ASK THE RABBI

We will deal with the question of the form of payment and take no stand on how much, if at all, they owe you. That requires hearing both sides and appraising the clothes’ value.

Not always does halacha require one to make payment in the form of cash. Regarding a regular loan, one who has cash must pay cash (Shulchan Aruch, Choshen Mishpat 101:1). However, regarding damages, even one who has money may give objects of the same value (ibid. 419:1). Although one who pays damages with real estate has to give the choicest level of fields that he possesses, he can pay whichever and whatever level of movable objects (m’talt’lin) he wants (Shulchan Aruch, ibid). This is because m’talt’lin are considered a choice form of payment, as the recipient can take them to wherever he wants and sell them (Bava Kama 7b).

Now let’s analyze the type of payment that the laundromat is offering. They are offering a service that is of value only in a very limited context (laundering at a single establishment). Therefore it lacks the broadness of m’talt’lin, which one can take with him. However, if they give you a written credit that can be sold to anyone, the certificate is arguably like m’talt’lin, as it can be sold if the recipient personally has no use for it. Is this really so?

There is a similar case that is discussed by the poskim, albeit in the context of a loan, which can serve as a precedent for our case. The Shulchan Aruch (ibid. 101:2) accepts the opinion that if a debtor has a loan contract against a third party, he can give it over to his creditor as payment. The Rama (ad loc.) concludes that this can be done even if the debtor has standard m’talt’lin that he could give as payment. The concerns of those who do not allow such payment (see Tur in the name of Sefer Haterumot) are as follows: the loan contract is not something of intrinsic value; there is a danger that after receiving the loan contract as payment, the creditor will be unable to extract payment from the third party. Since we see that the Torah expected payment to be in a relatively safe and accessible form, the contract does not seem to be up to the qualifications.

Our case is similar in that in both one cannot practically take the document anywhere to sell it, but, on the other hand, it certainly is more movable than land. Our case is better in that the person who is trying to thereby exempt himself from payment is the one providing the service. If he reneges on the credit, the court case will resume from the same point. Both cases have similar questions as to whether a document can be considered as the equivalent of money (see K’tzot Hachoshen 101:2).

It is important to note that the Shach (CM 101:3) argues on the Shulchan Aruch and Rama and says that a loan contract can be used as payment only when no standard m’talt’lin exist. Even they say that the value of the contract is not its face value but depends on how much a person would pay for them, after considering how easy it is to extract payment from the specific debtor. In this case, the laundromat’s reputation and accessibility would be factors.

In such matters, accepted standards emanating from laws or social norms may affect the halacha. It seems to us (albeit before extensive research) that, in this type of case, proprietors often give this type of compensation. We understand why you would prefer to get cash, and you now understand that it might be legitimate for them to give you a credit as compensation. Assuming that you would not prefer to drag the matter to a din Torah and that you may lack ways of exerting effective pressure, this might be the best way to get them to agree to return to you the most value for your loss.

For simplicity’s sake we will deal with this as a theoretical case occurring in Israel and avoid factors that might arise elsewhere due to local considerations.

The gemara (Bava Metzia 26a) discusses one who finds an object in an ancient wall, where there are signs that it has been there since before the Israelites conquered Israel. It says that the finder (even if it is not the owner of the property) can keep the object. Tosafot (ad loc.) asks why the property (chatzer) did not acquire the lost object on behalf of its owner even without his knowledge of the object’s presence (see Bava Metzia 10b). Tosafot answers that one’s chatzer can acquire things only when it is expected that the owner will eventually find them.

In our case, it could very well have been that the owner would never have found the object and, therefore, the money remained unowned (presumably; see discussion below), allowing the contractor to acquire it upon finding it. This basic idea is accepted as halacha in the Shulchan Aruch (Choshen Mishpat 260:1) but there are two possible explanations. The S’ma (ad loc.:2) says that a chatzer acquires only objects of hefker (ownerless status) but not lost objects even when their owner gives up hope of recovering them. The Netivot Hamishpat (ad loc.:3) says that it all depends on whether the owner was expected to find it some day, as Tosafot says. Either way, the contractor would be correct in our case. (The fact that the contractor was working for the homeowner at the time he found the package does not change the halacha- see Shulchan Aruch, CM 270:3.)

However, there is another factor that, in a society without special laws of lost objects, was not considered. Even if we assume that the owner of the money cannot be discovered, does that mean that the finder can keep it? When the person stashed the money, he apparently planned to take it at some time. We lack sufficient grounds to conclude that he decided to never retrieve the money. It is likely that something happened that either made him forget the money was there or that he died without taking the opportunity to inform someone where he put the money. Since (virtually) everyone has some sort of inheritor, even if the owner died, there would seem to be a new owner who may not even know that he inherited money and thereby cannot have yeiush (give up hope). Since that which allows a finder to take an object (even one without signs) is the presumption of yeiush (giving up hope), the finder would have to hold on to it and entertain the remote possibility that someone will come and prove his ownership (see Rama, CM 260:10).

We have to see why in the gemara’s case, the finder could take the old lost object. There is an opinion that it has to do with the fact that it was left over from the nations that were conquered long ago, making it not applicable to a regular case. However, the accepted assumption is like the following Netivot (260:1). The idea is that in the situation where one loses something in a manner that it is unlikely to ever be retrieved, his lack of control prevents inheritance from occurring and it becomes hefker (see also Netivot 256:1 and Pitchei Choshen, Aveida 3:5 and 7:(10)). Therefore if we can ascertain that the money has been hidden long enough for us to presume that its owner died, the contractor could keep the money. If not, the matter would raise new, complicated questions that are beyond the scope of this theoretical discussion.

The response is based on the information provided.] Apparently, those who ate from the questionable keilim violated no Torah prohibition. Involved discussion of this question’s kashrut element is beyond this presentation’s scope, but the most pertinent point follows. If the taste given off by a k’li has a negative impact on the food with which it came in contact, which is assumed if the k’li had not been used in 24 hours, the food remains kosher (Yoreh Deah 103). One who is unaware of the recent use of a non-kosher k’li can assume that food heated in it remains kosher because it was likely not used that day and, even if it was, the taste may combine negatively with the new food (see Shulchan Aruch, YD 122:7 with commentaries). However, it is rabbinically forbidden to use a non-kosher k’li even if it was not used within 24 hours in a manner that it may give off taste (Avoda Zara 76a).

If one sells another Jew non-kosher food without disclosure, the buyer can void the sale (Shulchan Aruch, Choshen Mishpat 234:3). The mishna (Bechorot 37a) says that even if the buyer ate the food and thus cannot return it to the seller, the seller must return all of the money. Rashi (ad loc.) posits that this is a penalty against the seller, prompting the Shach (YD 119:25) to say that this would not apply if the seller was unaware of the problem. The S’ma (234:4) adds that any benefit the buyer received was counteracted by the disgust of eating non-kosher food.

The Shulchan Aruch (ibid.) says that if the prohibition on the food was only rabbinic, the seller does not have to return the money when it was eaten. Although the Pri Chadash (YD 119:24) says the buyer recovers the price difference between non-kosher food and that which he paid, most poskim say that the seller returns nothing. How can the seller withhold the kashrut problem and end up getting a higher price than the food’s market value? The Maharit Algazi (Bechorot 5:51) explains that since the buyer got the same benefit as if it had been kosher and would have anyway paid the price of kosher food (and the seller did lose when the buyer ate it) he must pay the planned price of the enjoyment. The Shach (ibid.:27) says that when the Rabbis instituted food prohibitions, they stipulated that the prohibition should not cause the extracting of money between litigants.

According to the Maharit Algazi, ostensibly since X was willing to pay the amount he did and benefited as if it were mehadrin, he should not get any money back. However, the Shach’s novel idea to treat rabbinically non-kosher food like kosher food regarding money is limited. When one pays extra for a special feature, whether it be for “environmentally friendly” or for mehadrin, he should not pay the higher price if he received instead something standard. We should consider also that since X was troubled already during the affair about the kashrut questionability, he did not get the feeling of security that people who want mehadrin pay for. Despite the reasons to return this extra amount of the money (and the Pri Chadash’s aforementioned minority opinion), it is difficult to extract money from Y. However, it is appropriate, based on compromise, for Y to return the difference between kosher and mehadrin (approximately 10%), as Y was originally willing to do.

Ordinary partners who put money into one ante do not divide the profits and losses according to each one’s proportionate ownership; rather, profit and loss is split in the middle (Talmud Ketuvot 93a; Shulchan Aruch 176:65).

Such is the rule according to all opinions when they purchased something that profited which is impossible to divide, such as an ox for plowing or for sale. The same rule applies where partners bought a factory and by similar cases.

However, the rule is different in a case where partners bought an item which can be appropriately divided, like fruits or an ox for slaughtering, which they could divide its parts, or merchandise that one is able to divide. In such a case, the Amoraim disagree whether one divides the proceeds proportionately or not. The Shulchan Aruch rules that one indeed distributes in a proportionate manner. However, the Tur and the Shach seem to rule that the wages are equally distributed in all cases (Ibid, sif katan 10).

The Sma (sif katan 15) and the Aruch HaShulchan (Ibid.) argue regarding the reason behind the ruling. According to the Sma, since it is impossible that the greater portion would profit at all without the smaller portion (since only a complete ox could plow—and not ninety percent of an ox), the partners are therefore equal in their participation to profit.

According to the Aruch HaShulchan, since there was no advance stipulation between the parties, each partner apparently consented to divide the profits on an equal basis.

According to all opinions, if the partners would have explicitly stipulated how to distribute the profits, the stipulation would be binding.

Therefore, if laws and ordinances of the country exist how to distribute profits in a partnership, and these laws are explicit and well-known, each partner apparently would consent to this—and everything would be carried according to the country’s customary practice.

However, if these ordinances are unknown, their distribution mentioned above is according to the actual ruling.

Regarding who has possession:

One partner does not have greater possession than the other one (Shulchan Aruch, Choshen Mishpat, siman 179) whether it is a case that the distribution is equally divided, or even if it is not known how much each one deserves to receive, each side receives equal payment until proof to the contrary is brought.

The Kesef HaKodshim writes (Ibid.) that even if it were known that one of the partners had contributed more—his money is considered a partnership loan—and the partnership itself belongs equally to them, such as the merchandise that they bought with the money).

However, if one has a "migo" meaning that he could have claimed that such things never happened, and what he is possessing has always been his, he is believed with all his claims.

The mishna (Bava Batra 2a) discusses the type of wall that is to be built between people who share property that is to be divided between them. The gemara (ad loc. 2a-3a) discusses whether the two have to agree to make a wall or that once they agree to divide the property, each can demand of the other erect one between the sections. The gemara says that it depends if we consider the fact that one neighbor can see what the other is doing on his property is considered a damaging situation. We accept the opinion that intrusion on privacy is damaging and thus one neighbor has a right to the wall (Shulchan Aruch, Choshen Mishpat 157:1).

In many areas of rights between neighbors, there is a concept of chazaka: that if one side took control over a certain type of usage without his neighbor protesting, he can continue doing so. (The logic, parameters, and opinions on this matter are beyond our scope.) However, the Rambam (Shutafin 2:14) said that regarding walls, even if the distinct properties did not have a wall for years, there is no chazaka, and either neighbor can still demand the erection of a wall. There are two explanations for this halacha. Usually chazaka occurs when one side takes a positive step which would trigger a protest if it had not been agreed upon or was not agreeable. In this case, the lack of a fence is a passive situation. The fact that nobody raised the issue of erecting one is not proof that it was designed to remain that way (Maggid Mishna, ad loc.). Furthermore, in the standard case of chazaka, one side does something from which he benefits and the other stands to lose. Then if the potential loser from the situation is quiet, we reason that he must have gone along with the steps for some reason. However, over here where each neighbor is the potential gainer and the potential loser, we take seriously the possibility that he did not feel a need to initiate steps to put up the wall, and he retains the rights to protest in the future (Tur, Choshen Mishpat 157 in the name of the Rosh).

Either way, in your case, you would have to demonstrate that there was an outright agreement by your neighbor or one of his predecessors to waive the right to demand a wall that prevents seeing from one property to the other. Even an oral relinquishing of rights would suffice (S'ma 157:4; see Pitchei Choshen, Nezikin 14:(53)). The Rama (CM 157:1) accepts the opinion in the Rishonim that one's right to a wall exists even in a place where the practice is to not have such walls.

Both sides normally have to take equal part in the expenses and the relinquishing of space from the property upon which the wall will sit (Shulchan Aruch, ibid.). However, the matter becomes more complicated when there is disagreement as to the quality of the wall and its accompanying price. In general, the wall between residential yards should be four amot (approximately six feet) so that it effectively obstructs the view. Similarly the density must obstruct the view. However, beyond that one can force his neighbor to pay only for what local practice or, in its absence, a beit din or an expert considers a standard wall (Shulchan Aruch and Rama, ibid.:4).

There are more details that might come up in adjudication over this point of contention, which could effect the halacha in a major or a minor way. However, we hope that the general information we have provided gives you the basic legal and related philosophical Torah perspective toward the demand for privacy. We also hope that this will help you work out an amicable resolution with your neighbor that takes into consideration the desires and concerns of each of you.

The mishna (Bava Batra 2a) discusses the type of wall that is to be built between people who share property that is to be divided between them. The gemara (ad loc. 2a-3a) discusses whether the two have to agree to make a wall or that once they agree to divide the property, each can demand of the other to erect one between the sections. The gemara says that it depends on whether we consider the fact that one neighbor can see what the other is doing on his property a damaging situation. We accept the opinion that intrusion on privacy is damaging and thus one neighbor has a right to the wall (Shulchan Aruch, Choshen Mishpat 157:1).

In many areas of rights between neighbors, there is a concept of chazaka: if one side took control of a certain type of usage without his neighbor protesting, he can continue doing so. (The logic, parameters, and opinions on the matter are beyond our scope.) However, the Rambam (Shutfin 2:14) said that regarding walls, even if the distinct properties lacked a wall for years, there is no chazaka, and either neighbor can demand the erection of a wall. There are two explanations for this halacha. Usually chazaka occurs when one side takes a positive step which would trigger a protest if it had not been agreed upon or was not agreeable. In this case, the lack of a fence is a passive situation. The fact that nobody raised the issue of erecting one is not proof that it was meant to remain that way (Maggid Mishne, ad loc.). Furthermore, in the standard case of chazaka, one side does something from which he benefits and the other stands to lose. Then if the potential loser from the situation is quiet, we reason that he must have gone along with the steps for some reason. However, in this case, where each neighbor is the potential gainer and the potential loser, we take seriously the possibility that he did not feel a need to initiate steps to put up the wall, and he retains the rights to protest in the future (Tur, Choshen Mishpat 157 in the name of the Rosh).

Either way, in your case, you would have to demonstrate that there was an outright agreement by your neighbor or one of his predecessors to waive the right to demand a wall that prevents potential invasions of privacy. Even an oral relinquishing of rights would suffice (S’ma 157:4; see Pitchei Choshen, Nezikin 14:(53)). The Rama (CM 157:1) accepts the opinion in the Rishonim that one’s right to a wall exists even in a place where the practice is to not have such walls.

Both sides normally have to take equal part in the expenses and the relinquishing of space from the property upon which the wall will sit (Shulchan Aruch, ibid.). However, the matter becomes more complicated when there is disagreement as to the quality of the wall and its accompanying price. In general, the wall between residential yards should be four amot (approximately six feet) high so that it effectively obstructs the view. Similarly the density must obstruct the view. However, one can force his neighbor to pay only for the level of building that local practice or, in its absence, a beit din or an expert, considers a standard wall (Shulchan Aruch and Rama, ibid.:4).

There are more details that might come up in adjudication over this point of contention, which could effect the halacha in a major or a minor way. However, we hope that the general information we have provided gives you the basic legal and related philosophical Torah perspective toward the demand for privacy. Hopefully, this will help you work out an amicable resolution with your neighbor that takes into consideration the desires and concerns of each of you.

CLARIFICATION:Usually a security deposit is given as an undated check, and no monies are transferred if all goes smoothly. Apparently you actually cashed it. When and why did you do so? Was it part of the agreement? If so, please forward the relevant part of the contract.
The payment was in cash, although not stipulated in the contract, because the renter did not have an Israeli bank account and I didn’t mind.

A security deposit is usually a deposit (pikadon) that eneither party, depending on how things work out. The mishna (Bava Metzia 43a) says that if Reuven gives cash to Shimon to watch, Shimon can take it for himself only if he is a money changer and, even then, not if Reuven demonstrates that he wants the money to remain intact. The explanation is that one who gives funds for the purpose of safekeeping probably wants its maximum availability (a money changer has constant cash flow). Thus, it might have been expected for you to have kept and returned the same bills you received and it may have been improper to have used the deposit. In such a case, one has to pay at least the value of what he took at the time he took it (Bava Kama 65a) according to the local currency, which, in Israel, is the shekel. Thus, you would pay the amount of shekalim you received and used, irrespective of the value of $1,000.

However, it is possible that in modern times, we treat the standard person like a money changer in this regard (S’ma 292:18; see Shulchan Aruch, CM 292:7, Pitchei Choshen, Pikadon 5:15). When one uses pikadon money with permission, he becomes fully responsible for it. The Shach (292:9) views such use as a loan, not as free use of an object. Consequently, if the currency goes out of circulation, he cannot return the currency he received. You might make a similar argument. You borrowed $1,000, as described in the contract, even though it was given in shekalim, and this is what you should return. Although one usually may borrow a set sum of money only in the local legal tender, Rav M. Feinstein’s p’sak (Igrot Moshe, YD III 37) that the dollar’s special status in Israel makes it equivalent to the shekel has been accepted for decades. (It is questionable whether this is still true in the present financial situation in Israel, but when you made the agreement it was.)

However, unless your contract is unusual, the above is not relevant. Generally, the designation of US dollars is only to determine the amount of shekalim one gives when payment is due or paid. However, the payment is still, in Israel, in and of shekalim. Therefore, even if look at the deposit as a loan (which is unclear), it is a shekel loan to be returned in shekalim or their equivalent unless specified otherwise, which does not seem to be the case here. The assumption that the deposit be viewed in shekalim is even stronger since you received shekalim. Presumably you could have hid the money and returned it three years later. Had the dollar gone up (as it did for years), would he have been able to demand that you return more than you received? Now that it went down, you may not return fewer shekalim than you received. Using the money doesn’t change it from shekalim to dollars, even if you tend to view your finances in dollars. Thus, your counterpart is correct.

The Shulchan Aruch (Choshen Mishpat 12:6) says that if Reuven is obligated to pay Shimon, he must not make it difficult to extract money in order to pressure Shimon to agree to a compromise. However, the Tumim (12:5) cites says that if Shimon owes Reuven a corresponding amount but Reuven cannot prove it, he may be difficult in order to get to the just result. Avoiding the need for an argument and possible din Torah is no worse than that. The Pitchei Teshuva (CM 12:8) cites a distinction between active obstruction, which is forbidden, and using a convenient non-action to gain advantage, which could be permitted. Here too, regarding a non-action taken to uphold one’s true rights, it should certainly be permitted.

There is an important rule (although one that is hard and dangerous to apply) that one may, under certain circumstances, take the law into his own hands rather than having to go to the trouble of taking the matter to a beit din (see Bava Kama 27b and Shulchan Aruch, CM 4). Based on the guidelines found in that context (which are beyond our present scope), there should not be a problem to simply not volunteer information and thereby avoid having the matter arise with the associated hardship in assuring one’s rights.

The gemara (Shavuot 31a) prohibits acting in a deceptive manner in beit din in order to win a deserved case because it is a violation of “distance yourself from matters of falsehood” (Shemot 23:6). It appears that in the absence of decption, if one can gain what he deserves by not coming forward with an admission, it should be permitted (see also Chut Hameshulash I, 15).

One source that seems to contradict our thesis is the severe steps (including cherem) that are taken against one who refuses to submit to adjudication when so requested (see Shulchan Aruch, CM 11 and 14). How could we punish someone if he claims, and for all we know is correct, that he owes nothing? The answer, though, is simple. It is not that the defendant has refused to fulfill an obligation in relation to the plaintiff and present himself for adjudication. Rather, since a Torah society (or any society for that matter) must have an effective court system, once the courts determine that he is to submit to adjudication, he must be prevented from snubbing the system and rendering it toothless. Indeed, only if beit din has made their credentials clear do the sanctions apply (see ibid. 11:2 and Rama 14:3).

Thus, dependent on the caveats presented above, you would not have to volunteer that you damaged your acquaintance’s property to avoid unjustified difficulties that would ensue.

One could only make Yissachar/Zevulun agreements on condition that the learner needs the stipend from the benefactor in order to continue learning, and not if he already has other financial opportunities and the stipend would merely financially supplement his Torah learning. In such a case, it wouldn’t be possible to sponsor someone as part of Yissachar/Zevulun agreement. There are two reasons for this:

a.      The Talmud Tractate Sotah (21a) states:

What does “if a man would give all the substance of his house for love, he would utterly be scorned” (Shir HaShirim 8:7)” mean? Ulah said, “Not like Shimon, the brother of Azariyah, and not like Yochanan, of the Nasi’s household, but like Hillel and Shavnah.” Upon Rav Dimi’s arrival he said, “Hillel and Shavnah are my brothers. Hillel is engrossed in Torah. Shavnah is involved in business.” Shavnah later said to Hillel, “Let’s get together and divide up (the business).” A heavenly voice came forth and said, “If a man would give all the substance of his house for love, he would utterly be scorned (Shir HaShirim 8:7).”

This Talmudic passage is the source of the Yissachar-Zevulun agreement. The Talmud differentiates between the case in which Zevulun supports Yissachar and as a result Yissachar has the possibility to learn Torah. This is what Azariyah did to allow Shimon, his brother, to sit and toil over his studies, without needing to worry about making a livelihood. In contrast, Shavnah didn’t help Hillel in his learning until Hillel, his brother, became a Torah scholar. Shavnah subsequently wanted to acquire half of the merits of Hillel’s Torah study by paying money. The Talmud applies the Scriptural reference of “he would utterly be scorned.” to him. On the basis of this understanding are Yissachar-Zevulun agreements meant to allow the possibility for a Torah scholar to toil in his studies and to grow in Torah without interruption. Rav Moshe Feinstein added (Igrot Moshe, Yoreh Deah, volume 4, siman 37) that Yissachar-Zevulun agreements are created since it is impossible to fulfill the commandment of knowing the entire Torah in quantity and quality, unless there are two people – one who sits and learns all the time, and the other supports both of them. This is since one person cannot be involved in a livelihood and at the same time learn the entire Torah in quantity and quality. It follows, that a tora scholar who’s income from other sources is sufficient, cannot include another in such an agreement, nor are donations to tora scholars who aren’t dependant on the specific donation in the framework of suitable contributions to Yissachar-Zevulun relationships. The reason is that Zevulun’s contribution isn’t what allows Yissachar to learn. Cf. the conclusions to the responsa and many practical implications that come from this explanation.

One could prove this from the words of Rav Hai Gaon in a responsa cited within the Responsa Maharam Alshakar (siman 101) who wrote there about the sale of a reward for performing mitzvot.

If one is accustomed to fast on Mondays and Thursdays and that time later said, “The reward for this fast will be a gift to so-and-so”, and similarly if he will say, “I sold this fast for the year for such-and-such amount to so-and-so” and they made a kinyan(an act that validates theagreement)on this, is it considered beneficial for the one that bought the right? Likewise - one who gave someone gold on condition that he will read the Torah and the reward for reading the Torah will go to him, etc.?

“In response, we have seen that these statements are frivolous words that one shouldn’t rely upon. How could one consider that one’s reward for good deeds that he did will go to another? Is it not written “the righteousness of the righteous will be upon him” and it likewise states “the wickedness of the wicked will be upon him.” Just as a person isn’t punished for another’s sin, a person doesn’t receive another person’s reward. Can one consider that the awarding of the merit for a mitzvah is something that a person could carry on his chest and go to give his reward to another? If only one were to know what the reward is, he wouldn’t give to another, nor would one accept from another, etc.”

This implies that there isn’t any possibility at all to sell the reward for a mitzvah. It follows that it is difficult to understand how it’s possible to make Yissachar-Zevulun agreements. Some wrote that according to Rav Hai Gaon’s opinion, such contracts have no validity, and Zevulun cannot distribute Yissachar’s reward. Instead, each person receives reward: one for his reward for Torah learning, and the other one for supporting Torah study

The Maharam Alshakar, quoting Rav Hai Gaon, continues:

“Nevertheless, it is certainly true that one who gives payment to a teacher to teach what the students need, and they teach - he has great reward for this, whereas the teacher himself sometimes has reward and sometimes doesn’t have reward. Likewise, one who feeds a poor person or a Sage to receive a blessing – is rewarded for this and he receives benefit like the blessing of that poor person or Sage. Similarly, one who supports the fulfillers of mitzvot so that they could fulfill them, he receives reward for this, whereas they – or even more so – he who assists those engrossed in Torah and mitzvot to encourage them in Torah receives reward and the reward that he receives for his action is his….”

It is possible to understand his statements as we wrote above that Zevulun only has reward for supporting Torah learners. according to Rav Moshe Feinstein’s understanding, Rav Hai Gaon is saying that whoever supports Torah and thus allows a mitzvah to be fulfilled that couldn’t otherwise be fulfilled, which is the knowledge of the entire Torah in quantity and quality by one Jew, doesn’t acquire the reward of the mitzvah. Rather, he is an equal partner in the merits of fulfilling the mitzvah. This mitzvah can only be fulfilled by two Jews. Therefore, in this case, it is possible that Zevulun will receive reward for providing the actual needs of Yissachar like the reward for Yissachar’s learning, and not just the reward of Torah supporters.

Another implication that follows - it’s only possible to make a Yissachar-Zevulun agreement with one who without support wouldn’t be able to dedicate his entire time to learning Torah.

b.      Rabbi Yosef Karo’s responsa, Avkat Rochel (siman 2) discusses this very question regarding Torah scholars that have a livelihood but want to receive more money through a Yissachar-Zevulun agreement. Rabbi Karo forbids doing so due to the statements in the Talmud, Tractate Ketuvot (105a):

Rav Yehudah said in the name of Rav Asi: “Those who instituted fines in Jerusalem would take their wages of 99 maneh from the donations of the lishkah (chamber at the Temple). If they didn’t want, their wages would be increased. They didn’t want? – Are we dealing with wicked people? Rather, Rav Yehudah meant that if the wages were insufficient for their living expenses, even if they didn’t want to receive a salary increase, their wages would be increased.”

The Talmud implies that it is permissible for rabbinical judges to only accept a salary necessary for their livelihood, and if the income doesn’t cover their expenses, their salaries must be increased. However, if they request additional money without a reason, the Talmud states that they are wicked. It follows that a Torah learner shouldn’t take additional money when he already has received enough for his living expenses.

2.             According to our explanation, a Yissachar-Zevulun agreement is intended to create by Yissachar the ability to sit and learn Torah without any interruption. It follows that since the donation of seforim (Torah texts) doesn’t create such a situation, it isn’t considered within the framework of a Yissachar-Zevulun relationship, in which Zevulun is rewarded as if he himself is learning Torah like Yissachar. Nonetheless, great is the reward for those who support Torah, as the verse states: “It is a tree of life for those who support it, and its supporters are satisfied.” It similarly states “For in the shadow of wisdom is the shadow of money.” The Talmud, TracatePesachim (53b) expounds on the verse:

Rabbi Yochanan said, “Anyone who puts supplies in the pocket of Torah scholars merits dwelling in the heavenly yeshivah, as it states (Kohelet 7) ‘For in the shadow of wisdom is the shadow of money.’”

3.             The Ramah wrote (Shulchan Aruch, Yoreh Deah, siman 246, sif 1):

“A person is able to stipulate with his friend that he will deal with Torah and he will find him a livelihood and he will divide the reward with him. Nonetheless, if he is already toiling in Torah, he isn’t able to sell him his portion in exchange for money.”

This implies that Yissachar-Zevulun agreements are effective only if its conditions(Zevulun supporting Yissachar, and in exchange Yissachar will appropriate with Zevulun the reward for his Torah learning) were made between the parties in advance. This rule is learned by Rabbeinu Yerucham from the Talmud, Tractate Sotah, which we mentioned at the beginning of our essay. The main difference between Azariyah who divided the reward of his learning with his brother, and Shavnah, who was unable to purchase the reward of Hillel’s Torah learning, is that Shavnah wanted to donate the money after Hillel learned. On the other hand, Azariyah supported his brother Shimon while he was learning, and he stipulated with him that he will sit and learn with the confidence that his brother will support him. Therefore, the Ramah rules that one needs to explicitly stipulate between the parties prior to the start of the agreement.

This requirement could be understood very well by applying Rav Moshe Feinstein’s understanding which requires Zevulun to assure Yissachar’s general future. It will consequently give him the emotional calm to concentrate on his studies without any concern. Therefore, Zevulun must inform Yissachar in advance of his commitment to support him. In such a case, he would become an equal partner in the rewards in Yissachar’s ability to dedicate all his efforts to learn our holy Torah in order to know it in its entirety, in quantity and quality.

Yes, there should be a problem of ona'ah, when something is mispriced by a sixth or more. Although it is possible if done properly for a seller to say that he is aware of the price difference and it is worth his while, when he sincerely said that he did not intend to give such a discount, we would certainly revert to the halacha that one should not get a "too good" a price because of the other's mistake.

The idea of hodesh l'shana is not Talmudic but is a minhag that developed based on the similar concept of giving a parting gift to an eved ivri upon the completion of his stint. The Sefer Hachinuch #482 is the classical source that is usually cited as being in favor of such an approach. The State of Israel has adopted the idea as a law.

It appears that you are asking from halachic curiosity and do not have plans of demanding your money back. Thus we do not have to be as rigorous in factoring into the answer all issues, some of which may be unknown to us after hearing from only one side. We think your excellent question has an interesting provisional answer.

The gemara (Nedarim 31a; Bava Batra 87b) tells of one who took a vessel from its producer so he could check it and keep it if he liked it. Shmuel says that if something happened to the vessel b’oness (by no fault of his) he is still obligated to pay, and this is how the Shulchan Aruch (Choshen Mishpat 200:11) rules, in a case where the price was set.

