Advertise on podcast: Business Halacha Daily

Questions? Comments? We love feedback! Email us at [email protected] Question: What can a shul or mikvah do if it finds itself overloaded with aveidos that people left there? Answer: If they already have been koneh it, they are stuck with it. However, if whoever has jurisdiction over the premises had in mind not to acquire it, and it is only picked up after the person who left it there is meya’esh, they can keep it. However, that is often not the case. Often, whoever left it there completely forgot about their item, without ever being meya’esh. Going forward, some Poskim suggest that the problem can be rectified by putting up a sign that anything left on the shul property becomes hefker after a reasonable amount of time. This would only work if the sign is hung in a prominent place so that people know it is there and presumably agree to abide by it and allow their items to become hefker.  Furthermore, the sign would only work for things that are normally left behind. If someone’s passport fell out of his pocket and got lost, it would not become hefker, because the sign would not absolve the shul from returning things that the owners wouldn’t expect to leave behind. For such things, they would have to be returned like a regular aveidah.

Questions? Comments? We love feedback! Email us at [email protected] Rav Baruch Fried Question: I was in a supermarket and found $10 in front of the customer service counter. I picked it up, saw that there was no siman, and was about to take it for myself. The storeowner saw me pick it up and said that it belongs to him since it was found on his property. Do I have to give it to him? Answer: If the money was behind the counter – in the place where customers do not normally go – it would belong to the storeowner because his chatzer would acquire it for him. However, if the money was found in front of the counter – in a place where there are customers – the Mishnah says that the finder can keep it if it can be assumed that the owner was meya’esh before he picked it up. The Rishonim explain that the store’s chatzer is not koneh because it is not protected, and only a protected property is koneh items without the owner’s knowledge. Other Rishonim explain that the chatzer is not koneh because the owner was not yet meya’esh when the item first fell there, as he obviously wasn’t yet aware that he dropped it. By the time the finder picked it up, however, the owner was already meya’esh, so he is allowed to keep it.

Questions? Comments? We love feedback! Email us at [email protected]   Question: In my development, there are many scooters, coats, toys, etc., which were obviously dropped by children. Do I have to pick up and return all of these lost items? Answer: The truth is that anything knowingly entrusted to a child has the status of an aveidah m’daas. The Mishnah in Bava Basra (87b) discusses a case where a parent sends a child with a jug to purchase oil from a storekeeper. If the jug falls and breaks on the way home, the Mishna says that the storekeeper is liable to pay for it. The gemara there explains that if the storekeeper would have simply filled the jug and sent the child on his way, he would not be liable. The reason the Mishnah says he is chayav is that it is specifically referring to a case where the storekeeper first used the jug for his own purposes, thereby becoming a shoel shelo m’daas. Since a shoel shelo m’daas is considered a gazlan, the storekeeper now has an obligation to return the jug to its owner. If it breaks before being returned, he is liable. Both the Ketzos Hachoshen and Nesivos Hamishpat conclude from this sugya that one is not obligated to protect something that a parent entrusts to a child. Although one cannot take the item for himself, he also is not responsible to guard it. If the parents entrust an item to the child, no one else is obligated to protect it any better than they did. If the parents know that a child may lose or break an object they give to him, and they decide to give it to him anyway, they have accepted that something may happen to the object and no one else is responsible to do more than they did by returning the object to them.  Therefore, one would not be obligated to return a coat, toy, or scooter that was given to a child. Of course, if the object is in a place where someone may trip over it he should move it to the side, but there is no mitzvah of hashavas aveidah. Question: What if someone already picked it up? Answer: He can still put it back down. It is clear from the Rishonim there that when parents entrust an object to a child, they accept that no one is obligated to return it to them, even if they already picked it up.

Questions? Comments? We love feedback! Email us at [email protected] Rav Baruch Fried Question: A man has a private jar of coffee, which he keeps in shul. One day, I see him taking a cup of coffee and leaving his jar on the counter. I know that other people will assume it is there for the public and will take some. Do I have an obligation of hashavas aveidah to put away the coffee for him? Am I permitted to take some for myself?  Answer: If the coffee was left out by mistake, there certainly is a mitzvah of hashavas aveidah to put it away or notify the owner. If it was left there on purpose, it has the status of an aveidah m’daas. The Rambam says that if someone throws his wallet into a public street, you are not allowed to take it for yourself but you also have no obligation to return it because you don’t have to be more prudent with someone else’s money than the owner himself is. The Tur argues and says that, in such a case, the wallet becomes hefker and you are permitted to take it for yourself. The Shach rules in accordance with the Tur, and the Rema also seems to pasken like the Tur. Accordingly, if someone leaves his coffee in a place where he knows others might help themselves to it, Ashkenazim may rely on the Rema and Tur, and they may take some. Of course, if someone wants to be machmir like the Rambam, this would be commendable.

