May these words of Torah serve as a merit le’iluy nishmat Menachem Mendel ben Harav Yoel David Balk, a”h.
This week we learned Bava Kamma 97 and 98. Here are some highlights.
Bava Kama 97: Using someone else’s worker
Reuven needed work done in his home to repair his sink. His neighbor Shimon was building an extension to his apartment. Shimon had workers whom he paid each day for their labors. One day, Reuven saw that one of Shimon’s workers was sitting doing nothing. He asked him what was going on. The worker replied that he was a plumber and there was no plumbing work that day for he was waiting for the builder to finish his task. Reuven asked the plumber to come into his home and repair the sink. “ It will only take an hour or two.” The plumber completed the job in an hour. Does Reuven need to pay the plumber? Perhaps the time of the plumber was already compensated for by Shimon and the plumber did not deserve anything more. If Reuven did need to pay, did he owe the money to the plumber? Perhaps he owed the money to Shimon? Maybe the fact that Shimon was paying the plumber that day made all the work that the plumber would do the possession of Shimon.
Rav Zilberstein pointed out that our Gemara would shed light on this question.
A thief who uses the ox he stole and then returns it does not need to pay a rental fee for having used the ox. This is based on the rule of kinyanei gezeila, theft acquisitions. When a thief takes an item he has an ownership stake in the item. As a result, if he uses it he need not pay for the use. Land can never be moved and therefore an interloper on the land of another person does not have any theft acquisitions in the land. The Gemara discussed the status of slaves.
Rav Daniel Bar Rav Ketina taught a lesson in the name of Rav. If a man grabbed the slave of his friend and forced him to do labor for him, he would not owe any money to the friend. The Gemara finds this troubling. A slave should have the status as land. Eved hukash l’karka’ot. The slave was compared to land. Just as a thief has no rights in the land on which he squats, there should be no rights to the thief who grabbed the slave. If it was the slave of another he should therefore have to pay the owner for using the slave. The Gemara answered that Rav Daniel Bar Rav Katina was dealing with a unique scenario. If an owner was using his slave and someone else grabbed the slave and used him, the kidnapper would owe money to the owner. The case of Rav Katina was when the slave was not doing any work at that time. It was a scenario where the grabber benefited while the owner suffered no loss. It was like a man who squats in a courtyard that was not going to be rented out. The courtyard owner suffered no loss. The squatter gained. Zeh neheneh v’zeh lo chaseir patur—if one gained and the other did not lose, the one who gained need not pay. The Gemara then asked, but that law only applies to an empty home? The squatter
helped the landlord by keeping the house from being deserted, or by repairing things that only someone living in the space would notice. However, in the case of the slave, how does the owner benefit from his friend’s using his slave? The Gemara answered that the owner would not want the slave to learn the ways of sloth and laziness. He would be getting benefit in the fact that his neighbor was keeping his man busy. It would therefore be analogous to a squatter in a home that was not on the market for rent, and there is no liability.
It emerges from the Gemara that the reason for Rav Daniel Bar Rav Katina’s ruling was that the slave owner wants to prevent his slave from learning laziness; as a result, he is benefiting a bit from the actions of the one who grabbed the slave. This logic would not be applicable in our case. An employer has no interest in educating his employees. As a result, since Reuven received benefit from the employee, without providing any benefit at all to Shimon, he would have to pay.
Would the plumber have to give the money to Shimon?
Rav Zilberstein felt that he would not. The halacha teaches that an employee who finds a lost object gets to keep the object and need not give it to his employer. Here the employee had fulfilled his obligations to Shimon. He found an opportunity to make more money. He could keep that money and he would not have to give it Shimon. This is like the discussion poskim have about Kaddish.
If someone passed away it is a merit for Kaddish to be recited regularly on his behalf. Poskim discuss the case of a man who was hired to say Kaddish for one person. Then another person approached him and asked him to say Kaddish for another deceased individual. Could he say Kaddish and it would count for two souls? Many authorities feel that he may. The Kaddish being said for multiple individuals is a merit for them all. Adding another person that he is thinking of does not detract from his initial commitment to say Kaddish for the first person. Since he is not harming his initial employer he can take an added job. It is like finding a lost object. The found item belongs to the employee who found it. The new work is the entitlement of the employee, since it did not interfere with his initial obligations.
Rav Zilberstein therefore ruled that if someone hired a cab to deliver a package to the other side of town, the cab driver could pick up passengers headed that way and charge them for the ride. His taking passengers would not interfere with his initial commitment. It was a discovery of new income. He could keep that income. (Chashukei Chemed)
Bava Kama 98: He knocked a bottle of oil behind a store closet, must he pay?
A customer in the store was clumsy. While reaching for a bottle of oil he knocked it over and it fell right behind a heavy closet. The owner of the store was upset. “ I cannot get to that bottle. Nor will anyone else push a heavy closet just to get to that bottle. You need to pay me for the loss.” Did the customer have to pay?
Our Gemara contains a lesson from Rava. If a person pushed his friend’s hand and a coin slipped from the hand into the clear waters of the sea, the pusher did not need to pay. Rava explained that the coin was available. The owner could dive in and retrieve it. If he were to hire a diver to get the coin, the cost of the diving would be an indirect damage. Some Rishonim explain that this is a case of grama b’nezikin, indirect cause of expense, which is exempt. Others classified it as
garmi b’nizikin, an indirect, yet virtually certain, damage, and they explained that Rava would exempt cases of garmi. Shulchan Aruch (Choshen Mishpat 386:1) ruled that it is a case of Garmi, and that Garmi acts performed by a person create liability. According to Shulchan Aruch, our case is also one of Garmi, and the one who knocked the bottle over should pay for the cost of its retrieval. However, Rama ruled that pushing a coin into the clear sea is a grama. It indirectly caused the coin owner to hire a diver. It was not virtually certain that he would have to hire a diver. The pusher would have no liability. In terms of a final ruling, one cannot force someone to pay money if he can argue that based on solid halachic grounds he is exempt. The customer could claim, “ I am sure the Rama is right. I caused damage indirectly, and I do not need to pay you.”
Rav Zilberstein pointed out that there is another point of view. Igrot Moshe (Yoreh Deiah Chelek Aleph Siman 76) quotes the Meshiv Davar. They feel that our Gemara was precise in discussing a coin that was dropped to the sea floor. A coin has value wherever it might be located. It is a coin in the sea just as it is a coin on land. Dropping a coin is grama according to Rama. However, an object is not always worth the same amount. If someone were to suddenly import a large amount of soap bars, the price of soap would collapse. So, too, when an object was thrown to the sea, it is worth less. Now that it is in the sea, it is less valuable. Decreasing the value of an object by means of an action is damage, not indirect damage. Since it was an oil bottle that was pushed into a difficult spot, the value of the bottle was diminished and the damager would have to pay for the damage that he caused. (Chashukei Chemed)
By Rabbi Zev Reichman