This case would seem to be the same. However, the point of meita machamat melacha (=mmm) is a good one. Even a sho’el who is obligated even when something went awry b’oness is exempt if the object died, broke, etc. as a result of being used in a normal manner (Shulchan Aruch, CM 340:1), and tuning the cello seems to be a classic exemption. However, we must understand the halachic mechanism that normally obligates the provisional buyer. The Rash in Tosafot (Bava Batra 87b) explains that since the buyer is in the enviable position of being able to buy or return the object as he likes, we demand of him the broad responsibilities of a sho’el, who also has the most benefit from his arrangement. Rashi (Bava Metzia 81a) says that the logic of the obligation is that the presumed sale makes the “taker” considered a buyer (lokei’ach) and so when something happened to it, it is naturally his loss. The Netivot Hamishpat (186:1) says that actually both possibilities exist, and it depends on the case.

Where would there be a difference between the approaches? Among ideas given by various Acharonim, the Machane Ephrayim (Shomrim 24) says that a case is when the seller was working for the buyer at the time of the sale. If the obligation is because of sho’el, it will not apply because of a sho’el’s special exemption of b’alav imo. If the obligation is based on lokei’ach, it would make no difference as once he bought it, the loss is the buyer’s problem. Similarly, our case should likely be another difference between the approaches, as mmm is a special exemption of a sho’el but should not impact if one who is considered a lokei’ach. Since the majority opinion is of lokei’ach (Pitchei Choshen, Kinyanim 13:(43), and according to the Netivot Hamishpat, both types of obligation apply), you seem to have been obligated.

However, one might be able to distinguish as follows. How can one be a lokei’ach if he acted on his right to back out? The Tur (CM 200) implies that the condition was that he could back out if he returns the object intact. Regarding a classic damage, like a theft or an animal dying, which is a total loss, there is no way to back out of the deal; consequently, the buyer loses. It is possible, though, since the cello was returned, the seller’s attempt to obligate you must follow the regular rules of sho’el, for which mmm exempts you.

In theory, to exempt yourself, you might need to prove that it is mmm in a manner that you are without fault, or swear on the matter (CM 334:1). Because of that and the halachic uncertainty presented above, a compromise would be a reasonable solution. It would be difficult to legally force a return of the payment.

We cannot give you a definitive answer not only because we have not heard the handyman’s version but also because many of the issues may depend on nuances that we are not aware of. After learning some of the principles, you should be reasonably equipped to work out a system of dealing with past and future questions through communication.

The standard obligation to a worker requires the employer’s explicit or at least implicit agreement that he provide a service. However, there is another possibility to be obligated even without agreement, based on the concept of neheneh (benefit).

The Rama (Choshen Mishpat 264:4) talks about one who, along with a friend, was in jail and used his resources to secure not only his own release but his friend’s also. The Rama says that if he added resources to include his friend’s release or if he made the outlays with both of them in mind, his friend must pay him. He then creates a general rule: “Anyone who does an action or a favor for his friend, [the friend] cannot say: ‘You did it for free because I did not tell you to do it,’ but rather he must pay his wages.” Since no pay was discussed, he would have to pay according to the lower end of the range of salaries (K’tzot Hachoshen 331:3). The exception to the rule is when that which was done is something that is generally done for free (Pitchei Choshen, Sechirut 8:31). Thus to the extent that the “extra” things the handyman did were of value to you, you would have to pay, but if they were beyond the scope of what you had asked, not at the usual generous rate.

After your initial protest, it is possible that your stance improves. The Rama discusses a case where the recipient of the favor said nothing in advance regarding payment, but you said that you did not want to pay for the extras, which could change matters. Although he raises that possibility, the Pri Tevu’ah (cited in Pitchei Teshuva, ibid.:3) rules that if the worker intended to get paid and there was neheneh, the recipient still has to pay (unless the provider of the benefit could be forced to provide the service, e.g., if it required no sacrifice on his part).

On the other hand, Shut Mahariya Halevi (151) says that it does not make sense that one must pay after he told his counterpart in advance that he refuses to do so. If there are differing halachic opinions, it is difficult to extract money. The Pitchei Choshen (Sechirut 8:(64)) says that the Pri Tevu’ah was talking about a case where the recipient expressed dissatisfaction at the idea of paying, but wanted the work done, but if there were a conclusive refusal to pay, all would exempt him.

This distinction is likely pertinent in your case, as you may have only protested but not refused. On the other hand, there is likely a distinction in your favor in your case. The aforementioned sources discussed cases where the recipient wants not to pay anything. In contrast, you are paying for services generously. Therefore, it makes sense to interpret your protest as follows: “As long as I am generous with the rate of pay, I expect you to be generous at not running up the bill by counting incidental time expenditures. If you want to charge for neheneh, then let’s use a low rate for everything.” Especially if there are standard practices in this area of work, one should not generalize in one person’s favor or the other regarding all charges but look at each type of charge. A compromise about the past and guidelines for the future (for example, that he must ask you in advance about certain types of work) is probably best.

First one needs to do determine from whom the note likely fell. The gemara (Bava Metzia 26b) talks about finding lost items in a store and distinguishes between the part of the store that is frequented by customers and the proprietor’s area. Assuming you found it in the customer area and especially considering that credits are usually ripped up after being redeemed, you can assume it fell from a customer (unless you found it next to some counter on the worker’s side).

Next, we must discuss whether you should try to return the note to the person who lost it. This depends on whether it has a siman (a distinguishing characteristic, so that one can prove that it was he who lost it). Assuming the credit note is for an amount that corresponds to the value of a specific item (as opposed to a coupon that is like a gift certificate of a set denomination), it seems that this is a siman (based on Bava Metzia 23b). If so, you should put up a note in an appropriate place in or around the store or give a customer service worker your phone number in case someone comes to look for it. If the store is being unhelpful or it is clear from the type of store it is that you will not be able to return it, you can assume that the person who dropped the note will give up hope of finding it. (It would have been nice if you waited a few moments to see if someone was looking around the store for it, although this was probably not halachically required.)

The credit note is like a partially open check (i.e., regarding its recipient) of the store. This type of “document” was prevalent in previous centuries, and the poskim called it a mamrani. It was usually written by a borrower who gave it to a lender to ease collecting the loan, as he could collect directly from the borrower or easily sell it to someone else. The Pitchei Teshuva (Choshen Mishpat 54:1) has a lengthy discussion of the Acharonim’s opinions about a case where a lender was given a mamrani, lost it, and asked the borrower, who knew he had not paid to pay him even though he was unable to return the mamrani. One of the main issues was whether the lender could write a shovar (receipt) that effectively said that whoever would present the mamrani for payment would no longer be able to receive payment, thus saving the borrower from paying twice. He cited the Tzemach Tzedek as acknowledging a custom that in such cases, an announcement would be made in the local shul/community that anyone who possessed this mamrani of the borrower in question must produce it within a certain amount of time or no longer be able to. The poskim’s general orientation is that a mamrani is not like cash or an object of value but a device for having loans paid, either to the lender or to the person who bought the mamrani from him. Thus, it was improper, albeit possible, for a finder to receive payment.

This situation is likely to continue to exist regarding credits at local or small stores, where there is a relationship between the proprietor and at least many customers. In such a case, if the customer said he lost the note, the proprietor is likely to believe him and honor it. If that happens, the note is not like money, which if lost is lost, but rather is a reminder of a debt. In that case, one who uses someone else’s credit is cheating the store. In contrast, in large, impersonal supermarkets, if one loses the note, he will not receive the credit, and the supermarket has “gained” by not paying its debt to the customer. Another who redeems it just replaces the deserving recipient and is not causing the store a loss. The store views their note as something of value, which can be used, sold to someone else, … or lost and found. If the finder cannot return it to the one who lost it, he may keep it and use it as he does if he finds a normal object that has no simanim.

Question: The defendant (=def) hired a distinguished law firm (=pl) to work on a major project. After pl sent def a letter outlining the work and payment guidelines and def responded positively, pl began working for def in 02/07. One matter that was raised was that billing would be on a quarterly basis. For 02-04 /07, pl billed for 73,000 shekels. In 06/07, def met with members of pl; one of the issues was def’s dissatisfaction with the high fees. Def claims that pl then set the total fee for successful completion of the project at 100,000 shekels (50,000 to be paid immediately). After much activity from 05/07 till 02/08, pl sent def a bill for 207,000 shekels. Def refuses to pay the full amount with the following claims: def did not sign a formal contract with specific sums of money spelled out; the agreement was changed to have a 100,000 shekels cap; def had specified his expectation that a specific senior lawyer would handle the project, while he actually did little work; pl did not succeed in the project’s goal.

Answer: The written communication between the pl and def, even if it involved def’s representatives, suffices to set the work agreement between the sides. It specified that they are governed by pl’s standard practices and rates. While def’s response mentioned his trust in a specific lawyer’s ability to succeed, it does not stipulate the level of his involvement. It is standard practice at law firms for younger staff members to do most of the work, under the supervision of a seasoned lawyer.

Pl denies they agreed to change the billing procedure. Def brought witnesses only to the fact that he said after the meeting that he was relieved by its outcome, whereas he is required to prove a change was agreed to. The fact that there was a long delay in billing after the meeting fits well with def’s claim but falls short of proof.

The main question is whether the delay in billing is a significant breach of contract. Considering the agreed upon fact that def reacted strongly to the quarterly bill of 73,000 shekels, it was clearly and legitimately important to him to realize the mounting costs that reached an additional 207,000 shekels. While small delays should not invalidate a contractual agreement, there must be some cutoff point. We conclude that after five months without billing (10/07), def was no longer bound by their written agreement.

Even without a contract, one has to pay for work done on his behalf, but the rate must be determined. There are a few halachic models, none of which fit perfectly here. When one is hired but no rate is discussed, one pays according to the lower rate for such workers in the field. However, it appears to us that had def known how much this work would cost him, he would not have continued pl’s employment (he already had full-time legal counsel) so it is not considered working with approval. If the work was slated to be done, he receives the amount that a person would pay for such a job. If not, he is paid no more than expenses (Shulchan Aruch, Choshen Mishpat 375:1). Here it is hard to determine because he wanted the work done but not at the cost discussed now.

Our case seems more similar to people who ate someone else’s meat, thinking it was from their animal. The gemara (Bava Kama 112a) says that they pay at a cheap rate (two thirds of the going rate- Bava Batra 166b) because they would have refrained from eating had they known how much they would have to pay out of pocket. In this case, where def had legal counsel on hand at a lower rate per extra work, one third of the requested payment, starting 10/07, suffices.

Def’s claim that there was no benefit is rejected because pl helped in certain areas and also made progress regarding the project, for which they deserved compensation. The fact that afterward things did not work out does not retroactively erase the previous obligation.  

Case: The plaintiff (=pl) hired the defendant (=def) to handle an investment sum of $5,000 at his discretion. According to pl, def claimed to be able to reach 50% profits annually. Pl maintained the ability to follow the investment’s progress and withdraw the money at any time. They signed a contract that stipulated the conditions for distributing profits. The contract also mentioned the risk factor, which, it said, corresponded to the great possibility of high returns. The contract also warned against investing more than 40% of one’s portfolio in this type of investment. After achieving a 10% profit in the first few days, the investment plummeted to a mere $36. Pl does not claim that there was negligence in the way the investment was handled but said that he was not sufficiently warned about the degree of danger of loss this investment carried (def disputes this claim). Rather, pl says that since he was misinformed about the investment, the whole transaction should be void and the money should be reimbursed.

Answer: Let us first investigate whether there are grounds to obligate def as one who caused damage. The money that pl invested, while remaining his, was overseen and handled by means of power of attorney by def; thus, def was a shomer (watchman). There is discussion among the poskim on the degree to which a shomer is obligated for indirect damage (gerama) he causes (see Pitchei Teshuva, Choshen Mishpat 55:1). The Chatam Sofer (CM 140) obligates the shomer for even very indirect damage, as this is included in the obligations of a shomer. The Rama (CM 386:3) maintains that there are elements of exemption for gerama even for a shomer.

However, even according to the Chatam Sofer, here there is not an obligation for damages. Beit din’s research revealed that def acted in a normal manner for high potential gain, high-risk investments. In fact, pl did not claim negligence. Furthermore, the contract stated that the investor waived the right to make claims of poor handling of the investment fund. Pl was not able to substantiate his claim that def did not follow the guidelines that pl had given him, as in fact there are clear indications that pl gave def freedom to act as he deemed prudent.

The claim of misrepresentation, justifying voiding the agreement between the parties, also lacks merit. Def’s alleged claim of a projected 50% annual profit was not proven to be unrealistic. In fact, in a matter of a few days, there was a 10% gain. The eventual great losses do not prove that there was no potential for continued gains. Regarding the possibility of great losses, the contract spelled out that the potential for loss was great, like the potential for gain, and suggested not to invest more than 40% of one’s portfolio in such an investment.

Def did not stress orally that there was a chance of a total loss of the principal (which, in effect, happened), something which pl never considered, but pl admits that the contract relates to such a possibility. The Shulchan Aruch (CM 61:13) rules that a husband who agreed to a ketuba with certain conditions cannot say afterward that he was unaware of what was written in it. The Rama (ad loc.) continues that he is even responsible for implications one can draw from the contract’s language, and it is not possible to claim that he is not savvy enough to understand the nuances of the language. The Beit Yosef (CM 45) states further that even if one who signed a contract did not understand the language it was written in, he relinquished his rights to complain about the contract’s provisions when he signed it without reading it. One cannot claim that it is illogical to have agreed to the possibility of losing all the capital of an investment, as Tosafot (Ketubot 47a) says that it is normal for one to put himself in a situation of great loss if it also gives him the possibility of great gain.

If we had to guess, we would assume that this question is not an actual case but an inquiry into the halachic view on issues of monopoly (if not, we will need more details). This is not the forum to write a complete learned treatise on the Jewish approach to monopoly law. The matter also depends on local laws, as on a matter of public welfare like this, halacha accepts the law of the land as binding (see Shut Chatam Sofer, Choshen Mishpat 44, regarding the opposite question of too much competition). However, we will provide a reasonable picture based on classical rabbinic sources to help understand how a Torah-based society would handle such issues.

This specific question’s most basic problem is the matter of mispricing. If the proprietor raises prices 20% above an item’s going rate, he violates the Torah prohibition of ona’ah (Vayikra 25:14; see Shulchan Aruch, CM 227:1). While the price can depend on different factors and change, one cannot create a monopoly, artificially changing the supply and demand equilibrium and then say that his price is the local going rate. (One may mildly affect the prices by deciding how much of his own produce to put on the market – see Bava Batra 90b and Rashi, Bava Metzia 60a).

The gemara (Bava Batra 90b) forbids charging artificially high prices, most especially for staple goods in Israel (so rule the Rambam, Mechira 14:6 and Shulchan Aruch, CM 231:25). The question is how this is different from the laws of ona’ah. The Aruch Hashulchan (CM 231:25; see also Pitchei Choshen, Ona’ah 14:(31)) understands that this is referring to market manipulation to alter the price. The gemara (ibid.) also forbids creating a scarcity of staple produce, irrespective of the pricing issue. Historically, there have been many ordinances approved by leading rabbis to root out market abuses, including monopolistic practices.

So much for the public impact upon the consumer. Is there a problem in regard to unfairness to competitors? The most acute issue of competition is when an “outsider” sets up shop where a local is selling (hasagat g’vul- Bava Batra 21b). Other than that, it is permitted to do promotions or charge lower prices in order to gain more customers at the expense of others. The gemara (Bava Metzia 60a) explains that, regarding promotions, competitors can also do promotions, and regarding prices, one cannot outlaw it because of the benefit to consumers.

One can make the claim that here he is leaving no room for anyone else, so that the person who would have wanted to open a business will be totally unable to do so. When one person’s business makes another’s untenable, we have the concept of pasik l’chiyutei (Bava Batra 21b) which in some cases requires him to stop his activities. However, that is when one already has a business and is financially pressured to give it up. If one just arranges things so that another decides it is not advantageous to open a store as he was contemplating, we find no prohibition (see Pitchei Choshen, IV, 9:(9)). It is even possible that the monopolist had reason to fear that planned competition would have made his business untenable or otherwise have used unfair practices, in which case preventing such competition would not be halachically or morally objectionable.

There is an approach that even an ostensibly good practice such as lowering prices can be wrong. The Aruch Hashulchan (CM 228:14) says that lowering prices to an unsustainable price is unfair to other proprietors who cannot follow suit. After all, Bava Metzia 60a agreed to special incentives to the consumer because it was possible for the others to do likewise. Whether this would hold someone back when the competition does not exist yet and therefore no one is having his existing livelihood taken away is very questionable.

 It is not 100% clear that such signs in batei midrash and shuls are halachically effective. However, enough places use them and enough poskim (Igrot Moshe, Choshen Mishpat II, 45; Shevet Halevi X, 278; Minchat Yitzchak VIII, 146) suggest them to deal with an inundation of lost objects that we will assume they work. The question of how they work will help answer your question.

Some signs refer to making the seforim ownerless (hefker), which generally requires the owner to make a declaration in front of three people (Shulchan Aruch, CM 273:7), which is missing in our case. However, since when people are interested in being mafkir, the procedure is reduced (see Meiri, Bava Metzia 30b), reading the sign in agreement may suffice. Although the one who sees the sign does not know if and what he will lose, it is still possible to be mafkir based on future circumstances (see Bava Kama 69a and Tosafot, ad loc.). Still, hefker is tenuous because the signs prompt few people to clearly relinquish rights in the requisite way.

Let us explore another way the signs can help. While the Torah gives people rights for nice treatment from other people, these rights can be waived (mechilla). For example, a father can waive some of the respect due to him by his son. So too, one can forgo his rights to have lost objects returned (hashavat aveida) (Berachot 19b). Why should assume one will waive this right? When people enter into a relationship with mutual obligations (including Torah-mandated ones), one can stipulate to the other that he will do so only on condition that he does mechilla on certain rights. For example, a groom can tell his bride that he will marry her on condition that she waives her right to financial support (Ketubot 56a).

Similarly, a beit midrash can open its doors to students or the public on condition that they waive the right to make the gabbaim do hashavat aveida. If one sees a sign to that effect and enters without protest, he implicitly accepts the condition to waive the obligation of hashavat aveida. It is a complicated to determine if, after leaving the period of use of the beit midrash, one can say: “I won’t come back anymore but now that the relationship is over, I expect you to return my objects.” After all, if we are not working with hefker, the object remains the original owner’s, just that the finder does not have to look for him. In any case, until he informs the finder that he has stopped the mechilla, one may assume it continues. This system seems to work better than the previous one and to be morally preferable. However, while gabbaim need not be burdened with aveidot in addition to other responsibilities, it is less clear that they deserve to gain the rights to books whose owners’ names are clearly displayed.

A third possibility is that the owner gives the beit midrash the right to acquire the sefarim as a present at some point. This is like telling a guest to help himself to snacks when he is hungry.

Let us return to your question. If the sign works through hefker, it is likely (but beyond our scope- see Minchat Yitzchak, ibid.) that the beit midrash had acquired the sefer, and you need their permission. If it works based on permission to take a present, it depends if they took control of the book (i.e., by stamping it or selling it). If, as makes most sense to us (it may depend on the sign’s wording), it is just that people agree to waive hashavat aveida, it is still the original owner’s decision who should keep it. Even if it is likely you may keep the sefer, it is not a bad idea to ask the gabbai if he has any complaints.

The Cohens are shomrei sachar (paid watchmen) for the shipment, even if they only charged per space, as defrayal of  costs is of value and a shomer sachar need not receive formal payment (Bava Metzia 80b).

If a shomer hands over responsibility for the items to another shomer, within expectations, shomer 1 is exempt from responsibility (Shulchan Aruch, Choshen Mishpat 291:21). If shomer 2 did an insufficient job, shomer 2 has to pay (ibid. 24). There is a machloket (two opinions in Rama, ad loc.) whether, when shomer 2 has no money to pay, shomer 1 assumes responsibility to pay. Since, according to the arrangement, the Levis cannot approach the shippers or the insurance, this case seems parallel. However, when owners knew who would be serving as shomer 2, shomer 1 is not obligated if shomer 2 fails to pay (Shach, CM 291:32; see Pitchei Choshen, Shomrim 4:(44)). That is the case here. In fact, the Levis’ description of why they insured as they did displays their understanding that the insurance company would be the address for such common problems. They should have raised the issue of the Cohens’ responsibility if they thought they should be responsible. Both sides realized the Cohens were obligated to do their part by filing a claim, which they seemed to have done. Thus, the Cohens are, on a certain level, exempt.

However, there are claims with some basis, that the Cohens were deficient in performing their part of the job, which includes giving the packers firm instructions how to pack, supervising the job, and filing with the insurance in a way that they would not evade payment. The gemara (Bava Metzia 42b) teaches us that even when giving responsibility over to shomer 2, how it is given over can obligate shomer 1. Even if their performance was not negligent (pshiya) given the difficulty involved, it is far from clear that they took all of the precautions a shomer sachar is obligated in. Since in any case, a shomer has to, in theory, swear that he fulfilled his obligation, and in lieu of oaths in our times a compromise is enforced instead, we obligate the Cohens to pay [a certain amount – the calculation is beyond our scope, as are other elements of the analysis].

At first glance, you are a shomer chinam (an unpaid workman) and thus are responsible for losses that occurred through peshiya (negligence). Whether you fit that bill is a judgment call you may be able to make yourself. However, there are additional reasons to exempt you.

It is not clear that there is anyone to whom you are obligated to pay. The teacher, the intended future recipient of the gift, is not owed the money and presumably has no rights to it even after money has been collected. Regarding individual parents, they have presumably permanently transferred money to your discretion, which is to watch the money for the group of parents toward the goal of giving a present, and not to return to anyone. If you were to, Heaven forbid, misappropriate the money, they could collectively require you to return the money to a new representative (see Even Haezel, Sh’eila U’pikadon 5:1). However, in your case, there is no reason to believe that the group as a whole would want to replace you over a few dozen understandably missing shekels.

One could question the above analysis based on the following. The gemara (Bava Kama 93a) learns that a shomer is obligated to pay as a shomer only when he watches something for someone who expects it back, but not if he is watching in order to give to the poor. Yet, the Shulchan Aruch (Choshen Mishpat 301:6) says that if there is a set group of poor recipients, the shomer is obligated. Seemingly, this is because those paupers can say that they have a specific claim on the lost money. In your case, then, we might say that the teacher is the clear recipient of the money and you would be obligated to her.

Yet, the cases are different, as the teacher can only hope to receive the money. The parents can change their minds and not give the present (e.g., if the teacher loses favor in the parents’ eyes). This is different from the tzedaka collector, where once money reaches his hands, it cannot be taken away from those poor people (see Arachin 6a and Shita Mekubetzet, Bava Kama 93). Thus, the teacher would not have a claim (at least if she is not deserving of tzedaka). Possibly, the parents as a group could complain that they are not getting the full value of good will from their present (based on Rashi, Gittin 54a, see Machane Ephrayim, Shomrim 16), but presumably they should not have that claim, given that the quality of the present need not change significantly.

In the case where your daughter received money, your daughter, who is a minor, is the shomeret, and she is too young to be obligated. However, if you told the parents that they should give it specifically through your daughter, then you would apparently be obligated (see Shulchan Aruch, CM 182:2 and Netivot Hamishpat 340:11). Regarding the case where you are not sure if you ever received the money, according to the strict law, one who is not sure if he was ever obligated to pay is exempt (Shulchan Aruch, CM 75:10).

In the final analysis, it is unlikely that if you were sued, you would have to pay. Therefore since the average person would thank you for your efforts, which are probably worth more than the missing money, and let you off, you are not obligated to replace the money. If the amount is less than your planned contribution, you can certainly have in mind to give it in lieu of payment.

 First, let us see whether Reuven, who as a roommate was able and arguably responsible to help guard your items, when applicable, should be obligated as a negligent shomer (watchman). One does not become obligated as a shomer unless he accepts responsibility, which probably did not happen in your case. It is not sufficient to be aware that the object’s owner left the object in his proximity (Bava Metzia 81b).

Yet, there may be grounds for obligation as a shomer, as follows. The Rambam (Sechirut 2:3) says that even in cases (such as guarding land) where the laws of a shomer do not apply, one is still obligated to pay for negligence because “negligence is like damaging.” We can suggest similarly that the negligence of not locking the door obligates one even if he does not do a damaging act and he does not have the obligations of a shomer. True, commentators (see Shach, Choshen Mishpat 66:126) say that this is true specifically to one who accepted being a shomer, as the moral obligation to watch exists, just without a shomer’s halachic obligations. Thereby one who fails to guard on the most basic level must pay. However, in our case, he never promised to guard. Yet, our case is more stringent, as roommates have a relationship of interdependency and responsibility (e.g., if you had complained to the school, they probably would have instructed Reuven to lock the door). Therefore, the Rambam’s opinion should apply to this case. Regarding halacha, the Shulchan Aruch and the Rama (Choshen Mishpat 301:1) cites the Rambam’s as the minority opinion, while the Shach (op. cit.) accept his opinion. In short, it is unlikely that a beit din would extract money from Reuven based on this logic, despite its significant merit.

Another avenue to explore is damages. The gemara (Bava Kama 55b) says that if one breaks his friend’s flimsy wall that was holding back his friend’s animal, beit din cannot make him pay, but he has a moral obligation to do so. There is a machloket whether he is forced to pay when he knocked down a strong wall causing the animal to get lost (see Shulchan Aruch, CM 396:4). The Yam Shel Shlomo (Bava Kama 6:3) says that even one who obligates there does so because felling the wall that holds back an animal is like removing the animal. In contrast, one who opens a door that allows a thief to come in, only introduces a new, potential damaging factor. The latter is gerama (indirect damage) and one is not obligated, although there is likely a moral obligation to pay (gemara, ibid.). Our case is even more lenient, as Reuven has every right to open the door, and the problem is his failure to lock it later (it might depend if he purposely did not lock it).

A final category, which is a mix of the two above, is nizkei scheinim (damages among neighbors). The Tur (CM 157) cites a machloket. The Ramah compares the case of a neighbor who warns another that his failure to close a door allows robbers in to the case where one warns his friend that his wall fell and the mingling of their different vegetations will render them forbidden and he does not act, where he must pay (Bava Kama 100a). The Rosh counters that in the latter case, the mechanism that creates the prohibition begins working immediately, which is different from the possibility that robbers may come from elsewhere to damage. The Rama (CM 155:44) cites both opinions regarding one neighbor who asked the other to remove an indirect damager and he did not. In our case, then, it is hard to extract money but also hard for Reuven to wipe the slate clear. Therefore, we think it is proper for you to suggest a compromise with Reuven about payment and have him accept the responsibility to lock the door seriously in the future.

 According to almost all opinions, there is a mitzva in our times to live in Israel (yeshivat Eretz Yisrael), with significant discussion about whether it is from the Torah (Ramban, Additions to Sefer Hamitzvot, Aseh 4) or rabbinic (see discussion in Rav Yisraeli’s Eretz Hemdah I, 1:4). In all likelihood, one fulfills this mitzva by being a permanent resident of Israel, not a tourist or even a landowner who visits often (Shut Hamaharit II, 28). Some even say that the living must be a normal, healthy inhabitation (see different applications in Shut Harashbash 2, Eretz Hemdah op. cit. and Amud Hayemini 22). In any case, none of the options you mentioned would be a full-fledged mitzva of yeshivat Eretz Yisrael.

There is a second part of the mitzva, which the Ramban (op. cit.) calls kibush (conquest), i.e., to bring Eretz Yisrael under Jewish control. While doing so by military conquest in our times was hotly debated due to the Three Oaths (see Ketubot 111a and many contemporary sources), it is all but unanimous that it is a mitzva to obtain control by buying land. This is the basis for the famous leniency for yishuv Eretz Yisrael of having a non-Jew draw up on Shabbat a contract for land in Israel (Gittin 8b). However, this applies specifically when a Jew buys land in Eretz Yisrael from a non-Jew (Rashi, ad loc.; Rambam, Shabbat 4:11; Shulchan Aruch, Orach Chayim 306:11). Similar logic may apply to buying land or building a home in areas where Jewish settlement is not a given. However, buying a home in Rechavia is unlikely to contain that element of the mitzva. Acquiring a home from a Jew in order to enable aliya is a hechsher (facilitation of a) mitzva of yeshivat Eretz Yisrael, as are steps to strengthen the ability to remain in the Land (Shut Harashbash 1).

The matter of supporting the poor in Israel is not brought in the poskim as a mitzva of yishuv Eretz Yisrael. Rather, the Sifrei derives from the pasuk dealing within the tzedaka priorities (relatives, neighbors, etc.) that the poor in Eretz Yisrael have precedence over the poor elsewhere. The Shulchan Aruch (Yoreh Deah 251:3) paskens this precedence, while the Rambam does not mention it, for some reason. Thus, if one wants to give money to the Israeli poor, he may use ma’aser money, which he should not do for a personal mitzva like buying an etrog or, for that matter, a home in Israel. Helping someone else buy a home in Israel so that they could afford to make aliya is helping them with their mitzva and, according to the accepted opinions, is a legitimate use of ma’aser money (see Living the Halachic Process, vol. I, F-4).

Just because something is not a full-fledged mitzva does not mean that it does not have value. It is certainly laudable to want to connect oneself to Eretz Yisrael by owning a home here. It is something he does for his Jewish self and from his own funds. Supporting different projects here may be at least a partial fulfillment of yishuv Eretz Yisrael and can use tzedaka funds.

Practically, concerning your dilemma, it makes a lot of sense to combine the elements as follows. One can buy a home and hope to some day move into it (making aliya easier) or have their children move into it. It is proper to rent it out in the meantime (rental subsidies for the needy are a wonderful form of tzedaka). In this way, not only would Israeli society gain from the infusion of funds, but you would avoid the phenomenon of absentee homeowners (especially in Yerushalayim; see link-  www.lightson.jerusalem.muni.il). These fine Jews unwittingly raise housing costs and drive Jews out of town, thereby hurting the day-to-day economy, exacerbating the national housing shortage, and harming demographics (including for municipal elections).

If we understood correctly the situation you are describing, the brokerage firm is not lending you any money. Rather, you are buying one currency and selling the other, and, as part of the payment for them making the transaction, they require you to pay the interest rate differential. If this is the case, this payment is not considered ribbit at all, as it is not payment for a loan or for delaying payment.  

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.

In Living the Halachic Process (vol. I, E-6) in discussing the prohibition of commerce in non-kosher food, we touched on “ownership on paper” through the stock market. Futures trading has both elements of stringency and of leniency in relation to standard stock transactions. We will start with basic background.

The gemara derives from the pasuk, “… vesheketz yiheyu lachem” (Vayikra 11:11) that one may sell non-kosher species that come into his possession but may not make efforts to acquire and then sell them. This also applies to some other foods forbidden by Torah law (see Shulchan Aruch, Yoreh Deah 117:1).

