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Bereishis(Sukkos)- Double Booked
By Rabbi Meir Orlian
Congregation Toras Yisrael decided to hold a learning program on Sunday, Chol Hamoed Sukkos. Shortly before Rosh Hashana, the gabbai in charge of the program discussed possible guest speakers with the shul rabbi, Rabbi Brick.
“See if you can get Rabbi Stein,” suggested Rabbi Brick. “He’s a very powerful speaker; the crowd will enjoy him.”
The gabbai contacted Rabbi Stein. “I’m calling on behalf of Congragation Toras Yisrael,” he said. “We’re planning a learning program on Chol Hamoed Sukkos and would like to know if you’re available.”
“I’m not sure yet,” said Rabbi Stein. “There’s a good chance we’ll be away. I’ll let you know in a week.”
“Were you able to get Rabbi Stein?” Rabbi Brick asked the gabbai the next week.
“I contacted him,” said the gabbai, “but he said there’s a good chance he’ll be away. He’s supposed to call back in a few days to finalize.”
“Okay,” said Rabbi Brick. “Meanwhile, I’ll try contacting someone else.”
Rabbi Brick called Rabbi Maggid, who was also known to be an inspirational speaker.
“I would be happy to come,” said Rabbi Maggid. “When is the shiur?”
“Sunday Chol Hamoed, 11:00 a.m.,” answered Rabbi Brick. “We offer an honorarium of $200.”
At the end of the week, Rabbi Stein notified the gabbai that he was available to speak.
“Wonderful! We’re looking forward to hearing you,” said the gabbai. “The shiur is on Sunday at 11:00 a.m. We are offering a $200 honorarium for the shiur.”
However, with all the pre-Sukkos rush, the gabbai and Rabbi Brick forgot to inform each other about their respective arrangements!
On Sunday morning at 10:45, Rabbi Maggid arrived at the shul. Rabbi Brick greeted him. Five minutes later, Rabbi Stein arrived.
Rabbi Brick looked at him, surprised. “I thought you were going to be away,” he said to Rabbi Stein. “Meanwhile, we arranged with another speaker and are running late already. We’ll have to reschedule for another opportunity.”
“It’s unfortunate that the gabbai wasn’t in communication with you,” said Rabbi Stein. “I was asked to speak elsewhere, but had to decline.”
“We budgeted only $200 for the guest speaker,” the gabbai whispered to Rabbi Brick. “What should we do about the money? Split it? Pay double? Give to Rabbi Maggid who was arranged first?”
“Good question,” said Rabbi Brick. “Rabbi Dayan is sitting here; let’s ask him.”
He quickly explained the awkward situation to Rabbi Dayan and asked: “How do we handle the payment?”
“Both you and the gabbai were authorized on behalf of the shul to procure a speaker and arrange payment of an honorarium,” answered Rabbi Dayan. “Therefore, the shul is responsible to both speakers, since they already prepared and Rabbi Stein lost an opportunity elsewhere (C.M. 333:1-2).”
“But only one speaker was needed,” objected the gabbai. “Once Rabbi Brick arranged with Rabbi Maggid, there was no need for me to hire Rabbi Stein.”
“This is similar to a person who asked an agent to hire a worker,” explained Rabbi Dayan. “Even if the agent tarried at first, so that the person went ahead and hired someone else, if he didn’t notify the agent and cancel his booking, the person is responsible to both workers as if he hired them both (Pischei Choshen, Sechirus 10:; Pikadon 11:7).”
“But since Rabbi Stein did not give the shiur, shouldn’t there be some reduction in his honorarium on account of that?” asked Rabbi Brick. “Isn’t there a concept of po’el batel? A worker is often willing to accept a reduction in salary not to have to work as long or hard (C.M. 333:2).”
“There often is, if the worker enjoys having a break from the work,” replied Rabbi Dayan. “However, a person who gives shiurim enjoys doing so and considers it a privilege; he does not necessarily relish the ‘vacation.’ Therefore, you must pay the full amount to each (Rema C.M. 334:4).”
FROM THE BHI HOTLINE
Borrowed and Broken
I borrowed a friend’s lulav and esrog to fulfill the mitzvah and he gave it to me as a matanah al menas l’hachzir (a gift given on condition that it is returned) so that I should be able to fulfill the mitzvah as required with “my own” lulav. While in my possession, something fell on it, rendering it invalid.
Q: Am I liable to pay for the invalid lulav, or perhaps since it broke while it belonged to me, I don’t have to repay the owner?
A: There is a general disagreement regarding the liability of one who receives something as a gift on condition that it is returned. One opinion is that the recipient of the gift is not responsible for circumstances beyond his control, and if for such reasons he cannot return the object intact, he is exempt (Rabbeinu Yeshaya cited in Rosh, Sukkah 3:30). Others contend that since the object was given on condition that it is returned, if it is not returned, the recipient is liable regardless of the reason. Since the condition that it must be returned was not fulfilled, the borrower is retroactively liable - similar to a thief, who, regardless of the reason why the object cannot be returned, must reimburse the owner (Rosh ibid.).
Shulchan Aruch (C.M. 241:8) rules in accordance with the first opinion: that the borrower is not liable when circumstances beyond his control prevent him from returning the borrowed object. In fact, the borrower would not even be liable if the item was stolen or lost since he is only assigned the liability of a shomer chinam (unpaid custodian) (Sma 241:21).
This means that if the borrowed lulav becomes damaged in your possession due to circumstances beyond your control, you are exempt from reimbursing the owner for his loss. However, it also means that you did not fulfill the mitzvah. Since it was given to you on condition that you return it, if it turns out that you cannot return it, the lulav was never yours and the mitzvah on the first day of Sukkos cannot be fulfilled with a lulav that one does not own. Even if you reimburse the owner or return the invalid lulav to the owner, you would not fulfill your obligation, since returning an invalid lulav does not fulfill the obligation to return it (Shulchan Aruch 658:4 and M.B. 658:13).
It must be noted, however, that according to some authorities, the halacha that exempts the borrower from liability is limited to where the lulav was given explicitly on condition that it is returned. If Reuven borrowed Shimon’s lulav to fulfill the mitzvah, although it is assumed that vis-à-vis the prerequisite that one must own his lulav, it belongs to the borrower - as far as liability for the lulav is concerned, Reuven intends to have the liability of a shomer and is thus liable.
(Nesivos 241:9; Rabi Akiva Eiger to Magen Avraham 14:8. See there for an additional rationale to limit the borrower’s liability. See also Erech Shai 340:1.)
Lost and Found #10
Q: A Rosh Yeshiva found a dirty clothing item. Must he tend to it and try to return it?
A: Although there is a prohibition to ignore a lost item, if a talmid chacham finds an item that is disrespectful for him to tend to, he is exempt from returning it. This exemption is extended to other distinguished individuals, in accordance with the circumstances. The general rule provided by the poskim is: Something that the finder would consider beneath his dignity to retrieve were it his own – he is exempt from returning to others (C.M. 263:1).
Nonetheless, it is a midas chassidus (righteous conduct) for a distinguished individual not to exempt himself. The Shulchan Aruch applies this even to a talmid chacham. The Rama does not allow him, though, because it belittles the honor of Torah; instead, he can compensate the owner (C.M. 263:3).
Some maintain that if the distinguished individual began tending to the lost item, he already began the mitzvah and is required to continue. However, the Gemara indicates that this applies specifically to animals, but not to other items, which he can put back down (C.M. 263:2; SM”A 263:4; Hashavas Aveidah K’halacha 2:11).