Questions? Comments? We love feedback! Email us at [email protected] Rav Baruch Fried Question: A fellow is walking in a totally non-Jewish neighborhood and finds a pocketbook. It contains a lot of cash but no credit cards or ID. It does, however, contain a “mitzvah note” signed by “Mommy”. Is he allowed to keep it? Answer: Generally, if one finds an aveidah in an area that is primarily frequented by Akum, he can assume that the owner was meya’esh and gave up hope of ever getting it back; therefore, he may keep it even if it has a siman. In this case, however, it is probable that the pocketbook was lost by a married Jewish woman. This leads to the question of whether a married woman, whose possessions technically belong to her husband and not herself, has the ability to relinquish ownership by being meya’esh. There is a well-known story in which a Jewish woman lost a large sum of money in a public marketplace. The Jew who found it claimed that he was allowed to keep it because the majority of people in the marketplace were non-Jews. However, Rav Yitzchok Elchonon Spector ruled that he must return it because a married woman cannot be meyayesh on something that belongs to her husband.  There actually is a machlokes Acharonim about this, and the Nachalas Tzvi rules that a married woman can be meya’esh. If so, we might ask why Rav Yitzchok Elchonon was so firm in his ruling that the money had to be given back. I believe the answer is that even after yiush, there is a halacha that an aveidah should be returned lifnim mishuras hadin. There is a machlokes whether someone can be forced to go lifnim mishuras hadin, but most Poskim agree that one can be verbally pressured to do so. My theory is that in this case, when it was clear that the woman had lost this money, Rav Yitzchok Elchonon was pressuring the man to return it, as he at least had an obligation to give it back lifnim mishuras hadin. Similarly, in the case of the pocketbook, if it can be clearly established who the owner was, one should return it lifnim mishuras hadin.

Questions? Comments? We love feedback! Email us at [email protected]

Questions? Comments? We love feedback! Email us at [email protected]   Rav Baruch Fried Question: Someone lost an item, which was worth a significant amount of money. His neighbor later revealed to him that he had seen the item on the street but didn’t bother to pick it up. This individual wants to take his neighbor to a din Torah for causing him a loss by not performing the mitzvah of hashavas aveidah. Does he have a case? Answer: The Shulchan Aruch (OC 443) says that if someone is a shomer on his friend’s chometz, he should sell it before Pesach so that his friend doesn’t suffer a loss. The Mishnah Berurah says that the obligation to sell the chometz is based on the mitzvah of hashavas aveidah. He says that if the shomer doesn’t sell it, he is not liable because there is no source in halacha that someone is obligated to pay for not performing this mitzvah. Accordingly, a beis din would not take this case and make someone liable for not fulfilling the mitzvah of hashavas aveidah. We do, however, find in the Ramban’s Dinah D’Garmi that he gives hashavas aveidah as an example of something that is not a din mamon, so it does not fall under the category of garmi. This seems to indicate that although it is not garmi, it is a grama, which bears a chiyuv b’yedei shomayim. Accordingly, in such a case it would seem that the neighbor should offer his friend something to make amends for having caused him the loss, even though he is not liable in dinei odom.