According to most Rishonim, the prohibition of trading in forbidden foods is on a Torah level (See Shut Chatam Sofer, YD 104-106, 108; Yabia Omer VIII, YD13). The Rashba (Shut III, 223) says that the reason is to minimize the possibility of eating forbidden foods; others say it is a gezeirat hakatuv (Heavenly decree without a known reason). In any case, it has something to do with eating, as it applies only to objects that are usually owned for eating purposes (Shulchan Aruch, YD 117:1).

The consensus of poskim is that this prohibition applies as long as a Jew owns the food, even if he is not expected to come in direct contact with the food (Chatam Sofer, ibid.108). It is debatable whether holding a small amount of stocks is forbidden as partial ownership of a company (see Mishneh Halachot V, 102). Let us analyze how futures contracts differ. A futures hogs contract acquires for its buyer the, usually theoretical, right to obtain that commodity at a future date. Should this come to fruition, he will become the outright owner and controller of the pigs, which is forbidden. In this way it is worse than stocks, where one only has financial rights and not control over the company’s individual assets (a stockholder of McDonalds cannot demand 1,000 Big Macs for his shares). On the other hand, in the commodities futures markets, the average trader has no interest in obtaining the commodity but plans to sell it (hopefully at a profit) while it is still ‘on paper’ to another buyer.

Based on standard halachic rules, a futures transaction is often a davar shelo ba la’olam (something which is not presently fit to be transferred from the seller to the buyer). The pigs that an eventual buyer will get on the expiration date are usually not born at the time of most of the transactions. Although the sale takes effect based on situmta (societal consensus), the contract is not viewed legally as the sale of pigs but a commitment to provide the pigs at the specified time of delivery.

Ostensibly this resembles the Terumat Hadeshen’s (I, 200) case of a Jew who wanted to lend money to a non-Jew, using pigs as a guarantee for the loan. He suggests that this might be permitted because a Jew does not acquire ownership over collateral he receives from a non-Jew. Similarly here, a process through which he can receive pigs has commenced, but it is not clear this will happen. The Rama (YD 117:1, apparently as a chumra) says that one may not lend with forbidden food as a guarantee, which might imply that our futures sales are prohibited. However, there the problem is (see Chatam Sofer, ibid.) that the lender demanded collateral because he foresaw a situation where he would collect, with the claim that it is permitted to protect himself from loss (Rama, ibid). However, here an average trader foresees no scenario in which he will ever become the owner of the pigs. This case is not similar to that which the Torah forbade – owning and/or controlling non-kosher food sources with commercial intent. Rather, the trader is involved in a form of speculative trade on paper of mainly theoretical rights to future commodities. Therefore, from the perspective of commerce with forbidden food, it is permitted (see Pitchei Teshuva, YD 117:6).

The halachic/legal status appears as follows from your description. The foundation rents the apartment from the campus and rents it out (with the campus’ permission) to you (in the form of part of your compensation package).

The first question we have to discuss is whether one who rents is allowed to sublet. One who rents a movable object is not allowed to give it over to someone else (Shulchan Aruch, Choshen Mishpat 307:4). However, regarding real estate, halacha generally allows the renter to sublet (Shulchan Aruch, CM 316:1, based on Rambam Sechirut 5:5). The Rambam bases this on an understanding that there has to be a good reason to disallow a renter, during the time he has full rights of use, from renting out to someone else. Regarding movable objects, there is a concern that something will happen to the object, and the owner may not trust the second person’s honesty. This is less of a concern regarding real estate. The Rambam makes common-sense distinctions, such as that one cannot sublet to a larger family, and further distinctions may be needed to deal with an apparent contradiction within the Rambam on this topic (see S’ma 316:1). The Rama (CM 312:7) adds that one can sublet only to an upstanding person.

In matters of this type, the local minhag supersedes classical halacha (Pitchei Choshen, Sechirut 4:(22)). Unless there are strong indications otherwise, we assume that a local (in this case, Israeli) law, sets the standard. Clause 22 of the Law of Renting and Borrowing states that one has to ask permission from the owner before subletting, but if the owner objects on unreasonable grounds, his objections may be ignored.

You should not sublet the apartment without discussing the matter with at least one of the parties. Both the law/minhag and probably the halacha mandate to give the owners (the campus) the opportunity to express any objections, which might include matters you did not consider. Furthermore, the foundation cannot give you more rights than they have themselves, and since it is common for a rental contract to disallow subletting without permission, you need to ascertain from someone what the agreement was.

The better question is if you receive permission from the campus, whether you have to get permission from the foundation, who might say that if you sublet, they want (some of) the money. It seems that as long as you are on staff, the apartment is not at their disposal for making money (i.e., they do not have a clause that if you go away, you have to allow them to rent it to others). The potential problem of subletting is a matter that affects the owner (his property could get damaged), and if the campus does not have concerns, the foundation can probably not raise issues. The question is in regard to your compensation package, as they might be able to claim that inclusion of the apartment in your salary was only as necessary and was not meant to include your making additional money off of it. We cannot tell for sure who would be right if such a claim were made without hearing both sides’ claims. We also don’t know if there could be any sensitivities regarding the relationship between the campus and the foundation. Therefore, even if for no other reasons than mencthlichkeit and to maintain good favor in your employers’ eyes, we feel that you should inform both the campus and the foundation of your intention to sublet and see if there are objections. (You do not have to suggest sharing the proceeds.)

First and foremost, mazal tov!

Traditionally, a shadchan was paid – like an agent. The Rama (Choshen Mishpat 185:10; see also Pitchei Teshuva, Even Haezer 50:16) only has a question of whether one pays at the time of engagement or of marriage. The Rama’s rule, one of the main rules in monetary law, is that we follow the local minhag, which is not always geographically dependent. In regards to certain things, different segments of the population are clearly defined, certainly including the Charedi community in regard to a shadchan’s fee. Their practice is to pay a shadchan, whether a professional one or even a mutual friend. There may be different practices as far as how much to pay and certain conditions, but $1,000 a side is quite standard.

The fact that in the Dati Leumi / Modern Orthodox community, a shadchan does not usually get paid other than a present at the couple’s discretion, is fine. (There are several good sociological reasons for the difference between the communities in this regard, and there is also probably an advantage for our community to have professional shadchanim alongside the free services of friends and family. However, we were asked for a halachic response, not a lecture in sociology.) According to the Rama, the minhag is the determining factor, not just for the conditions of a payment, but for the existence of payment at all.

It is a good question (dealt with, in a different context, in an Eretz Hemdah court ruling) when two people from different communities with different practices interacted without prior discussion. Without getting into detail, we explained that the matter depends if the reason to pay for a service without explicit agreement based on custom is because of assumed agreement or the benefit one received. However, that issue is probably not relevant here. If your daughter operated within the Charedi shidduch scene, she was bound by its rules unless she specified otherwise, whether or not she was aware of this particular practice.

Formally, it is unlikely that you specifically have to pay, as your daughter is the one who ‘hired’ the shadchanit, not you. While parents usually pay for such expenses, your daughter did not act as your agent unless you gave her a carte blanche for all dating-related expenses. For that matter, you are not monetarily obligated to finance the wedding (although Chazal did expect it – see Ketubot 4a). However, if you do not pay, then your daughter must.

In the Charedi world, there is a belief that it is a bad omen for the marriage to not properly fulfill an obligation to a shadchan. We are not experts on bad omens and will neither confirm nor dismiss this concern. In any case, monetary obligations must be paid, based on halacha and ethics. The difference in one’s belief about the omen is whether it is a good idea to ask for a delay in payment. It is halachically legitimate for one who has difficulty paying immediately to ask for a delay (caterers and photographers rarely agree), but many avoid doing so with a shadchan.

We do not need to tell you that life brings unexpected expenses and that it is better that they be related to joyous events than others. Even without surprises, many people have real trouble paying for weddings, and many hard decisions have to be made regarding priorities and means of obtaining previously unfound funds. Tefilla is one way, and “Hashem has many messengers.” Those who truly need it are allowed to receive help, even from outside the family, and certainly from within it. However, we must reiterate that whether or not the shadchanit needs the money as badly as you do, someone has to pay her.

The halachic status of checks is very complicated. There are three basic approaches: 1) A check is like cash (see Igrot Moshe, Choshen Mishpat II:15); 2) A check is like a promissory note (Minchat Yitzchak V:119); 3) A check is a request from the bank, until told otherwise, to give money to the one who holds it (Shevet Halevi VII:222).

These approaches can affect many legal questions. Within our general context, according to approach 3, one can cancel, for good reason, checks that he has already given, which is more difficult according to approaches 1 and 2. In your case, as you wrote the check which is held by Shimon, with whom you had no direct dealings, the ability to cancel the checks is crucial. If you can cancel it, he ostensibly has no claims against you, just against the person who gave him the checks. However, based on the way checks are used and the common practice and the legal systems we are aware of, we believe that a check should be treated like a promissory note (see Pitchei Choshen, Halva’ah 13:(21)). Therefore, one may not cancel a check, once it has been given for use, except to prevent its illegal use. You feel that your neighbor is in effect doing just that by not following the conditions you set out. We cannot investigate why he is not following your agreement, whether he still deserves your help (perhaps he needs more help), or whether you can be morally expected to provide that help. We will deal just with legality.

Regarding checks that Reuven gave to Shimon before you ended the arrangement, you are obligated to honor the checks. Firstly, it was, at the time, legal use of the checks and obligates you. Also, you apparently wrote the checks as a means of getting Shimon and others to give Reuven products on credit. In other words, your promise to pay his bills secured a loan for Reuven. This makes you into an arev kablan (see Bava Batra 174a), a strong type of guarantor (usually a guarantor pays only if the borrower defaults). While the Shulchan Aruch (CM 131:1) says that a guarantor can back out, that is only before the loan takes place (otherwise, it is not a guarantee at all).

In regard to checks that Reuven used after you told him to stop doing so, the matter is complicated. He, in effect, stole your checks to give them to an unsuspecting Shimon. The general rule is that if a buyer did not have reason to suspect he was buying a stolen object, when the owner comes to retrieve it, the owner has to reimburse the buyer for what he spent on the item (Bava Kama 115a; Shulchan Aruch 356:2). This practice was instituted to prevent uncertainty in the markets (takanat hashuk). Thus, at first glance, the takana would require you to pay Shimon for the money he lost by accepting your check. (If your check was used to pay past debts, the takana does not apply (ibid. 6).) The takana does not usually apply to stolen documents (Shach, CM 50:7), but it does apply to a mamrani (equivalent to an open check) (ibid.). On the other hand, the takana requires payment before one extracts his object from the buyer. It apparently does not stop you, the owner of a bank account, from preventing Shimon to extract money from you based on a stolen check (Pitchei Choshen, Geneiva 3:(22); see Shach 356:4). Other legal and moral factors may play a role here, but we have set out the basic principles.

We will summarize our old response explaining why it is permitted to buy Israeli bonds, and thus take interest from the Jewish State (see Living the Halachic Process, vol. I, F-6), as the questions overlap. Then we will focus on some differences.

Several poskim, (including Igrot Moshe, Yoreh Deah II, 62-63) permit taking interest from Jewish-owned corporations because ribbit is forbidden only when a borrower has personal liability. Even some who disagree with that claim (see Brit Yehuda 7:(66)) permit lending to the Israeli government because a government has no clearly defined owners, but is an amorphous representation of an ever-changing population (see Har Tzvi, YD 126). The Treasury also has a general heter iska (a halachic device that turns an ostensible loan, where interest is forbidden, into an investment of sorts, in which the additional money returned is to be viewed as returns on a successful investment).

Among the aforementioned logic, there is a difference in regard to the heter iska. While many view a heter iska just as magic that causes the prohibition to disappear, it actually is done by changing the rules that determine how much money will be returned. (It is even possible that not all the principal will have to be returned). Both sides to the transaction must agree to the heter iska’s terms for it to be valid. When one decides to buy government bonds, he agrees to the rules that govern them (even without reading the fine print). When one deals with a bank, he similarly accepts the terms of their general heter iska, the agreement between the bank and its customers, which includes the principles of iska. In contrast, when does a person whose income is withheld for income taxes accept the terms of an iska agreement? (It is difficult to claim that it is when he decides to live and/or work in Israel.)

On the other hand, there are grounds for leniency that apply to tax refunds and not to government bonds. One of the basic rules of ribbit is that the Torah forbade paying interest specifically to the one who had lent money to the borrower (Bava Metzia 69b). When a worker has taxes withheld, he actually does not give money to the tax authorities. Rather, the government requires the employers to give them the money (which entitles the employers to pay the worker less than the gross salary). In fact, if they fail to do withhold properly, the employer is legally accountable. Thus, when the Treasury pays the employee with interest, they are not paying money to a lender. This idea, though, will not work for prepayment of taxes by self-employed individuals, as they pay themselves.

The most significant leniency that applies in this case is a result of the distinction we made above: the taxpayer does not choose to pay the tax authorities or agree to the timing of the payment and the refund. All decisions are made unilaterally by the government, and barring an unusually corrupt system of levying taxes (no cynicism, please), they can make up rules under which they increase or reduce them. Several poskim (see Netivot Shalom 176:7:25) use this logic to allow the government to take interest from a taxpayer who owes money. Since the government can take additional money as they see fit, we do not consider their decision to do so when one pays late as equivalent to interest on a loan. Similarly, they are permitted to give discounts for early payment of taxes (Torat Ribbit 10:69), which is common regarding municipal tax. The same logic applies to their decision to give a grant to those from whom too much was withheld, and it is not considered forbidden ribbit.

By means of any combination of the arguments above, it is certainly permitted to accept an income tax refund with interest.

This is a potential problem. The fact that you are not interested in gaining from the loan but for just getting the profits from your son that you would get from the bank does not mean that it is not ribbit to receive the interest from your son. Most people are not sensitive to this point, and it is good that you asked.

There are a few simple solutions. The simplest is just to make a heter iska between the two of you. Such standard forms exist in books and internet sites.

Another possibility is to use the money that you are giving him to buy a share in the apartment. Then instead of receiving interest for the loan, you can charge him rent (that you set in advance at the time of the investment, if you like) that will correspond to the amount of revenue that you think is fair. As he pays back the principal, "he buys back shares" of the apartment and the rent goes down, until at the end the apartment is fully his again. To avoid problems of trickery, it is proper to check that the revenue corresponds in a logical manner to the rent for the proportion of the ownership of the apartment that your investment should give you. Since I am sure you will give him a fair deal, I would be very surprised if it did not correspond fine. By the way, I do not think that there is a need to have you named as an official owner of the house in any land registry. But you should view it as real, and it would be proper to have some sort of written agreement and or process done before witnesses, preferably conforming with halacha. Thus, if Heaven forbid, the apartment were to collapse and/or he would default on the payments, it would not be that he owes you money but that you maintain a certain percentage of the ownership.

If you need better explanation or details of the systems or for some reason none of these ideas works for you, get back to us.

It is hard to say that is categorically forbidden by the laws of lashon hara to inform the buyers of the problem. The Chafetz Chayim (II:9:1) says that one should tell someone who is about to enter a business relationship of definite loss he is expected to incur as a result, under the following conditions: he considered the resulting damage carefully; he does not exaggerate the problem’s extent; his intentions are noble and not out of dislike for the subject of his criticism; there is no other way to get the same result; the subject of his criticism will not be unduly harmed. The Chafetz Chayim proves that one is obligated to inform the person who stands to lose because of the mitzva to not stand idly by as someone is in danger, which applies not just to danger to life but also to monetary danger.

However, based on your description, it seems that you should not tell. First, buying an apartment with a normal amount of mold does not constitute a loss of money, as many people would buy such an apartment in any case. Perhaps it should justify a reduction in price. However, considering that there is not one exact price for a house, it is not clear that such a problem would make the price inappropriate. A person who does not do a thorough check of the apartment should assume it is not perfect.

Second, you also are not required to take steps to save someone from damage that he himself does not bother to take. The Chafetz Chayim (later in II:9) says that one who did not bother to have a potential son-in-law tested for Torah proficiency “caused the loss to himself” if that is important to him, and someone who was not asked should not offer a negative report.  

One who is asked by both sides to give an appraisal, should do so honestly (ibid.). Therefore, the buyer can ask permission of the seller to ask you about the apartment. In that case, giving the impression that it is better than it is would be a violation of lifnei iver (not misleading someone).

If a buyer asks someone without the owner’s permission, he may tell the truth in a case where his answer impacts on an object’s price, as we see in the following Talmudic precedents. If someone overpaid for an object, he can take action only for the amount of time it takes to go to an appraiser to check its price (Bava Metzia 49b). We do not consider that the appraiser will refuse to tell him the truth due to lashon hara. Another source deals with neighbors with inside information. If a woman with physical blemishes marries and her husband wants to void the marriage due to misrepresentation of her status, he may not make such a claim if they live in a place with public bathhouses because we assume he checked out her condition through female relatives (Ketubot 75b). The Rambam (Ishut 25:3) cites two opinions regarding a case where the groom does not have relatives in town, whether we expect him to ask friends to ask their wives. Halacha does not assume that people should hold back the information.

As stated above, though, one does not need to do the work for the buyer, unless he thinks the buyer cannot find out for himself. We have seen that if there is an extreme problem one would not know to ask about, an individual should to step forward. Even so, the act of tattle-telling is so frowned upon that it should be avoided when there are alternatives. For example, when Yehoshua asked Hashem who was responsible for the defeat at the Ay, Hashem told Yehoshua that He is not a tattle-tale, and Yehoshua should cast lots to determine (Sanhedrin 11a). Therefore, when there is no great need to save someone from a deep, dark secret (as explained above), it is improper to volunteer information that paints an acquaintance or his merchandise in a negative light.   

It is forbidden to deceive someone (Chulin 94a), as finds expression in several p’sukim (Bereishit 31:26; Vayikra 19:11; Vayikra 25:14). You are asking because of the convergence of mitigating circumstances. You cited the price with honest intentions; by the time you realized, he had already agreed to the price, i.e., it is apparently a reasonable, worthwhile one.

However, if one takes money due to an honest mistake, he must return it. The matter is clearer here because the deal is not yet complete, and going through with it based on false information given in the past is continuing the disinformation, by not correcting it, now intentionally. The gemara (Shvuot 31a) says that acting in a manner that just gives a false impression is considered a violation of the requirement to distance oneself from a lie even if he said nothing. Going through with the transaction is thus not much different than lying in the first place.

What if the transaction took place? There are rules of ona’ah ­(sales that took place at an unfair price), and the general rule is that if the difference between the sales price and the proper one is less than one sixth, one does not have to return the mispricing (see Bava Metzia 49b). If we could determine that in our case, the price was not off by that much from the range of normal prices, ostensibly there should be consequences to your questionable discount. Also, if the “victim” of the unfair price was told the proper price but still agreed to the “wrong” one, the agreement stands as is (Shulchan Aruch, CM 227:21). Arguably, the proprietor knows costs and prices, and this should be equivalent to one who was told the real price yet agreed. (See a discussion of whether it is enough for the party to know or whether there must be an explicit stipulation in Pitchei Choshen, Ona’ah 10:(30).)

However, there is a fundamental distinction between the regular rules of ona’ah and a factual mistake. The leeway of a sixth given for ona’ah is based on the inexact science of setting an exact price, making modestly differing prices marginally legitimate. However, if someone gives false information regarding something exact, such as measurements of size, weight, or number, ona’ah applies even for a difference of less than a sixth and even regarding objects that are excluded from the standard laws of ona’ah (Shulchan Aruch, CM 232:1; S’ma ad loc. 2). If the price was based on an exact fact, the price you were quoted by someone else, ona’ah applies even if off slightly. The fact that he agreed to a low price reflects a calculated concession on his part – but his buyers have to keep to the parameters of that concession.

There are a few cases in which and a few opinions according to which you are not required to have a ma’akeh built.

The gemara (Chulin 136a) says that although the word “gagecha” (Devarim 22:8) implies that a jointly owned roof does not require a ma’akeh, the continuation of the pasuk, “lest the faller fall,” indicates that partners are obligated, since in the final analysis, someone could fall. It is less clear whether this applies even when there are non-Jewish partners, who presumably are not obligated in the mitzva. The Shach (Choshen Mishpat 427:2) says that while the Maharshal obligates in ma’akeh one who is a partner in a house along with a non-Jew, since the Rama (Yoreh Deah 286:1) says that such a house is exempt from a mezuza, it is possible that he would exempt from ma’akeh also. He hints that the comparison is not simple, since one of the reasons given for the mezuza exemption is the non-Jew’s possible reaction to what he would consider a strange ritual; this does not apply to a ma’akeh. While the more accepted opinion is that one is obligated, the matter is still doubtful (Birur Halacha (Zilber), EH/CM p. 249).

The poskim do not distinguish between cases where the Jewish-owned portion or the non-Jewish one is the majority, making moot one part of your excellent question (whether we follow the owner/landlord or the resident). If the company were asking the question, it would be a good one. The gemara (Bava Metzia 101b) says that the renter is obligated to erect a ma’akeh. Most assume that this obligation is Rabbinic (Chazon Ish, CM, Likutim 18:7; see Pitchei Teshuva, CM 427:2), and the Minchat Chinuch (#546) raises the question whether the renter’s obligation is exclusive or whether the owner of the house and roof is also obligated.

You did not state whether the roof is used at least semi-regularly or it is basically only for repairs. (I assume that if people frequented it, everyone would understand the safety needs of a fence – a ma’akeh only needs to be around 32 in. (=80 cm.).) Most poskim (Be’ur Halacha to Orach Chayim 540:1; Chazon Ish ibid. 1) say that a roof that is not frequented does not require a ma’akeh. It is possible that even the stringent opinion on this matter would not apply to a renter or where there is a partnership in the house. Since the obligation in those cases is likely based on the practical consideration of danger, it might not apply when the roof is not regularly used.

What do you one do if your case is such that you are obligated in a ma’akeh but cannot get others to agree, unless you and/or a small group to pay for it? (This would be prohibitively expensive due to the building’s size.) Regarding mitzvot aseh (positive), the rule is that one does not have to pay an exorbitant amount of money to fulfill it. Regarding mitzvot lo ta’aseh, one has to spend all his money to avoid violation (Rama, OC 656:1). The mitzva of ma’akeh is primarily a mitzvat aseh (see Ramban, Kiddushin 34a), and there may be times that the aseh applies while the lo ta’aseh does not (see Tosafot, Kiddushin 34a). Nevertheless the existence of a lo ta’aseh would seem to strengthen the aseh. However, how much one has to pay, according to many poskim (see Eshel Avraham, OC 656:8; Pitchei Teshuva, YD 157:2), depends not on how the mitzva is formulated, but on whether they are violated by action or inactivity. Therefore, since the violation is by not building the fence, a handful of people would not be expected to pay an exorbitant price to build this ma’akeh.

The question of who gains when a shaliach (agent) who, in buying something for his meshaleiach, receives a special deal, is discussed in the gemara (Ketubot 98b). The basic rule is that when the commodity does not have a set price, we treat the good price or extra quantity received as part of the purchase, which goes to the meshaleiach. If there is a set price and the purchase ended up being out of the norm, the extras are split between the shaliach and the meshaleiach.

Before categorizing your case in this regard, we must discuss the logic behind the gemara’s ruling. Rashi (ad loc.) says that the profits are shared in the latter case because while we view the special rate as a present, we do not know who the intended recipient is, so we split it between the two parties out of doubt. The Rif (ad loc.; see Ran ad loc. and Beit Yosef, Choshen Mishpat 183) says that we objectively view the benefit as being joint between the two people responsible for the profitable transaction. The shaliach is the one who was given the “present.” On the other hand, the meshaleiach’s money and request to buy were the trigger for the “present.” The Hagahot Oshri (to Rosh, Ketubot 11:15) explains that the good fortune that brought about this profit is naturally attributable to the shaliach and the meshaleiach, and so they split the profits.

Later poskim discuss variations of the case which depend upon the rationale behind the rule. The Ran (on the Rif ibid.) says that if the seller said explicitly that the special rate was due to the shaliach, Rashi would award the gain to the shaliach, whereas the Rif would say the meshaleiach still gets half for his critical role in the whole process. Rashi’s logic would also not apply to a case where the extra came from the seller’s mistake (of the type that does not require return), whereas it would be less clear who would deserve the extra according to the Rif; the matter of good fortune certainly applies (see K’tzot Hachoshen 183:8). The Shulchan Aruch (CM 183:6) seems to hold like the Rif, which is the preference of the Shach and Taz (ad loc.) whereas the Rama (ad loc.) accepts Rashi. The major poskim do not follow the Hagahot Oshri.

The application of these rules to your case depends on certain factors you did not mention. If the company clearly advertises the gift certificate along with this item or large purchases in general, then it would seem that you do not deserve any part of it. That is because the gift certificate is not a special present but part and parcel of the transaction. Just as if there is a 20% sale on a certain day, you would not claim the reduction for yourself, the same is true for another set benefit. If the matter were a discretionary decision of the store with no known reason, then it would be similar to the present which is subject to the 50-50 split. If you were entered into a lottery of buyers and your name was selected, then according to Rashi you should pass on the profit because there was no intention to give it to you, and profits from the sale naturally go to the buyer. According to the Hagahot Oshri, you are part of the good fortune; one can argue what the Rif would say in that case.

Since it is important to be beyond reproach and suspicion in dealings with community needs (see Tzedaka U’Mishpat 7:7), we suggest discussing the matter with the powers that be in the beit knesset. Even though the strict law is similar to that regarding standard monetary rights (see Noda B’yehuda II, Yoreh Deah 155), you must make sure there will be no conflict. You can share the pertinent elements of our presentation to help you come to an agreement.

There are a few models to the possible nature of your arrangement with the yeshiva, which would impact elements like the ones you ask about.

You could have been serving as an agent (shaliach), buying food on the yeshiva’s behalf. If so, they have to reimburse you in full for what you bought as their agent, and the food is theirs. Then you would have to determine whether they allow you to eat their food after the time during which they clearly gave permission (during the oneg). One may assume they would be happy that you finish small amounts from open packages. Regarding the rest, it likely depends on various factors, including the management style of the yeshiva and the extent to which it is worthwhile for them to store the food until the next event. Even in cases where one is confident the owner of an object would be happy with a friend taking his object, there is an unresolved machloket whether it is permitted (Shach 359:5) or forbidden (Tosafot, Bava Metzia 22a) to do so (see Living the Halachic Process vol. II, J-2, where we preferred refraining from use).

Another possibility is that you bought the food for yourself with a promise of compensation. If that is the case, the food is yours, and you can do whatever you want with it. However, it raises a different question: how much compensation can you ask from the yeshiva? If you do not take the food for yourself, then they probably have to compensate you for all you bought and cannot require you to use that which was not eaten at the oneg on your account. However, leftovers that you do want to use turn out to be things that you did not spend on the group, and it does not seem that you should ask for compensation for them. On the other hand, the value to you of the leftovers (certainly the open packages, but likely even some closed packages) may be less than the amount you paid in the store. Therefore, you would not have to reduce the full face value from your request of a refund.

We encourage stringency on matters of monetary ethics. The wisest stringency is often to raise the issue with the relevant authorities with a smile, hakarat hatov, and willingness to pay or forego, respectively. In cases of good relations and only a few shekels at stake, each side is usually generous. Asking permission not only removes a question of impropriety but likely gets the best deal in the present and builds trust for the future.

Question 2: I am a teacher who received 500 shekels to spend on a party for a group of my students. I am clearly expected to keep the leftovers. The generous budget enabled me to buy more expensive vegetables than I would not normally buy for myself. After further planning, I think a different salad will be more appropriate, which would make the expensive vegetables unnecessary. If I decide to not use them, I should “buy them” from the school, but they are not worth their cost to me. What should I do? 

The same question can be asked about using the "facilities" in such places (water, paper). It depends on what people have in mind and what you can assume. I would assume that the standard is certainly that those who belong to the place (pay dues or are welcome regulars) may do it. Regarding someone who "comes off the street," I would be far less confident. The expense is not exorbitant but if enough people do it, it adds up, and as opposed to using the facilities, where the need is great, regarding cell phones, with a little planning, there should rarely be a need for recharging away from the home or workplace. It may depend on the place. By the way, in many places it may be a little rude to have phones placed on places and wires hanging in a way that takes away from the ambiance. If they mind for that reason, it would also be a problem even if they do not care about the electricity.  

If there was a valid heter iska, you have no problems even if you cannot find it. That is because a heter iska sets the nature of the transaction as having an element of investment (subject to profit or loss, at least theoretically) from the outset, and therefore there is no problematic loan. [The reason that a heter iska can be used to pay at a fixed rate, irrespective of actual profits is connected to the halacha that the investor can demand verification (witnesses, oath) that the investment did not earn more than stated. The heter iska states that a fixed rate can be paid as “assumed profit” (d’mei hitpashrut) in lieu of verification.]

According to most poskim, an oral heter iska agreement is valid b’dieved (see Brit Yehuda 40:9; Torat Ribbit 16:2). Why then do we bother with a written agreement? While we certainly do not intend to cast aspersions on a halachic system that the rabbinic community has accepted broadly, most will admit that it borders on halachic fiction. The sides basically agree to a loan to be returned with interest even if the borrower did not profit. It is therefore worthwhile to be able to lean on the halachic precedent that the written word can raise doubtful agreements to the minimum level required (see Ketubot 56b; Tzemech Tzedek, Yoreh Deah 88). Additionally, many people do not understand the conditions of the iska. Most poskim do not require a high-level understanding of the mechanism, but it is unclear what the minimum level is. When things are in writing, there is more chance one understands (see Brit Yehuda 354). Also, there is a broad rule that when something is in writing, we do not enable one to claim he did not understand; he is to realize he is accountable for whatever is written (see Netivot Shalom p. 726). This element is missing when the “agreement” is oral. Also, there are different types of heter iska which can be used, and not everyone knows how to specify which version they are agreeing to. In summary of this part of the question, it is important to have a written heter iska, and you should prepare one now. However, if there was an agreement to follow the conditions of a classic heter iska, under the circumstances you can assume the agreement had the proper halachic effect.

