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By Rabbi Meir Orlian, Halachah writer for BHI
For many years Mr. Jacobs served as gabbai tzedakah. In addition to a general tzedakah fund that he managed, he also collected for the local yeshivah and Hatzolah. Every day he would place three separate pushkes in shul. At the end of each month, he would count the money and deposit it in the designated accounts.
One day, after counting the money, Mr. Jacobs put the money in his coat pocket and headed to the bank. When he reached the bank, he put his hand in his pocket and realized that the money was gone!
“It must have fallen out along the way,” he thought. Mr. Jacobs retraced his steps, but could not find the money. He panicked. There was over $1,000 of general tzedakah; old Mr. Katz alone had contributed $200 in honor of his father’s yahrtzeit. There was almost $400 for the local yeshivah, and $300 for Hatzolah.
Mr. Jacobs came home with a glum look. “What happened?” his wife asked. “You look terrible!”
Mr. Jacobs told her about the money. “I always put the money in my attaché case,” he added, “but I didn’t have it today so I stuffed it in my coat pocket. That’s $1,700 down the drain.”
Mrs. Jacobs thought for a moment. “Are you held accountable for the money?” she asked. “It’s going to be very hard for us to cover such a sum.”
“I was wondering the same,” answered Mr. Jacobs. “I was careless. On the other hand, I do this as a volunteer; I don’t get anything for being gabbai. Furthermore, nobody’s keeping track of the money except for Mr. Katz; he asks me every day if I distributed it already.”
“But you know that you lost the money,” retorted his wife, “and Hashem knows!”
“I was just wondering what the halachah is,” explained Mr. Jacobs. “I’d like to discuss the issue with Rabbi Dayan.”
When Rabbi Dayan heard the story, he said: “You must pay the money that was collected for specific causes, namely the yeshivah and Hatzolah. On the other hand, nobody can claim the unspecified tzedakah from you, not even Mr. Katz, but according to some you have a chiyuv b’dinei Shamayim, a halachic obligation toward Hashem, to make good to the poor.”
Rabbi Dayan explained: “A gabbai tzedakah is responsible for negligence just like any other person who is entrusted with money. If he is paid for his services, he would be accountable even for theft. Nonetheless, the Shulchan Aruch (C.M. 301:6) writes that one who was negligent with unspecified tzedakah is ‘exempt,’ since nobody can claim the money from him. The donors cannot claim the money, since they never expected the gabbai to return it to them but rather to distribute it to the poor. Each individual poor person also has no claim, since the gabbai can choose not to give the charity to him, but to some other needy person.
“However, if the money was earmarked for specific people or organizations, they have a definite claim to the money, and the gabbai is fully accountable to them if he was negligent.”
“And what did you mean by a chiyuv b’dinei Shamayim about the unspecified tzedakah?” asked Mr. Jacobs.
Rabbi Dayan continued: “The Chavos Yair explains that even when the money is not earmarked for anyone specific, the gabbai is only ‘exempt’ in the sense that neither the donor nor an individual poor person can demand the money from him. However, the gabbai has a halachic obligation, albeit not enforceable by beis din, to give the money to the poor. His commitment to handle their money is no less a commitment than that of one who pledges it to them (Pischei Teshuvah 301:6). Maharam Shick (C.M. #14), though, exempts even latzeis yedei Shamayim if the gabbai did not actively damage.”
FROM THE BHI HOTLINE
Mazik B’Shogeg — Unintentional Damage
Submitted by the Bais Hora’ah
I purchased a trampoline and set it up in my backyard. When my children went out to play the next day they saw a hole in the trampoline. When I examined the hole I realized that it was a cigarette burn. I have a neighbor who smokes on his balcony at night, and he confirmed that he had thrown a lit cigarette into our yard; he did not realize that I had set up a trampoline since it was dark and he couldn’t see it. I can’t let the kids use the trampoline since the hole will only get larger and will become dangerous.
Q: Is my neighbor liable to pay for damaging the
A: Halachah is clear that one is liable for damages that one causes regardless of whether he intended to cause damage or not (C.M. 421:3; 378:1). There is a debate whether one is liable for causing damage when it was completely unexpected that damage would occur — mazik b’oness.
Some contend that when the damage could not have been anticipated — ones gamur— and thus the mazik (damager) is not expected to have exercised any extra caution, he is exempt from liability (Rema, Tosafos, Bava Kama 27b, d.h. U’Shmuel, Rosh). Other authorities maintain that even when the damage is the result of something completely unexpected, the mazik is liable (Shach 378:1; Ramban, Bava Metzia 82).
A case subject to the above debate involves children who find an animal in their deceased father’s possession and, assuming it belonged to their father, they slaughter it. Although the heirs have to pay for the benefit (hanaah) they had from the animal, they do not have to pay as though they damaged the animal (hezek).
The first approach explains that there are two categories of oness (circumstances beyond one’s control). One category is when one should have exercised greater caution but did not (oness k’ein aveidah). The second category is when one is not expected to exercise any greater caution since the damage was completely unanticipated (ones k’ein geneivah).
Since the heirs caused damage under circumstances of ones k’ein geneivah they are exempt from paying for damage. According to the second approach oness is not an exemption from liability regardless of the type of oness that occurred. The reason the heirs are exempt is that they were mazik b’reshus — damaged with permission. Since there is a halachic presumption that what is in their father’s possession was in fact his, they are not required to suspect that the animal belonged to someone else. Since Halachah indicated that the animal was theirs, they are not even categorized as damagers (Kehillas Yaakov, Bava Kama 23).
According to the above, it would seem that there is a dispute whether your neighbor is liable, since he had no way of knowing that you had placed a trampoline in your yard. However, in this case your neighbor cannot claim that it was ones gamur and in fact, it is not categorized as oness at all. A person has no right to throw down a lit cigarette unless he confirms that it will not cause damage. Although your neighbor did not know you purchased a trampoline, it is not uncommon for toys and clothing to be left in a yard, so without confirming that the cigarette would not land on an object, he behaved negligently. Therefore, although he did not know the trampoline was there, he is nevertheless liable for the damage to it.
Inheritance of Rental
(Based on writings of Harav Chaim Kohn, shlita)
Q: If someone dies partway through a rental lease, what are the rights and liabilities of the heirs according to Halachah?
A: Since rental is considered a temporary “sale” to the tenant for use, the heirs inherit the right to use the property for the duration of the lease, payable from the estate. If the deceased left no estate, some maintain that the heirs are not required to pay rent out of pocket, similar to other debts of the deceased. Others maintain that the landlord can evict the heirs if they refuse to pay out of pocket (C.M. and Rav Akiva Eiger 341:3).
If the heirs are not interested in using the property, some rule that they can withdraw from the lease and discontinue paying rent from the estate even when there is no alternate tenant, due to the uncontrollable circumstances. Others disagree, since rental is like a temporary sale. Rema rules that the landlord does not have to return rent that the tenant prepaid during his lifetime (C.M. 334:1; Shach 334:2).