(2011/5771)

The Case

One Sunday at a Torah Academy of Bergen County softball practice, a student (“batter”) picked up a baseball bat as he went up to hit during batting practice. The owner of the bat (“bat owner”) immediately instructed “batter” not to take the bat, since it was an expensive bat whose purchase price was eighty dollars. “Batter” asked if he could use the bat whereupon “bat owner” stated clearly and unequivocally that if you break the bat you must pay me eighty dollars. “Batter” agreed to the condition (point of clarification for those not familiar with baseball - non-metal bats break occasionally).

Before each pitch, “bat owner” repeated his stipulation of “you must pay me eighty dollars if you break the bat” and “batter” expressed his consent. All was going smoothly until “batter” swung and broke the bat. The bat cost seventy-five dollars to replace.

Stipulations that Contradict Halachah

It is possible to excuse “batter” because the bat broke as a result of normal usage (Meitah Machmat Melachah). The Torah distinguishes between four categories of people who watch property belonging to others – Shomeir Chinam (unpaid watchman), Shomeir Sachar (paid watchman), Socheir (renter) and Sho’eil (borrower). Halachah assigns different degrees of responsibility to each category (see Mishnah Shavu’ot 8:1). The borrower is responsible for all situations except for Meitah Machmat Melachah. Thus, “batter” not responsible for the damage he caused, since the bat was broken as a result of normal usage. Moreover, the stipulation for payment should be invalid since it contradicts Torah law. Indeed, the Mishnah (Bava Metzia 7:11) states “Kol HaMatneh Al Mah SheKatuv BaTorah Tena’o Batel,” a stipulation that runs counter to Halachah is invalid.

However, the previous Mishnah (Bava Metzia 7:10) contradicts this rule. This Mishnah teaches that a borrower may make a condition that he be excused from payment in all situations. The reasoning for this Mishnah is that Tenai SheBeMammon Kayam, that stipulations in regard to financial matters are valid even if they contradict Torah law. One owns his money, and thus he may waive his Torah given right to collect money or conversely is permitted to agree to obligate himself to pay money that the Torah does not require him to pay.

The Gemara (Bava Metzia 94a) explains that the two Mishnayot reflect two differing opinions. Rabi Meir forbids making stipulations that contravene Halachah whereas Rabi Yehudah permits it. The Shulchan Aruch (Even HaEzer 38:5 and Choshen Mishpat 291:17) codifies the opinion of Rabi Yehudha as normative. Thus, “bat owner’s” condition to obligate the borrower in case of Meitah Machmat Melachah is valid, and “batter” seems to be required to pay.

The Absence of a Kinyan Suddar

This conclusion might not be warranted in light of the fact that “batter” did not receive any “consideration” in exchange for obligating himself to pay beyond his Halachic responsibility as a Sho’eil. Consideration refers to the Halachic requirement for someone who obligates himself to pay or sell something to receive something in exchange in order for the obligation to be Halachically binding. The Kinyan Suddar (often simply called a Kinyan), when the recipient of an obligation hands the one who obligates himself an item of some value, even though it will be returned, is the traditional means among our people to present symbolic consideration that makes the obligation Halachically binding (Rut 4:7 – “LeKayeim Kol Davar”). We are familiar with a rabbi conducting a Kinyan Suddar with a groom to activate the obligations the groom has assumed in regards to the Ketubah and a rabbi conducting a Kinyan Suddar with one who has agreed to appoint the rabbi as his agent to sell his Chameitz.

Although the Gemara (ibid.) does not require a Shomeir Chinam who wishes to assume the obligations of a borrower to engage in a Kinyan Suddar to seal this commitment, the Ketzot HaChoshen (340:1) raises the possibility that a Sho’eil who wishes to obligate himself in a case of Meitah Machmat Melachah is required to do so. The Ketzot notes that the Shomeir Chinam need not receive symbolic consideration, since he receives consideration in the form of enhancing his reputation as a trustworthy person to whom people lend items. Tosafot (Bava Metzia 58a s.v. Amar Rabi Yochanan) explain that when he assumes the responsibilities of a Sho’eil, he watches the item more carefully (like a Sho’eil would), and therefore people assume that the item is loaned to him, which thereby enhances his reputation.