What if there was no agreement? Interest that was paid already would be the violation of a Torah prohibition, which the creditor is required to return to the borrower (Shulchan Aruch, YD 161:5). However, the borrower is allowed to waive the right to have the money returned (ibid. 160:5), as you are apparently interested in doing. (There is more to be said on this matter, but it is beyond our scope.) Regarding the future, it is possible to create an iska at this point. This can be accomplished by transferring to you potentially profit-producing assets by means of a kinyan sudar (Dagul Me’revava to Shach, YD 177:41) or through a written heter iska (slightly modified language is preferable). This new iska arrangement cannot change the nature of the loan retroactively, and thus it is forbidden to make new interest payments to correspond to the time that passed (Torat Ribbit 16:29). Some allow compensating for the lost profit by making the d’mei hitpashrut higher than what was planned (ibid.; Netivot Shalom, p. 721). However, others counter logically that it is clear that the added payment is ribbit for the past and not incidental (ibid.). The less exact and less clear the compensation is the more reasonable leniency is on this point.

[Since each case has its own details and dynamics, we suggest you speak to us about arriving at the best arrangement for your case.]

In all questions of this nature, we warn the querier that we cannot say anything conclusive after hearing only one side, as even two honest people can have different viewpoints of the same events. This is all the more so in this case in which you yourself are in the dark about what happened. While we often say that the two sides have to be heard in beit din or another permitted arbitrative setting, we cannot ignore your question – whether you should make an issue at all. Therefore, we will briefly discuss general sources and factors.

The client has the advantage In a disagreement between a client and a worker over the amount that was set for payment due to the rule that one who wants to extract payment requires proof (Shulchan Aruch, Choshen Mishpat 89:4). However, if the client is uncertain how much he owes, he should have to pay because he is unable to take the serious oath in which he is obligated (see ibid. 75:13). If he is incapable of knowing how much he has to pay, this logic does not apply (Shach, CM 75:54).

In work such as this, where it is clear that one is going to know how much time he put in and the other will not, the rules are somewhat different. Mishnayot regarding a particular agent who claims he made expenditures on behalf of another (Sh’vuot 45a) and a husband who made improvements in his wife’s field before divorce (Ketubot 79b) say that the plaintiff swears how much he spent and is reimbursed. The Mordechai (Ketubot 209), Maharik (10), and Rama (CM 91:3) understand this as a broad rule regarding claimants who know about the expenditures and defendants who do not – the claimant is believed to receive payment with an oath.

The above appears contradicted by the halacha that one who seeks reimbursement for expenditures due to unreasonable steps taken by his counterpart in litigation must prove how much he spent (Rama, CM 14:5). The S’ma (91:16) distinguishes between cases where the claimant worked for the benefit of the other side and where he acted against his will. The Shach (ibid. 23) distinguishes between cases where the defendant requested of the claimant to make the outlays and cases where he acted on his own accord. Part of the logic is that when Reuven asks Shimon to do something that deserves reimbursement without demanding proof from the outset, he in effect grants trust in the veracity of Shimon’s charge.

The obligation to pay wages is equivalent to that to pay expenses. In your case, the S’ma and Schach should agree that you should believe the person whom you authorized to work and bill you. Certain cases could arguably be exceptions. One is when you have strong grounds to believe he is lying (see Pitchei Teshuva, CM 91:4). Another is where the technician should have informed you when he figured out the extent of the cost, enabling you to decide whether it is worthwhile to have it fixed. (Often, he will not know until well into the process, when informing you is irrelevant. Furthermore, he can claim that you should have requested an update. Such matters change from case to case.)

It is generally best to research a professional’s reliability before you hire him and if you heard favorable reports, to trust him. While it is your prerogative to not use him in the future, refusing to pay in full is drastic. Some situations may lend themselves to expressing (in a mentchslach way) your displeasure and suggesting that your willingness to use him again depends on a reduction in price. There are so many unclear factors that it is hard to give firm advice as to what to do, and without hearing the other side, it is certainly wrong to attempt to tell you who is right.

We start with a few halachic sources and conclude with an important moral message.

Bava Metzia 77a records the general rule regarding a work agreement that became unfeasible to carry out. If one side is assumed to have been aware of the possibility of work stoppage and the other was not, the side that knew loses (by paying or not paying, respectively) because of his failure to stipulate otherwise. If the two sides’ degrees of awareness are comparable, the worker is not paid. There are different opinions as to whether the worker loses because he has the more difficult task of extracting money, or because only under special circumstances does a worker deserve pay without performing the work (see Terumat Hadeshen 329 and Be’ur Hagra, Choshen Mishpat 334:5). One difference between the opinions is if the worker was pre-paid. Another pertinent source discusses a case where Reuven rented a boat from Shimon to transport wine and the boat and wine sank midway. Does Reuven have to pay Shimon the rental fee? There are four different halachot (obligated, exempt, split the money, depends if he already paid) in four different permutations of the case (the factors are: whether Reuven can provide other wine; whether Shimon can provide a different boat).

Finally, we present the concept of makat medina (an impediment that affects a broad population). The mishna/gemara (ibid. 105b) says that that a field’s sharecropper is entitled to partial relief from his payment if crops are destroyed by a regional infestation. The Maharam Padova (86) explains that in such a case, one cannot say the “bad fortune” relates to a particular person, and he and the Rama (CM 334:1) apply the concept also to a worker who was prevented from working due to a makat medina. The Mordechai (Bava Metzia 343) cites the Maharam as saying that if the government suspends schools, parents still have to pay teachers. There is great debate (see S’ma 321:6; Shach 321:1; Netivot Hamishpat 321:1) if and under what circumstances we accept the Rama. The Chatam Sofer wrote, regarding teaching that was suspended for weeks due to war, that he found it nearly impossible to determine whether strictly halachically, the teachers must be paid, and he urged for the various sides to reach compromises.

If a specific case came to our doorstep (which would require the presentation of two sides), we would find it hard to be more certain that the Chatam Sofer was. If the question is general, as it appears, it is even harder to answer because many fluid factors are not addressed. A partial list of questions follows. Is the camp in question in a region where some such activities are continuing or are all suspended? Is it possible for the camp to make other arrangements? Was the problem known at the time of payment and by whom?

One of the great national assets going into and to this point of Operation Tzuk Eitan is a palpable feeling of solidarity. Especially around Tisha B’av time, we should recall the gemara (Bava Metzia 30b) that says that Yerushalayim was destroyed because people were unwilling to go beyond monetary law and act beyond the letter of the law. In most cases, both parents and camp directors will have legitimate claims. Let us hope that all people involved in such issues will be willing to offer their brother a compromise if not the benefit of the doubt. (One of our dayanim likes to tell of a Yerushalmi ancestor who was sued in beit din for refusing to receive more payment than he thought he deserved. While our beit din has not yet adjudicated such a case, we will happily do so.) In the merit of mutual understanding and concern, may we defeat our enemies and see a geula shleima.

Although we respect and value local governmental courts (see Avot 3:2), Jews are required to seek adjudication specifically in a beit din (Shulchan Aruch, Choshen Mishpat 26). There are two main rationales for this halacha: 1. It is wrong for the incorrect litigant, from the perspective of Torah law, to win the case. 2) Seeking a different system of justice is a severe affront to the Torah’s pertinence in the critical realm of justice (see Beit Yosef, CM 26; S’ma 26:4).

Factor #1 does not apply if the two sides agree to go before the non-Jewish court, as they can decide on other forms of dispute resolution, e.g., mediation, flipping a coin … However, factor #2 is still a problem. If adjudicating in a beit din is unfeasible, then factor #2 should not be a problem because one is not rejecting Torah justice but is just dealing with a situation where it is not an option. Indeed, the gemara talks about adjudication before unknowledgeable Jews when no local Jews are capable of functioning as a proper beit din (Sanhedrin 23a, adopted by the Rashba, cited in Beit Yosef, CM 8). The implication is that this is preferable to going to the local non-Jewish court. On the other hand, there is room to argue that this was based on an assumption, which is not as prevalent in our days as in the past, that the courts were a corrupt and a dangerous place for Jews and the Jewish community (see Rashba, Shut II:290).  

What does one do when a city has no Jewish tribunal at all? The Rama (CM 14:1) says that this is grounds for going to another city from the one in which the case should have been heard. However, as the discussion above implies, out-of town alternatives may be deemed practically unfeasible.

Most poskim posit that when there is no beit din that can adjudicate, it is permissible to go before a non-Jewish court (Chukot Hachayim (Palagi) 6). The Rivash (216) implies this. The Shulchan Aruch (CM 61:6) says that although a contractual stipulation does not allow a lender to make payment from a borrower’s property without involvement of beit din, he may do so if he cannot find a beit din to adjudicate. The Maharikash (Erech Lechem, ad loc.) broadens this concept to allowing a Jew to sue in non-Jewish court when a local beit din is unwilling to hear the case. There is discussion about the conditions under which such action is justified (see Chukot Hachayim ibid.) and on whether a beit din must at least grant permission, but in cases where there is no alternative, it is permitted to go to the courts.

Spending more money on transportation than the claim warrants is one such case (see Sanhedrin 31b). On the other hand, there are often reasonable alternatives. Mediation and non-judicial arbitration are often good ideas in any case. Nowadays, there are recognized batei din which will adjudicate via video-conferencing, as our beit din has done successfully. While a standard hearing is more effective, we find precedents for compromising effectiveness in a case of need. For example, when one side wants to go to an expert regional beit din and the other prefers a local lower-level one, they adjudicate locally, and the beit din sends questions to experts (ibid.; Shulchan Aruch, CM 14:1).

We suggest that your plaintiff propose one of the above alternatives. If the other side rejects them, it is like any case in which the defendant refuses to submit to beit din and beit din grants permission to go to court. It would be legitimate for the plaintiff to refuse to offer one of these options if he truly believes that they will take away from his right for justice. In any case, it would be permitted for you to represent him as a lawyer in court.

In my school days, such discussions focused on baseball cards. School distractions are now more expensive … and addictive. Our answer cannot be applied to a case whose specifics have not been presented by both sides, but we can discuss halachic indications.

Tannaim disagree whether one who suggests to another to put an object in his proximity without clearly accepting responsibility is obligated as a watchman (see Bava Kama 47b, Bava Metzia 81b). The halacha is generally that he is not obligated (Shulchan Aruch, Choshen Mishpat 291:2). Sometimes circumstances dictate that he accepts responsibility without stipulation (ibid.). In this case, on one hand, the fact that the teacher commands the students to put the phones in a certain place increases the chances he accepts responsibility. On the other hand, if the phones were in a place where the whole class could keep “one eye” on them while the teacher taught, this decreases the chances he intended to be responsible.

If the teacher accepted responsibility, it seems he was a shomer chinam (unpaid watchman), who is exempt in cases of theft. One could claim he is a shomer sachar since this happened as part of his job. However, since watching cellphones is not (yet) considered part of a teacher’s obligation, the connection to teaching is incidental, and he is a shomer chinam.

Even a shomer chinam is obligated to pay when an object is stolen due to his negligence (ibid. 1 with commentaries). We thus must address the question (see below, as well) whether the setup (phones visible to all but otherwise not guarded) is valid or negligent. Our general feeling is that, unless the school is crime-ridden, this is quite an innocuous, standard situation. (Kids playing ball often leave bags on the side in the open. Airlines assume people won’t try to slip out with another’s luggage.)

Assume that the teacher is not obligated as a watchman for one of the above reasons. Does forcing a situation of lower supervision of another’s object, which led to theft, obligate him as one who damages? Let’s view related cases. Regarding one who breaks a wall, enabling an animal to escape (Bava Kama 56b), there is a machloket whether he must or at least has a moral obligation to pay for the animal (see Rama, CM 396:4; Gra ad loc.; S’ma ad loc. 8). However, there it is very common that breaking the wall will cause the animal’s disappearance, unlike in our case. The gemara (Bava Kama 56a) also says that if one maneuvers someone’s stalks so that they are burnt by an existing fire, he must pay if it was expected for the fire to reach it, and there is a moral obligation if only an unusually strong wind would cause the fire to get there.

These sources indicate that here there would be no more than a moral obligation. Even a moral obligation does not apply here for a few reasons. In the latter case, the person had in mind to harm the object (see Shulchan Aruch, CM 418:11, Meiri Bava Kama 56a). Also, the list of cases of moral obligations is apparently a primarily closed one, and it applies where the nature of the act is considered damaging, even if indirectly. In contrast, here, while the confiscation of phones might have upset the children, it likely was not considered damaging to the phones. Finally, we find that teachers are exempt from damages caused in the course of necessary educational discipline (see Pitchei Teshuva 424:4). (On the other hand, we do not want to give teachers too much leeway. The teacher probably should have warned the children/parents of this policy and have them decide whether to bring phones. Still, trying to obligate a teacher to pay dearly for dealing in a way that many educators are finding unavoidable is wrong and educationally problematic.

Without the special governmental provisions (not a law of the Knesset, but a takana (ordinance) of the relevant minister), the halacha is that after making a kinyan (act of acquisition) on a sales item, a buyer cannot back out of the deal unless: 1. The object was seriously blemished; 2. It was very overpriced. 3. A condition was made to allow it. However, we will work under the assumption (whose guidelines are beyond our present scope) that this law of the land is binding. Certainly, the ordinance was not instituted to help buyers in cases like yours. Furthermore, even assuming that the law would apply to this case, you seem laudably aware that this does not mean that you are morally and halachically permitted to buy the dress with the intention of returning.

While we are not experts in this ordinance (Takanot Haganat Hatzarchan, 2010), perusal shows it includes pertinent limitations. For one, the consumer can return the item only if he has not used it. It is a good question whether handling a dress minimally in order to figure out its cut counts as using it. We would assume that a use is a use, even if it is not a standard one and it does not wear out the dress. (See Bava Metzia 29b-30a, which says that one may not display to beautify his house a lost fabric that he must return. Admittedly, some factors apply there and not here.) Thus, if you disguise your “use” of the dress, this would be misapplying the law. Another provision of the law is that the seller can demand, as a charge for returning, the lower of: 5% of the sales price or 100 shekels. We will see how this may actually help you morally, but first we will look at the halachot of ona’at devarim (non-physical abuse).

It is forbidden to ask a merchant the price of a sales item if he has no intention of buying it (Bava Metzia 58b). While some describe the classical problematic case as when the “buyer” intends to upset the seller (see Mayim Chayim II:83), others refer to damage caused to the seller. The Meiri (Bava Metzia 58b) talks about the possibility that the discussion of price may take away from others’ interest to buy the item at that price and says that even if no one else is present, he still caused the seller pain and toil. These considerations do not depend on bad intentions. While any negotiations with a proprietor can lead to disappointment, a normal process of commerce (i.e., there is some chance he will buy) justifies it. (One who is overly sensitive should not be a storeowner). However, when the proprietor has nothing to gain, it is forbidden to engage him for no reason.

In your case, it is not clear to what extent a worker is upset by the return, although we would not rule it out. In any case, there are a few scenarios of loss for the owner. By occupying the salesperson, you may discourage others from buying or prevent her from doing something else of value; while the dress is out of the store, it cannot be sold; handling the dress may take away from its freshness, etc. While such concerns are not very strong, they may be enough for the halacha of not faking interest in buying to apply.

On the other hand, if indeed you will have to, or you will volunteer to pay, albeit modestly, for returning the dress, it stands to reason that this compensates for the small concerns and logically makes it permissible. That, though, would not solve the problem that the law does not apply after “usage.” In any case, we would urge, if it seems possible (depending on the worker’s personality) to be open and honest on the matter - request permission to do what you want for a modest agreed price.     

We are very pleased that you care and ask about the propriety of business tactics that apparently are earning you significant money. We will discuss some basics, which you can try to apply to your business, and/or you can ask us more specific questions.

1. The gemara (Bava Batra 90a; Bava Metzia 40b) states that a salesman should not have a profit margin of more than one sixth above the price at which he received the product. This is surprising considering that the prohibition of ona’ah (mispricing) focuses on straying significantly (a sixth) from the market price; profit margin does not arise in that context.

Actually, several classical statements limit the scope of the restriction on profit margin. The gemara points out that the said profit margin is applied after one factors in expenses and the intensity of the salesman’s labor. The Rambam (Mechira 14:1) limits the restriction to staple foods, as opposed to luxuries (an attempt at itemization is beyond our scope). More fundamentally, he says that the profit margin is not an obligation of the individual but of beit din to enforce proper pricing policy. The Ramah (Choshen Mishpat 231), following those lines, says that if beit din is unable to enforce their goal price, then an individual proprietor is not restricted to a price level that his competitors are not following. On the other hand, the Aruch Hashulchan (CM 331:20) says that if beit din feels that by some merchants conforming, others will be forced to follow suit, they should demand compliance from those who will listen.

2. There is a parallel to high-pressure sales tactics– someone who pressures the owner of an object who does not want to sell it to do so. This practice is actually forbidden by the last of the Ten Commandments – lo tachmod (do not covet). The desire to have someone’s object, which culminates in pressuring him to sell it, even at a fair price to which he agrees, is forbidden (Shulchan Aruch, Choshen Mishpat 359:9). Some claim that the prohibition applies in the opposite direction – to pressure someone to buy that which he does not want to buy (Pitchei Choshen, Geneiva 1:(26), article by prominent business ethicist, Rabbi Dr. Aaron Levine). I find it somewhat difficult to accept that we can make an exact comparison between the cases without classical sources, especially considering that the prohibition begins with the desire for his counterpart’s specific possession (e.g., his wife). However, it seems perfectly logical that on, some level, there is an overlap in the impropriety.

There are classical sources that forbid practices that have a strong comparison to high-pressure sales techniques. It is forbidden to trick someone into buying something he otherwise would not want by making it look better than it really is (see examples in Bava Metzia 60a-b; Shulchan Aruch, CM 228:9), apparently even when the product is not overpriced (see Pitchei Choshen, Ona’ah 15:15). Thus, psychological techniques that cause one to buy something that, when left to his own better judgment, he would refuse is forbidden. This should apply to high pressure as well.

The combination of the two factors about which you ask is particularly troubling. One wonders why the forces of supply and demand do not lower the profit margin. One answer is that the prevalence of manipulation artificially raises the price, which is, in many cases, forbidden (see Shulchan Aruch, CM 231:21), and should bother someone of your moral sensitivity. However, if you can sell the items at the standard, albeit high, price without pressure, it is permitted. If you sell at a modestly lower price, you likely will be able to sell enough to make a healthy living without moral/halachic problems.

We will only scratch the surface of the scholarship on whether one is obligated for geneiva b’shogeg and relate to some of the issues you raise.

The K’tzot Hachoshen (25:1) is among those who posit that a ganav b’shogeg is exempt. He infers this from Rishonim, but his main rationale is that the concept of culpability for accidental financial harm to his friend is limited to mazik (one who physically damages another’s property) because it specifically is derived from a pasuk. Thus, if one takes another’s object without damaging it, he is not responsible to pay for it. Of course, he has to return it when he finds out the truth, but the matter is important if it was lost, damaged, or passed on to someone else.

The Machaneh Ephrayim (Geneiva 7) cogently presents opinions of Rishonim, but agrees with those who obligate a ganav b’shogeg. He is particularly impressed by the gemara (Pesachim 32a) concerning payment made by one who accidentally ate teruma, which says that if the food’s price went down after he ate it, he pays the higher price because “it is no less than one who steals.” The Machaneh Ephrayim sees this as proof that there is payment for geneiva b’shogeg.

Let us now discuss your quandary about the need for intention. The gemara (see Bava Kama 79a) does speak of a kinyan (an act of acquisition) as a necessary step for the obligations of a ganav, and kinyanim require a certain level of intent. However, not all of the levels of intent pertinent to geneiva are equal to those regarding other acquisitions. If one lifted up an object to move it out of his way, he would clearly neither acquire nor be considered stealing it. If he wanted to use it without ever returning it, this would be intention for theft even if he tried to be “shrewd” by having in mind to “not acquire it” (it indeed would not become his). Furthermore, even one who intended to briefly borrow something without permission is considered a ganav (Shulchan Aruch, Choshen Mishpat 359:5).     

The Machaneh Ephrayim makes a relevant fundamental distinction. Geneiva b’shogeg can be culpable when one intended to bring the object from another’s possession into his own. If one thought he was just continuing using his own, that would not be considered an act of stealing. (This idea is indeed parallel to the halacha regarding intention to acquire something legally (see Yevamot 52a).) According to this, the accidental coat switcher is not even a ganav b’shogeg and does not have, as of the time he took the object, the accompanying responsibilities for its welfare. Cases in which geneiva b’shogeg applies include unknowingly buying a stolen object or even borrowing one.

The Marcheshet (II:32) posits that a ganav b’shogeg has the basic obligations of a ganav. He sees the K’tzot Hachoshen’s source to exempt –  the obligation of an unintentional mazik – as the source to obligate an unintentional ganav as well. As such, though, just as a mazik is exempt b’oness (under extenuating circumstances), so too a ganav b’oness is exempt. In our case, taking another’s coat is usually shogeg rather than oness. According to this approach, it could be considered geneiva.  Regarding intention, he does intend to use something that turned out to actually belong to someone else.

All agree that one is not disqualified for anything (e.g., testimony) due to such an unintentional aveira. Kefel is never levied in our days, and it is thus not discussed much by poskim. However, logic and implicit statements indicate that this k’nas (penalty), which applies to only certain types of theft and when one is exposed by witnesses, is predicated on full culpability and does not apply b’shogeg.

This case undoubtedly contains many unclear elements, which require either a settlement or adjudication in beit din, but we will address your main inquiry in general terms.

Fundamentally, a sale is the transfer of an object from the ownership of one person to another, as opposed to obligating the seller to give or do something for the buyer. Thus, the seller has a good point, when refusing to take a course of action, despite the flaws in the property and his behavior. Rather, the buyer’s general recourse regarding purchases that turn out to be seriously flawed is to nullify the sale (see Shulchan Aruch, Choshen Mishpat 232:3).

Some sources do indicate that the seller is required to act to fulfill the buyer’s basic expectations from the purchase. For example, there is an opinion that if one made a purchase before a document was written but pledged to write one, he can be forced to write it and cannot opt to nullify the sale (Shulchan Aruch, CM 243:9). The Imrei Yosher (II:52) explains that the document is part of the process of the purchase.

However, these sources are quite different from your case. For one, there the buyer pledged to write the document. Here, even if (we do not know) the seller said or implied the property had a complete permit, he did not pledge to take further steps to get it to that point. If he gave a false picture of the present situation, there may be grounds for nullifying the sale, but not to force him to take the action you desire. Second, in the case of buying property second hand, dealing with building permits is not part of the sale process (when buying from the developer, the contract usually states what his legally required steps are).

The Rosh (Shut 96:6) says that if one buys an object with a flaw that can nullify the purchase, the seller can, under certain circumstances (see Shulchan Aruch and Rama, CM 232:5), say that he is willing to fix it rather than allow the purchase to fall. Our question is the opposite situation: can the buyer say: “Rather than have to nullify the sale, I demand of you to fix the flaw.” The Ulam Hamishpat (ad loc.) understands from the Rosh that he can demand that the seller either fix the problem or reduce the price so the buyer can. However, some Acharonim (including Lev Meivin, CM 144( disagree. I believe that the latter opinion is correct. Realize also that the Rosh says (Bava Batra 5:14) that a seller who overcharges by enough that the sale can be nullified cannot be forced to return the overcharging if he prefers to cancel the sale. Similarly, the Shulchan Aruch (CM 232:4) says that a seller can opt to nullify a sale rather than reduce the price due to the flaw. The Ulam Hamishpat is also clear that he is only referring to cases where that which needs to be done is readily accomplished. In fact, even if one promises as part of a sale to do something, he can only be forced to do so if it is readily accomplished (see S’ma 209:23).

Therefore, in your case, it does not appear that you can compel the seller to take complicated steps that may or may not rectify the situation, although there may be various claims that can be made on him.

May Hashem make up your losses and reward both parties for their good intentions under trying circumstances.

We will assume in this discussion what we do not know – that the guests were at least causatively responsible (gerama) for the damage, including from water, which was at least an understandable course of action by the sprayers. In many cases of gerama, the damager (mazik) has a moral obligation to pay (chiyuv latzeit y’dei shamayim – see Bava Kama 56a). However, one should not demand pay unequivocally when there is only a moral obligation (K’tzot Hachoshen 75:4). Therefore, you must determine before making claims how much you believe the guests owe in legal, not just moral, terms. Of course, realize that we have heard only your presentation and can say nothing conclusive, other than what we think you can ask for based on your version of the story. Your guests have every right to present their version to a halachic expert of their choice, and you will then see if there is a need for dispute resolution. This is very healthy when people do it in the right spirit.

If the sprayers acted in a way that professional firefighters would have, then the guests would be obligated to pay even for water damage. It is not only the direct damage one causes that one is responsible for, but even the continuing naturally results. This is similar to the halacha of one who wounds another and must pay for new medical problems that develop later from the old ones (Bava Kama 85a).

What if the spraying was uncalled for? The closest Talmudic precedent we found regarding such third-party damage is the gemara (Sanhedrin 74a), regarding damage done while trying to prevent murder. The attempted murderer is exempt from payment due to the fact that he is simultaneously subject to being legally killed to save his would-be victim (see Sanhedrin72a). If a third-party savior damages someone’s property during his efforts, he is exempt due to a special Rabbinic enactment to not discourage people from helping. This implies that according to standard halachic rules, he is considered the mazik. Similarly your sprayers appear to be the mazikin regarding water, although they likely fall under the exemption of the above enactment (see Chiddushei Anshei Shem, 44a of Rif, Bava Kama). The simple reading of the sugya is that the attempted murderer who precipitated the need for strong action is not a candidate for being obligated to pay. Thus, in your case, the mazikin for waterlog damage are the sprayers rather than the guests.

However, there is a different reason to obligate the guests – they were shomrim (watchmen). While shomrim are generally not obligated for damage to land, including houses (Shulchan Aruch, Choshen Mishpat 301:1), that applies only to that which is connected to the ground. However, there is cause to obligate them for the sefarim, which are movable. If guests’ negligence caused valuables to be stolen, they would be obligated to pay, as this preventing theft is within the implied responsibilities of one who “borrows a house.” Similarly, the guests are obligated for both fire and water damage to sefarim that their negligence caused. (The mechanism is halachically complex – see Shulchan Aruch, CM 291:5; Pitchei Choshen, Pikadon 2:(47)).

We praise not only your willingness to forgo inheritance if halachically required but also for not trying to trick your parents in this regard.

There are times when parents’ gifts are ma’aser exempt. Rav M. Feinstein (Igrot Moshe, Yoreh Deah 112) says that when parents promise money to a child for his basic needs, the parents have the right to have the son not give ma’aser on it, as it, in effect, forces the parents to give more to cover those needs. Teshuvot V’hanhagot (III:282) says that if that son gives ma’aser against his parents’ conditions, it is considered stealing.

However, this logic does not apply in your case. Your parents are not giving you money for a specific purpose that will not be met if you give ma’aser but object to your use of what will be your money after their death (not before 120 years). This is like a parent who commands his child to not fulfill a mitzva, which is an illegitimate request (Bava Metzia 32a).

If your parents are serious about withholding all your inheritance over this matter and it is a large amount of money, then you can be exempted from ma’aser, as the Rama (Orach Chayim 656:1) rules that one does not have to spend an exorbitant amount of money on a mitzva. Of course, tzedaka (ma’aser falls under its rubric – see Rambam, Matanot Aniyim 7:5) is expensive by its nature, but here we are talking about a large loss beyond natural tzedaka costs.

In general, there are three opinions as to whether the practice of ma’aser kesafim is a mitzva from the Torah (Tosafot, Taanit 9a), a Rabbinic obligation (Maharil 54), or a proper practice to accept upon oneself (Shut Chatam Sofer, YD 231). We believe that the third opinion is the strongest and thus if you use the above exemption, it is good to do hatarat nedarim on the practice of ma’aser kesafim in regard to this inheritance.

However, it is better (for your sake and probably for your parents’) to obviate the mitzva rather than refrain due to loss from a mitzva in which you are fundamentally obligated. Therefore, try to take your parents up on their offer to leave you an inheritance in a way that you are exempt from ma’aser. According to most opinions, one who receives objects or property is not required to give ma’aser based on its value unless and until he sells them (see Tzedaka U’mishpat 5:(25); Hilchot Ma’aser Kesafim (Bronstein) 3:6). According to many opinions, money received that is bindingly earmarked for a certain expense is exempt (ibid. 11). Thus, their will can create a trust fund for certain purposes (e.g., children’s weddings, education) or you can receive real estate, as opposed to cash.

There are strong indications that ma’aser kesafim is not a separate mitzva but a set of rules within tzedaka. Your parents are presumably not against your giving tzedaka but annoyed by the level and the automatic nature of giving ma’aser. However you solve the issue with your parents, it does not mean that in the long term, you will not be a less generous person. If inheritance and hopefully other sources and merits enhance your ability to give, you at some point might end up giving a similar amount of tzedaka as if you followed you the rules of ma’aser kesafim formalistically on the inheritance. (One may give more than 10% when he wants or not rely on leniencies that he used to.) We do not condone calculating the amount to add to make up for following your parents’ conditions, as this would be dishonest to them. But if it happens through natural dynamics over time, this is fine.

The mishna (Bava Metzia 70b) says it is permitted to lend money to a non-Jew with interest, yet the gemara indicates that it is Rabbinically forbidden. The gemara suggests two distinctions: 1) It is permitted to lend only to ensure a basic livelihood (k’dei chayav); 2) The prohibition is to discourage business relationships that could cause a Jew to learn his counterpart’s ways, and it is therefore permitted for a talmid chacham, who is not susceptible to such relationships. According to a second version in the gemara, there is no prohibition to lend to a non-Jew.

Tosafot (ad loc.) is troubled by the fact that usury taken by Jews from non-Jews was common in their times, and presented three possible answers: 1) On this matter, which is no more than Rabbinic, we accept the gemara’s lenient version that there is no prohibition. 2) Due to great difficulty in making a living, we generally consider usury as k’dei chayav. 3) Since we anyway have to do business with non-Jews, permissibility to take interest does not change the equation on interactions. You based your question, that it should be forbidden to lend with interest in Israel, on the assumption that the third explanation is correct, which is reasonable, considering that the Rambam (Malveh 5:2) and the Tur (Yoreh Deah 159) use it. Indeed, Netivot Shalom (159:16) cites Klala D’ribbita, who suggests that it could be forbidden to lend under such circumstances. Standard practice is certainly not that way (see also Torat Ribbit 1:35), and we do feel it is important to justify it. (On an individual basis, we have no problem with the Chochmat Adam’s (130:6) praise of those who are stringent. However, making such a ruling for others is very different.)

First, we must note that this prohibition is highly unusual in that the gemara says that it does not apply to all people (i.e., talmid chacham) and that it is waived in the face of financial need. This could be a sign of focus on practical considerations, which would strengthen your question. But it is more likely a sign of great leniency and perhaps that it is not a full-fledged prohibition. It is then not difficult to rely on the opinions that there is no prohibition or that it is still considered k’dei chayav.