Questions? Comments? We love feedback! Email us at [email protected] Rav Baruch Fried Question: Someone is walking in the street on Shabbos and finds a large sum of money with a siman. What should he do? Answer: The Mishnah Berurah clearly says that if one finds money on Shabbos with no siman, he is not allowed to take it for himself. Although there are certain leniencies that apply in cases of a large monetary loss, those leniencies do not apply when one wants to take ownership of money that he didn’t previously have. If the money has a siman, the question would be whether the obligation of Hashavas Aveidah takes precedence over Shabbos. Assuming there is an eruv, the specific prohibition under discussion is that of muktzah, which is a d’rabanan. Still, the consensus of the Poskim is that we do not override a d’rabanan to allow someone to fulfill a mitzvas asei d’ohraysa like Hashavas Aveidah, therefore, one cannot pick up the money. Furthermore, the Poskim write that he has no obligation to sit and watch it until Shabbos is over.  What if the lost item is a “kli shemilachto l’issur” (an item that is muktzah because its primary use is for a purpose that is forbidden on Shabbos)? The general rule about kli shemilachto l’issur is that one may not move it for its own sake, but one may move it “l’tzorech gufo”, to make use of it for a permitted purpose. One could argue that doing a mitzvah with the item is considered “for its use”. Regarding hashavas aveidah however, the Chasam Sofer says that if one wouldn’t be allowed to move the item if it belonged to him, he wouldn’t be obligated nor allowed to move it in order to return it to someone else. Rav Shlomo Zalman Auerbach explains further that if Hashavas Aveidah would be permitted for a kli shemilachto l’issur, a bizarre situation would be created wherein a person would not be permitted to move his own muktzah object to protect it from getting ruined, but he would be allowed to tell his friend to move it to save him from a loss, as this would be a case of Hashavas Aveidah. Accordingly, we have to say that if it is forbidden for the owner of an object to move it, the finder of the object also cannot move it. He can leave it where it is, and he has no obligation to watch over it until after Shabbos.

Questions? Comments? We love feedback! Email us at [email protected] Rav Baruch Fried Question: Reuven is walking in the street in a place where no Jews live and he finds a book. On the inside cover, he sees a name and phone number. Does he have to return the book to its Akum owner? Answer: The Torah commands us to return lost objects to their owners; however, this is limited to our Jewish brethren, and this commandment does not apply to items lost by an Akum. Accordingly, if the finder wants to keep the object, he may do so. If he specifically wants to return it, he runs up against two serious problems. Firstly, there is a prohibition of “lo sichanem”, which means that it is forbidden to give gifts to an Akum. Secondly, it is prohibited to return a lost object to an Akum. The Rambam says that the reason for this is that one who does so would be helping a sinful person. According to Rashi, the reason is that doing so is belittling the mitzvah of Hashavas Aveidah. One is supposed to return a lost object because the Torah commands us to give it back. If he shows a willingness to do so even when there is no commandment from the Torah, he is showing disrespect to the mitzvah. Now, the Shulchan Aruch states that if one wants to return a lost object to an Akum in order to make a kiddush Hashem, he is permitted to do so. According to the Gra, this is based on a story about Rav Shimon ben Shetach. The story is cited both in the Yerushalmi and the midrash Yalkut, but with a slight variation. The story goes that Rav Shimon’s students purchased a donkey on his behalf from a non-Jew, and they found a precious stone hidden on it. He returned the stone to the non-Jew from whom he made the purchase. According to the Yerushalmi, he said that he returned it in order to make a Kiddush Hashem. According to the Yalkut, he said to return because, “I bought a donkey, not a precious stone”.   It would seem that we actually need both of these reasons. If he actually took possession of the stone, he would not have been permitted to return it, as this would be a transgression of “lo sichanem”. To counter this problem, he said that he only bought a donkey, and never intended to take possession of the stone. Still and all, he needed the reason of Kiddush Hashem to permit him to return this lost object to the non-Jew. Having said this, it would seem that if Reuven would want to make a Kiddush Hashem by returning the book, he definitely may do so, and it would be a beautiful thing to do. People should be aware, however, that there are times when people think they are making a Kiddush Hashem when they actually are not doing that at all. For example, when one calls a multimillion-dollar company to return a small amount of money, and they are connected to a sales representative, the sales rep will often have no idea what they are talking about. To this end, the teshuvas Sdei Ha’aretz says that one must be careful not to cause a Chillul Hashem by returning a lost item. Accordingly, one should weigh the situation carefully before acting. In this particular case, it would seem to be a very nice Kiddush Hashem to return the book.

Questions? Comments? We love feedback! Email us at [email protected] Rav Baruch Fried Question: Yankel was shopping in Walmart. When he gets back to his car, he sees that the parking spot next to him is empty and there is a Walmart bag with some items in it lying on the ground in that spot. Obviously, someone forgot it there. What is the halachic status of this bag? Answer: We have to deal with two possibilities: either the bag was left there by a Jew or it was left there by an Akum. If it was left behind by an Akum, there is no obligation to return it. But if it was left by a Jew, there may be an obligation of Hashavas Aveidah. However, since the items just came out of the store, there would be no siman on them, so we can assume that the loser would be meya’esh if he knew that he dropped the bag, as there is very little chance the items would ever be returned to him. Having said this, we still don’t know if the loser is aware that he lost the bag. If he is not aware of this, the items would have the status of “yiush shelo m’daas”, which means that the finder cannot take them for himself. If the majority of people in the area are Akum, one can reasonably assume that the bag fell from an Akum. However, the Taz says that the fact that most people in a vicinity are not Jewish does not suffice to permit one to keep a found item. He says that according to the rule of efsher livrurai, if it is possible to find out if the one who lost it was a Jew or not, one can’t rely on the majority of people being Akum as a justification to keep such an item. Many Acharonim, however, disagree with this Taz and say that one may keep an item found in a place that is frequented mostly by Akum.

