We are happy to share with you Issue 29 of the “Fellow Weekly Newsletter,” an interactive project of the Fellow-Yesharim Foundation for Ethical Law, under the leadership of HaRav Yitzchak Berkovits. Designed to stimulate discussion and thought regarding matters of business law and ethics, the Newsletter presents real-life scenarios, for contemplation and debate. Hundreds of Shabbos Tables already benefit from these exciting conversations. “Fellow Weekly Newsletter”, as well as Fellow - Yesharim’s ongoing international educational ventures enjoy the endorsements of HaRav Yitzchak Berkovits, Rabbi Joseph Elias, Rabbi Menachem Nissel and Ben Brafman, Esq.
CASE 130: The Baffled Babysitter - Part 3: Sara's Hanukka Experience
The Hanukkah party that fifteen-year-old Sara threw for her Music Club was a real hit. Sara came home on a high, humming her favorite Hanukkah tunes. She went upstairs to her room, sat down at her desk and checked her phone messages.
“Wow! It seems as though I can earn some extra cash today!” she exclaimed. “I have a choice of four babysitting jobs tonight. I have a special liking to those Berman kids. I think I will choose the Bermans tonight. Besides, the Bermans are offering a four-hour job tonight! At eight dollars an hour, that is $32!”
The Bermans had a busy schedule that evening. Mr. Berman had a board meeting to attend and there was no knowing what time he would come back home. Mrs. Berman was putting the final touches on her community-wide Hanukkah extravaganza. She scheduled an important meeting with the program director, Mrs. Field.
Sara arrived after bath time, at six-thirty in the evening. Mrs. Berman told Sara that her meeting was scheduled to end at ten and that she would be home by ten-thirty. Mrs. Berman wished her good luck and left for the night.
That evening was uneventful. The kids went to sleep without a problem and Sara had time to review her music lessons.
At 7:45, there was a knock on the door – Mrs. Berman had returned much earlier than expected.
“Sara dear, I'm sorry that I am home already. Mrs. Field called me after I arrived at the Center and said that her children had fallen ill. She had to postpone the meeting until tomorrow morning.”
Mrs. Berman handed Sara ten dollars for the time that she had babysat.
“Mrs. Berman,” said Sara, “I feel bad for the Field children. However, do you understand that I turned down three three-hour babysitting opportunities tonight - in order to care for your children? By now it is too late for me to find other work and I missed out on making some decent money tonight. I would appreciate if you would pay me the thirty-two dollars that I was expecting for tonight.
Must Mrs. Berman compensate Sara for her lost wages that evening?
What is the law?
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LAST WEEK'S CASE
CASE 129: The Baffled Babysitter - A Sequel
Thursday afternoon was quite hectic at the Berman home. Hanukkah was just a few days away and the Bermans were hosting the annual community Hanukkah extravaganza. Mrs. Berman needed an extra pair of hands to run some errands and help her care for Hanna and the twins until bath-time at six o'clock.
She decided to hire none other than Sara to pitch in. Sara charges the standard rate of eight dollars an hour.
Sara arrived at the Berman residence at 2 P.M. sharp. Mrs. Berman already had a series of errands prepared for Sara.
“Please buy two jumbo bags of chocolate coins at ten dollars per bag and two cases of applesauce at eighteen dollars per case,” Mrs. Berman instructed Sara, giving her fifty-six dollars for the groceries – twenty for the chocolate coins and thirty-six for the applesauce.
Mrs. Berman continued, “After the shopping, please take the children out for pizza. A slice of pizza costs two dollars. Each of the three children will eat one slice and you can take three for yourself. You may take them to the pizza shop of your choosing,” handing Sara an additional twelve dollars for the six slices of pizza.
“On your way home Sara, would you please stop off at Lord & Taylor™ and return this pair of green shoes I bought yesterday?
“If there is extra time, Sara, you can even take the kids to the park.
“Bath-time is at six o'clock, please be back in time.
“Thank you ... and good luck.”
Sara left with the three kids, the sixty-eight dollars (56+12) from Mrs. Berman, and a chance to earn thirty-two dollars for her four hours of babysitting services.
Sara first went to ShopRite™ to pick up the chocolate coins and the applesauce. ShopRite™ was running some Hanukkah specials, which caught Sara's eyes:
Chocolate coins: $10 per jumbo bag; 3 bags for $24.