It is probably more correct to put this in the context of how practical halacha works. We are familiar with the concept that once Chazal, or often even post-Talmudic minhag, have forbidden something, we rarely say that things have changed and the prohibition no longer applies. A less common but still important phenomenon is that when the rabbis of a period decide, for certain reasons, to be lenient regarding a certain (usually, Rabbinic) prohibition, we do not easily reinstate the prohibition even when the leniency’s reasons have diminished. It seems that “halachic inertia” requires clear indication of strong reason to change back to old practice, even from leniency to stringency. Even in the times of the Rishonim, it seems that this prohibition was broadly ignored, even in cases where the reasons for leniency were not so strong.

In our times, there are still practical reasons to apply the leniency in Israel. First, in a global market, it is common and hard to avoid non-Jews in many fields, for Israelis to have customer bases that include many non-Jews. Furthermore, the contemporary broad reliance on heter iska all but eliminates the “problem” of issur ribbit in the business world. Therefore, it is unlikely that a person would be encouraged to significantly increase his business interaction with non-Jews to avoid the prohibition of ribbit. Also, business is often done these days with little to no personal interaction between the sides.

Thus, it is justified to assume that the broad permission that developed to lend with interest to non-Jews remains intact even in Israel.

Let us first make sure we understand each other’s terminology. There are different forms of arevim, with the two main ones being: a regular arev and an arev kablan, literally, a receiving arev. An arev kablan, either by explicit agreement, language and/or circumstances, is treated like a direct recipient of the loan, even though the ultimate beneficiary is someone else. As a result, while usually a lender can approach the arev only after it is apparent that the borrower will not pay (Shulchan Aruch, Choshen Mishpat 129:8), he can approach an arev kablan before trying the borrower (ibid. 15).

Now to your question. The Rambam (Malveh 26:2) says that an arev does not have to pay until 30 days have passed from the time he became obligated, just as a borrower gets 30 days. The Bach (CM 129) understands that the arev is exactly like the borrower for whom he is covering. Therefore, just as the 30-day grace period is only if the borrower does not have money to pay immediately (Shulchan Aruch, CM 100:1), so too the arev’s 30 days is only under those circumstances. The Shach (CM 129:23) argues cogently that it is evident from the Rambam, that the arev has the following advantage. Even if the borrower’s time to pay has already passed, the arev’s 30-day clock starts ticking only at the point the payment of the debt becomes his responsibility. Even if he has money, he has time to figure out how to best handle the payment. The 30 days is based on the concept that when one takes a loan for an unspecified length of time, its duration is normally assumed to be 30 days (see Shulchan Aruch, CM 73:1).

However, the Shach’s ruling is not so relevant to an arev kablan. Since the arev kablan accepts the responsibilities of a borrower, he does not deserve extra time beyond the borrower’s. On the practical realm, since the borrower can extract payment without first trying the lender, he should not be surprised if the payment falls on him and should have his payment plan worked out.

However, the question is: even if an arev kablan is like the borrower, does the borrower have to pay immediately? The gemara (Bava Metzia 118a) says that “the time of beit din is 30 days.” This means that from the time that beit din makes an award or gives instructions, the standard time for carrying it out is 30 days. Thus, if one admits to beit din that he owes money but requests time to raise it, beit din gives him 30 days (Shulchan Aruch, CM 100:1). The Rama (ad loc.) says that this is only an average of time. If they understand he needs either more or less time, they should adjust it accordingly, including immediate payment for those with the wherewithal (ibid.).

The same is true of your arev kablan. While in theory he should pay right away, in practice, his request to push it off for around 30 days will be accepted when based on legitimate need. The Shulchan Aruch (ibid. 2) cites two opinions on whether a borrower can request a 30-day grace period for payment when the target date of payment was set in advance. The rationale of the stricter opinion is that he had the time to prepare the payment, which should have been complete by the stated time. There is strong logic to argue that in the case of an arev kablan, all might agree to give him the 30 days upon a reasonable request. This is because even though the lender can come to the arev before the borrower, it is not usually clear that he will do so. Thus, the arev kablan can legitimately say that he needs the normal amount of time to prepare.

In summary, an arev kablan should pay the debt as soon as he reasonably can after the lender’s request, which may often be immediate. If there are difficulties, the average grace-period is 30 days from the time he is told to pay, just as it is for the borrower. It is possible that our assumption about the speed of the payment may be slightly different for an arev kablan than for a borrower. 

Members of our beit din are usually careful not to give advice to one side or give the impression we agree with his claims without hearing the other side. However, I believe you sincerely want to know if it is appropriate to make a claim and are not asking to gain an advantage. Therefore, I will give you some perspective to help you decide how to resolve your issues with the Cohens.

One who commits to hire a worker is bound financially not to cancel (or cut back, which is equivalent) the work order, only if there was an act that finalized (kinyan) the hiring. Beginning of work, starting with traveling to the job, is a special kinyan-equivalent for workers (Bava Metzia 76b). However, if the “employer” wants to back out between the commitment and the beginning of the work, the “worker” has no monetary claim, but only a moral complaint (taromet) (see ibid. 75b; Shulchan Aruch, Choshen Mishpat 333:1).

Rishonim ask that the employer should be obligated because he caused the worker the damage of a lost employment opportunity. Two distinctions are made between cases where the worker has claims and when he does not. 1) Can the worker find work after being informed? (Tosafot, Bava Metzia 76b); 2) Would he have found a different job originally if the employer did not hire him? (see Maggid Mishneh, Sechirut 9:4). The Shulchan Aruch (ibid. 2) rules that only when both factors are in the worker’s favor is he entitled to compensation for the loss. You imply that you did not have enough warning to find an alternative job (we do not know if the Cohen’s agree). You imply that you did not turn down work offers because of the Cohens, but that your chances to find other jobs would have been much greater if you had known you needed work and “put out the word.”

There is little discussion about cases where the extent to which the work order was responsible for not receiving other work is unclear. One also should consider that many say that the reneging employer is not legally culpable because he is not damaging but indirectly preventing profit (see K’tzot Hachoshen 333:2). Some say obligation before kinyan is only a Rabbinic obligation to help workers or an assumption of tacit agreement (see Netivot Hamishpat 333:3). Putting everything together, unless you demonstrate convincingly that the Cohens’ actions “robbed you” of otherwise expected employment, it is hard to extract money in beit din.

Your moral grounds are much stronger. We mentioned the idea of taromet. The extent of the moral complaint is impacted by the reason the Cohens committed  themselves and changed their minds. Was there a sudden change in their needs? Was it beyond their control? Could they have informed you earlier?

The idea of paying two thirds is due to the fact that people would take a cut in salary to receive vacation (Bava Metzia 76b). If the alternative job you would likely have found is for less pay than the Cohens’ job, you would again have to reduce your claim.

It sounds (albeit without hearing the Cohens) that it would be mentchlach for them to pay you an appropriate amount for harming your employment situation by their actions, but it is hard to say how much. It is not clear if and how much you could demand. Considering the many types of “prices” of litigation (including endangering your professional reputation), I urge you to consider the possibility that dropping the matter or raising your complaint pleasantly (perhaps presenting our discussion could help) serves you better.

We cannot respond to the question’s “Choshen Mishpat” element without hearing both sides. We will focus on the Yoreh Deah question of ribbit on the loan, which depends on the possibilities of what the arrangements between the parties were (we will relate to the major ones).

It sounds like Levi accepted the responsibility to repay a 15,400 shekel loan. If Shimon was but an agent who followed expectations, he returns only the dollar equivalent of what Levi paid. If Shimon accepted responsibility for payment, he was either an arev (guarantor) or there were two separate loans (Reuven-Shimon, enabling Shimon-Levi).

If there were two loans, Shimon must return his $4,500 loan from Reuven. Is this permitted when the value went up? The rule is that it is Rabbinically forbidden to lend an object so that it be replaced by an object of the same type, due to the chance that its value will rise over the course of the loan (i.e., he will return more value than he borrowed). However, since we halachically view currency as a constant (even if its value, as compared to commodities and other currencies, changes), $4,500 can be returned even if its shekel equivalent increased. Admittedly, currencies are considered commodities outside their country, and the leniency that dollars have a special status in Israel no longer applies (see Igrot Moshe, Yoreh Deah III:37). However, when an American in America transfers dollars and wants dollars returned, one cannot say that this is not currency (see ibid.). Thus, under these circumstances, Shimon can return $4,500 to Reuven.

If there is one loan and Shimon is an arev, we should consider the three types of arev. 1) Simple arev – he pays only if the borrower defaults; 2) Arev kablan – the lender can choose to take payment either from the borrower or the arev; 3) Arev shlof dotz – the lender receives payment specifically from the arev.

The gemara (Bava Metzia 71b) says that if a non-Jew lends to a Jew and takes payment with interest from the Jewish arev, the borrower may not reimburse the arev for the interest. The gemara explains that since the non-Jewish practice is to go directly to the arev, it is considered as if the arev borrowed from the non-Jew and then lent the principal to the borrower. Therefore, the arev must not take back more money from the borrower than he gave him. There is a machloket among Rishonim and two opinions in the Shulchan Aruch (YD 170:1) if this prohibition and analysis of the loans is true only for an arev shlof dotz or even for an arev kablan. In our case, if Shimon is a simple arev or probably even an arev kablan, it is considered a loan between Reuven and Levi, and one that obligated Levi in terms of shekels. If so, neither Levi nor Shimon can give $4,500, unless one of the leniencies of this Rabbinic form of ribbit apply (see Shulchan Aruch, YD 162:2 and see whether the most common one applies). If Reuven indicated he was giving a dollar loan, he deserves to receive $4,500. If Shimon wants to take responsibility, especially if he failed to relay this fact to Levi, this is appropriate.

If Shimon is an arev shlof dotz, it is likely the loan was in dollars, in which case, Shimon may and should pay $4,500 (see Netivot Shalom, p. 349). He can decide, based on his discussions with Levi, whether to ask for reimbursement from him.

Fine nuances can affect the way to view these matters. It is laudable (not required) for Reuven to waive the possible right to full payment, for halachic safety but especially for higher moral ground. (His dollar loss counts as tzedaka).

Your actions and questions show noble concern for both your fellow man and the honor of Hashem, and it is a pleasure to analyze halachic elements you raise. There are troubling educational and societal issues in this scenario, as you understand it, but we will suffice with what you asked.  

The gemara (Nedarim 33a) says that one who pays his friend’s debt is not considered giving his friend positive benefit but removing an obstacle (this makes a difference regarding nedarim and whether he can demand compensation from the debtor (see Ketubot 107b)). However, it is a given that the debt is considered paid, precluding the creditor’s further demands on the debtor. How payment by a person other than the debtor or his agent works is an important question. One possibility is a concept known as eved k’naani (Kiddushin 7a) –when Levi gives something to Yehuda on behalf of Naftali, it counts as if Naftali gave it (Chazon Ish, Even Haezer 36, p. 237). Another possibility is that there is an implied stipulation that the creditor is receiving money on condition that he waives the debtor’s debt (Mishneh Lamelech, Malveh 5:14).

 Your question on kefel assumes there was theft, which is apparently not the case. The coffee shop willingly gave Reuven the food, and therefore Reuven did not steal. Rather, upon receiving the food, Reuven became obligated to pay for it, and he (purposely) did not fulfill this obligation. While it is an aveira not to pay a debt (see Tehillim 37:21), such a person does not incur kefel. One could argue that it was theft because had Shimon known Reuven’s plan (assuming the “eat and run” move was planned in advance), he would not have given the food. That is a fascinating outlook which has several related applications (see Pitchei Choshen, Halva’ah 2:(26) for one), to which we cannot do justice in this forum. On at least technical grounds, had Shimon read Reuven’s mind at the moment Reuven would have been stealing, i.e., when receiving/eating the food, Shimon likely would have forced him take the food and pay, rather than take the food back. In any case, kefel is predicated on beit din’s ruling, and since we have lost the uninterrupted chain of semicha from Moshe Rabbeinu, we now lack the authority to obligate penalty payments such as kefel (Bava Kama 84b).

If we view the food as stolen, then indeed the berachot were themselves an aveira (Bava Kama 94a). However, if we are correct, the food is permitted, and the fact that the situation will likely lead to do a future aveira (not paying) does not preclude a beracha (compare to poskim on Shulchan Aruch, Orach Chayim 196:1). Certainly, the food cannot become stolen retroactively.   

Whatever the aveira violated, Reuven certainly requires teshuva. There are several elements to teshuva. Confessing sin, having remorse, and changing one’s future behavior are obviously not affected by your noble actions. However, there is also a matter of practically rectifying one’s actions vis a vis the person whom he wronged. The Rambam (Teshuva 2:9) refers to taking care of any money due and appeasing the victim for the accompanying affront. Your payment removes the ongoing requirement to pay his debt. This helps Reuven if he would otherwise ignore his duty to pay Shimon (although, to a great extent, reducing the positive value of paying if he had a change of heart). The matter of appeasement would still apply. Perhaps you removed some of the sting from Shimon, which probably helps Reuven, and we hope you succeeded in lessening the chillul Hashem.

(We are not addressing the desirability of avoiding ads, some of which are not appropriate; hopefully a religious site’s ads are appropriate.) At first, this seems to depend on the broad question of intellectual property rights. Reuven produces something of value to the masses and, due to financial considerations, attaches conditions, classically not to copy even if one legally bought the object with the content (e.g., book). Here, the question is making viewing a site’s contents conditional on allowing advertisements on your screen.

Much has been written on the topic (see articles in Techumin VI). Our opinion upholds the halachic basis for guaranteeing such abstract rights in various contexts (see Living the Halachic Process, II, J-1; Techumin XXXII: p. 233-237). In short, there are three main issues, none of which are both unanimously held and apply in all circumstances, that can forbid using someone else’s “creation” freely. 1. A form of theft even without an object being taken. 2. A requirement to pay for benefit received from another’s property (neheneh). 3. Dina d’malchuta dina – the law of the land upholds many of the creators’ claims to ownership.

Ad blocking causes great losses to many website owners. Historically, many technological innovations, including the internet itself, have enriched some and impoverished others. Upholding intellectual property rights also does not support every claim by every “owner,” so let us analyze.

Let us start with #3. As far as we have seen, ad-blocking is not illegal, and we do not know if the site’s warning is legally significant. Thus, it is questionable whether dina d’malchuta will forbid using the site with ad-block.

Neheneh is complex to apply in this case. We rule that zeh neheneh v’zeh lo chaser (the user gains without the owner losing) is exempt (Shulchan Aruch, Choshen Mishpat 363:6). However, if the owner incurs any damage from the usage, the user has to pay the entire benefit he received (Tosafot, Bava Kama 20b; see Noda B’Yehuda II, CM 24). In this case, the site owner apparently sustains a loss when people use the site, in that it slows down the server, making the site less attractive to those who bring in revenue. While each individual person’s impact is negligible, the owner can argue that he treats ad-block users as a group he is unwilling to allow “for free.” On the other hand, it is possible that users cause more gain than damage even with ad-block (analysis is beyond my expertise), just that the site owner wants to force them to provide greater advantage. This would preclude a neheneh obligation (see Bava Kama 21a). If it is a site with ample free alternatives, there may not be enough user benefit to pay. Therefore, it is hard to be conclusive on this matter.

While we are not confident the issues above make it forbidden to use ad-blocking against the pleas of the website, we believe the owner can make it forbidden to use it. Even in a case of zeh neheneh v’zeh lo chaser, if the owner says up front that he forbids usage, it is indeed forbidden (see Shulchan Aruch, ibid.). At first glance, this restriction applies only according to those (far from unanimous) opinions that intellectual property is owned in a manner that stealing applies. However, here the owner is in a stronger halachic position because the user is connecting to a physical server, owned by them or, usually, by a web host whom he pays for their services. Therefore, usage is like using remote control to use someone’s equipment against his will, which is forbidden.

Therefore, our tentative position is that an owner can forbid you to use his site. (What it means if they do not prevent access but say it is forbidden is unclear.) We invite feedback on different elements of this new topic.

Our policy is based on the Rama (Choshen Mishpat 17:5, based on the Rashba III:98 and the Rivash 179). The Shulchan Aruch (ibid.) says that one may not listen to the claims of one litigant while the other side is not present. The Rama says that this refers to one who is a dayan in this case. However, he continues that a talmid chacham should never express even a tentative opinion (“if indeed …”) on a case without hearing both sides.

The first reason cited is that the presentation might teach the litigant which claims to make, including false ones. Our contemporary experience teaches us the following. While the sources speak of falsehood, it is not limited to premeditated lying, but includes describing the nuances of a gray situation in a slanted manner. Even honest people can do this under the pressure of litigation, where significant money and stature are on the line.

The Rama also explains that due to what surfaces in the trial, the ruling may appear to contradict the talmid chacham, which could discredit him. We note that the concern is not just for the non-dayan’s credibility. Our beit din’s staff have received post-ruling complaints: “I asked my rabbi about the case, and he said beit din was wrong, so the dayanim are either incompetent or biased.” Of course, two rabbis can have different views without either being incompetent or biased, which is why we bother having three dayanim. The disgruntled litigant does not care that we heard and interrogated both sides and spent dozen of hours analyzing and researching, while he may have asked his rabbi while he was folding up his tefillin. (Since we offer an option of appeal (with an added fee to avoid it being automatic), we do not object to a litigant showing our ruling to a talmid chacham for his advice on whether it is worthwhile to appeal.) The point is that even provisional statements made prior to adjudication can be used by otherwise respectable and respectful people to decide that they are right and that there is something wrong with anyone (litigant, dayan, or whoever) who does not agree with what they understood from what they were told.

Our experience makes us concerned about another issue that the Rama does not discuss (it is likely that he was not addressing that case – see part II). There are times that the sides prefer to avoid the trouble of litigation, which we applaud on fundamental and practical grounds. The well-intentioned “non-litigant” may ask us or another rav the question, as he honestly but subjectively sees it, and may even be willing to inform the other side if we said he was wrong. However, if we answer that “based on your description, you are right,” since he knows that he is not a liar, he is likely to say, “I asked a dayan, and he said I am right.” Now, the other side is at a disadvantage. Is he to question the dayan or call his neighbor, friend or business partner a liar? Will he know and choose to say: “If the dayan did not hear me describe the case in my own words, he could/should not have said, ‘You are right’”?

Two of our “hats” are: an “Ask the Rabbi” service, where we try to be responsive to all, and a beit din, where we make very strong efforts to be ethical, impartial, and cautious. (One fear is that our present anonymous querier will be our future litigant.) The correct policy, in our opinion, is to almost always refuse to answer questions of one side that have a hint of being related to practical dispute resolution. We regret that some people are resentful; that is part of the price of being principled.

First, it is standard, recommended practice for dayanim who are unsure of the proper ruling to send the case’s details to get a greater authority’s opinion (Shulchan Aruch, CM 14:1). The dayanim are responsible for presenting the claims accurately and ruling; the expert may rely on them.

The Me’il Tzedaka (53) cites sources and a broad practice for a talmid chacham to answer when he knows the querier and is confident he wants to know the truth and will not formulate false claims. (The Me’il Tzedaka rejects this leniency unless the respondent believes the case does not apply to the querier.)

Other sources for leniency refer to various cases with great need to get involved, such as: 1. The information is needed to save people from sin (Shut Maharashdam, Yoreh Deah 153). (There are many teshuvot about poskim who got involved when there were suspicions about a shochet.) 2. Someone was attacking the integrity of a talmid chacham (Shvut Yaakov III,99). 3. The opinion was needed for the mitzva of helping a widow (Shut Maharshal 24).

Another type of case where some permit discussion is where the question relates to general halachic issues and not to factual background about which everyone agrees (Shut HaRama 112). In a related justification, poskim will often also say that they are not suggesting a ruling for the case, but are just explaining gemarot or general halachic issues to interested parties, and it is not their responsibility what conclusion those who now understand the halachic topic will say about their case.

The Pitchei Teshuva also cites an exception when the question is about which beit din has jurisdiction. The logic is that the alternative of addressing the matter formally before beit din does not apply if they cannot agree on a beit din.

While some of the cases where we are lenient are based on one of the above, our most common justification to express tentative opinions is in cases where there are not clear litigants. (Most of the sources discuss those who are or are expected to be litigants.) For example, a person does not want to go to beit din and is happy to pay or forgo the money if he is wrong. We often say: “We cannot tell you that you are right, but only if you are wrong” (see Living the Halachic Process, vol. I, J-1), and even then only when we know the person or have indications that he is sincere on this point. When it appears that someone wants to adjudicate, and we feel that he will create enemies and head/heart aches with a small chance of winning, we often will advise in general terms (and with a lack of certainty) that he would be wise to drop the matter.

Anything we say here is general information and does not relate in any reliable way to the specific case, whose exact details we do not know. In a case that is not halacha l’ma’aseh, we can have a more general discussion.

We will start with the issue you raise. Many people think that one acquires items in a store by paying for them. However, the halacha is that money is not a valid kinyan for movable objects (Bava Metzia 44a). Rather, one must do a physical kinyan to the item, which is usually hagbaha (lifting the objects), which woman #1 did physically when taking the items off the shelf. Classical poskim discuss at what point we assume that the one who performed such an action intended to acquire it (see Shulchan Aruch, Choshen Mishpat 200:8,11). However, in the contemporary context you describe, the kinyan is clearly not until the buyer lifts an item it after paying for it, not before he puts it in the shopping cart. I say that with confidence because it is very common for someone to put an item in the cart and continue on, only to change his mind later and return it to the shelf. If he would have acquired it, he would need the store’s permission to return it. Since people do not think that way, it is a sign that taking it off the shelf is just the first step toward the likely future purchase of the object. Thus, it would not be stealing on these grounds.   

There is a relevant interesting concept, which is likely to apply, which the gemara (Kiddushin 59a) calls ani mehapech b’charara. The classic case is when Reuven is in the midst of efforts to acquire something, and Shimon enters the scene later but beats him to the acquisition (see Shulchan Aruch, Choshen Mishpat 237:1). In such a case, Shimon is called a rasha. (There is a machloket whether there is any binding or practical consequence of that status – see Pitchei Choshen, Geneiva 9:(29).)

There is a machloket Rishonim (see Rashi, Kiddushin 59a, Rosh, Kiddushin 3:2) if this affront exists only to one who buys or rents or even to one who tries to acquire something from hefker (a state of not being owned). Both of these opinions are cited in the Shulchan Aruch (ibid.). One is likely to have applied the distinction in the opposite direction: what’s the big deal who gets to buy the object, as one can buy elsewhere, whereas acquiring from hefker is a fleeting opportunity, which is worse to grab? The logic of the opinion that taking from a hefker is not as bad is that we understand the importance to the second person to seize the opportunity. In contrast, one who seizes the sale before his counterpart is needlessly petty – he should take the time to go elsewhere to buy (see S’ma 237:2). The Rama (ad loc.) says that according to the opinion that ani mehapech does not apply to hefker, it also does not apply to an item at a unique sales price. The logic is the same – it is not petty if there is no equivalent alternative. Possibly, the event you saw involved a special sale. On the other hand, the Shach (ad loc. 3) argues and says that neither opinion of Rishonim distinguishes between cases of sale. Therefore, it is quite likely that there was a violation of ani mehapech.

Our response cannot cover all elements of your case without hearing the claims of all affected sides. Our response is intended to inform you of your responsibilities based on your account.

There are two levels of precedence regarding selling land. One is non-binding. In this regard, a relative has precedence over those with no connection to the seller, but a talmid chacham and a neighbor have greater precedence (Shulchan Aruch, Choshen Mishpat 175:50).

A bar metzra or matzran (he who lives on the boundary) has a higher level of precedence, including the possibility of legal action. Specifically, if a sale that ignores a matzran’s rights occurs, he can take the land from the buyer for the sale price (Shulchan Aruch ibid. 6). The is a takana based on doing the “good and straight thing” to give the opportunity to buy property to one who can benefit more than others, classically when he can connect the properties. A matzran’s rights are not intended for cases of innate loss to the seller (Rama ibid. 23). Therefore you have a right to sell to whoever agrees to the highest final price or best conditions for you.

Being a relative does not give such rights. There are no gemarot about a renter, but there is discussion (Bava Metzia 108b) of a similar case (i.e., temporary connection to land), when one has a lien on land (mashkanta). Rishonim and Acharonim debate several questions regarding renters and mashkanta, including whether a matzran has precedence in renting a property next to his and whether a matzran can demand the land already sold to its renter. Regarding continuing to rent the property as opposed to bringing in a new renter, the Taz says the renter has rights, the Pitchei Teshuva (175:27) brings a dissenting view, and the K’tzot Hachoshen (175:3) says it depends if the owner has good reason to want the renter out.

The Shulchan Aruch (ibid. 60) says that a renter’s connection to a property adjacent to his rental is insufficient for him to take it if sold to someone else. What about the sale of the rental property itself (without compromising the renter’s existing rights)? On one hand, combining properties does not apply. On the other hand, being able to acquire property to which he has become accustomed may count as maximization. The Shulchan Aruch (ibid. 63) says that here too, the renter does not have matzran rights.

However, matters are not that simple. Regarding mashkanta, the Rama (ibid. 57) argues on the Shulchan Aruch and rules that the lender, who holds the lien of the property, can claim the purchase rights. The S’ma (175:116, cited by Netivot Hamishpat 175:67) claims that the Rama likewise argues with the Shulchan Aruch and gives purchase rights to the renter on the rental property, as well. In some ways, a renter is better than mashkanta based on the concept that rental is like a sale (Bava Metzia 56b). The Pitchei Teshuva (175:28) cites several who assume that the Rama does not argue regarding rental (the main claim is that a lien is more significant long-term than a rental). On the other hand, the Shulchan Aruch’s author (see Beit Yosef, CM 175) does not totally reject matzran rights to a renter but stresses that it is not strong enough to extract property from one who bought the land. Since you are asking about the proper actions before having sold, there is reason to give the renter preference.

Therefore, you have a choice between a relative’s weak halachic preference and a machloket about a renter’s possible full bar metzra rights along with the likelihood of some level of his precedence. This seems to be a case where discussion can be helpful. The parties should know that while you care about the interests of each, neither seems to have a clear halachic advantage over the other. We hope you will be able to resolve things without hurt feelings.

I urge you to clarify with your congregants that the following rules of engagement are secure for a combination of halachic and practical reasons.

In such a case of only a moderate financial scope, a significant personal one, and technical claims, the sides should assure you they will not allow it to develop an adversarial bent. (Most of) each side’s claim has logic, and they must not be overly disappointed or surprised if they “lose” compared to their expectation. They should view any amount they “lose” not as a shame but as an honor to do the proper thing vis a vis their neighbor. It is no more of a loss than the extra cost of kosher food or of tuition at their children’s schools of choice. Hammering home these ideas is important for at least two reasons. 1) It is true and educational, and this is the right time/setting, as their rabbi, to teach or remind them. 2) If they have an adversarial approach, you are likely to incur resentment from either or both sides for not living up to their expectations. (As dayanim, we are used to that, and it is part of our sacred duty. It is also with people with whom we do not interact in other settings.) As you need to interact with them communally, you do not want to harm relationships. So if they do not have the right attitude, I recommend to refer them to a different framework. (In the shtetl, the rabbi/dayan often had no choice, but our dynamic society offers many options.) Working it out themselves is best but is hard with bad attitudes; mediation or beit din are options.

Next, let us look at your role. Due to a few issues, I suggest not to view or present yourself as an ad-hoc dayan bound to a Choshen Mishpat ruling. First, you have not had sufficient training and practice. Also, it may be very time-consuming to arrive at the correct ruling. Seeking assistance from dayanim minimizes but does not remove the problem.

Also, under normal circumstances, monetary decisions are to be made by a beit din of three, not a lone dayan (Shulchan Aruch, CM 3:1). Even a special expert, who can serve alone, should generally avoid it (ibid. 3, based on Pirkei Avot 4:8). While it may be permitted to do so when the litigants specifically ask for one, it is still problematic (see Shach, CM 3:10). The best solution is to say that your ruling can be either according to halacha, or even a halachic mistake, based on your reasoning.

Another issue is that you have already met with each side separately. That is great when dealing informally with disputes, but it is forbidden for dayanim, both according to halacha (Shulchan Aruch, CM17:5) and according to arbitration law. Admittedly, it is permitted to adjudicate afterward with the other side’s agreement (Rama ad loc.).

All these factors push toward a preference of giving up on the dayanut route in favor of less formal dispute resolution, as was Aharon’s practice, as opposed to Moshe’s (see Sanhedrin 6b). If you can serve as a mediator rather than an arbitrator – great. If they need you to make the decision, then to the extent that halacha guides you – wonderful. However, they should expect a ruling based on peshara, where you bring them to a settlement we wish they would have arrived at alone.

Actually, the case you ask about is easier to permit than that which you assume is permitted. Let us develop the topic from the beginning.

Paying for something not at its “natural” time raises issues of ribbit. The normal time to pay for a sales item is at the time he receives it. Therefore, it is forbidden for a seller to allow a buyer to pay on credit and clearly charge him more for the privilege (Bava Metzia 65a).

Therefore, one has to be careful when buying on credit. We will now mention some of the permitted ways of buying on credit. If during deliberations before the sale only the sales price for credit pay was on the table, it is permitted (ibid., Shulchan Aruch, Yoreh Deah 173:1) even if, in fact, it would have been cheaper if he bought with cash. This system has a couple of conditions, which are predicated on the need to ensure it is not clear that the seller is charging extra for waiting for payment. One is that there must not be a set price for the item that they exceeded with the credit agreement (ibid.). Another is that the increase in price for credit is not steep enough to be clearly related to the credit (ibid.). If you negotiate your own prices with suppliers, you can agree on a payment scheme before agreeing on a price and then negotiate one price accordingly. It is not a problem if other customers get to choose between different rates for cash and for credit.

Another possibility is to use a heter iska for the transaction, especially if the item is for business, not consumption use (Brit Yehuda 40:21). (It is preferable but not absolutely required for the heter iska to be a written document (Brit Yehuda 40:9; Torat Ribbit 16:2).) Then, the late payment, which is considered like the seller’s loan to the buyer, is viewed as the seller’s investment of the sales money in the buyer’s hands with assumed joint profits. One who regularly sells on credit would be wise to put up a clearly visible sign stating that all the transactions on credit are “according to the heter iska found in …”

There is a distinguished but minority opinion (Chochmat Adam 139:5) that if the accepted market price is the one the seller gave for credit and this seller gives a particularly cheap price for cash, it is permitted to buy on credit even when two prices were given. The Pitchei Teshuva (YD 173:5) and most contemporary poskim do not accept this leniency.

