(2004/5765)

In my Gemara Shiurim at TABC, we will occasionally conduct a Din Torah when a monetary issue arises between the students.  This serves a number of purposes.  It often brings alive many situations that are discussed in the Gemara and it is an effective means to teach Talmudic principles.  It also teaches students to honestly and forthrightly present their monetary disputes to a Rav for adjudication (see Mishnah Berurah 606:1).  It teaches students the procedures of Beit Din, such as Kinyan Suddar (the act of demonstrating one’s seriousness by accepting a utensil such as a handkerchief or a watch as symbolic consideration) and Pesharah (compromise).  Finally, and perhaps most importantly, the dispute is resolved in a manner that the fairness of the proceedings and decision making is apparent to all, as it is resolved and discussed in the presence of the young disputants and their peers. 

Parenthetically, we should note that one Dayan (rabbinic judge) suffices to adjudicate a case if both parties agree to submit to his authority (Shulchan Aruch Choshen Mishpat 3:2).  Rav Moshe Snow told me that he saw Rav Moshe Feinstein act alone in adjudicating a monetary dispute.  Rav Mordechai Willig told me in 1992 (and I have observed the accuracy of his report) that this is the widely accepted practice (see  www.bethdin.org/rules.htm , for the rules of  when a dispute will be adjudicated by only one Dayan in the Beth Din of America). 

The Case

In the 5764 “Y9” Gemara Shiur of TABC, we adjudicated a most interesting dispute.  Two Talmidim, whom we shall refer to as Reuven and Shimon (R. and S), were playing basketball together at S’s house.  R drove his car to S’s house and parked his car near the basketball court, leaving the windows open.  S put his CD player on the seat of the front passenger position in order that R and S could listen to their favorite Jewish music while they were playing ball. 

In the middle of the game, R decided that he wanted to take a break and drive his car for a few minutes (S raised no objections to this).  R drove his car while the CD player continued to play music.  In a bizarre turn of events, while R drove his car around a traffic circle, the CD player came flying out of the car and was destroyed.  R and S subsequently asked me to adjudicate the question whether R is responsible to compensate S for the destroyed CD player.  I will present the stages of discussion in our Shiur of how the case was adjudicated. 

Three aspects of how this case was resolved facilitated a peaceful and fair decision.  First was that all proceedings and discussions occurred in the presence of both parties (see Shulchan Aruch Choshen Mishpat 17:5).  Second, considerable efforts were undertaken in order to properly ascertain the facts of the case.  The Chazon Ish is often cited as saying that most mistakes made in rendering Halachic decisions are due to misunderstanding the facts of the case (see Sanhedrin 33a for an example of this phenomenon).  Third is that both sides were committed to doing whatever the Halacha requires.  Both Talmidim presented their case honestly and free of manipulations, exactly as the Mishnah Berurah (ad. loc.) requires. 

We should note that Beit Din must adjudicate any case that involves a dispute over a matter that is worth at least a Perutah (the equivalent of approximately two cents; Shulchan Aruch Choshen Mishpat 6:1).  Civil courts (even small claims court) will not adjudicate matters of such little value because of a fundamental difference in the attitudes towards dispute resolution.  Civil courts do not resolve disputes involving very small amounts since their goal is to maintain a peaceful and orderly society, and disputes over very small amounts usually will not cause disruptions in society.  However, Halacha seeks truth, and thus, even disputes over small amounts of money are worthy of the attention of Rabbanim (even great Rabbanim as we shall see in this case).  Thus, this case merited rabbinic attention even though this used CD player was not worth a significant amount of money. 

Shomer Chinam

At first we thought that R was a Shomer Chinam (an unpaid watchman) who is only responsible to pay if the item he watches is lost or destroyed as a result of negligence (Peshiah; Shulchan Aruch Choshen Mishpat 291:1).  We sought to clarify whether the fact that the CD player flew out of his car window proves that R was driving recklessly.  R insisted that he was not driving at an excessive speed or in any other reckless manner.  We decided that an expert should be consulted to resolve this question, just as Chazal (Sanhedrin 33a) consulted with Todos the physician to resolve a monetary dispute.  We asked Dr. Joel Berman, a Ben Torah who teaches physics at TABC, for his opinion on the matter. 

Dr. Berman (who earned a doctorate in physics) thought that this was an odd occurrence but he felt that the fact that the CD player flew out of the window did not prove that R was driving recklessly.  Accordingly, since it seemed that we were not able to resolve the question of whether R was Poshe’a (negligent), R was excused from compensating S for his destroyed CD player.  The cardinal rule regarding monetary issues is “Hamotzi Mechavero Alav Haraayah,” “The burden of proof rests upon the one who demands the money,” or colloquially, “Possession is nine-tenths of the law” (Bava Kama 46a).  Thus, R was excused from payment since S was unable to prove R’s obligation to pay.   