Applesauce: $18 a case; buy three - get one free.
Sara had a great idea. She had been planning a Hanukkah party for her music club and decided to cash in on the sales. In addition to Mrs. Berman's two pounds of coins and two cases of applesauce, she paid for an additional pound of coins and case of applesauce. She received her third pound of coins at the discounted price - four dollars instead of ten, and took home two additional cases of applesauce, the third one for which she paid, and the free fourth case of applesauce that came with the purchase of three cases.
The next stop was the Pizza shop. Sara decided to go to Pizza Parlor because she liked their sauce. As she was ordering her six slices ($12), she noticed the price list. The price list read $2 a slice, for $14 you receive the eighth slice + a bottle of soda free. Sara figured she would add $2 for another slice and receive the free eighth slice and bottle of soda (a $3.36 bonus). As she was paying, the cashier handed her a free promotional calendar.
Sara then set out with the kids, the chocolate coins, the applesauce, the extra pizza, bottle of soda and calendar, and – of course – Mrs. Berman's green shoes towards Lord & Taylor™.
Sara arrived at Lord & Taylor™ with ample amount of time to return the shoes and bring the children home by six. The shoe department was on the third floor, so Sara decided to take her charges up via the elevator. She piled everyone in to the elevator, and pressed the button. As the door was closing, two of Lord & Taylor's shelf stockers pushed themselves into the elevator.
Sara broke out into a cold sweat. “The number of people in this elevator exceeds the allowed limit,” she thought to herself.
The doors closed and the elevator began its way up.
Well, Sara was right. Between the second and third floor, the elevator stopped. They were stuck in that elevator for an hour until they got out.
Sara was now an hour late. It seemed as though Mrs. Berman would have to start bath-time without the children.
Sara showed up at the Berman's door at seven o'clock. She helped settle the kids down, but now Mrs. Berman and Sara had some accounts to settle. . .
Who receives the six dollar discount for the chocolate coins?
Who receives the free case of applesauce (an eighteen dollar value)?
Who receives the free slice of pizza and bottle of soda (a $3.36 value)?
Who receives the promotional calendar?
Who absorbs the eight dollar loss due to the additional hour for which Sara babysat - Sara, Mrs. Berman, or Lord & Taylor™?
What is the law?
We present you here with a concise ruling. For those interested in a more intricate elucidation, please see the “detailed explanation” below.
Expectations of a Babysitter:
- Sara and Mrs. Berman split the discount on the chocolate coins in relation to their purchase quantities, a discount of two dollars per bag. Sara pays eight dollars for one bag of coins and Mrs. Berman pays sixteen dollars for two.
- Sara receives two-thirds of the extra applesauce case (a twelve dollar value), while Mrs. Berman takes one-third (a six dollar value).
- Sara receives four-sevenths of the Pizza and soda (a $1.92 value) and Mrs. Berman takes the rest (a $1.44 value).
- Sara receives the promotional calendar.
- Mrs. Berman pays Sara eight dollars for her additional hour of work.
(If the shelf-stockers were clearly irresponsible and the subsequent mishap was close to certain to occur, Mrs. Berman can collect $8 from them.)
The above scenario implicates the following four legal concepts:
1. A service provider must fully pass on a discount to a client [Choshen Mishpat 183:9].
2. A service provider generally splits a received bonus with a client [Choshen Mishpat ibid:6].
3. One may charge for providing an unsolicited service for which the receiver would readily have paid (the exact configuration of which is subject to a discussion in its own right) [Choshen Mishpat 375:1, Sha"ch 2].
4. One is not liable for unforeseen indirect damages [Choshen Mishpat 386, Sha"ch 6].
The Chocolate Coins
Mrs. Berman gave twenty dollars to Sara for the purchase of chocolate coins. ShopRite™ sold the chocolate coins at a discounted price: three for twenty-four, which equals eight dollars per bag.
As Sara functioned as a service provider, purchasing the chocolate coins for Mrs. Berman, she may not pocket a discount she receives, even through her own efforts. She must pass the due discount on to Mrs. Berman and return to Mrs. Berman two dollars per bag (four dollars in total). As such, Mrs. Berman pays sixteen dollars for her two bags of chocolate coins [Choshen Mishpat 183:9 Rama].
