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Fellow Weekly Newsletter - Issue 75 "THE BAFFLED BABYSITTER PART VI: LONE PAYMENT!" Business Law and Ethics for the Shabbos Table

Publication: Fellow Weekly Newsletter

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5/20/11

WHAT'S THE LAW?™

Fellow Weekly Issue 75

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 175: THE BAFFLED BABYSITTER PART VI: LONE PAYMENT!

Blessed with an other-worldly aura of peace and camaraderie; snugly nestled amidst the rolling green and brown Judean Slopes, the close-knit Anglo-Saxon community fostered warmth, compassion and a sense of belonging. Encouraged to develop their talents and forte towards enhancing the lives of others, the community members viewed their neighborhood as the fertile grounds for the nurturing of a blissful society of givers.

Supported by the community's generosity, David Kagan founded a well-run free-loan fund which provided short term interest- free loans to members and friends of the community.

One cold December Thursday evening, after the Kagan children were settled peacefully in their beds, a persistent knock on the front-door disturbed Sara's studies. Doggy -earring her textbook, Sara the babysitter rose from her plush seat and softly made her way from the heated sitting room towards the front door. Peaking through the peep hole she recognized Mrs. Berman on the other side. Sara opened the door, the chill gusted through the entry, and the twosome exchanged friendly smiles.

"Welcome, Mrs. Berman! Fancy meeting you here," chanted a shivering Sara. "Hi Sara, I'm sure the Kagan's appreciate your work as much as we do. Could I ask you to please hand this white envelope over to Mr. Kagan when he returns home? Please take care not to misplace it, Sara. I'm repaying a loan of thirteen thousand dollars which is due tomorrow. Thank you so much. We'll see you tomorrow over at our home..."

Mrs. Berman turned around to be on her way and Sara stood between the two doorposts shocked, alone, cold, and bewildered.

May Sara accept the payment from Mrs. Berman

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 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?

The Answer

While it was noble of Cara to feel bad for Leah, she was wrong and negligent for indiscriminately lending her the necklace. Cara is liable to pay Nina for the repairs unless she can convince Nina that the clasp would have broken while Cara was taking the necklace off herself as well. While Leah is liable to pay Cara unless she claims that the clasp broke as a result of normal usage; Leah's claim is insufficient grounds to absolve Cara of her responsibilities towards Nina.

Detailed Explanation

Freshwater Pearls implicates the following laws:

1. While a gratuitous bailee (unpaid trustee) or bailee for hire (paid trustee), assumes responsibility and liability by employing a legal act of acquisition [Choshen Mishpat 291: 2, 303: 1], a borrower assumes responsibility and liability simply by using the article [Nesivos 340: 1].

2. Grade of Liability

2.1. A gratuitous bailee (unpaid trustee) is liable to recompense for damages due to a)negligence [Choshen Mishpat 291: 1].

2.2 A bailee for hire (paid trustee) is liable to recompense for damages due to a)negligence, a

nd b)theft or loss outside of negligence [Choshen Mishpat 303:2].

2.3

A borrower is liable to recompense for damages due to a)negligence, b)theft or loss outside of negligence, or c)accidental causes [Choshen Mishpat 340:1].

Yet, a borrower is absolved from recompensing for damages incurred as a result of normal usage [ibid.].

3. Generally, a borrower (trustee) may not entrust a transportable deposit in the custody of a third party [Choshen Mishpat 342:1], even if motivated by kind intentions [Rambam, Kesef Mishna Sechirus 1:4].

Exceptions:

1) Adult Household Members. Barring obvious exclusions, it is generally assumed that a bailor (depositor) realizes that his/her deposit will be safeguarded or used by the trustee and/or his/her adult household members [Choshen Mishpat 291: 21].

2) A Frequent Trustee. Provided that the Grade of Liability is not reduced, (i.e. a bailee for hire may not entrust the deposit with a gratuitous bailee) a primary trustee may entrust the deposit within the hands of a secondary trustee whom the original bailor frequently entrusts articles of similar value and risk factors and whose ethical standard and damage-coverage ability (i.e. can still afford to cover his/her liabilities) has not since diminished [Rambam Sechirus 1:4].

3) Implicit Circumstance: It is generally assumed that a bailor (depositor) realizes that circumstances arise when the primary trustee lacks the capacity to watch the trust and must appoint a deputy in his/her stead temporarily rather than leave the article unattended [Mordechai Bava Metzia].

4) In the Primary Trustee's Presence: Without increasing the risk factors, a primary borrower /trustee may allow a secondary trustee to use/watch the deposit if the article remains under the guard of the primary borrower [Kesef Mishna Sechirus 1:4].

Example: In her presence, a host may generally allow a responsible guest to read a book she borrowed from a neighbor.

5. A primary borrower who unlawfully appoints a secondary custodian is guilty of negligence, remains accountable to the bailor (depositor) and consequently assumes liability for ensuing damage or loss sustained in the third party's custody.

6. As the secondary borrower cognitively assumed responsibility for the article, he/she becomes accountable to the primary borrower.

7. The primary borrower must return the article or restore its value to the depositor unless he/she is able to bring valid testimony or swear that the loss resulted from normal usage and would have occurred regardless of whom was using the article[Choshen Mishpat 291: 26, 342: 1]. The depositor need not accept an oath from the secondary trustee. (Thus, it is conceivable for the secondary trustee to be absolved from paying the primary trustee; while the primary trustee must pay the depositor.)

Application

Cara borrowed freshwater pearls from Nina and may not indiscriminately loan them to the bride. Although, Cara was present during the wedding, the bride does not remain "under her watch" during the course of the ceremonies. In addition, as the bride is generally more active than the wedding guests, lending the pearls to the bride increases the risk factor. Thus, Cara was wrong and negligent for lending them to Cara and remains accountable to Nina. She must return the pearls, compensate their loss, or prove beyond reasonable doubt that the necklace was damaged as a result of its normal use.

Although, Leah did not request the necklace, she knowingly used it. Consequently, she assumes the liabilities and indemnities of a borrower and becomes accountable to Cara.

(As Leah had no reason to assume the necklace belonged to anyone other than Cara, she cannot even be held accountable for the damage she actively caused Nina [See Maseches Kesubos 34b]).

It is not uncommon for clasps to break during normal usage of a necklace. Yet, the burden of proof lies upon Cara due to her negligence. Thus, ieven if Leah claims that the clasp broke as a result of its normal usage, and as such will be absolved from paying Cara, Cara will remain liable to Nina as long as Cara cannot convince Nina of Leah's claim.

[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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