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Fellow Weekly Newsletter - Issue 74 "Freshwater Pearls" Business Law and Ethics for the Shabbos Table

Publication: Fellow Weekly Newsletter

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5/13/11

WHAT'S THE LAW?™

Fellow Weekly Issue 74

Welcome to Fellow Weekly's: WHAT'S THE LAW?™ Encouraging intelligent and entertaining debate at your Shabbos 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.

To join this mailing list, please send an email to weekly@projectfellow.org with the word subscribe in the subject line.

CASE 174: FRESHWATER PEARLS

Cara Cooper developed a heart of gold. She extended a consistent and selfless effort to exult in other's successes and joys and equally bear their struggles and pains. Her sincere friendship was worth far more to her growing group of acquaintances than the material assistence she could avail.

Excitement filled her heart on Sunday the fifth of December, as she readied herself for the anticipated wedding of her beloved friend Leah "Leah deserves us dressed in the finest," said Cara to herself. " The dress I am wearing would look stunning with a strand of freshwater pearls. Though I do not own one myself, I am sure I can find a friend of Leah willing to lend me one for the wedding." After a few phone calls, Cara succeeded in borrowing one from her sister-in-law Nina .

Cara arrived at the Fort Tryon Park wedding ground with the strand of pearls hung neatly over her neck and silently took her place amongst her friends waiting for Leah to solemnly proceed down the long white aisle. Cara stared at the angelic figure making her way towards the aisle, when her mouth suddenly dropped wide open.

Cheerful Leah had succeeded in hiding from Cara, her true financial state all these years. There she stood decked in white, her eyes closed in prayer for a bright future, with no necklace to adorn her gown.

Almost naturally, Cara tiptoed over to Leah, removed the freshwater pearls from around her neck and gently placed them around Leah's neck. Moments later Leah opened her eyes, looked down, smiled and silently thanked Heaven for blessing her with good and caring friends.

After the thrilling wedding attempting to remove the pearls and return them to Cara, Leah inadvertently broke the golden clasp.

Was Cara permitted to lend the freshwater pears to Leah?

Who is liable to repair the necklace?

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!

LAST WEEK'S CASE

CASE 173: 1809-2009!

Pressburg 1809. Wishing to unseat the Austrian government, Napoleon's forces converged on the nation's capital on Saturday, June 3, 1809. While heavy bombardment decimated the city's infrastructure, rains and strong winds ripped off the roofs, knocked over walls and destroyed foundations. What was left, was left to the looters for easy bate.

As always, the Jewish ghetto endured the brunt of the destruction and escalated crime. Fearing for their lives, most of the people fled with their shirts on their back to St. Georgian, mostly taking comfort beneath the stars in the open fields.

Nathan Landau was fortunate to dwell in a stone home protected by iron shutters. Nathan kindly allowed many of his brethren to store their valuables in his guarded home during the storm.

On Sunday, October 15th peace was announced, the people returned and began to rebuild the community.

By Wednesday, the townsmen returned to Landau to reclaim their treasures: all but one. A large unfamiliar valise of clothing bearing no name continued to take up space in his corridor. Apparently, unbeknown to Nathan someone had left the valise in the Landau home.

By Nov 15th, Mrs. Landau had enough. Her mother was coming to town and she wanted it out. At the behest of his frazzled wife, Nathan put the valise out in the darkened courtyard that night. By the morrow, the valise was nowhere in sight.

On Nov. 20th there was a knock on Landau's door. Aaron Frankel came to claim his suitcase.

Brooklyn 2009. "It would mean so much to me dear, if our living room could be kept a little tidier," said Dave nicely one day to his faithful wife Molly.

"Dave, I understand your frustration. I do try my best, but do you see those piles of mail piling up on the mahogany bookshelves? The previous tenant has yet to notify the Postal Service of his changed address and we've been receiving this fellow's mail in our box for the past six months. I've contacted him numerous times and he told me that he'll notify the Postal office and be over to pick up his mail..."

The growing Mount Everest was getting under Dave's skin...

What's the Law?

The Answer

Landau should not have pitched the valise out in the open. He should consult a competent Halachic authority to ascertain whether compensation for the stolen valise is in order.

Molly may not damage, discard or place the pertinent mail in an unsecure area without warning the previous tenant of her plans and providing him with sufficient time to claim the mail. Molly may only discard pertinent mail if she needs the space and has no other recourse ther than destruction. [See detailed explanation, if Molly incurs costs by keeping the mail in a secure area.]

