Fellow - Yesharim

Fellow Weekly - Issue 61

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Fellow Weekly raises issues of business law and ethics through lively emails by featuring your real-life scenarios answered by our leading authorities and professionals.


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CASE 161: Social Media or the Lincoln Road Mall!

1. Miami Florida: home of the flamingos, hurricanes and orthotics!
Kate Erwin recently earned her certification as a certified orthotist.  She began servicing her Coconut Grove neighborhood with quality workmanship from her basement laboratory. Kate though wanted to appeal to Miami Beach residents as well.
 
Oren's Orthotics ran a successful business in Lincoln Road Mall. Kate hired some neighborhood friends to advertise her smaller business. They staged themselves in Oren's store, engaged potential customers in conversation and attempted to convince them to buy from Kate.

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2. Harvey Ross opened an online photography business. The cheapest and mot affective way for him to gain name recognition was to make use of the numerous social media networks.

The issue of targeted marketing vexed Ross. Facebook would advertise his wares specifically on walls of fans of his competitors. On the one hand, objectively the concept seemed unethical. Fans of his competitors would instantly see adverts from his company. On the other hand, this was the name of the game.
                  

What is the law?

Please email us with your comments and answers at [email protected].
Read next week's issue for the answer!

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LAST WEEK'S CASE

CASE 160: Banana Split!

After returning from an enjoyable outing and a shopping spree in the heat of the summer at a popular Supermarket, our family sat around the dining room table enjoying ice cream sundaes.

Believe it or not, we let the kids enjoy "dessert" before settling down for lunch.  My wife preferred the yogurts and fruit cocktail for lunch.  She opened her yogurt, took her spoon to her palate when suddenly she stopped in her tracks. "The lightly sweetened yogurts were on sale four for the price of two. We paid for the lightly sweetened, yet someone accidentally took banana flavor which were more expensive."                     

1. May the H. family simply pay for the eaten banana flavored yogurts, return the other banana flavored yogurts to the refrigerator in the store and switch them for lightly sweetened or do they have to tell the cashier and go through an entire run around?    

What is the law?

  [Submitted by E. H. Jerusalem]

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The Answer

If the storekeeper discovered the loss, the H. family must notify the supermarket upon returning the yogurts. (see detailed explanation)



Detailed Explanation

Banana Split!  implicates the following two laws.     

1.A victim will no longer look after an article that he or she has learned of its theft. For example, if one notices that his or her bicycle has been stolen, while he or she might not despair from retrieving it, in the interim, he/she will no longer safeguard it from suffering subsequent theft or damage. He or she will only begin protecting the bicycle again upon learning that it was returned to his/her charge.

A thief is liable for damages incurred to the stolen goods.  The liability continues until the victim knows to look once again after the stolen goods.

Thus, if the victim noticed the goods were missing, the thief is obligated to notify the victim of its return. Nevertheless, if the victim will easily realize its return it is not necessary to notify him or her of its return. Similarly, if the victim never knew the goods were missing, there is no need to notify him or her of the article's return [Choshen Mishpat 355:1].

Note: One who returns a lost object need not notify the owner. Instead, it is sufficient to return it to the owner's protected area or to a place where the owner will see it soon thereafter [Choshen Mishpat 267: 1].

2. One must make sure that his/her actions are transparent and that they do not give over a suspicious impression [Numbers 32: 22].

(Example: The one who handled public funds in the Temple did not enter the secluded vault wearing a garment with cuffs etc. so that no one could accuse him of pilfering public coins for his own use [Shekalim 3:2].)


Application:

The H. family told the cashier to ring up numerous vanilla yogurts. Inadvertently, they took banana flavor instead. They must return the banana flavored yogurts. Yet, they are not simply "returning a lost object". Instead, they were inadvertent thieves. 
 
Therefore, if sufficient time elapsed over which the owner realized an inconsistency in his/her books, or else the storekeeper noticed the discrepancy through an accurate up to date tracking system, through which he/shecan monitor every item in the store, the "accidental thief" would be required to notify the store of the yogurts' return.
 
If however, we can safely assume that in a large supermarket, the storekeeper never knew that the banana yogurts were missing, the "accidental thief" need not notify the storekeeper of its return. The H family may pay for the eaten banana flavor and simply do a switch without going through the run around. [This is all assuming that the yogurts did not go bad in the interim].
 
However, before opting to do such a switch, one must be wary of onlookers. Even if permissible according to the letter of the law, one must be careful that his/her actions to not create misgivings. The H's must be careful and super sensitive that their actions will not raise eyebrows and give an impression as though they are taking merchandise (vanilla yogurts) from the supermarket without paying for them. If they cannot accomplish this, they must reconsider their plan of action.

[Answered by the Fellow -Yesharim Research Center]

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Note:
 
Although we aim to present the correct ruling, varying details are always important and decisively influence every individual case. Our readers are thus encouraged to present their personal cases to a competent authority and not solely rely on the information provided.

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