Questions? Comments? We love feedback! Email us at [email protected] Rav Yosef Dovid Josilowsky Question: A man told his new son-in-law that he would give him a silver menorah for Chanukah. As Chanukah approached, he no longer wanted to give the gift, but he gave it anyway because he had already given his word. Can he later claim that the gift was invalid because he was giving it under duress? Answer: If he merely said that he would give the menorah, it would not be considered an oath that requires him to do so. At most, it would be what is called an “unso d’nafshei”, meaning that he pressured himself into giving it against his will so to speak. The Gemara says that “unso d’nafshei” is not sufficient grounds to be mevatel a matanah. The Gemara talks about a case of a man who wanted to marry a woman, and she said that she would only marry him if he gifted her a certain item. Under duress, he agreed to give her that gift. When his children protested, he clandestinely gave the same item to them as a present as well. The Gemara says that his giving it to his children demonstrates that he only gave it to the woman because he felt pressured to do so. Since this is clear from his actions, the matanah is batul. Based on this Gemara, the Rishonim rule that a gift can be invalidated if it is clear from the circumstances that it was only given under duress. Otherwise, the gift is valid even if he was feeling pressured to give it. If the father-in-law had made an oath to give the menorah, there might be grounds to annul the matanah. The halacha is that a get given after someone made a shavuah to give one is not valid. For this reason, we are matir neder before a get is given to ensure that it is not considered to have been given forcibly. However, the Nesivos writes that this only applies to a get, and not to a matanah. The Rambam says that a person needs “ratzon” when giving a get, which means he has to give the get solely because he no longer wants to be married to this woman, and not for any other reason. If he is giving it in order to fulfill his oath, it is invalid. A gift, however, does not need specific ratzon. As long as it is not given as the result of an oness, it is valid. Therefore, a matanah given to fulfill a oath is valid. Other Acharonim disagree and say that a matanah also needs ratzon, just like a get, and if it is given in fulfillment of an oath, it too is not valid.

Questions? Comments? We love feedback! Email us at [email protected] Rav Yosef Dovid Josilowsky Question: Two partners want to dissolve their partnership but are unable to come to terms on an agreement. One of them tells the other that if he doesn’t agree to his terms, he will sue him in court. The other partner doesn’t want to waste time and money in court so he agrees to sign, but he is issues a Modaah before signing. Is that mesiras Modaah valid? Answer: This seems to be a case that would be considered a mechira, a forced sale agreement that, without a Modaah, would be valid. The question is if it could be considered a Modaah of a true oness, a real duress which would invalidate it. The early Achronim discuss whether a threat to turn to a secular court is considered a real duress, because we don’t know if the party will seriously take his adversary to court, and even if he does take that course of action, it is far from certain whether he would win or lose in court. On the other hand, we previously mentioned the opinion of the Maharsham, who says that the threat of dragging someone to court and forcing him to spend a lot of money on legal expenses is already a real threat, even if he may ultimately win.  Furthermore, the Maharchash says that if a Modaah is made in reaction to such a threat, the very fact that one party found it necessary to make the Modaah proves that he felt threatened and forced to agree with the settlement. This would demonstrate that the transaction was done under duress and negate it. Accordingly, the best thing to do would be to have the witnesses write exactly what happened and give this over to the bais din. They will then determine, based on the specifics of the case, whether it qualifies as an oness that could overturn the settlement.