There is a more accepted opinion (Imrei Yosher I:150; see Torat Ribbit 8:15, Brit Yehuda 22:8), although far from unanimous, that applies in many business settings. If the industry standard is to pay by credit, that becomes the normal payment time. Then, even if there is a known cheaper price for cash, paying on credit is normal and not an issue of ribbit.

Regarding your question, if after a proper sale on credit, you are offered to pay earlier than agreed for a discount, this is permitted (Shulchan Aruch, YD 173:3). Rishonim (see Tur and Beit Yosef, YD 173) compare this to someone who sells a debt for future payment to a third party for immediate cash but at a lower face value. The discount is not considered a new “loan” that the seller is requesting from the buyer, who owes him later. This is apparently because the payment still corresponds to the sale, which classically is paid immediately. The Rama (YD 173:3) warns that the offer of a discount should be made only after a kinyan has made the sale final. Otherwise, it will be forbidden for the buyer to stand by the credit deal. While it is not always clear when the kinyan is, if you already received the merchandise, the kinyan will presumably be complete.

If you have relinquished ownership of the fallen tree, halacha also says that you are exempt from responsibility. See Rema Choshen Mishpat siman 416.

In our eyes, the most important issue is the social, educational one. I would not be happy if my child was, apparently, obsessed with getting paid in situations in which it is not standard and argues about it with his friend’s parent. If his parents are involved healthily in their child’s character development and interact reasonably with you, it pays to discuss the matter with them for the child’s welfare. It is best if you and they develop a practical plan together. It might be best to pay something so that he not feel that adults take advantage of him. On the other hand, he might deserve to be put in his place. I am not a child psychologist and do not know the child, so I trust you to handle this important matter wisely and sensitively.  

We will deal with the halachic element with the assumption that it is just a point of reference for you. You may not cite it as a ruling, as we have not heard both sides. (We don’t suspect that you are going to a din Torah or a court case with this child.)

This is a case where a “worker” works without waiving any pay due him and the “employer” is aware of the work but has refused to pay if he is not required to. There are two elements that can require one to pay for work done on his behalf: agreement (explicit or implicit); neheneh (benefit from the work). You did not agree to pay, but we must look at the issue of neheneh.

The Rama (Choshen Mishpat 264:4) discusses one who, along with a friend, was in jail and used his resources to secure the release of both of them. The Rama says that if he added resources to include his friend’s release or if he used his resources with both of them in mind, his friend must pay him. He then creates a general rule: “Anyone who does an action or a favor for his friend, [the friend] cannot say: ‘You did it for free because I did not tell you to do it,’ but rather he must pay his wages.” Since no pay was discussed, he pays according to the lower end of the salary scale (K’tzot Hachoshen 331:3). If that which was done is generally done for free, the worker is not paid (Pitchei Choshen, Sechirut 8:31). This depends not only on the type of work but also on the circumstances (e.g., a young child at his friend’s house does not usually get paid). However, this limitation does not apply when the child expressed his expectation to be paid.

After your initial protest, does your stance improve, as the Rama refers to a case where the recipient of the favor said nothing in advance regarding payment, whereas you said you were unwilling to pay? Although he raises that possibility, the Pri Tevu’ah (cited in Pitchei Teshuva, CM 264:3) rules that if the worker intended to get paid and there was neheneh, the recipient still normally has to pay.

On the other hand, Shut Mahari Halevi (151) says that it does not make sense that one must pay after he told his counterpart in advance that he refuses to pay. If there are differing halachic opinions, it is difficult to extract money. The Pitchei Choshen (Sechirut 8:(64)) says that the Pri Tevu’ah was talking about a case where the recipient expressed only dissatisfaction at the idea of paying and wanted the work done, but if he conclusively refused to pay, all would exempt him. This distinction might be pertinent in your case.  

There might be another reason to exempt you. Considering the work was being done by you and your children, it sounds likely that it would have been done anyway without your spending money, and thus there is little or no neheneh (see Shach, CM 246:11). Therefore, any payment would be minimal. Another complicating factor for the child is that if anyone has a halachic right, it is likely his father (Rama, CM 370:2).

First, realize that there is absolutely no requirement to leave anything in a will for tzedaka. The obligation to give tzedaka applies during and throughout one’s lifetime. When he dies (may it be at 120), he is exempt from it like other mitzvot and does not have to make provisions before his death. It becomes the inheritors’ obligation to give tzedaka from the money they inherit (Tzedaka U’mishpat 5:4). 

The question the poskim deal with is whether it is permitted to leave money for tzedaka. Chazal frowned upon (at least; perhaps, forbade!) giving money slated for his inheritors to others or giving the share of one inheritor to another (Bava Batra 133b). This is called avurei achsanta (=av ach). This is even if there is a logical reason, e.g., one child is more “deserving” than another (ibid.). This certainly applies when it is done or takes effect at the end of his life, when the laws of inheritance were to apply. The gemara (Ketubot 53a) says that one who gives an exaggerated dowry for his daughter is considered av ach. This indicates that giving at least an amount of money that is appropriate to serve as an inheritance can be considered av ach even during his lifetime.

The gemara in Bava Batra (ibid.) indicates that giving money as a mitzva (e.g., hekdesh) can still be forbidden as av ach. It is thus hard to know where to draw the line. Could it be prohibited to give a nice present to anyone, including tzedaka (beyond the recommended amount)?! On the one hand, the gemara (Ketubot 50a) says that one may not give more than 20% of his property/earnings to tzedaka. However, the reason is concern that he might need the money, not because it deprives his inheritors, and it is permitted to give it “after he dies” and thus will not be needing the money (Ketubot 67b).We will present some of the distinctions raised to reconcile the sources.

Several poskim posit that if one leaves significant amounts of money for his inheritors, then he can give major tzedaka donations (see Pitchei Teshuva, Choshen Mishpat 282:1; Yabia Omer VIII:9). In fact, the gemara (ibid.) tells that Mar Ukva donated half of his assets to tzedaka soon before his death, after declaring it is prudent considering his insufficient merits (he was an Amora!!) for his judgment in Heaven. Some claim that since Mar Ukva was wealthy, his inheritors were anyway well provided for (see Pitchei Choshen, Yerusha 4:(9)).

Let us move to the related question of when it is appropriate to leave money to tzedaka. The Chatam Sofer (CM 151) discussed one who was dying without children and wanted to leave huge amounts of money to tzedaka. He posits that while it is problematic to give to others (even tzedaka) so that his inheritor not receive much, there is justification to give to tzedaka if he feels, especially without the merit of leaving children, that he is need of the merit of tzedaka.

When Reuven gave money to the airlines via his credit card based on Simon’s request, it is indeed considered as if he lent money to Shimon. This is based on a broad concept known as arvut (guarantorship). By means of arvut, the one who becomes obligated is not the one who received the money (the airline) but the one who requested the money to reach the party he specified (Shimon) (Kiddushin 7a). This concept can be used in creating loan obligations, kiddushin, and transactions. Thus, if Shimon would refuse to pay Reuven back because Reuven did not directly give him anything, we would say “Are you kidding?! When asking Reuven to pay the airlines, you said (or implied) you would pay Shimon back.”

Now that we have determined that Reuven has, effectively and halachically, lent money to Shimon, the question is whether Reuven can receive benefit as a result of the transaction. Indeed, ribbit is not only when a lender receives money straight from the hand of the borrower. If, for example, the borrower wanted to give the interest to the lender by means of a shaliach (agent), it would also be forbidden.

However, the problem is only if the benefit that Reuven receives is, in some way, coming from Shimon (Bava Metzia 69b). This case is different because of the nature of the benefit the credit card company gives Reuven. Because credit card companies benefit when their card is used more times/for larger sums of money, they sometimes give incentives to cardholders to use their card as much as possible. The company, thus, gives benefit to the cardholder, i.e., because Reuven decided to use their credit card; they are certainly not doing it at Shimon’s behest. Therefore, there is no problem of ribbit.

Is Reuven, though, required to give or share the gain with Shimon, and, then, if Shimon waived his rights, would that waiver not be considered ribbit? The gemara (Ketubot 98b) asks about a case in which someone serves as an agent to buy a certain amount of a commodity for a buyer for a certain price, and the seller decides to give more commodity than was requested. The gemara says that if the object does not have a set price, we say that the buyer’s money ended up bringing him more than expected. If, though, there was a set price, we view the extra as a present.

Who receives the present? The gemara accepts the opinion that it is divided equally between the buyer and the agent. Rashi explains that this is because there is a doubt for whom the present was intended. Based on this, the Rama (Choshen Mishpat 183:6) says that if the seller specified that he added on for the agent, the agent keeps the whole surplus. The Rif (Ketubot 57b of his pages) says that even assuming the agent was the intended recipient, the buyer deserves a share because the benefit came through him. The Beit Yosef prefers the Rif’s opinion, and the Shach (183:12) wonders why the Rama wrote according to Rashi as if it is agreed upon.

One might have claimed that our case depends on the machloket of the Rif, Rashi et al., as Reuven got the benefit because of Shimon’s purchase. However, in this case, Shimon is less directly involved with the credit card company than the gemara’s seller is to the buyer. Also, the “present” is part of an ongoing deal between company and client (Reuven), to which Shimon is not a party. The Rashba (Meyuchas L’Ramban 60; see K’tzot Hachoshen 283:7) says that when the present is because of the agent’s relationship with the seller, the agent receives the whole benefit.

Rav Moshe Feinstein (Igrot Moshe, Yoreh Deah II, 63) posits that the prohibition on ribbit applies only when there is a full-fledged borrower, one who has a personal obligation to pay, beyond having a lien on his assets. In an LLC (as well as a corporation), no individual has a personal obligation to pay; only an amorphous financial entity has to pay, with its assets seized if necessary. While a Jewish-owned LLC may not take interest from Jews, he rules that Jews can take interest from the company.

Not all poskim accept Rav Moshe’s logical but novel leniency, but many agree on the level of Torah law, and it is seen as a legitimate opinion one can choose to rely upon it (see Torat Ribbit 17:52-54; Laws of Ribbis, p. 105). It is generally recommended (see ibid.) to use a heter iska when lending money to a Jewish-owned corporation (Israeli banks have heter iskas). This makes the return on the money given linked to an investment (in which the money is not guaranteed but, fundamentally, based on the recipient’s success).

Yet, you face challenges in implementing a heter iska. First, the fact that you did not have one at the time of the loan was a problem; your money is now a loan, not an investment, so the return you seek is ribbit. You can redo the process and turn the money into an iska investment. The best thing is for the money to be returned and then given again with a heter iska (Laws of Ribbis, p. 404). The partner-lenders and the company can also do a kinyan sudar to transfer assets to the lenders in lieu of payment and then give them back to the company as an iska (ibid.; Torat Ribbit 16:28-29; Brit Yehuda 40:23).

The second problem is that it does not fix things retroactively. Therefore, you cannot take interest due before this process, which might be a lot of money. Some poskim allow raising the rate of return in the heter iska, which is somewhat flexible (Netivot Shalom, Kuntrus Heter Iska 25), but only when it is not clear that it is to make up for relinquishing past ribbit. In your case, you are supposed to receive only an accepted interest rate, so it does not seem feasible, on practical and halachic grounds, to raise the rate.

Finally, the full provisions of the heter iska likely do not work for you. In an iska, one cannot promise the investor a given return, which must be a product of profits. The reason the projected return is usually given is that to pay less, the iska recipient must corroborate lack of gains by oath and losses with witnesses. Otherwise, we assume profits. Many poskim (see Torat Ribbit 27:11) rule that this cannot be done when the investor is a partner in the business because when the investor knows there were not enough profits, he cannot demand proof of what he knows. Therefore, receiving the expected returns when they are not justified is ribbit. Some are lenient on the matter (ibid. (24)), but the stringency is logical. You could make the heter iska and use it for cases where there are profits. Realize that you would have to accept the risk of losses that you would know about. How would the heter iska help at all? The value would be in cases when there are apparent profits but it is hard to quantify them, so the heter iska sets clear return assumptions.

In summary, it is legitimate to rely on Rav Feinstein and not worry about anything. If you want to do a heter iska, it can be done, but if you want to use it even for cases where there were not gains, it is questionable whether it helps and will probably not allow profits on the past. You may want to just end the loan and, from this point and in the future, take the equity approach.

[We have determined that this question is for halachic curiosity and not to be used to make a claim. This allows us to discuss the matter generally, and to do so less rigorously than if this were a din Torah.]

Shimon was mainly accurate in citing the Rama (based on Terumat Hadeshen I:317), except that even if it is implicitly clear from context that the provider intends to give the food for free, the recipient is exempt. This enables Reuven to claim that common business practice that the professional who is wooing a potential client pays (we take no stand on the veracity) overcomes the standard halachic assumption.

However, two distinctions make things difficult for Reuven. First, in the Rama’s case, the provider has to extract money, which puts some burden of proof on him. In contrast, the restaurant accepted Shimon’s claim that he must pay only his own meal and Reuven for his own. Indeed, if Shimon would have run out, Reuven would have to pay for his own meal without complaints against the restaurant. So, Reuven wants Shimon to reimburse him and therefore has to provide relatively more proof.

More importantly, in the Terumat Hadeshen’s case, there is more room to claim that the provider decided to charge after the food was given. In this case, it sounds that Reuven agrees that Shimon never intended to pay, if Reuven were not interested in the project (just that he is annoyed by it). Putting the indications together, Shimon never obligated himself, even if Reuven thought he did.

Perhaps, though, Shimon caused Reuven damage by causing him to order his meal. On one level, where is the damage? Reuven received a meal that is worth the money he paid! Yet, the concept of d’mei basar b’zol is relevant. This means that when one eats something expensive when he was justified to believe he would not need to pay, he pays only at a discount rate (see Bava Kama 112a). Thus, the difference between that rate and what Reuven paid might count as damage.

Sometimes, one who causes another to spend money based on an assurance which he does not see through, has to pay. One case is when one tells his co-litigant to travel to court and the former does not come; he has to pay for the uncalled-for expenses (Rama, Choshen Mishpat 14:5). However, the restaurant date was not pointless for Reuven. Besides the meal, it had the potential to facilitate great benefit for both Shimon and Reuven (many believe that a good venue for a business meeting is valuable). The fact that it did not work does not retroactively make the effort uncalled for. While this could induce Shimon to pay, it also means that Reuven was not damaged. Although we cannot get into a complete analysis of sources and factors we were not supplied, my experience/intuition lead me to expect that Shimon could not be compelled to pay.

That does not mean that Shimon acted properly. If Shimon was aware that Reuven expected him to pay, and especially if this encouraged Reuven to listen to Shimon’s sales pitch, then Shimon violated g’neivat da’at (deception). The gemara (Chulin 94a) includes in this prohibition relatively innocuous cases in which the deception could cause a party to give something of value due to a favor he thinks he received. There is reason to suspect that Shimon did that. It would be laudable but not required if, as teshuva for g’neivat da’at, Shimon reimbursed Reuven, at least partially.

The lack of an air conditioner in a car these days in a hot country is considered a flaw that is grounds for mekach ta’ut (misinformed sale) and bitul mekach (nullification of sale). However, several elements might preclude bitul mekach.

The Rambam (Mechira 15:3) and Shulchan Aruch (Choshen Mishpat 232:3) rule that one is not able to claim bitul mekach due to a flaw if he used the object after discovering it. In this case, Shimon used the car after finding out about the flaw.

On the other hand, we need to look at why using the object precludes bitul mekach. The Rambam (ibid.) explains the halacha as being based on presumed mechila, i.e., if he uses it, apparently he waived his right to return it. This case, though, is apparently different in that he previously stated explicitly that he wants bitul mekach. In fact, the Ritva (Bava Metzia 50b) says that if one grossly overcharged to the extent that the buyer can invoke bitul mekach, he can do so even after using the object, if he previously informed the seller of this intention. The simple explanation is that using the object is an apparent indication of mechila, but a clear statement that he is not mochel makes that indication irrelevant. In this case, Shimon demanded bitul mekach and did not rescind that demand. The Pitchei Teshuva (ibid.) cites a machloket whether the Ritva’s extension of the ability to do bitul mekach applies only to mekach ta’ut due to mischarging (Galia Massechet, CM 10) or even based on flaws (Machaneh Ephrayim, Ona’ah 5), as in our case

Furthermore, the Pitchei Teshuva (CM 232:1) posits that if extenuating circumstances forced the buyer to use the flawed object, he retains the right to back out later. In our case, it is unreasonable to expect Shimon, who already paid for a car and did not have the money returned to buy another, to not use the car. In a case like this, where Reuven permits Shimon to use the car even though he knows Shimon still wants bitul mekach, the Galia Massechet should agree (the analysis of this point is long). He clearly does not mean to be mochel and he clearly is not stealing by using it.

But there is a counter indication. By the time the question reached beit din, there no longer were grounds for mekach ta’ut, as the air conditioner was fixed. Still, this does not make a difference for the following reason. When there is mekach ta’ut without mechila, the sale had never been valid (see Galia Massechet ibid.). Therefore, since there is no agreement or kinyan after the air conditioning was fixed, Shimon does not have to go through with such a cancelled agreement, whatever his reasons are.

Despite the above, we believe that Shimon cannot back out. The Shulchan Aruch (CM 232:5) says that a flaw that can be readily fixed does not nullify a sale; rather, the seller has the right to pay for it to be fixed. The Rama (ad loc.) elaborates on this distinction, but his language creates some confusion. He says that the seller can stave off bitul mekach when the flaw is not in the sales item’s “physical essence” and the item does not lose its normal name. An example in which the seller cannot demand to fix a house is a when it has an insecure wall. Although one could argue the point, we posit that a car that has an air conditioner, just that it needs fixing, is one that the seller has a right to fix in a timely fashion (elaboration is beyond our present scope).

The basis of the idea of the rights of a matzran (adjacent neighbor) to acquire real estate before others is a Rabbinic rule that exceeds the letter of the law but is a matter of “hayashar v’hatov” (straight and good) (Bava Metzia 108a). It is based on a general assumption that a neighbor gains more by obtaining the property than someone else, and we therefore expect the other to buy elsewhere (see Rashi ad loc.). It is not surprising that various opinions limit the scope of this novel extra-judicial halacha, especially when the logic in a given case differs from that of the gemara’s classic case.

Rabbeinu Tam (see Tosafot, Bava Metzia 108b) posits that bar metzra applies only to agricultural fields, where the ability to connect and work the fields together is valuable, not to houses. (The Rosh, Bava Metzia 9:34 makes other distinctions.) We do not accept this opinion (Shulchan Aruch, Choshen Mishpat 175:53). However, it is apparently not because we reject the concept that the logic has to apply, but that we reject the premise that an adjacent homeowner does not have significant reasons to benefit more (see Bi’ur Hagra ad loc.).

The Shulchan Aruch (ibid. 59) rules that the laws of bar metzra do not apply when one has rented out his land which his neighbor wants to rent, but only when he sells. Thus, your point that you and your buyer are/will be leasing from the Jewish Agency is cogent. However, a few contemporary piskei din (including one I co-authored) posit that since on practical grounds you bought your home and plan to sell it, the laws of bar metzra apply despite the formality that it is officially a long-term lease.

Regarding who is a bar metzra, poskim are also relatively practical. While bar metzra rules apply to adjacent single-family homes, that is because they can be “attached” for some joint usage (see Taz to CM 175:53; Pitchei Choshen, Matzranut 11:(61)). The Pitchei Choshen (ibid.) raises the importance of people within a building, even if their apartments are not adjacent, sharing stairways. In most cases, an apartment within one building cannot be “attached” to an apartment in another building. It is hard to determine without studying the layout and municipal rules of your situation whether your adjacent neighbor from a different building might have bar metzra rights; we assume that the owner of the other half of your building does.

Your personal responsibility to see to this matter is tricky. A seller does not have a halachic obligation per se to ask permission of neighbors, as the halacha focuses on the neighbor’s ability to claim the right to obtain the real estate from the buyer after his valid sale (see S’ma 175:7). Although the neighbor can protest before or after the sale, it does not seem that the seller must seek anyone out, and this is also common practice when one does not know of such interest.

[Some of the basics of the matter of adjudication in secular court are discussed in, among other places, Living the Halachic Process V:I-2.]

The poskim identify two complementary problems with going to secular court instead of beit din: 1. If the ruling of the court is different from that which beit din would render, then one of the sides is extracting or withholding money rightfully belonging to the other side. 2. Preferring a judicial system based on something other than Torah is damagingly insulting to the primacy of the Torah (see Shulchan Aruch, Choshen Mishpat 26:1, based on the Rashba). (Incorporating specific Israeli laws based on dina d’malchuta dina (the law of the land), as our beit din often does, is not following a non-Jewish system. It is even halachically permissible to legislate takanot based on contemporary societal needs. Basing the system as a whole on Ottoman and British law is not proper.)

There are practical differences (some certain, some possible) between these elements, with each one applying to cases the other might not. The matter of taking money in an unauthorized manner might not apply when: 1. Both sides prefer the secular courts and thereby authorize the other side to receive the “fruits” of their ruling. 2. The side that won checked responsibly with halachic experts (including by telling all of the arguments the other side could raise) that he deserves the court’s award. The matter of preferring another judicial system may not apply if: 1. There is no beit din available to adjudicate (see Living the Halachic Process V:I-2). 2. From the perspective of one litigant, he had no choice because the other litigant refused to go to beit din.

If one has already received a favorable ruling from a secular court, is he allowed to accept the award without further investigation? The matter of disgracing the Torah has already occurred – in some cases he or both sides were at fault; in other cases, the other side forced him. The question is, in each of the scenarios, what to do about the money which he might have or might not have been awarded in beit din. See opinions on the matter in Techumin vol. XXV, p. 249-253 and Eretz Hemdah’s position paper from 5774.

Would it make a difference if the specific matter is something in which the secular courts follow Choshen Mishpat? As long as the system is based on a different judicial authority, the problem of disgrace remains. The Shulchan Aruch (CM 26:1) rules that one is not allowed to go to a non-Jewish court even regarding a topic in which their laws are identical to Halacha. The Tzitz Eliezer (XII:82), in expounding on a letter by Rav Tzvi Pesach Frank, says that the situation is not better and is, in some ways, worse regarding Jewish courts that adopt a non-Jewish system. In such cases, the matter of taking money not coming to the litigant is less likely to be a problem. On the other hand, those who are not trained in Halacha cannot be trusted to implement its rules correctly. Rav Yaakov Ariel (Techumin vol. I, p. 319-328) argues that accepting certain rulings based on halachic sources (what Israeli academia calls Mishpat Ivri) does not remove the halachic and philosophical problems of going to a secular court. On the other hand, purposely and increasingly adopting elements of Choshen Mishpat would (if it occurred) lessen the sting of rejecting Torah-based justice.

In summary, there are small gains when secular law adopts halachic laws and principles, but it does not remove or dramatically alter the halachic and philosophical problems of adjudicating before their courts.  

Since you present this as a theoretical question (although it can happen) and, certainly it will not be adjudicated, we can discuss this and begin with the fundamental level.

In general, there are three halachic constructs by which to obligate someone to pay another who provided a service for him. One is by means of agreement. On a bus, one who gets on a bus agrees to pay according to the set price list of the company. Usually, one pays already before the bus moves, so the question is settled. In a taxi, for example, where one pays at the end, they implicitly agree (unless they begin negotiations) that the amount to pay is what the meter will show at the destination. However, in this case, you agreed to pay only for the closer, planned location, as you indicated when telling the driver where you were going, paying the lower fare, and receiving a receipt for that trip.

The second issue is that of damage. Consider the following true story I heard. Someone entered a taxi in Jerusalem, asked to go to Petach Tikvah, and fell asleep. He was woken in the city of Petach Tikvah and told the driver he meant Petach Tikvah Street (in Romema, Jerusalem). The passenger cannot argue that he only agreed to a short ride because he irresponsibly (by not saying “Street” and by falling asleep) made the driver waste work time and gas driving to a distant location. (Whether there should be any discount is beyond our scope, as is the question as to what factors (e.g., extenuating circumstances) determine when there is an obligation to pay in such a case of semi-direct “damage” – see P’sak Din 73082 of Eretz Hemdah-Gazit.) This element also does not apply here because the driver and the company presumably lose nothing by the passenger staying on somewhat longer.

Another reason to obligate someone is the benefit he received from the service, even if he never agreed to pay for it (see Rama, Choshen Mishpat 264:4). In this case, it would seem that you would not normally benefit from going farther when you wanted to go to somewhere else closer. Therefore, this would not be grounds for payment either. It would be different if when you woke up after missing your stop and realized that getting off a few stops later would be better than getting off at the very next stop. Then, the additional stop(s) would be considered benefit, under the circumstances that developed, and there would be reason to pay.

Practically, one would have to consider other factors. It is very possible that staying on longer than you told the driver could be a problem of chillul Hashem or “Vehiyitem nekiyim” (not causing people to suspect you of sin – see an example in Rambam, Shekalim 2:10). This can happen either if an inspector comes on or if the driver happens to remember where you said you were getting off and where you actually did. It is also possible that the bus company has a set, perhaps even written, policy for cases of staying on accidentally longer than expected. While it sounds random, it makes sense for the company to have a policy so that people not be able to lie and claim that it was accidental. Anyone who gets on a bus accepts the legal policies of the bus company. This is different from a simple agreement between two people, where neither has an advantage over the other. A company prepares a service with rules (sometimes approved by a government agency); the passenger decides to use the bus – on their terms. On the other hand, the driver might inform you that he believes you and it is not necessary to pay. He probably has authority to forgive (mechila) a small payment of this sort.

In summary, on fundamental grounds, you would not be obligated to pay based on any of the constructs for payment for services. Any obligation would be based on more technical grounds.                   

[We responded to the querier regarding his situation but are broadening (in brevity) the discussion. We will compare elements of bankruptcy law (focusing on the American system, which is more sweeping than many European systems including Israel) to Halacha, survey how Halacha reacts to that (this week), and relate practically to some common applications (next week).]

Of the two elements of modern bankruptcy law, one is found in Halacha. If a debtor lacks the funds to pay, he must liquidate or give many of his assets to his creditors, or beit din will, in many cases (depending on the type of debt and assets) oversee the seizing of assets. However, the debtor retains basic assets needed for daily living (mesadrin l’ba’al chov – Bava Metzia 113b). All bankruptcy systems do this and regulate the apportioning of payment among various creditors, in a way that differs from the halachic system.

The second element of American Bankruptcy is “fresh start,” which makes it unnecessary to make payments (“discharge”) beyond those prescribed by the bankruptcy court.  Talmudic Halacha does not recognized fresh start. If someone originally lacks funds but acquires them later, he must pay past debts using new assets.

There are a few possible ways for fresh start bankruptcy to become halachically viable. One is that in some cases, the creditors make a settlement with the debtor over the terms of reduced payment. Agreement actually does not make the question moot, because it can be considered agreement under duress. This is because the creditors have to deal with the “threat” of a possibly more detrimental, non-halachic bankruptcy judgment or that the debtor’s remaining assets will disappear before they receive payment (the bankruptcy system takes steps to prevent such disappearances). Regarding agreement under duress, a sale is valid, but a present given under duress (i.e., without a significant return) is invalid (Bava Batra 47b). After citing various opinions and distinctions, the Pitchei Choshen’s (Halva’ah 2:(62)) approach is that the parties’ agreement is insufficient to make debt reduction binding unless finalized without an act of kinyan (which may or may not exist in various cases).

A factor that might validate even debt discharge is dina d’malchuta (the law of the land). There are three main approaches regarding the concept’s extent. One limits it to the direct welfare of the governmental entity (opinion cited by the Rama, Choshen Mishpat 369:8). The Rama (ibid.) rules that it applies much more broadly – to cases in which a law is made to improve society (as opposed to for the government’s perception of justice). The Shach (CM 73:39) argues that even when done to ostensibly improve society, a law that contradicts the Torah is not acceptable (between Jews). The Chatam Sofer (V:44) follows the Rama’s approach, with a slight clarification. We follow dina d’malchuta when it addresses a societal need in a manner that the Rabbis would have instituted the matter if they had the ability. Most poskim (see Igrot Moshe, CM II:62; Rav Daichovsky in Techumin XVIII) follow the Rama’s approach, and in our beit din, we do so with the Chatam Sofer’s addition. However, it is not always clear when a law contributes to society and/or would the rabbis agree to it. (Regarding bankruptcy, the Chelkat Yaakov, CM 32 views it negatively, and the Igrot Moshe ibid. positively.)

[We responded to the querier regarding his situation but are broadening (in brevity) the discussion. Last time we saw reasons for and against accepting the discharge of debt even though the original halacha disallows it. This time, we will explore practical issues including distinctions between cases. We cannot cover all elements and cases.]

Poskim are quite lenient regarding debts owed by corporations. The Pitchei Choshen (Halva’ah 2:(63)) says that all agree that in doing business with a corporation, which are defined by corporate laws, people expect that the law of the land will govern, even if the owners and officers are religious Jews. This obviously applies to investors in a corporation, but it also should apply to suppliers and even workers. When an individual owes money to a financial institution (e.g., banks, credit card companies), the laws of bankruptcy apply. After all, they plan based on the expectation that a percentage of their debtors will go bankrupt, and they factor this is when setting interest rates. Bankruptcy is valid in regard to corporate as well as non-Jewish creditors, since the governing law in their regard is the law of the land.

The matter is more complicated when an individual Jew lends money to another Jew, especially based on the latter’s need (see more on this distinction in Chelkat Yaakov, Choshen Mishpat 32) supplies goods to him on credit, or employs him. (When a creditor has a connection to the debtor or is a charitable person and can afford it, he could decide to forgive the money and count it as tzedaka, but that is his decision. We should also remember that the idea of forgiving debt is not foreign to Judaism, as according to Torah law, every seven years, debt is forgiven. When this is practically applicable is beyond our present scope.) If the one who is owed money did not make actuarial calculations and reasonably believed the debtor felt obligated to pay his debt, the matter of acting based on local practice is not so applicable. It is also unclear if the law, whose rationale is most societally compelling for growing the economy, is justified to contradict Torah law regarding personal consumer debt. Also, often a debtor knows he will be able to pay, just with difficulty. It is possible that the hardship of paying is not much greater than the hardship of loss to the creditor, and there are not moral grounds to not fulfill one’s obligation. If an individual debtor fully regains his ability to pay, it is morally correct to pay his fellow individual even if bankruptcy law does not require it.

