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What's the Law?™
Fellow Weekly Issue 72
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Welcome to Fellow Weekly's:
What's the Law?™
Encouraging intelligent and entertaining debate at your Shabbat table.
What's the Law?™ 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 172: Pillaged!
The resolution of the Tagsatzung (Swiss Parliament of the twenty-six autonomous cantons) in 1678, allowed Swiss Jews to settle in the communities of the Surb valley. However, 98 years later, in 1776, Jews were further restricted to living strictly in Endingen and Lengnau.
Jewish residents were limited to enter but few professions, such as trade; and apartment houses were built with two separate entrances, one for Jews and one for Christians.
Whilst definitive legal and social demarcations segregated the members of the two faiths, community life was relatively safe and comfortable in the predominantly Jewish villages,
The winter of 1801 began an emotional period in the life of Hugo Bloch, president of the Endingen Israelitsche Gemeinde. Moritz Loeb, a refined, and well sought after young man, offered Hugo's daughter Hanna his devoted hand in matrimony.
Securing his valued commitment, Hugo assured Moritz a handsome dowry of 25,000 Franc to be delivered sixth months later on the date of the nuptials. They agreed that Hugo would pay Edwin Kahn, a mutual friend to hold the funds in escrow until the anticipated wedding day.
In the interim, stormy clouds began to thicken overhead. With western winds shaking the ancient columns, the old guard struggled to stand their ground. Emancipation would be hard to come by. Enraged at Napoleon's attempt to bring equality to the snow caped Alps, angry mobs responded with vengeance. They took up arms and fell upon the Jewish communities of Edingen and Lengnau. Within a few frightening days, they pillaged the Jewish homes of their riches and valuables.
Only the limited treasures hidden in underground vaults escaped the marauders hands. Edwin was one such lucky fellow. His valuables and family heirlooms remained unscathed, yet Moritz's dowry met the same fate as Edwin's personal spending money. Lying alongside one another in a locked metal box beneath his bed, they were unprotected from the hands of the angry mob.
Moritz demanded that Hugo to return to the drawing table. Hugo claimed Moritz should take it up with Edwin. Edwin Edwin denied liability
What's the Law?
Please email us with your comments, questions, and answers at weekly@projectfellow.org.
Read next week's issue for the answer!
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LAST WEEK'S CASE
CASE 171: The Baffled Babystter! Part V: Entangled Benny
It's a girl! Excitement was abound in the Berman second floor apartment as the children enjoyed their two-week stint under Grandma Bertha's careful watch. Mrs. Berman's mother's post-birth visits to Israel typically proved to be thoroughly adventurous.
Out on the white Jerusalem cobblestone courtyard the Berman children frolicked with their friendly next door neighbors the Gold's, while Mrs. Gold and Grandma Bertha sat in the soothing shade on the nearby wooden bench chatting and knitting."I have got to run upstairs for a moment to turn down the flame beneath my boiling chicken soup, hang the laundry, and refill the washing machine," said Mrs. Gold to Grandma Bertha. "Do you mind just keeping an eye out for my darlings until I return? I do not expect it to take too long."
"Your kids?! No problem. They are such well-trained saplings, Mrs. Gold. No need to worry!" replied Grandma Bertha.
Mrs. Gold scurried upstairs, Grandma Bertha returned to her knitting and most of the children continued to play.
Moments later, shrieking was heard from an upstairs apartment. Four year old Benny Gold had surreptitiously tracked Mom's steps, made his way up the stairwell, only to find Fried's first floor apartment door wide open. Benny ran inside looked for Mom, tripped over a black wire and Mr. Fried's client's laptop came crashing down for a landing.
Entangled in the wire, Benny fell and broke his leg.
What's the Law?
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The Answer
Grandma Bertha is exempt from paying for Benny Gold's medical expenses as well as for the broken computer.
Mr. Fried is responsible to reimburse his client for his broken computer and is exempt from paying for Benny's medical expenses. |
Detailed Explanation
Entangled Benny implicates the following nine laws.
1. A bailee (trustee) is generally required to protect the article from both being harmed or harming another's property [Bava Kama 44b]
2. A bailee, is liable for the loss or damage of bailor's chattel (movable property) or livestock which the bailor entrusts under his or her jurisdiction [Exodus 21: 6-14]
3. The bailor requests the bailee to cognitively supervise the deposit,
3.1 "Can you please watch my article?" is a request for cognitive supervision.
3.2 "Can you please keep an eye out for my belongings?" is a request for associative supervision
4. The bailee consents to cognitively supervise the deposit
5 The deposit legally transfers into the bailee's jurisdiction [Means of legal transfer include 5.1 Bailee lifting the deposit 5.2 moving the deposit into the bailee's property or 5.3 in a semi-populated area; positioning the deposit within the bailee's exclusive four cubit radius.]
6 The above laws preclude common customs and otherwise legally binding stipulations amongst the parties [Choshen Mishpat 291:17].
7 A bailee for hire receives payment or benefits in return for his/her supervision: hence is liable for damages due to negligence, accidents resulting from negligence, theft or loss [Choshen Mishpat 303: 2, 10]
8 A technician repairing chattel in his or her home or office enjoys benefits from the entrusted article: primarily the client's patronization of his/her services over alternative providers. As such, the technician is required to safeguard the article as a bailee for hire and consequently liable for damages due his/her negligence, theft, or loss [Choshen Mishpat 306: 1].
9 A landowner is exempt from paying for injuries incurred by a stumbling trespasser. [Choshen Mishpat 411:1].
Application:
Grandma Bertha
A bailee (trustee) is generally required to protect the article from both being harmed or harming another's property. Thus, if Grandma Bertha would become a bailee over Benny she could be liable for Benny's injuries or damage caused.
However, Grandma never became a bailee over Benny for three independent reasons.
1. Mrs. Gold requested Grandma to keep an eye out for her children and knew she was knitting. She did not request a cognitive level of supervision. Similarly, Grandma never consented to cognitively supervise the Gold children.
2. Benny is not Mrs. Gold's chattel, livestock, or property at all.
3. Similarly, "legal transfer from the bailor to the bailee" is possible on an article which one is able to acquire. Just as one cannot become an owner of a child, Mrs. Gold cannot (and in our epsisode clearly did not) legally transfer Benny into Grandma's domain.
[Note: Therefore, any liability assumed by a babysitter, childcare provider, school etc. will be based on the law of the land or a private legally binding agreement between the legal guardian and the caretaker.]
Consequently Grandma Bertha is absolved from paying for the broken computer or Benny's medical expenses.
Mr. Fried vs. Client
Mr. Fried was servicing his clients computer in his home. He assumes the responsibility of a bailee for hire and is liable for damages to the computer as a result of his negligence, theft or loss. As a bailee for hire, Mr. Fried was negligent in leaving his front door open with his client's computer wire hanging precariously. The unforeseen occurrence of Benny's visit could have been avoided if Mr. Fried would have kept his door closed or the computer in a more responsible position. Consequently, he is liable for the damaged computer.
Mr. Fried vs. Benny
Benny trespassed and injured himself on a stumbling block in Fried's property. Fried is exempt from paying for damages suffered.The bailor/bailee relationship is called a bailment
[Answered by Dayan Chaim Kohn and The Fellow-Yesharim Research Center]
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Endorsed and Promoted by Torah Umesorah: Yesharim Curricula for Schools
In The Making:
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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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