The Applesauce, Pizza, Soda, and Calendar
Consider: Person A sends person B (with cash in hand) to purchase an article that had a fixed price. Should the seller add a bonus, A and B would split it evenly [Choshen Mishpat 183:6].
Two valid reasons are given for this:
1. It remains unclear whether the seller meant to award it to the one who paid for the merchandise or the one who completed the purchase [Rash"i].
2. The bonus was earned through a mutual partnership: A's money and B's physical role [Ri"f].
Potential variance between these two reasons:
According to the first reason, B may keep the entire bonus if the seller specifically added the bonus because of B. However, we say that the bonus was earned through a partnership, B may never fully piggyback off of A's money [Should the need arise, a competent authority should be consulted].
The applesauce, pizza and soda were bonuses earned through a partnership between Mrs. Berman and Sara. ShopRite™ and Pizza Parlor probably do not care to award the bonuses specifically to Sara. Consequently, according to the two reasons listed above, Sara and Mrs. Berman should divide the bonuses.
Yet, Sara and Mrs. Berman would not split the bonuses evenly, as spelled out in Code 183:6:
Mrs. Berman was not the only one who invested money in this venture. Both Sara and Mrs. Berman had a share in the monetary investment necessary to earn these bonuses. Therefore, while Sara takes 50% of the bonuses for her active role, the two split the remaining 50% generally awarded to the “investor”, commensurate with their respective investment percentage.
The free case had an eighteen dollar value.
Sara automatically receives 50% (nine dollars) for her active role.
Mrs. Berman and Sara divide the remaining nine dollars, commensurate with their investment ratio. Mrs. Berman paid for two cases and Sara paid for one. Their investment is divided into three equal parts at a 2:1 ratio. Mrs. Berman takes two parts of nine dollars, a total of six dollars, while Sara takes one part, which amounts to three dollars.
Sara earned nine dollars for her role, and three dollars due to her investment ratio. She takes twelve dollars and passes six to Mrs. Berman.
The pizza and soda:
The free pizza and soda had a $3.36 value.
Sara automatically receives 50% ($1.68) for her active role.
Mrs. Berman and Sara divide the remaining 50% ($1.68), commensurate with their investment ratio. Mrs. Berman paid for six pieces, while Sara paid for one piece. Their investment is divided into seven equal parts, at a ratio of 6:1.
Mrs. Berman takes six equal parts of $1.68, or $1.44, while Sara takes one part, which amounts to twenty-four cents (1/14).
The promotional calendar:
Assuming that Pizza Parlor awards the promotion for coming in to the store and placing an order (as opposed to actually paying for an order), Sara may keep the calendar.
The Additional Eight Dollars
Although unsolicited, one can generally charge for providing a service that the beneficiary would nevertheless have paid someone to do (the exact configuration of this fee is subject to an independent discussion in its own right) [Choshen Mishpat 375:1, Sha"ch 2].
While Mrs. Berman wanted the children home by six o'clock, it is rational to assume that any mother would pay someone to stay with her kids if they were stuck in an elevator. Moreover, Mrs. Berman probably would have wanted Sara to stay with them, knowing full well that Sara charges the going rate of eight dollars for her services. As such, Sara may charge Mrs. Berman eight dollars for her additional hour of babysitting services.
The Shelf Stockers
One is responsible to pay for direct unforeseen damages he or she personally causes [Choshen Mishpat 378:1].
One is not liable for indirect unforeseen damages he or she causes [Choshen Mishpat ibid, Sha"ch 6].
The shelf-stockers indirectly caused Mrs. Berman to lose eight dollars. If they clearly acted irresponsibly and the potential occurrence of subsequent mishap was close to certain, Mrs. Berman can collect those eight dollars from them. Otherwise, Mrs. Berman cannot obligate them to pay.
Sara receives the promotional calendar, but returns four dollars to Mrs. Berman for the chocolate coins; the value of six dollars for the applesauce, and the value of $1.44 for the extra pizza and soda (total: $11.44) but receives eight dollars for her extra hour of service.
Practically, Sara could subtract eight from $11.44, pay Mrs. Berman the $3.44 difference and walk away with the rest.
As Mrs. Berman still would owe Sara $32 for the initial four hours, Sara can really subtract $3.44 from $32, charge Mrs. Berman the $28.56 difference, and keep the extra case of applesauce, slice of pizza, soda and the promotional calendar.
[Answered by The Fellow-Yesharim Research Center, Jerusalem]
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