However, a Sho’eil who agrees to exceed his responsibilities might require a Kinyan becasue he does not receive such consideration. Thus, since “bat owner” did not conduct a Kinyan Suddar with “batter,” it is possible that “batter’s” Halachic obligation did not take effect. Although the Ketzot concludes with uncertainty, “batter” could claim that the uncertainty works to his favor since a major principle in adjudicating monetary disputes is HaMotzi MeiChaveiro Alav HaRa’ayah, the burden of proof falls on the plaintiff (Bava Kama 46a). Thus, in a case of doubt, the case is resolved in favor of the defendant, since the plaintiff is unable to prove his case.

Nonetheless, “batter” might be obligated to pay for the damage despite the absence of a Kinyan Suddar. The Netivot (340:2) distinguishes between a Shomeir Chinam assuming the obligation of a Sho’eil in a case in which consideration is required and a Sho’eil who obligates himself to pay in case of Meitah Machmat Melachah. The Shomeir Chinam accepts an obligation for which he would otherwise not be required to assume. However, a Sho’eil would have been obligated to pay for an item that breaks during usage had he not received permission to borrow the item, since he is a Mazik (one who causes damage).

 Recall that one who is Mazik is responsible in nearly all circumstances, whether he breaks an item deliberately or inadvertently (Bava Kama 26a). However, when one lends an item to someone, one ordinarily permits the borrower to use the item and waives the right to sue for damages if the item he lends breaks during normal usage. If the lender stipulates that the Sho’eil is responsible even in a case of Meitah Machmat Melachah, the lender is in effect withholding this waiver, and the borrower must pay as a Mazik like any other individual.

Thus, the Netivot argues, the Sho’eil in such a situation is not required to make a Kinyan Suddar since he is not assuming the responsibility to pay in case of Meitah Machmat Melachah. Rather, the lender is simply not waiving his right to make a claim in case the borrower breaks the item even during normal usage. Since no commitment is being made, no Kinyan is needed to seal the agreement. Thus, according to the Netivot, “batter” is not excused from indemnifying “bat owner” despite the fact that he did not make a Kinyan.

The question remains, though, whether we follow the Ketzot or the Netivot. The Aruch HaShulchan (C.M. 340:7) rules in accordance with the Netivot, especially since a Rishon (Shitah Mekubetzet to Bava Metzia 69b) already articulated the approach of the Netivot. The Pitchei Choshen (2:10:7; Pitchei Choshen is an authoritative contemporary work on the Halachot concerning financial matters) writes that “many Poskim” believe that a Sho’eil need not make a Kinyan in order to assume the responsibility of Meitah Machmat Melachah and does not present a dissenting opinion.

Thus, the opinion of the Netivot is accepted as normative. Indeed, Rav Zalman Nechemia Goldberg, a leading contemporary Poseik especially regarding financial matters, ruled in accordance with the Netivot in the following situation (Techumin 17:292): A young man brought Sefarim to a bookbinder to rebind his Sefarim. The process of rebinding the books involves using a special tool to make holes in the sides of each Sefer. The young man asked if he could borrow the tool and make the holes himself. The bookbinder willingly lent him the tool while warning that if the tool breaks, the young man must pay for it. The young man subsequently broke the tool while making the holes. Rav Zalman Nechemia ruled in accordance with the Netivot that the young man must pay for the broken tool.

Two more reasons require “batter” to pay despite not having made a Kinyan, even according to the Ketzot. A Sho’eil is normally excused from paying because the lender agrees to the borrower using the item despite the risk it might break during usage. In our situation, “bat owner” did not want “batter” to use his bat. Thus, “batter” is not construed as a Sho’eil, who is excused in case of Meitah Machmat Melachah, since he did not have permission to use it. Instead, he is an ordinary Mazik who is responsible to pay even though he did not intend to do damage. The stipulation “if you break the bat, you pay eighty dollars” means that since you are not borrowing the bat with permission, you do not enjoy the usual benefits of a Sho’eil, who is excused in case of Meitah Machmat Melachah. Thus, it seems that even the Ketzot would obligate “batter” to pay.

In addition, the parties agreed to adjudicate the claim not only based on Din (strict Halachah) but also Pesharah (equity and compromise). It is certainly not fair to excuse (or at least not to entirely excuse) “batter” from paying simply due to the “technicality” of not having made a Kinyan. Thus, we have yet another reason to obligate batter to pay even according to the Ketzot.

Conclusion

It is clear that “batter” must pay something for having broken the bat. We must still discuss whether the stipulation to pay eighty dollars was valid as it might constitute Asmachta. There also exists the possibility that “batter” should pay only seventy-five dollars, the actual replacement cost for the bat, and not the eighty dollars that were stipulated. We will iy”H and b”n conclude our discussion of this case in next week’s issue.