Shoel

The students, though, raised the question of whether R was only a Shomer Chinam regarding the CD player.  They thought that perhaps R. was a Shoel (borrower) regarding the CD player, in which case R is responsible for damages to the borrowed item even if the damage occurred accidentally and not through negligence (Shulchan Aruch C.M. 340:1).  This question led to a more fundamental question – was R considered to be a Shomer of S’s CD player? 

The Shulchan Aruch (C.M. 291:5 and 307:1) cites two opinions regarding when one becomes a Shomer of someone else’s property.  One opinion is that one becomes a Shomer only when one makes a Kinyan (Halachic act expressing one’s acceptance of responsibility, such as a Kinyan Suddar that we are familiar with from weddings and Mechirat Chametz) with the owner of the property.  The second opinion is that as soon as the owner entrusts the other person to watch his item, the other person becomes a Shomer (as long as the other party is aware that the owner’s item is in his possession) even if no Kinyan is made. 

Accordingly, the question of whether R is considered a Shomer hinges on this dispute recorded in the Shulchan Aruch.  Since the Shulchan Aruch does not resolve this matter, the money remains with the Muchz   ak, the one who possesses it (see Rav Ezra Basri’s Dinei Mammonot 3:263; Rav Basri serves as a Dayan in the Jerusalem District Rabbinical Court).  Thus, it appeared again that R was excused from paying.

However, one of the students raised the following question - didn’t R’s agreement (or lack of objection) for the CD player to be placed in his car constitute an implicit acceptance of responsibility regarding S’s CD player?  I responded that this question appeared to hinge on a dispute between the Tannaim. 

The Mishnah (Bava Kama 47a and b) discusses a case where someone placed an item he owned in another’s property with permission of the owner and the item was subsequently damaged.  The Tannaim dispute whether the owner of the property is responsible for the damage.  The Tanna Kama (the first anonymous view recorded in the Mishnah) rules that the owner is responsible.  Rebbe (Rabi Yehuda Hanassi, the editor of the Mishnah) believes that the property owner is not responsible unless he explicitly accepts upon himself the responsibility of watching the item.  Thus, if the ox belonging to the property owner damages the item that the other person placed in his property, then the property owner is responsible according to the Tanna Kama and is not responsible according to Rebbe. 

The Amoraic scholars Rav and Shmuel (Bava Kama 48b) disagree regarding which Tannaitic opinion is accepted as normative. The Rishonim also disagree regarding which opinion is accepted as normative.  The Rif (Bava Kama 21) and the Rambam (Hilchot Nizkei Mammon 3:13 and 7:4) rule that the owner does not assume the responsibility of a Shomer merely by permitting the item to be placed in his property.  On the other hand, Tosafot (Bava Kama 48b s.v. U’Shmuel) and the Rosh (Bava Kama 5:3) rule in accordance with the opinion of the Tanna Kama that when a property owner grants someone permission to place an item in his property, he has implicitly accepted the responsibility to guard and protect that item.

This dispute depends to a great extent on Talmudic rules of Halachic resolution.  On the one hand, the Halacha usually follows the majority opinion.  Accordingly, the Halacha should follow the Tanna Kama.  On the other hand, Shmuel rules in accordance with Rebbe, unlike Rav who rules in accordance with the Tanna Kama, and the Halacha usually follows Shmuel in his disputes with Rav concerning monetary matters.

This matter continues to be disputed in the Shulchan Aruch (C.M. 398:5).  The Mechaber rules in accordance with the Rif and the Rambam who follow Rebbe, and the Rama rules in accordance with Tosafot and the Rosh who follow the Tanna Kama.  This is hardly surprising as the Mechaber (Rav Yosef Karo, the great authority for Sephardic Jews) rules in accordance with the Sephardic Rishonim and the Rama (the great authority for Ashkenazic Jews) rules in accordance with the Ashkenazic Rishonim.  Thus, it would seem that R is responsible to pay since R and S are Ashkenazic Jews (it would be even more interesting if R was Ashkenazic and S was Sephardic, as it would have to be clarified whether the case would be adjudicated according to Ashkenazic or Sephardic Halacha). 

Nonetheless, the Taz (ad. loc.; the Taz is a very important Ashkenazic authority) writes that this dispute has not been resolved even according to Ashkenazic standards.  The Taz notes that the Rama elsewhere (C.M. 291:2) cites both the opinions of Rebbe and the Tanna Kama and does not clearly state whom the Halacha follows.  Thus, the Taz concludes that this dispute remains unresolved and we may not demand that a defendant pay money if such a situations arises.  Indeed, the Aruch Hashulchan (C.M. 398:5) cites both the opinions of Rebbe and the Tanna Kama and does not state which opinion constitutes the normative opinion.  Thus, it seems that R is excused from paying S for the broken CD since the Halacha remains unresolved as to whether R implicitly accepted responsibility for the CD when he permitted S to put it in his car.

Conclusion

Next week, IY”H we will see how this issue was concluded based on a Psak given by of Rav Herschel Schachter.