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Fellow Weekly Newsletter - Issue 48 - Enchanting Domras - Business Law and Ethics for the Shabbos Table

Publication: Fellow Weekly Newsletter

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9/3/10

Welcome to Fellow Weekly!

Encouraging intelligent and entertaining debate at your Shabbos 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.

CASE 149: Enchanted Domras

[A True Story by Rebetzin Dara Goldshmidt of Moscow, Russia]

Just Last Friday night, beneath the glowing Shabbat lights

The young girls cast their stories of their courage and their might.

Our names are Naomi and Keren, music fills our lives with joy.

To us our valued domras (Domras are a very ancient form of the Russian balalaika)

are far more than a mere simple toy.

late one Friday, by then the afternoon,

Leaving Moscow for the hut where the master sat to tune.

Time before Shabbat there was still left to return in time.

But this week would be different for our faith would truly shine.

Missing our station left in a Siberian condition

Return to Moscow before sunset was now our sacred mission.

Circumstance would delay our successful aim that day

As the clock continued ticking ferociously away.

Our hearts filled with deep emotion

we prayed with sincerest devotion - that the on our Shabbat day

carry we would not nor travel on our way

hand in loving hand we found an elderly woman from her dacha

She'd be our precious partner to keep the Shabbat Halacha

We handed her our purses, her number committed to mind.

To retrieve after shabbat, our fate we readilysigned.

The domras were to heavy the old woman could not take

We searched quickly for a remedy we were ready for the stake

Our precious valued domras we joyfully placed in the janitors room

Hoping that after Shabbat we could once again play our favorite tune.

A celestial feeling of courage so supreme

Our souls soared above the heavens - we met the Shabbat Queen

The sun soon set once more no domras we were sure

The janitor had been kind our eyes beheld a find.

Our domra's and our purses enchanted their sweet heavenly refrain

inspired and enlightened, our lives evermore not the same

- 1. Did the janitor, have the right to take the domras, claiming that the girls had basically abandoned them and therefore they were ownerless?

2. If Naomi and Keren had left the domras in the closet without informing anyone and a third party randomly found them before the garbage collectors arrived, could he or she keep them?

What is the law?

Please email us with your comments and answers at weekly@projectfellow.org.

Read next week's issue for the answer!

LAST WEEK'S CASE

CASE 148: Amsterdam or London?

On the verge of finalizing a multi-million Euro deal with Amsterdam's high-end shops in the streets Pieter, Cornelisz, and Hooftstraat; Kobe Perns, Chief Developer for Central European Distribution Corporation was flying high.

Suddenly, the fierce volcanic ash violently spurted higher. Trapped for endless days in London en route to Amsterdam's Schiphol Airport, his dream deal seemed to be slipping fast between his fingers. Eleven A.M. on Wednesday April 21st was the deadline. Time was ticking and Kobe relinquished his fate to a higher force.

At 2 A.M. on Wednesday morning, he received the following SMS on his Blackberry™.

"The Civil Aviation Authority has now opened UK airspace. We are open and ready for business and are operating a limited number of flights today. Note: It will take some time to return to normal operations as planes and crews are out of position. Until further notice, it remains important that passengers contact their airlines before traveling to the airport." BAA Heathrow.

Rubbing his weary eyes, his heart began pounding heavily as he contacted Aer Lingus™ customer service desk. Aer Lingus™, he learned, would fly one flight at 3:45 A.M. and another at 10 P.M.

In lightening speed, Kobe jumped out of bed. Six minutes later his foot hit the pedal of his silver 2010 Range Rover. Backing out of his spot on Percival St., Perns suddenly heard a loud and frightening smash! In the dark of the night, his Range Rover crashed into the glass storefront of Mike's Bikes.

Instantly, Kobe searched online for a twenty-four hour emergency window repair. Blast Glass replied that they could be over in fifteen minutes...

Yet, who had fifteen minutes to spare?

Time was ticking. Kobe's dream deal seemed to have been slipping fast between his fingers...

"A job of 200 Euro will cost you 600 in the middle of the night," e-mailed Blast Glass."

- Kobe damaged a window worth 200 Euro. A rush job during off hours though, cost 600. How much is Kobe responsible to pay?

