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Fellow Weekly - Issue 149
WHAT'S THE LAW ™
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Encouraging intelligent and entertaining debate at your Shabbat table.
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 265: Crossings Considerations
Having requested a metered ride, instead of fixing a price with the monit driver, quickly evolved into an increasingly costly picking for the Lewenstein party, as the pre-holiday bumper to bumper traffic snarling through the narrow Jerusalem streets began to sap their pockets. After crawling for ten minutes, the traffic began to disperse and the upcoming traffic circle turned fairly empty. The monit driver revved up his engine and raced towards the circle.
Pushing her double stroller with two kids on her side, Mrs. Berger observed the episode. Reaching the intersection at about the same time that the taxi did, she wondered if it was noble for her to defer the right of way to the taxi and spare the Lewenstein's from incurring a more expensive ride.
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CASE 264: The PITUM Broke
An exceptional family ritual by now, David Lewenstein from Los Angeles arrived in Jerusalem with his growing family a few days before Succoth. Moments after settling in their rented villa on Keren Kayemet St., David and his boys dived straight into the exciting hub of action, procuring the four species and erecting their decorative succah.
David found what seemed to be a prize etrog. In Jerusalem as well as in other cities, the consumer takes his etrog of interest to a Rabbi to ensure it is kosher. If the Rabbi disqualifies it, the dealer will allow the consumer to void the sale.
Etrog and a danish in hand, David and sons boarded the heavy populated light rail en-route to the Rabbi.
Challenged to curb his excitement, David fatefully opened the etrog box to take another look...but so did the elbow of the security guard passing through the train, inadvertently knocking the style (pitum) off the etrog, whereby rendering it non-kosher.
Must David pay for the etrog? If he already paid, may he void the sale?
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The Answer
We present you here with a concise ruling. For a more intricate elucidation, please see the detailed explanation below.
David must pay for the etrog. |
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Detailed Explanation
The PITUM Broke invokes the following laws.
1. A Borrower derives benefit from the borrowed property; [Sha"ch - Choshen Mishpat 340:3] without having to pay a fee. Hence, the borrower assumes complete responsibility including damages due to (a) negligence (b) theft/loss outside of the realm of negligence, c) general unforeseen accidental damages beyond his or her control.
2. A borrower is exempt from paying for damage that occurs simply as a result of using the article in its intended use [Exodus 22:13 Choshen Mishpat 340:1].
Application
As David derived the benefit of reserving the etrog of his choice before having to pay for it; he is deemed a borrower so long as he has yet to pay for the etrog. As such, he assumes full liability for any mishap that may occur to the etrog, spare for paying for damage that occurs simply as a result of using the article in its intended use.
David acted with negligence by taking the delicate etrog out of its box in a crowded light rail car. He is thus liable to compensate the seller for the damage that ensued.
Parenthetically, if without known mishandling, the pitum would have fallen off the etrog in the box with reason to assume that the style was simply weak, we could have viewed it as damage occurring as a result of using the article in its intended use, and absolved David. |
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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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