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Shabbat Parashat Shoftim 5771

Ask the Rabbi: Claiming Damages from an Employee

by Rav Daniel Mann

Question:  I hired a teenager to do deliveries (with my van) over a period of time. He backed into a tree and moderately damaged my car. I do not want to report the collision to insurance because it will raise my insurance rates. May I demand that the driver pay for the damage?


Answer:  We cannot rule what the driver must do without hearing his side of the story. We can give you tentative guidelines about what we think you should do, although we are limited with partial information, including of the specific laws and practices of your locale.

Often people decide not to inform the insurance for minor damages; we leave that decision to you. While someone who causes you damage cannot force you to receive money from insurance and exempt him (see Ohr Sameiach, Sechirut 7:1), it sometimes is the right thing to do.

A paid worker is a shomer sachar (a paid watchman) over the employer’s property that he is working with (Bava Metzia 80b). The gemara explains that the worker benefits from the fact that the object is under his guard, as it enables him to earn his wages. Therefore, ostensibly even if the accident was not an outright act of negligence, the driver should be responsible.

However, there is a second side of the story based on additional sources, the law, and the spirit of the law. The mishna (Bava Metzia 82b) and gemara discuss one who was hired to transport a barrel and broke it along the way. Rabbi Eliezer says that the porter swears that he was not negligent and is exempt. Rabbi Yochanan explains that according to the strict law, the porter should have been obligated to pay, as a shomer sachar is exempt only from oness (circumstances beyond his control), which is not usually the case when breaking a barrel. However, the rabbis instituted a possibility for the porter to exempt himself because otherwise people would not agree to transport barrels. There is a discussion among poskim regarding a household worker who damages an object in the house during her activities (see Pitchei Choshen, Pikadon 1:(17)). The Aruch Hashulchan (CM 331:7) says that according to strict din the worker would be obligated to pay, but “the minhag of ‘straight’ homeowners” is to not make a claim unless the negligence approached the level of purposeful damage.

The extent to which one can apply these leniencies in your case is up for debate, and a dayan would do this if asked to rule based on strict din. However, there is another element of the case to consider. We understand that the standard ruling in the US (although there are differences between states) is that one who borrows a car with permission and damages is exempt from damage payment. Halacha is more likely to apply the law of the land in monetary disputes between individual Jews in cases where the two entered in an agreement in a manner that they implicitly accepted the local standards that are based on local law. Without hearing the claims of the two sides, we cannot make a determination on the matter here. However, we generally say the following.

If you paid the youngster like an experienced driver you could trust with your valuable car and paid enough that it would be worth his while to take the job even considering the possibility of having to pay car damages (without your insurance kicking in), then it is fair to demand payment for his apparent negligence. However, if you paid minimum wage (or less?), having in mind for the menial element of the job, and he (or his friends) would not have taken the job if he knew that his hard work could be wiped out by a simple mistake, then we feel it is not mentchlach to make a claim. If the negligence was of a reckless nature, the story would be different.

There is a question whether the porter who broke the barrel gets paid for a job he ended up not doing successfully (see Bava Metzia 83a; S’ma 304:1; Taz, ad loc.). However, in this case, the job he was hired for was completed, and he deserves the pay, leaving the question of reimbursement, about which we have suggested guidelines.


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