Bankruptcy applies in regard to all of one’s creditors. During the process, one is forbidden to pay creditors selectively; the court dictates payment. Therefore, if one has a moral right to file for bankruptcy due to corporate debt, the loss to the individual creditor is a necessary casualty, at least initially. However, nothing legally prevents the debtor, after the receiver takes assets as instructed by the court, from paying those to whom he feels a higher moral obligation, which he should do as possible. (It can be difficult to deal with a case in which there are multiple such creditors and insufficient funds for them all.)

When one stole from a group of people but does not know how much from whom, if the victims also do not know, beit din cannot force the thief to pay more than he admits, but he does not fulfill his moral obligation until he removes all the doubt (Shulchan Aruch, Choshen Mishpat 365:2). Therefore, if one wants to do the right thing and can track people down, he should do so, even if it means paying more than he owes.

However, there is a different halacha to deal with cases where the range of possibilities is so broad that it is unfeasible to pay everyone who might possibly deserve it. The gemara (Bava Kama 94b) says that shepherds (who grazed in others’ fields) and tax collectors (who took more than they were entitled to) who cannot remember who they owe should use the money due for communal needs. An example is digging publicly accessible water holes. Others (see Pitchei Choshen, Geneiva 4:(50)) give the example of giving sefarim to the local beit midrash. While you have the problem that people may have moved away (and anyway may have never lived in the same community), technology now makes it possible to try to help people throughout the world simultaneously. Do realize, though, that even if you did this successfully (perhaps easier said than done) it is not considered full payment (S’ma 231:34), and if one were able to figure out later who he owes, he would have to pay them (see Pitchei Choshen ibid.).

However, the above does not apply to you. On a certain level you were an accomplice to the deceit of your clients (and you may have lied to them), and this warrants teshuva. However, the decision to deceive your clients was made by your bosses, you did not (we assume) physically take money from them, and the money did not go to you (but likely the firm’s bank account). So even though there is a concept of ein shaliach lid’var aveira – according to which if one’s boss tells him to steal, the worker alone is responsible (Bava Kama 79a), that is in a case where the subordinate actually takes the money from the victim and it is initially in his possession. At this point, it does not seem practical to “open a can of worms” by taking on your former firm and trying to make them research and return whatever money they can (We do not volunteer to attempt this mitzva of rebuke and hashavat aveida). There is even a concept that when someone has stolen a lot and now wants to do teshuva, his victims should not accept the return of what he owes them, for this would discourage him from doing teshuva (Bava Kama 94b).

In regards to you, we are not experts in the perfect steps to take to rectify and receive atonement for each aveira in each circumstance. Certainly, the basics are admitting one’s misstep, regretting it, and not returning to it (Rambam, Teshuva 2:2), and it seems that you have done these. From the time it was decreed on Adam to need to work hard to earn a living, a major part of that involves not allowing one’s job to cause him to sin, whether it be in regard to Shabbat and chagim, relationships with co-workers, or in matters of business ethics (stemming from his bosses’ inclinations or his own). Certain fields lend themselves to bigger challenges in one or more areas. May you and others be zocheh to have not only a sufficiently profitable job but also “a clean and easy” job (see Kiddushin 82a) from the moral perspective. The best ways to increase the likelihood include: tefilla, good training, setting priorities, and being willing to quit if the situation warrants it.       

This is a discussion of general principles, which will help you form a direction for action. We will not make a ruling because: We did not hear the other side, the case and the topic are complex and unclear according to your presentation, and you ask about doing the right thing, which includes subjectivity.

 On the one hand, one violates lo tachmod when he pressures an owner who does not want to sell an object until he relents (Rambam, Gezeila 1:9). The means of pressuring found in classical sources are not exhaustive, and your actions should qualify.

Still, whether you violated lo tachmod depends on what was behind Shimon’s refusal to include the storage room. If he values the room enough to not consider selling it, then your actions violated lo tachmod. One would have to determine whether at this late point and after the written agreement, you have to give up your rights to the room (see machlokot between the Rambam and Ra’avad, Gezeila 1:9, with the help of the Maggid Mishneh and Even Ha’ezel ad loc.) and how relinquishing such rights might affect the sales price. These are all beyond our present scope.

If Shimon’s initial refusal to include the storage room was just a matter of finances, (i.e., why should he give it for free?), then your pressure was in effect to lower the price, not to receive something that should have been off limits. Pestering someone who is happy to sell in order to get a good price does not violate lo tachmod. This is all the more so regarding a storage room in the building, which is often sold along with the apartment, so that your raising your desire is not pestering.

However, there is another problem to consider. If one gives his word to do a transaction, without making a kinyan or money being paid, while there are no steps to enforce the word given, it is considered halachically immoral (mechusarei amana) for either side to back out (Shulchan Aruch, Choshen Mishpat 204:7).  The Shulchan Aruch (ibid. 7) limits the parallel (and more severe) censure for backing out of a deal after money was paid (mi shepara) to cases where the price was already set. The Pitchei Choshen (Kinyanim 1:(4)) posits that mechusarei amana is also limited to cases with set prices and adds that it excludes cases in which “even one detail is not agreed upon.” You could take that position and argue that you had details that were not worked out, and perhaps you are right. However, this position is strong only if the open details were potential deal-breakers. Also, not hashing out those details promptly when you knew that Shimon was counting on the sale and needed it soon is a moral issue. If you could not back out, then you should not receive benefits (i.e., the room) for threatening to do so.

If the only issue is morality and not legality and Shimon is not suing, the present moral decision is yours. We perceive, based on your account, that the process was not “glatt” for one or more reasons. Therefore we recommend you reach some sort of real compromise so that you go into your house with a clear conscience and on good terms with the seller (both valuable things).

I did not find poskim who deal with this question, which is not surprising, because the ability to work and pay at such a distance is new, and nowadays people do not usually pay for such jobs right away (see below). We must analyze the matter at its roots.

 We will start with the general issue of time differences. Obviously, a person does mitzvot according to his time, but what about when they relate to someone or something with a different time? We cannot deal with all halachic applications, but the general rule is that the person deciding how to act follows his own time. Let us mention a couple of examples. At least fundamentally, one may operate in a place where it is not Shabbat on behalf of one for whom it is Shabbat or operate equipment where it is Shabbat (see this column, Bamidbar 5774). One may not own chametz when he is in a place where it is Pesach even if the chametz is in a place where it is not Pesach. In the opposite case (it is on Pesach for the object, not the person), Igrot Moshe (OC IV:94) says that it is fundamentally permitted (he claims it creates a Rabbinic problem, while some say it is fully permitted).

On the other hand, it seems obvious that although a father is obligated to do/arrange a brit mila on his son’s eighth day, if the two are many time zones apart, he would have it done on his son’s eighth day. Why is that obvious? The mitzva of mila is focused on the baby. The father’s mitzva is as a facilitator. A proper facilitator has to act in synch with the baby who is becoming nimol and being impacted in the process. It may not always be simple to determine upon whom the focus is. In Living the Halachic Process (I, D-13) we discussed the possibility that matanot la’evyonim need to be given at a time when it is Purim both for the giver and the receiver.

So on whom is the focus regarding an employer paying a worker promptly (i.e., before the next change of day/night after receiving the product – Shulchan Aruch, Choshen Mishpat 339:6)? Is it the worker who may need the money promptly, or is it the employer, who must not procrastinate (or both, so that the time requirements of both must be met)? While philosophically, Chazal considered this mitzva crucial, likely due to the needs of the worker (see Devarim 24:15), the mitzva includes unusual halachot that focus on feasibility for the employer. For example, if a craftsman finished his work and informed the client, the payment clock does not start until the client receives it (ibid.; see opinions in Pitchei Choshen, Sechirut 9:(31) about cases where the employer improperly refuses to receive it). Also, if the employer does not have money available, he does not violate bal talin (Shulchan Aruch ibid. 10). In both cases, the worker may need the money as desperately as usual, but we follow the employer’s situation, if he is not stalling from his perspective. These are some of the indications (not proofs) that the basic halachot are based on the mandate on the employer not to procrastinate – apparently based on his circumstances.

These halachot are not usually practical because of another surprising leniency. If the worker knows that the employer usually has cash flow only on the market day or that he usually doesn’t pay anything until he has calculated how much he owes, he is not obligated to pay right away. Also, it is only when the worker has asked (or assumed to want) immediate payment that the mitzva to pay promptly is activated (ibid.). Therefore, since in most cases, workers are not paid for several days after they give the work they did, the employer/client can keep within the normal range (see also Shach ad loc. 2). Of course, it is laudable to try (when feasible) to be ahead of the curve in paying workers (see Rav Pealim IV, CM 7), but the exactness you refer to is rarely needed.

: Regarding enforceable monetary obligations, a commitment to use a worker is not binding unless an act of kinyan was made or the worker came to start the job (Shulchan Aruch, Choshen Mishpat 333:1). Coming to give an estimate does not count, but to do preparatory evaluation can count. If due to your agreement to hire Reuven, he turned down another offer and he cannot now find replacement work, you must pay based on the damage your job offer caused (ibid. 2). However, it is rare that a job that takes a few hours and the worker chooses the time would require such a worker to turn down another job (see Pitchei Choshen, Sechirut 10:(9)). If any of these grounds for obligation might exist, we cannot give you any sort of ruling, without both sides presenting their sides for us to rule.

 If there was no binding obligation but one did not keep his word, the mishna (Bava Metzia 75b) says there are ground for tar’omet (being disgruntled). This is parallel to mechusar amana, when one backs out of an agreement to purchase something, and this is a (serious) moral deficiency.

There are several grounds that might relieve you of this status. First, the decision to employ Reuven must have been complete after the critical employment conditions were settled (compare to the rules of mechusar amana – Shulchan Aruch, CM 204:6; Pitchei Choshen, Kinyanim 1:(4)). It is unclear to us (maybe to you too) if this point was reached.

Another relevant matter is Reuven’s high fee. If a po’el (roughly, one who is paid by time) overcharges, the homeowner cannot void his obligation due to mispricing, as a po’el is analogous to a slave, to whom the laws of ona’ah do not apply (Shulchan Aruch, CM 227:33). The Shulchan Aruch (ibid. 36) rules that ona’ah applies to a kablan (one who is paid by the job), like Reuven. On the other hand, not all agree (see Maggid Mishneh, Mechira 13:15), and according to some, ona’ah does not apply to work done on something connected to the ground (see Pitchei Teshuva, CM 227:26).

On the other hand, the question whether ona’ah applies or not may be irrelevant here. Regarding the case of mechusar amana, the Rama (CM 204:11) cites two opinions as to whether one may back out if the transaction is no longer worthwhile because of a price change. The final p’sak is unclear (Shach ad loc. 8). The S’ma (333:1) reasons that the same opinions would apply to a worker’s possible tar’omet. The Aruch Hashulchan (ad loc. 1) says that an employer may back out if he found out the worker is unqualified without the moral stain of tar’omet. Similarly, if one found out the work was significantly overpriced, this should be grounds to remove the tar’omet even if the formal rules of ona’ah do not apply.

This being said, it is hard to trust one partial opinion, like that of Shimon, to conclude that Reuven is objectively, grossly overcharging. Perhaps Shimon needs the job badly and is offering a large discount. Maybe Reuven’s work (regarding what he has planned, how he performs it, or materials) is on a different level than Shimon’s.

In summary, it is likely that you are not morally bound to employ Reuven, and in a case of doubt on a moral, not legal obligation, there is room for leniency (see Chashukei Chemed, Sanhedrin 67a). On the other hand, you might consider the lack of clarity, both about the halacha and the story, and you do not know what points Reuven might raise. Therefore, it would be noble to discuss the matter openly with Reuven. Feel free to contact us again with your findings.

Our discussion relates to cases in which you do not have a legal right to demand a refund. In such a case, forcibly returning the object is like forcing someone to buy it. Regarding coercion to make a transaction, if someone is coerced to sell something and at the end says “yes,” the sale is final (Shulchan Aruch, Choshen Mishpat 205:1). When he is coerced to buy something, there is a machloket whether the purchase is final (Rama ibid. 12 – no; Pitchei Teshuva ad loc. 11 – yes). Even according to the Rama, it is hard to believe that you would try or succeed in coercing the store to take it back. When a civil person is just persistent, even if annoying, it rarely reaches such a level.  

However, acting persistently to try to bring about a transaction in which the other side is not interested does raise questions of lo tachmod (see Shulchan Aruch, CM 359:10) one of the Ten Commandments. However, in this case, lo tachmod (not coveting) does not apply for a simple reason. All of the cases of lo tachmod that I managed to find in classical sources (starting from the examples in the pasuk) and quite a few contemporary sources referred to desiring to receive an object (or person) that belongs to one’s friend. It becomes forbidden when one wants it so badly that he attempts to get it “by hook or by crook” (see Rambam and Ra’avad Gezeila 1:9 for one discussion of the point of violation). They do not mention trying to sell something by pressuring a buyer.

I contacted the talmid chacham who gave the shiur you heard. The only source he found was a footnote in the Pitchei Choshen (Geneiva 1:(26)). He admitted that he was not sure lo tachmod applied. In fact, Minchat Asher (Devarim 9) argues convincingly that one can only be chomed an object that he wants. Wanting to sell something and receive financial compensation is not coveting anything. We point out that desiring money is not forbidden or even negative – we daven and have many sources looking positively about acquiring wealth and certainly a basic living.

It also is quite clear that the Pitchei Choshen did not contradict this thesis. He discusses, in close proximity, lo tachmod and the similar chamas. The difference between the two is that in lo tachmod the seller eventually agrees, whereas chamsan is when the seller never agrees (Bava Kama 62a – it differs from a ganav in that he paid for it). The Pitchei Choshen writes that chamas (not lo tachmod) applies even to one who forces someone to buy from him. While this is difficult on a couple of grounds (beyond our scope), it is more tenable for chamas to apply to selling as well, because in the case where there was never agreement, there is no sale, and therefore the “seller” had no right to take the money even after the fact. This is not the same idea of lo tachmod, which is over-desiring something that is off limits to you (even if some action is necessary to concretize it – see Rambam ibid.). In your case, you did not desire anything; to the contrary, you wanted to get rid of something that did not interest you and just recover the money you regretted paying.

[For those who are unfamiliar with Paybox (an Israeli company), it resembles Paypal but is mainly for non-commercial payments, as people make groups (of various sizes – similar to WhatsApp) for different payment purposes.]

Torah-level Ribbit applies only if it was stipulated at the time the loan was made that the borrower must pay back more than he received. However, it is Rabbinically prohibited for the borrower to decide later to give more (ribbit meucheret – Bava Metzia 75b).

A pertinent leniency exists regarding a different case of Rabbinical ribbit. It is forbidden to lend an amount of a commodity with the stipulation that he will return the same amount of that commodity (se’ah b’se’ah - Shulchan Aruch, Yoreh Deah 162:1). The reason it is forbidden is due to the possibility that the commodity’s price will go up (perhaps even sharply) and the borrower will be compelled to return more, value-wise, than he received. Among the leniencies of se’ah b’se’ah (see ibid. 1-3), the relevant one for us is that people may lend a loaf of bread for a loaf of bread (Rama, YD 162:1, based on Bava Metzia 75a). Rashi (ad loc.) implies that this is a special leniency for the Rabbinic se’ah b’se’ah, raising the question as to whether it applies to other Rabbinic ribbit cases. However, the Rama (ibid.) cites the explanation (as does Mishna Berura 450:2) that people do not care about small amounts of fluctuations. Realize that regarding ribbit, much depends on intentions and assumptions about them. On the one hand, if one demands interest, it is forbidden by Torah law to take even less than a peruta worth (which is rarely a halachically significant value) of interest (Shulchan Aruch, YD 161:1). In contrast, in some cases when it is clear that the ostensible interest is not being given out of a duty to compensate the lender, ribbit is not violated (see Bava Metzia 75a).

Should we then say that an innocuous, small amount of ribbit meucheret (like our case) should be permitted? The problem is that direct ribbit meucheret might be worse than se’ah b’se’ah. The latter does not look like ribbit, as one returns the same thing he took. In contrast, here, a clearly larger amount, even if only by a little, is being given during repayment (see Brit Yehuda 5:8), which may make it assur. Still, after a long analysis, the Minchat Yitzchak IX:88 says that one who does not have exact change may give more than owed if the difference is insignificant. (The Minchat Yitzchak still suggests to tell the lender to give the change to tzedaka on the borrower’s behalf). While recent sefarim cite the Minchat Yitzchak in more strict (Torat Ribbit 45:12) and more lenient (The Laws of Ribbis (Reisman) p. 43) manners, we can assume that nowadays rounding up a half a shekel between friends is insignificant. Since intention and how things look are important, if indeed Paybox requires its users to round to the shekel and still people happily use it, then for these people, it is clearly insignificant (see Bava Metzia 75a, regarding talmidei chachamim for whom it is clear it is not being given as ribbit).

The only question is in a case, where at the time of the “loan,” it was known that payment was going to need rounding, e.g., they always pay each other with Paybox, and they always round up (i.e., even by more than half a shekel) because it is not nice to borrow and then pay back less. There, one could get into Torah-level ribbit of a small amount. In those cases, it would be right for the recipient to give to tzedaka (as above) or say that the overly reimbursed owes change at some point and keep an at least loose accounting. But if everyone truly is not makpid on small amounts, then it is best and natural to simply follow the regular rules of rounding.

In some ways, such late payments are classic ribbit in that a person who needs to pay must pay extra because of the time that passed (what the gemara calls, agar natar ­– the reward for waiting). But it is/can be different from classical ribbit in two main ways: 1. The payment is not the return of a loan but payment for a sale, which makes it, at worst, a Rabbinic prohibition (Shach, Yoreh Deah 173:4); 2. The increase in payment is not desired by the lender to make money, but is created to pressure the buyer to pay on time (Shut Harashba I:651).

 Neither of these grounds for leniency create a permitted situation alone. It is forbidden to sell something and say that there is a lower price if the buyer pays on time and a higher one if he pays late (mishna, Bava Metzia 65a; Shulchan Aruch, YD 173:1). The Shulchan Aruch (YD 177:14) rules that it is forbidden Rabbinically to make a penalty for one who returns a loan after the due date. (The Rama ad loc. does provide a way to do so.)  But when the two lenient factors combine, it is permitted, i.e., one may make a legally binding condition that if a buyer pays later than he is supposed to, he will pay even a significant penalty (Shulchan Aruch ibid. 18).

While this system seems to be the solution to your problem, not all sellers would agree to it because of the following limitation: One may use only a one-time penalty. Multiple penalties over time make it considered like one who is charging for the time, as opposed to for lack of adherence (Shulchan Aruch ibid. 16 and Shach ad loc. 33).

There are possible ideas to make such an approach work. On a practical level, it can be quite effective to make one penalty late enough that it will not be activated by accident and large enough to strongly discourage delaying payment indefinitely. (If there is basic trust between the parties and they understand what and why they are doing it, the seller can relinquish his right to some of the penalty for an honest delay, if it is not built into the binding agreement). I have another idea, based on the idea that it is permitted for a borrower to pay certain loan-generated expenses, including legal ones, which is not considered a penalty (see The Laws of Ribbis (Reisman), p. 78). I would thus propose a system like this. After the one penalty, the buyer obligates himself by contract to pay a high but realistic fee for a lawyer to work on the case if another X weeks go by without full payment; this can be followed by paying for further actions, and eventually for the expenses of adjudication.

Realistically, only clients who are bnei Torah are likely to agree to such convoluted arrangements. Therefore, the best straightforward approach is to write a standard late payment schedule and include a clause that any payment that can be construed as an interest payment is to be governed by the provisions of a standard heter iska. We, at Eretz Hemdah, include such a clause in the relevant documents available for the public.

It is best to rely on such a standard clause only when a more specific ribbit remedy is unavailable. A heter iska is susceptible to the claim of ha’arama (lack of serious intent), especially if the sides lack even general understanding of its mechanism (see opinions in Brit Yehuda 35:4 and Torat Ribbit 16:1). The mechanism (sharing assumed profits and dangers) can justify only moderate price increases. However, despite reservations, heter iska is a legitimate halachic tool when not abused, and it is a necessity as a halachic alternative within Jewish financial institutions and interactions.

If you made your client aware of your recommendation for a heter iska (you can mention that all the major Israeli banks have one) and he or the other side refuse to include it, you can still work on the case (development of that topic is beyond our scope – see The Laws of Ribbis, p. 58).

We saw a bit of further information in financial newspapers but cannot promise to have captured all the details and legal nuances. Our presentation of the view of Halacha is thus quite general.

This decision relates to two questions – 1. Should the mistake be reversed (Citigroup vs. creditors)? 2. Must the bank take responsibility for its mistake and how (Citigroup vs. Revlon)?

The creditors received the money, apparently without wrongdoing on their part. On the other hand, if one innocently accepts a present intended for another person delivered by a courier, he must return it if it is demonstrated that the transaction was a mistake. This is a broad rule regarding misinformed transactions/commitments (see Shulchan Aruch, Choshen Mishpat 25:5). It is not that simple to apply that rule here because it is not objectively a full mistake, as the creditors received money due to them, even if it was envisioned to have been given under different circumstances, so perhaps the creditors can act on them once they are in their hands.

The following cases are good precedents. Reuven owes Shimon for two loans and pays him partially. The Shulchan Aruch (CM 58:4) rules that Shimon can determine which loan the money goes for (which is significant if one of the loans has strong guarantees). Furthermore, even if Reuven said he was giving the money for one loan and Shimon was silent, Shimon can say later that he received it for the other loan (ibid.). Even if Reuven gave money to Shimon to deliver it to Levi for Levi’s loan, Shimon can keep the money for his own loan (ibid. 5). So we might conclude that Revlon’s creditors are “in the driver’s seat” once they have control of money owed, and Revlon/Citigroup’s intention is inconsequential.

However, this is not so because the creditors do not yet have the right to demand the money. The K’tzot Hachoshen (83:1) and Netivot Hamishpat (Chiddushim 83:1) say that in the case of two loans, where only one is due, the lender must take the payment for the one that is due. Likewise, the deliverer of payment cannot claim the money for his own not-yet-due loan (Pitchei Choshen, Halva’ah 6:(16)). Likewise, the Tumim (67:16) rules that seizure of assets for a loan, which often gives the lender extra rights, applies only when the loan is due. Thus, before a loan is due, payment has no place in the lender’s hands unless the borrower intends to pay him. (A possible exception is if there is specific reason for concern that the borrower will lack funds to pay when the due date comes – see Shulchan Aruch, CM 105:4 and Sha’ar Mishpat ad loc. 4.) Therefore, it is likely that Halacha disagrees with the court ruling, and that the mistake should be remedied by return of the money. (If the confusion damages the creditors, compensation may be appropriate.)

Regarding affairs between Citigroup and Revlon, when an agent makes a clear mistake to the detriment of the one he represents, he must compensate him for the loss (Shulchan Aruch, CM 185:1). Sometimes, the lack of the agent’s authority causes a situation whereby a transaction with a third party does not stand, and sometimes it stands and the agent must compensate (ibid. 182:2). One could argue that it would be more appropriate for payment to be taken from Revlon and that Citigroup should pay the damage this causes. However, (halachic/financial analysis is beyond our present scope), Citigroup gave their own money, and while normally they could charge Revlon, there is no reason for Revlon to agree. Therefore, according to the court’s ruling regarding the creditors, we agree that Citigroup needs to wait until it is time for Revlon to pay.

The gemara (Sanhedrin 24b) gives two reasons why a mesachek b’kubia (=mbk – gambler) is pasul l’eidut (unfit to be a witness): 1) Rami Bar Chama – Because of asmachta (the loser of a bet did not plan to lose/pay), a gambler is a thief; 2) Rav Sheshet – A mbk’s life is unproductive, making him untrustworthy. The gemara says the practical difference is if the gambler also has productive activity. According to most, Rav Sheshet considers a mbk’s obligation valid.

The Rambam (Eidut 10:4; Gezeila 6:10) and Shulchan Aruch (Choshen Mishpat 370:1-2) mix between the approaches – mbk violates (each time) Rabbinic-level thievery even though he is pasul l’eidut only if he is a full-time mbk. The losing party’s agreement to pay is insufficient because it is likely to not be whole-hearted (S’ma 370:3). The Rama (CM 370:2) rules that part-time mbk is permitted. Therefore, Rav Ovadia Yosef (Yabia Omer VII, CM 6), regarding buying lottery tickets, which he equates to mbk, forbids it for Sephardim and permits it for Ashkenazim. Other poskim (see Rav A. Shapira in Techumin V; Teshuvot V’hanhagot IV, 311) argue that the Shulchan Aruch would permit lotteries because one expects to lose, he receives a lottery ticket with value, the rival gamblers do not interact, and/or because the money is taken by the lottery authority, not any specific counterpart. 

Your case lacks one of the Rama’s (CM 207:13) conditions – mbk involves no skill, giving him less room for irrational optimism. In this case, any friend might think that he has a great chance to win, and therefore lack full intent to surrender money. There may also be technical problems, such as whether the money is found in a place in which a kinyan can take effect when the winner is determined (Rama ibid.).  Therefore, we will look for other grounds to permit it.

The Shulchan Aruch (Yoreh Deah 258:10) rules that one who made a conditional obligation to tzedaka cannot exempt himself due to asmachta. Arguably, since your motivation is noble (funds for a shul), this might apply. However, that will not suffice here because the question is about intent that one’s money will end up by his counterpart, and the shul is just background.

There may be a way of dealing with the limitations of asmachta, by strengthening the agreement by doing an act of kinyan (like a chatan does at the wedding) and having it take effect mei’achshav (immediately) and/or doing it in front of a distinguished beit din, or writing that it was done in front of such a beit din (see Shulchan Aruch, CM 207:14-15). This would apparently make it permitted according to the Rama but not the Shulchan Aruch (Bemareh Habazak (new edition) VI:95). To avoid machloket, because the details are not simple, and to avoid halachic ploys to remove moral issues (see Aruch Hashulchan, CM 207:35), we should look for a natural way to remove the stain of mbk.

A likely claim is that no one’s intent is to make money, but to create motivation and/or to make things fun. This is reminiscent of the practice of many good Jews to play dreidel on Chanuka for money. On the other hand, some require modifications or allow it only on Chanuka (see opinions and a compromise in Nitei Gavriel, Chanuka, p. 307-308; see also Shulchan Aruch, Orach Chayim 322:6). Also, you are not talking about small coins. Without knowing the group, we would not preclude the possibility someone could start off with a nonchalant attitude but could end up competitive and resentful over such things.

Therefore, while you might not have a problem and/or might be able to use the beit din chashuv system, we recommend the following (or equivalent) “mehadrin” modification. The pot is given to someone who will use the money for the shul, a get-together, etc. At his discretion, he will use some of the money for a modest prize object (not money) for the winner (based on Yabia Omer ibid.).

There are three approaches to how to view to the halachic significance of giving a check. 1) Since it is generally forbidden to cancel a check, a check is like money (Igrot Moshe, Choshen Mishpat II:15). 2) A check is a self-obligation of the check writer (drawer), to the payee or to anyone if it is an open check (Minchat Yitzchak V:119); 3) The check is no more than an order that the drawer gives to a financial institution to give money to the payee (Shevet Halevi VII:222). The starkest difference between #2 and #3 is whether, if the drawer cancels the check, the obligation to pay still exists. (From a technical perspective, banks usually allow one to cancel the check, but the legal system needs to be convinced he was justified to do so.) #3 is definitely the direct meaning of the check. As they are used in today’s society, the more accepted approach is #2, that it is not considered money, but that the drawer obligates himself to pay whoever uses it legally (see Pitchei Choshen, Halva’ah 10:(21); Shirat Devora II, CM 23).

(Almost) all agree that if one gave a check to one whom he owed and it got destroyed, he has to replace it. Even if one conceptually views a check like money, it is significantly different from real money in this context. If Levi pays Yehuda with cash, the payment is immediately usable, whereas a check needs to be cashed or transferred first. More significantly, if Levi feels bad and wants to pay money again, it will be an outright loss for him. But if Levi writes Yehuda a personal check and it was destroyed, the money was never drawn from Levi’s bank account as planned, and Levi is no worse off than he planned (except the price of a check) if he writes another one. So, if Reuven did not transfer the check to Shimon, you should enable him to do so.

If Reuven already gave the check to Shimon, you could argue that since you do not owe Shimon, it is not your responsibility to make sure he receives the money. However, this is apparently wrong. The mitzva to return a lost object is not limited to physical objects but applies broadly to help someone out regarding his property (Shulchan Aruch, CM 259:9), and therefore enabling Shimon to use the check he received should be included. While it is true that one does not have to lose money returning a lost object (see Shulchan Aruch Harav, Aveida 33), and here you will be “out” 2,000 NIS, having money you were obligated to give taken from your account is not a loss (see Tosafot, Bava Kama 58a).

Even if we did not view a check as creating an obligation, if Reuven owed Shimon, then through a rule called shibudda d’Rabbi Natan, you, who owed Reuven, would be considered as owing Shimon (Shulchan Aruch, CM 86:1). Although the application here is complicated (see ibid. 2), it is wrong for you to divorce yourself from this obligation.

There is a machloket (K’tzot Hachoshen 104:2 and Netivot Hamishpat 104:1) whether the mitzva to pay a debt starts when the debt is due, or only when the creditor requests payment. However, this refers to the timing of payment and does not allow one to try to benefit from the creditor’s oversight. Therefore, while you need not act quickly (especially because someone will probably cash the check), at some point you would have to inquire with Reuven if you need to do anything to ensure everyone gets what they deserve. (We are not addressing how to defend your right to make sure you do not end up paying twice or the rules of when it is legal to give open checks.)

When we adjudicate such cases in beit din, we usually need to consider particular circumstances. We would give two pieces of advice. Discuss as many important matters as possible before work begins, and realize that compromise between the sides is almost always preferable to adjudication. However, it is good to also be aware of basic halachic/legal guidelines.

Two rules about monetary law and specifically employment law can compete in cases where some matters were not settled in advance: 1) We are to follow our society’s common practices (Bava Metzia 83a; ibid. 76a). 2) When there is a doubt whether one needs to pay and how much, he pays the least of the reasonable options (Bava Kama 46b).

When there is no discussion, the service recipient cannot normally say that he thought the service was being provided for free (Rama, Choshen Mishpat 264:4). But how much should the worker receive?