Detailed Explanation

1809-2009 implicates the following laws

I. An unpaid trustee or gratuitous bailee assumes liability for damages due to negligence [Choshen Mishpat 291: 1].

II. A gratuitous bailee commissioned for a definite period of time is absolved from damages resulting from negligence, following the circumscribed time. [Machane Efraim Shomrim 19] (The rules for a bailee for hire differ. See further issues.)

III. Following the circumscribed time, the former bailee may not damage the deposit and remains accountable for damaging or similarly removing the deposit to an unsecured locale [Choshen Mishpat 319, Igros Moshe]

IV. A trustee appointed for an indefinite period of time must confer with the depositor or the Beit Din (Halachic Court of Law) before relinquishing his or her safeguarding duties and previous level of liability [Choshen Mishpat 293:3].

V. The mitzvah of Hashavat Aveidah; returning a lost article, requires the finder to safeguard the find and notify its owner of its whereabouts [Choshen Mishpat 259: 1].

VI. While safeguarding the find, the finder is deemed a gratuitous bailee appointed for an indefinite period of time, and is liable for damages or losses due to negligence as long as the safeguarding responsibility has not terminated [Choshen Mishpat 267 Sm"a 17, Schach 17].

VII. Upon notifying the owner of its whereabouts and providing ample retrieval time, the finder terminates his/her duty and like any former gratuitous bailee is henceforth absolved from damages due to security negligence. Nevertheless, the finder may not damage the article nor remove the deposit to an unsecured locale [Choshen Mishpat 267: 16].

VIII. Generally, one may legally bar others from intentionally depositing articles in his/her home and should theoretically be permitted to clear the premises of unsanctioned deposits intentionally placed therein [Choshen Mishpat 319].

IX. Relocating the unsanctioned deposits into a secure area is permissible. With authorization and assessment from a competent Beit Din (Halachic Court of Law), the homeowner may even deduct the storage/moving costs from the belongings. [In the event that storage costs exceed reasonable value, A should sell it or may purchase it for him/herself and inscribe the value in his/her ledger to be paid to the owner upon claiming the belongings] [Choshen Mishpat 319]

X. However, unless the homeowner urgently needs the occupied space and lacks alternative recourse [Choshen Mishpat 383:2]., the depositor's thoughtless impositions does not justify damaging the unsanctioned deposits or placing them into a precarious position without warning the depositor and providing ample time to retrieve the deposit. Indiscriminately damaging the deposit , simply to teach the depositor a lesson is forbidden. [Rosh Bava Kama 101b, Rama 319:1 Sm"a, Taz].

Example. A parked her truck in B's driveway. B needs the spot today. B may not slash A's tires or indiscriminately cause A financial loss simply to teach A a lesson. However, B may have the truck towed or take the necessary steps to clear space for his vehicle, expenses billed to A.

In the event that the homeowner unlawfully relocates the unwarranted deposit to an unsecure locale, and damage or loss ensues, competent Halachic advice should be sought whether compensation is in order.

Application:

1809

Landau issued general permission for individuals to store their belongings in his home until the danger abated. Landau became a gratuitous bailee for the valises deposited in his home until the danger abated. Although, Frankel overstayed his welcome, Landau may not damage his valise nor put it in a precarious position without forewarning Frankel. Although inconvenienced, and challenged by the anonymity of the valise's owner, Landau may only pitch it out in the yard, if he needed the space immediately and had no other recourse. Otherwise, he must safeguard the valise, or receive authorization from the Beit Din to place it in a secure rented storage room and charge Frankel for the cost of doing so.

As damage ensued from the valise's unlawful relocation to the unsecure locale, Landau should consult a competent Halachic authority whether any compensation is in order.

2009

Molly fulfills her Hashavat Aveidah responsibilities by informing the previous tenant of the received mail. [ In a area with a reliable postal service, leaving it for the postmaster and writing return to sender would suffice.]

As long as Molly does not inform the previous tenant of the accruing mail, she assumes Hashavat Aveidah responsibilities and must safeguard the mail. Once Molly informs the previous tenant of the incoming mail, she need not take precautions to safeguard the mail.

Nevertheless, she may not remove the mail to an unsecure locale nor discard pertinent mail without giving the previous tenant warning (and ample retrieval time) of her plans to do so. Discarding the mail would only be permitted if Molly needs the place immediately and has no other recourse. Mail, which unquestionably clear that the previous tenant is uninterested in it, may be discarded

[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.

To join this mailing list, please send an email to weekly@projectfellow.org with the word subscribe in the subject line.

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