- Kobe's multi-million Euro deal is at stake. Every minute counts.

May Kobe bill his credit card and leave the scene before Blast Glass arrives?

Is Kobe responsible to risk the coveted business deal to stand guard to thwart off possible vandals from ransacking Mike's shop? - ... Amsterdam or London?

What is the law?

The Answer

We present you here with a concise ruling. For a more intricate elucidation, please see the detailed explanation below.

Kobe is required to pay 200 Euro for the damage and take responsible precautions that no vandals ransack Mike's shop. (see detailed explanation below) Kobe is required to spend money and even risk his business venture in doing so.

Detailed Explanation

Amsterdam or London? implicates the following three laws

• A is liable for direct damages he or she causes to B's property. We deem damage likely to occur albeit not an immediate result of the action, as direct. Secondary damage or loss not very likely to occur is deemed indirect.

Is Brian entitled to a recourse to reclaim his money?

• While, A is not financially liable for affecting indirect damages to B's property, nevertheless it is sinful to cause a second party both direct and indirect financial loss <[i>Bava Basra 22b, Choshen Mishpat 386 Sha"ch 6] (See Issue 29, 33).

• One is required to forfeit the prospect of earning money rather than transgressing a sin <[i>Shulchan Aruch Yoreh Deah 157].

Application:

I How much is Kobe responsible to pay?

Objectively, so long as the store's contents remain protected from possible vandalism, there is no need to repair the glass during the night. Instead, the true repair cost of the broken window is 200 Euro, the cost of repair during the daytime. Standing guard in the interim would generally suffice to thwart off vandals. Thus, Kobe may wait until the morning and is not liable to pay more than 200 Euro for the broken storefront.

- However, Kobe may have to pay 600 Euro for two completely different reasons.

Let us explain.

1) Leaving the store unattended after breaking the glass creates a risk of vandalism to the merchandise therein.

In a crime-ridden neighborhood, leaving the store in such an unprotected state would create a phenomenon of almost certain damage. Such a phenomenon would generate liability for subsequent loss or theft of the merchandise as well.

In a relatively safer neighborhood, where leaving the breached storefront unattended would not create a situation of almost certain damage, subsequent loss or theft of the merchandise is deemed an indirect damage.

While Kobe is not liable for any subsequent indirect losses or theft of the merchandise, it is still forbidden for him to cause an indirect loss to Mike's Bikes. Thus, he still may not leave the breached storefront unprotected.

Therefore, while objectively Kobe is only liable to pay 200 Euro for the damage of the glass, even if Mike insist on having it fixed immediately, Kobe would nevertheless be required to pay 600 Euro to fulfill his responsibility to ensure immediate protection of the contents from vandalism. Otherwise, it is forbidden for him to leave the scene without ensuring an alternative responsible means to guard the store in the interim.

It is important to note; The Talmud requires one to exert oneself and protect a fellow's belongings from being washed away by flooding, devoured by animals etc. However, one is not required to lose money to do so. [Bava Metzia 30b] This is the mitzvah of Hashavat Aveidah - protecting a fellow from suffering financial loss. [Bava Metzia 31a]

Thus, any passerby who observes his friend's storefront vulnerable to vandals must take the necessary precautions to save his friend from possible loss. However, the passerby need not lose money in doing so.

Kobe on the other hand has a different form of responsibility towards the merchandise. He is a "damager". A damager is required to incur a loss to ensure he or she does not damage another's property. Hence, Kobe is required to pay 600 Euro to fulfill his responsibility to ensure immediate protection of the contents from vandalism. Otherwise, it is forbidden for him to leave the scene without ensuring an alternative responsible way to guard the store in the interim.

2) Additionally, if Kobe indeed hired Blast Glass, he is required to pay 600 simply to fulfill his contract with Blast Glass irrespective of his responsibility towards Mike.

II Amsterdam or London?

Background:

As one is required to forfeit the prospect of earning money rather than transgressing a sin, he must risk losing the coveted business deal if there is no alternative responsible way to guard the merchandise from possible loss in the interim. Amsterdam or London? London!

[Answered by the Fellow -Yesharim Research Center]

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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