When there is one accepted fee, that is what he receives (Bava Metzia 76a). A rare example of an accepted fee in our days might be “shadchanus gelt” in certain communities. A fee used in a simple majority of cases does not constitute an accepted fee, (K’tzot Hachoshen 331:3), but a sweeping majority would enter the realm of minhag. When there are multiple fees, the lowest one is used (Rama, CM 332:4).  An exception to this rule is when (one of the) sides use language that indicates they want to use an average rate (Shulchan Aruch, CM 331:3, based on Bava Metzia 87a).

Standards are not only set according to the time and place, but also the type of profession needed and the objective qualifications the worker possesses (Pitchei Choshen, Sechirut 8:(11)). For example, electrical work done by a licensed electrician is more expensive not only than the work of a babysitter but than a handyman who also does electrical work. Other factors are dependent on the case. Poskim discuss cases in which there was no explicit decisions but that the intention can be deciphered from the circumstances. For example when the sides gave different offers and did not agree, and only later the work started without resolving the matter of price, the one who initiated the new contact is likely to be assumed to have accepted the other side’s offer (see Pitchei Choshen ibid. (13), based on the Shulchan Aruch, CM 221:1).

The classic rules, including those above, produce some less standard applications in contemporary society. First, for many types of services, it is not possible for the worker to know how difficult and time-consuming a job will be, e.g., a car mechanic, computer technician. We can apply the K’tzot Hachoshen’s (ibid.) ruling that when it is not possible to determine price in advance, the average fee is appropriate.

Furthermore, there are also fields in which the service provider is the one who normally sets the price. Determining what fields fall into this category will also be a matter of local practice. Often when there is no discussion about the price, it is the shortcoming of both sides, which has its own complicated halachic consequences (see K’tzot Hachoshen ibid., Maharashdam CM, 335). However, when the hirer should have known that the worker would set his price and assume that the hirer will accept it or negotiate, that is what the hirer should do. The hirer cannot, then, object afterwards without prior warning. It is likely, even, that when he went into the process, the legal construct of giving trust to the person with whom you are financially interacting applies (see discussion in Living the Halachic Process VI, I-2).

We have not found explicit discussion in classical poskim or contemporary halachic discussion of this exact case. To evaluate this possibly new question, we seek halachic parallels.

The closest parallel is loans that involve three parties – two Jewish and one not – which makes the existence of ribbit possible (see permutations in Bava Metzia 71b). The determining factor is generally whether the obligation and payment (perhaps even partially) are between two Jews (interest is forbidden) or only between each Jew separately with the non-Jew (permitted). The Rashba (Shut I:764) speaks of a case where a Jew owes a non-Jew with accruing ribbit and the non-Jew transferred his rights to the debt to another Jew. This is parallel to our case, as the taxpayer owes the non-Jewish government, and the government transferred its rights to a Jewish tax lien purchaser. The Rashba rules that if the non-Jew receives the money from the first Jew, even if he then gives it to the second Jew, it is permitted. If the money goes directly between the two Jews, it is forbidden. The Rashba, and the Rama (Yoreh Deah 168:10), who codified this opinion, imply that the prohibited case is only a stringency because of the severity of ribbit.

The Taz (ad loc. 12) makes two qualifications. The potential problem of ribbit is only on that which is accrued after the transfer to the Jew; the second Jew may directly take that which was coming to the non-Jew prior to the transfer. (If the original debtor was not entitled to pay early, all the eventual ribbit is considered previously accrued (Chavot Da’at (Chiddushim) 168:20), but in our case, the taxpayer can pay at any time.) The Taz also says that the relative leniency of the Rashba/Rama was only regarding a non-Jew’s partial/temporary transfer of rights to the second Jew, i.e., the non-Jew can pay off the second Jew and go back to demanding payment from the first Jew. In contrast, if the second Jew had obtained irrevocable rights to the loan, he has a full debtor/creditor relationship with the other Jew, so that taking additional ribbit is strictly forbidden. Although the Shach (Nekudot Hakesef ad loc.) takes issue on the Taz’s first qualification and somewhat on the second, the consensus of poskim is like the Taz (see Gra ad loc.; Chavot Da’at ibid.; Torat Ribbit 24:1).

The purchase of the tax lien appears to be like the Taz’s stringent case, making it forbidden to purchase a Jewish taxpayer’s tax lien. Since auctions list details of the taxpayer and his property, it might be possible to pick someone who is highly unlikely to be Jewish; such “profiling” is, of course, an inexact science.

However, we do not want to take a clear stand on this matter for a few reasons. 1) The laws of ribbit are very complex, and we do not preclude a future or unknown-to-us responsum convincing us otherwise. 2) Obligations created by government decree can have special qualities, and sometimes may be able to obviate the prohibition of ribbit (see Shut Ramban 46). 3) We do not know certain potentially impactful factors (some likely differ from place to place), including the degree of finality of the purchase, and who receives payment from the taxpayer. In the meantime, we cannot permit purchasing tax liens of a Jew. We add that the system appears to have some draconian provisions. This might make it appropriate to avoid on moral grounds.

We invite information/insight from our readership.

We praise you for asking sincerely. Generally, we do not comment on active monetary disagreements (see Rama, Choshen Mishpat 17:5). However, after hearing your situation, we felt this would be a case where it was proper to make an exception (see Pitchei Teshuva ad loc. 11; our column from Ki Teitzei 5776), which may be clearer at the end. We are neither interested nor able (due to a lack of information) to present clear conclusions but rather halachic ideas about this type of case.

One important question is whether the present wall meets safety codes for the emerging situation, as these are generally legally and halachically binding to obligate and exempt from further steps (see Emunat Itecha #139, p. 87-96). This is not unlikely considering you received a Tofes Arba (occupancy permit) despite a significant drop and municipal plans for a future further drop. If so, if your very understandable concern for your children makes you want more, your decision will obligate you. 

Most questions about paying for a wall between properties of different elevations concern its serving as a kir temech (retaining wall). In most cases, the wall serves both homeowners, preventing collapse of parts of the ground that support the higher property from falling into the lower property. In such cases, the two owners are to pay for it jointly (see ibid.). The need for /benefit from a kir temech is not always identical, which can impact on the division of payment. You have not told us how the two of you have dealt with the construction of a kir temech and how it is connected to the wall you mention.

Regarding concern for falling, your wall was needed as a ma’akeh. While the formalistic mitzva requires a 10-tefach high fence for a roof (Shulchan Aruch, 427: 1,5), there is a broader and more fluid requirement to avoid danger (ibid. 7-8). While you seemed confident that it had been doing its job (according to most opinions, a meter is more than 10 tefachim), you view your neighbor’s excavating as creating a dangerous situation that requires more than the existing level of caution.

Questions of damaging situations created by what neighbors do on their own property are governed by the often difficult-to-apply halachot of nizkei shcheinim. A broad question with many applications is whether the need to remove the danger/damage falls on the potential victim (nizak) or damager (mazik). Important determining factors are whether the damage comes immediately and directly (Shulchan Aruch, CM 158:32), the damage’s significance (Shut HaRosh 108:10), and whether the nizak is capable of avoiding the damage (ibid.). We will not analyze your case’s details in these regards because danger of falling has its own prototype – bor (a pit or cistern).

One whose bor’s opening is on the border of another’s property must pay for damage to those who fall in (Shulchan Aruch, CM 410:6). For you, a pertinent question is the drop’s proximity to your property (see S’ma 410:7). It is also possible that the fact that the drop is a result of natural topography and permitted building removes responsibility (see Shulchan Aruch ibid. 9 and commentaries). Also, a 10-tefach wall remedies a bor (Bava Kama 50a). Finally, cheaper methods might be feasible to remove the danger.

Therefore, it is unlikely that your neighbor needs to pay significantly to extend your wall. We trust that these ideas will impact your conversations with your neighbor and are optimistic you will enjoy a good relationship.   

There are two halachic issues to discuss regarding the extent of Reuven’s responsibility: 1. Does Reuven have more than 20% responsibility for the car, and if so, to what extent? 2. Is indirect responsibility activated because the others refuse to take responsibility?

The Yerushalmi (Shvuot 5:1) concludes that if two people borrow a sum of money together, they become areivim (guarantors) for each other, even without explicit agreement for that. In other words, one of the borrowers could end up paying the lender the entire amount. (If he acted correctly - see Pitchei Choshen, Halva’ah 14:14-18 – the arev can demand reimbursement from the other borrower – Shulchan Aruch, Choshen Mishpat 130:1). The Shulchan Aruch (CM 77:1) extends this concept to two who buy an object together (regarding payment for it), and the Rama (ad loc.; see Shach ad loc. 1) adds two who accept an object to watch (regarding payment if they do not successfully return it). This is thus a broad concept that should apply also to rentals. In essence, renting a car contains two elements that can lead to payment – paying for the right to use it, which is like buying (see Bava Metzia 56b), and paying if he does not return it intact, like a watchman (see Mishpat Haschirut 1:9).

The two main forms of arevim are: a regular arev and an arev kablan. A regular arev is responsible to potentially pay for what his friend owes, but only when the creditor has a valid reason to view the debt as impractical to receive from the debtor (Shulchan Aruch, CM 129:8). An arev kablan is treated like a direct recipient of a loan, even though someone else is the ultimate beneficiary. Resultantly, while a creditor can approach a regular arev only after it is apparent that the debtor will not pay, he can approach an arev kablan before even trying the debtor (ibid. 15).

Rishonim disagree on the status of two who borrow together. The Rosh (Shvuot 5:2) considers each lender as an arev kablan, which means that the borrower can take full payment from either without even trying to get half from the other. The Sha’ar Mishpat (77:1) explains that we view the matter as if each of the borrowers received all the money, no matter how they decided to split it among them. The Shulchan Aruch (CM 77:1), though, accepts the opinion of the Rishonim who say that each is a borrower on half and a regular arev on the other, so that generally each person only has to pay when his partner will not.

At what point has the lender exhausted his necessary efforts to receive payment from the borrower and can demand pay from an arev? The Shulchan Aruch (CM 129:10) says a case where one can demand payment from the arev is if the other borrower is a powerful person who does not listen to beit din. The Rama (ad loc.) cites but does not accept an opinion that we wait until beit din tries to force the borrower to pay. Clearly, though, if there has been only refusal to pay without being summoned by beit din, it is too early to demand payment from the arev (see also Bava Batra 174a). This is even clearer if the debtor has real claims for exemption, in which case going to beit din before paying is the defendant’s right (even if he is presently not eager to do so).

We will use your assumption that the prices given are for each area, not only given stores.

Do we care what the two bags to be returned cost in Lakewood, where they will be returned, or in Manhattan, where the loan was made? The Shulchan Aruch (Yoreh Deah 173:17) rules that if Reuven lends a measure of fruit to Shimon where they are cheap and is to give back that measure where they are expensive, it is permitted only if Shimon already had that fruit in the second place at the time of the loan. The Machaneh Ephraim (Ribbit 22) assumes that this case has the potential for ribbit k’tzutza (rk – Torah-level ribbit violation) based on the added value in the new place (see there how Shimon’s ownership of fruit in the second place helps). This indicates that the critical place for each item, the loan and return, is where it is given.

Your case is a variation of what the gemara (see Bava Metzia 44b) calls se’ah b’se’ah (=sbs) – when one lends an amount of a commodity in exchange for the same amount of that commodity later. It is forbidden Rabbinically, out of concern that at the time of the return, the commodity’s price might be higher, making the extra value ribbit. In our case, although the plan is to return chips of the same value that was received, the price of two bags in Lakewood might later exceed the $1 the bag in Manhattan was worth at the time of the loan. If our case only involves the Rabbinic issue of sbs, any of three areas of leniency might permit it: yesh lo, yatza hasha’ar, and neighbors who are not particular with each other (Shulchan Aruch and Rama, YD 162:1-3; see explanations in Living the Halachic Process II, F-5.)

This case differs from sbs in that more of the commodity is to be returned than was given in the first place, which is generally rk (see Vayikra 25:37). But is it really a problem if the value is the same!?

A critical question is why sbs is not rk if the price does go up. 1) The Rosh (Shut 108:15) posits that it is not rk when one returns effectively the same thing he received. 2) The Ramban (Bava Metzia 60b) and other Rishonim hold that according to Torah law, the time of the loan determines whether the loan violates ribbit. A subsequent rise in price is impactful only regarding Rabbinic law. 3) It is unclear that the future will bring profit to the lender (Taz, YD 162:1; see variation on this in Netivot Shalom 162:1).

According to the Ramban and the Taz, given the expectations, there was no monetary benefit (which is what is important for them) at the time of the loan, nor was it certain for the future. The Rosh, though, stresses the equivalence of the commodity in sbs, so that in our case, if the price rises, the increase in both quantity and worth makes it rk. If the value remains stable, it is unclear whether an increased volume with the same value makes it rk, and it might depend on the language used (see Chavot Da’at 161:1).

I have not found halachic discussion of this case, and it is difficult to extrapolate based on the fundamental concepts, especially when there could also be Rabbinic prohibitions. So we will not try to give a p’sak for this theoretical question but will give general advice regarding such questions of sbs. If objects of small value are involved, it is prudent to say the recipient is not required to return anything (most people’s propriety make them want to return), in which case it is permitted to give even clearly more than he received (see Rama, Orach Chayim 170:13). If one is unwilling to take the chance of losing the money, he can make it a loan of the dollar value of what was given. Then, the borrower can give as much of the commodity as that amount of money can buy (see Brit Yehuda 17:(14)) when/where it is returned but not (noticeably) more value than he received.

Because this is a joke and not a practical case, we do not have to analyze all of the potentially impactful details. I guess what makes the story funny is the implication that Shimon only thought of paying at that time and place because he hoped that the loss of the holdup would fall on Reuven. Apparently, though, the circumstances are more important than the intention.

The basic principle is that if a borrower wants to pay and the lender does not want to receive, the lender can be forced to receive. If he does not, and the means of payment that the borrower leaves for him is lost or stolen, the lender does not have a claim to the borrower to replace it (Shulchan Aruch, Choshen Mishpat 120:2). This does not mean, though, that the borrower can always force the lender into unfavorable payment scenarios. Halacha balances the two sides’ rights and concerns in the following areas.

Mode of payment: If the borrower has available cash, he must pay with cash, but if he does not have cash, he can give the lender movable objects of the borrower’s choice (Shulchan Aruch, CM 101:1-2). The lender can delay repayment to wait for a time at which the borrower will have cash to give (ibid. 4). If payment is in real estate, average quality land is the basic standard (see ibid. 102:1). This element is not the issue in your case.

 Timing of payment: The time that the debt is due is primarily for the benefit of the borrower, i.e., the lender cannot demand return of the money before the time set. Therefore, if the borrower wants to pay early, he has the right to do so (ibid. 74:2). However, since it is somewhat suspicious that one wants to pay early, if there are signs that the early payment may cause a loss to the lender, the lender can refuse to receive the money at that time (ibid.). Some examples are when the currency of payment is soon to be devalued or the tax collector is about to appraise taxes based on money on hand (ibid.). When the time to pay has come, we are to assume that the time of payment is fair for all, and we will not readily allow the lender to refuse to receive it then (ibid.). However, if it can be demonstrated that there is a significant and immediate disadvantage to receiving it then, it is likely that the lender can refuse (see S’ma ad loc. 5; Shach ad loc. 10). We then treat that timing like the following scenario regarding place.

Place of payment: The mishna (Bava Kama 118a) rules that if one borrowed money from his counterpart in an inhabited area, the borrower cannot force the lender to accept payment in a desert, because of the lender’s expected difficulty to preserve that which he received (Rashi ad loc.). If the borrower wants to return the loan to the lender in an inhabited area, but the borrower will have to go through a desert to get home, he may return it if it is on time but not if it is early (Shulchan Aruch, CM 74:1). The Aruch Hashulchan (ad loc. 1) says that in that case, the theft danger of going through the desert is minimal because he can arrange to go with a protected caravan. This indicates that that the important thing is not the place’s geographic category but the question whether the payment will be safe there.

Your case is a mix between a bad time and a bad place. In other words, the place may be fine except when this robber is there and the time may be fine in almost any place, but the combination of the two makes it a damaging time/place, at which Reuven does not have to accept payment. To conclude with a joke with a hint of halachic insight, we might suggest to Reuven to respond: “I would be happy to receive payment from you … in just a moment. As soon as our new friend (i.e., the thug) finishes his business, give me the money.”

While these agreeable people, who have gone beyond halachic requirements (see below), can do whatever they agree on, it is an honor to discuss relevant general halachot.

A katan, who is not expected to be proficient at watching objects, and his parents, are exempt from payment for his deficiencies as a shomer (see Bava Kama 87a). However, our communities seem happier when children are encouraged to be careful and when their parents often pay for their failings.

It is common that when one damages or loses another’s item, he buys or pays for a new replacement. This is not always required, as the obligation is to pay the value of the lost object. Used items, including basketballs, are often worth less than their new replacement. (Paying more than one is required is not a problem of ribbit, as ribbit is forbidden when it is for delaying paying a loan or sometimes other obligations, not for paying more than obligated.)

Now, we get to your question about what to do with the balls. The mishna (Bava Metzia 33b) says that if a shomer pays for the theft of the object he was watching and later the thief was caught and has to pay double (kefel), the shomer gets the kefel. The gemara posits that since the shomer is nice enough to agree to pay, the owner transfers him rights to the kefel. In response to technical problems about the ability to transfer such a potential, amorphous asset, the gemara answers that an implied, earlier, conditional (should he pay) transfer of the object makes it possible for the shomer to get the kefel. The gemara continues that this transfer applies to a variety of external gains from the object (not just kefel), but notto an animal’s physical products, e.g., wool and offspring.

Tosafot (ad loc.) understands that the gemara refers to a literal transfer of the lost/stolen object, so that the shomer owns the object he paid for. According to this approach, once the Levis paid, the Cohens ceded ownership rights to the old basketball. If Reuven Cohen wants his old ball back, he would have to request a favor of the Levis (the reciprocation should be return of the money the Levis paid).

The Rambam (Sh’eila 8:1) describes how when an animal stolen from a shomer is found, it returns to the original owner with its wool and offspring. According to the standard explanation of the Rambam (see Maggid Mishneh, ad loc.; K’tzot Hachoshen 295:4) wool and offspring are not exceptions to the rule but are indicative of the fact that all stolen and lost objects remain owned by the original owner even after the shomer pays for their loss. According to this approach, Reuven Cohen keeps his basketball, and the payment is returned when it turns out there is no loss.

We generally assume like Tosafot’s approach (Pitchei Choshen, Pikadon 8:13). The Shach (CM 295:11) suggests that the Rambam agrees that the shomer keeps the object if he wants it, just that the Rambam discussed a case that he did not want it.

It appears that since the whole idea of getting rights in the animal is in appreciation for the shomer’s cooperation, Tosafot agrees that he can turn down receiving the object when it is found and can thereby be eligible to receive the money he gave. (See also Shulchan Aruch, CM 103:11 for a precedent of undoing a forced payment after the lost object was found.) In our case, that would seem to mean the Cohens would have two basketballs. However, it is very possible here that since, conceptually, the Levis gave a basketball (just that for technical reasons, the Cohens ordered it), the Cohens would give the Levis the new basketball.

We cannot address every permutation, but trust the friendly parties to “have a ball” continuing to cooperate. 

There is no construct through which to obligate Reuven. We will examine those that are close and see how they fall short.  

Responsibility for a worker: When a worker damages a neighbor in the process of doing a job, the basic halacha is that the worker alone is obligated, except possibly if he is paid on the basis of time (see Rama, Choshen Mishpat 306:2; Pitchei Choshen, Sechirut 7:25).  Common practice is for the employer to take responsibility, and this practice may be binding (see Eretz Hemdah ruling 79062; Dinei Avoda (Sadan) p. 434). Even so, this is only when the worker in the midst of work on the employer’s behalf, certainly not when he steals, all the more so if it is after the work is done. Even if a slave damages, his master is not obligated, all the more so, for a simple worker (Bava Kama 87a).

Creating a theft danger: There is a machloket whether one who knocked down the door of someone’s stable, enabling an animal to escape, is obligated to pay for the loss (Shulchan Aruch, CM 396:4). The Yam Shel Shlomo (Bava Kama 6:3) explains that the reason to obligate is that opening the door is a direct action to undo that which is keeping the animal in. This does not apply to just improving the chances for someone from without to succeed at stealing.

A neighbor’s obligation to remove danger (nizkei sh’cheinim): The Ramah (Bava Batra 1:18) obligates someone who did not fence off his property, thereby allowing robbers to come in and steal from his neighbor, whereas the Rosh (Bava Batra 2:17) exempts him. The Ramah compares this to the case in which Levi owns a wall separating his field from that of Yehuda, and Yehuda informs Levi that that the wall fell down so that their different crops will become kilayim. In that case, if Levi does not act, he must pay for the lost crops (Bava Kama 100a-b). The Rosh counters that the obligation is only when the mechanism that creates the problem begins immediately, which is not the case with robbers. The Rama (Choshen Mishpat 155:44) cites both opinions without a clear ruling. However, this cannot obligate Reuven, because even the Ramah requires Shimon to warn him, which he did not do.

Comparison to moser (garmi): The gemara (Bava Kama 116b-117b, codified in Shulchan Aruch, Choshen Mishpat 388:2) has a construct called moser, which obligates Levi to pay for causing Yehuda’s things to be stolen by criminals. The classic case is when Levi gives (without being severely coerced) criminals information about Yehuda’s property, which encourages and/or aids their ability to steal his property. The gemara raises the question whether this obligation is a normal application of the laws of garmi (semi-direct causation of damage) or a special penalty. The more accepted opinion is that it is a normal application (see Maggid Mishneh, Chovel U’mazik 8:1).

While our case has similarity, the following are crucial differences that are important in the laws of garmi (whose parameters are very complex and elusive). Reuven did not realize that his hiring of pnt would bring about a theft (see Shach, CM 386:6). It was not necessarily likely that the hiring would cause the theft (it is unlikely that every neighbor of a place that pnt worked at is robbed). There is no “act of damaging” comparable to the moser’s informing the criminal. Therefore, we cannot use moser as a model for obligation without a source, of which we are not aware.

Therefore, we do not see any grounds to halachically obligate Reuven (in some cases, voluntary payment might be laudable).

It is good that you not only regret what you did but want to make amends properly. Given that there are many unknown pertinent factors (to us and even to you), we will provide general rules and ideas. You can decide yourself or ask us or others for further advice.

The gemara (Bava Kama 118a-b) brings opinions and distinctions on the level of awareness the victim needs for the return to remove the thief’s culpability. We now present the Shulchan Aruch’s (Choshen Mishpat 355:1) summary regarding inanimate objects, which we will call money. If the victim knew money was stolen, he must become aware it was returned, although the realization need not come at the time of return. If the victim was unaware the money was stolen, it is enough return it to his possession without any knowledge [but in a way that he will get to use it].

There are different opinions whether the victim’s knowledge of the theft means that he saw the thief taking it (Rashba, Bava Kama ibid., who says he then has to remove the victim’s grievance) or just that he became aware (Ra’avad, ibid.). The Shulchan Aruch’s language implies that general knowledge suffices. However, it is unclear how to view a case when one notices he cannot find money but considers many possibilities – it was stolen; it was lost; he misremembered how much there was; or it will show up soon. In your case, you are unsure what your father knows/suspects. It is at least proper, if not required, for your father to become aware that he has more money at his disposal than he thought he had prior to the return, and this would fulfill your basic obligation.  

Let us now put things in broader moral perspective. A main discussion in the halachic sources is on whether if the questionably returned object gets lost, the thief is still obligated. This is likely linked to when one fulfills the positive mitzva to return the stolen object (Vayikra 5:23), which significantly weakens the theft’s stain and consequences (see Makkot 16a). Indeed, one cannot get atonement for repenting on sins between man and man without rectifying the wrong to the extent possible, e.g., by returning what was stolen (Rambam, Teshuva 2:9). One must also appease a victim over the hurt (practical and/or emotional) caused by the sin (ibid.). Regarding theft, if one takes something and returns it five minutes later without the owner’s knowledge, there is no hurt. If someone has $15,000 stolen for years, he might have lost opportunities when it was needed, and/or spent unpleasant time looking for it and worrying, and/or have been upset wondering if someone stole it, who, and why, etc. Therefore, it behooves the thief to ask explicitly for forgiveness.

However, we accept Rav Yisrael Salanter’s premise (see Living the Halachic Process I, H-5) that an atonement seeker must not cause the victim additional pain in the process. On the one hand, $15,000 in cash just appearing could raise confusion, suspicions, and sometimes technical problems. It might work to “admit it anonymously” (e.g., by hiring a lawyer to give the money without divulging your identity; sending an anonymous email on where to find the money) along with a heartfelt request for forgiveness. Hiding your identity even due to embarrassment is justifiable, especially if it makes it more likely for you to act promptly (see Gittin 55a; Shulchan Aruch Harav, CM, Gezeila 8). Considering how much upset knowing that any confidante robbed him will cause and whether he will suspect someone else, other alternatives may be better. (Giving extra tzedaka is anyway recommended.) B’hatzlacha in choosing the best way to rectify your stumble; hopefully your father’s nachas from you will bring great rectification.  

If Reuven left his property in a place/manner it has no right to be, and Shimon’s animal went by and purposely kicked it, Shimon must pay damages, but Shimon is exempt from the animal’s inadvertent damage while walking by (Bava Kama 32a; Shulchan Aruch, Choshen Mishpat 389:20). You might compare your bicycle to Shimon’s animal. However, the exemption of inadvertent damage to improperly positioned objects applies to damage done by one’s animal, not done by a person (Tosafot, Bava Kama 27b; the person powering/steering the bicycle is considered a direct damager).

The mishna (Bava Kama 27a) says that if Reuven left his vessel in the public domain and Shimon tripped over it and broke it, he is exempt. The gemara (ibid. 27b) wonders why we cannot expect Shimon to be careful, and cites four answers. The most accepted one (Shulchan Aruch, CM 412:1) is that people are not expected to inspect their walking path. You might claim that, similarly, you cannot be expected to lead your bike through a tight place without possibly scratching an obstructing car. However, poskim (Nimukei Yosef to gemara ibid., Yam Shel Shlomo, Bava Kama 5:9) say that the leniency is limited to cases where the damager was unaware that the object was present, but when he knows there is something to avoid damaging, we expect him to succeed. The fact that the object is not supposed to be there and the damager’s lack of intent to damage do not seem to exempt.  

A stronger ground for exemption, although not for too many cases, is based on Rav’s explanation to the gemara’s exemption – in the mishna’s case, Reuven’s vessels made the public path impassable. This is based on the concept that in certain cases, a person can take the law into his own hands to protect his interests (Shulchan Aruch, CM 4:1). So, if the situation warrants it, a person may purposely break the vessels in order to get by, and he certainly is exempt if when trying to squeeze by, he accidentally did damage (Bava Kama 28a; Shulchan Aruch, CM 412:2).

Regarding your question, each case can be different and can be unclear. How crucial is it to squeeze by (i.e., is there no reasonable detour?)? How likely is it that you will damage the car, and does it make a difference? What is the halacha if you could have gotten by without damage, but you did a poor job? The Aruch Hashulchan (CM 412:4) seems to take a measured, practical approach to this matter, understanding the passerby’s predicament, but gives few details. I saw an approach that gives great leeway to the passerby (Mishpetei Hatorah, Bava Kama 53), but it was low on sources and proofs.

There is a third reason not to have to pay in certain cases. The damage a slow-moving bicycle might make to a car is likely to be minor. Damage payment is either to fix the object or to pay for its depreciation. (There will not be a need to replace the car.) In Living the Halachic Process (I, J-6) we pointed out that only when the normal thing is to fix such damage can the owner demand it to be fixed. This might depend not only on the extent of the scratch but also how nice the car looks other than the new scratch. When repairs are not called for, one needs to determine depreciation, and depreciation is also affected by the above factors. For an old, beat-up looking car, the amount due could thus be 0 NIS.

It is an honor to field a question from one who is so concerned with the minutiae of this important mitzva that few people think about. Ostensibly, since bbst worked by the hour and finished before the end of halachic day, you/your wife had to pay before night (Bava Metzia 110b). We will analyze possible indications that you did not violate anything, some of which depend on nuanced details.

Like for most monetary rights mitzvot (ribbit is an exception), if the worker agrees to receive the money later than standard, there is no violation of bal talin or related mitzvot. (The employer may sometimes lose the positive mitzva of “on its day you shall pay his wages” (Devarim 24:15; see Pitchei Teshuva, Sechirut 9:(36)), but this quite innocuous). The rights’ waiver need not be explicit or enthusiastic. For example, the gemara (Bava Metzia 111a) says that one whose livelihood is from periodic market days can wait to pay when that day comes because we assume the worker understood all along that this is when he would be paid (Rashi ad loc.). Even when all parameters indicate on-time payment, if the worker did not ask yet for the money, there is no bal talin (Bava Metzia 112a); the lack of request is sufficient indication that he does not care to get paid yet (Ahavat Chesed I:9:11).

From this perspective, it is likely that bbst’s mindset was as follows: “The mother is willing to pay me now, and I asked for Paybox, which she can’t do and she has to ask her husband. Who knows if he is available now to do it? I really do not care if he does it right away or in several hours.” If so, what happened is fine. On the other hand, Halacha follows psychological assumptions Chazal make about cases like ours, and we are hesitant to make small distinctions between their case and ours or say that mindsets have changed – barring strong indications. In cases where we do not have an assumption of Chazal, like yours, it is difficult to rely on our own psychological assumptions.

Considering that the gemara (Bava Metzia 111a) says that bal talin is only when the person who must pay also hired the worker, how to view your home dynamics is significant. It sounds that your wife had both roles – until she lost the payment role. It is a good question to what extent to treat a couple as one unit or as partners (see Ahavat Chesed I:10:(10); Shevet Halevi VII:322).

According to the possibility that you entered the picture as a “player” and not just someone doing his wife’s technical bidding or a part of the “couple unit,” the following halacha is relevant. If the employer arranges for a storeowner to give credit to the worker on his behalf, the employer’s obligation is suspended (Bava Metzia 111a), at least if the worker agrees (see Beit Yosef, CM 339, Ahavat Chesed ibid. 5). However, if your wife assured bbst that you would pay immediately and you could not, you might not be equivalent to the storeowner.

In short, it is likely that your family’s forthcoming approach was enough that bbst was fine with the slight delay, based on psychological grounds or halachic precedent. The halachically safest thing was for your wife to stipulate that bbst waive the need to pay before night if she wanted Paybox. Although bbst would almost certainly agree, if needed, your wife had leverage, as an employer who has cash to pay cannot be told she must pay in another way. However, if your wife readily agreed that bbst would be paid with Paybox without receiving a grace period, it might be a problem.