay in such a case is a general debt that one owes rather than an employment agreement, it is not subject to the prohibition of bal talin (see Ketzos 75:13).

Accordingly, when it is difficult to pay immediately, it is acceptable to delay paying the other party without violating bal talin. (See Pischei Teshuvah 89:2 for another reason why bal talin does not apply in such a case.)

Money Matters:
Repairs

  1. Who is responsible for repairs to a rental unit?
  2. This issue depends on the stipulated terms and the local practice of most people for such a dwelling (Rema 314:2; Aruch HaShulchan 314:1).

If the common practice is unclear, the guiding halachic principle is as follows: Repairs that require professional service or that relate to the structure of the house for proper dwelling are the landlord’s responsibility; repairs that are not of a professional nature and relate to daily use are the tenant’s responsibility.

For example, structural, electrical, and plumbing issues necessary for proper maintenance of the house are the landlord’s responsibility; light fixtures, furniture, and appliances are the tenant’s responsibility. If the tenant paid for repairs incumbent upon the landlord, he can deduct it from the rent (C.M. 314:1; Kesef Kodashim 314:1).

Affixing a mezuzah or roof railing, which are obligations upon the dweller, is also the tenant’s responsibility (C.M. 314:2; Y.D. 291:2; see Pischei Choshen, Sechirus 6:[6] regarding the railing of a porch intended for use). 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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