Questions? Comments? We love feedback! Email us at [email protected] Rav Yosef Dovid Josilowsky Question: I want to reach a settlement with someone but I am worried that he will make a Modaah that will invalidate the entire deal. How can I protect myself from someone using the halachos of Modaah to negate a legitimate transaction? Answer: The Mahari ben Lev writes that the way to write an agreement that would be protected from a previous Modaah is to incorporate four things in the document: The party should admit that he made no previous Modaahs.Bittul Modaah: It should be declared that all previous Modaahs are batul and what is said today will override anything from the past. The Rosh rules that bittul Modaah is effective, and even if the Modaah states that it is meant to be mevatel a bittul Modaah, the bittul Modaah can be mevatel that too.The Rambam argues with the Rosh and rules that a bittul Modaah does not work; however, even the Rambam agrees that one can make a declaration that: “Anything I previously said that could be undo this transaction is now batul.” Once one makes this statement, all previous Modaahs are canceled. Therefore, this declaration should also be included in the shtar.The Rashba says that a solution to protect oneself from Modaahs is to invalidate the witnesses on the Modaah by saying that the party admits that any witness on a modaah is [as far as they are concerned] an invalid witness. This solution of invalidating the witnesses should be used in the shtar as well.An additional two ways that are commonly used to work around the power of Modaah in a settlement are as follows: In the agreement, they include a clause that any further disputes must be brought back to the same place where the settlement was made. This would mean that it would be nearly impossible to overturn, as any future complaints must be brought to the same body that issued the settlement.The agreement states that the claimant agrees to a “kabalas daas yachid”, meaning that any halachic opinion that validates the settlement must be adhered to. As we mentioned in a previous segment, the Maharashdam is of the opinion that a settlement cannot be invalidated by a Modaah. According to his opinion, the settlement is certainly valid. If the claimant agreed to abide by any opinion that validates the settlement, he will have to accept the Maharshdam’s view.

Questions? Comments? We love feedback! Email us at [email protected] Rav Yosef Dovid Josilowsky Questions: Two individuals have a din Torah and the Dayanim rule in accordance with one of the parties. Afterward, the one who lost the din Torah tells the winner privately that if he doesn’t agree to a compromise settlement with him, he will go to a secular court and have the bais din overruled. Under duress, he agrees to the settlement, but before signing, he issues a Modaah that he does not really consent. Will this Modaah negate the settlement? Answer: Since the individual was given a clear ruling from bais din, there is no ambiguity regarding the amount he is entitled to. Therefore, any settlement he agrees to has the status of a matanah, a gift to the other party. Accordingly, a Modaah should definitely work to negate the settlement. In truth, the mere threat to go to court may not always be considered a real oness. Because neither side can be certain that they will win in court, we cannot automatically assume that the threat is serious enough to deem the settlement a forced one. Moreover, generally speaking, overruling the mutually agreed-upon arbitration of a bais din in a secular court is very unlikely.  Having said this, if the person did go to the effort of issuing a Modaah, this indicates that he did feel pressured by the threat of going to court and the Modaah probably would work to cancel the settlement. Additionally, nowadays the expense of being taken to court and having to hire lawyers is in itself a very real threat, even if the outcome is uncertain. The Maharsham writes that even in his times, it had become common for litigants to turn to the secular courts even if they were unsure of the outcome. They did so because they knew that the court system is expensive and time consuming, and they hoped to wear down their adversary until he finally gave in to their demands. Therefore, he says that a threat to go to court could be considered a viable threat and it is certainly something that a Modaah would work for, even in a case of mechirah.

Questions? Comments? We love feedback! Email us at [email protected] Rav Yosef Dovid Josilowsky Question: Yankel is building an extension on his house and he hires a contractor to do the job. They agree that Yankel will pay cost price plus 15%. When the job is 75% completed, the contractor tells Yankel that his costs have gone up and he can only finish the work if they raise his rate to 20%. He says that he will not finish the extension unless they sign a new contract with the new terms. After the job is completed, Yankel comes to bais din with a Modaah that says that he was forced to sign the new contract and never really consented to it. Does he have to pay the contractor 15% or 20%? Answer: Bais din will assess whole situation to determine if the Modaah was warranted. It happens to be that, in this case, there is a possibility that no Modaah is needed at all. The halacha is that although a worker is usually allowed to back out of a job in the middle of the work, if it is a “davar ha’avid” (a matter that will cause the employer a large loss), the employer is allowed to trick the worker in order to convince him not to leave. He is permitted to do this by promising to pay him more, even though he has no intention of doing so. If it would be determined that this is a case of a davar ha’avid, Yankel would not be beholden to the new terms, even if he hadn’t been moser Modaah.   On the other hand, there are cases where a worker has a legitimate complaint and is permitted to change the terms of a payment agreement. If that is the case here, he is not asking Yankel for a matanah; rather, this case would be comparable to a case of a sale, where each party is receiving something from the other. As we have said, a forced sale is valid, which would mean that Yankel would be beholden to the new terms and bais din would have to sit down and determine whether a Modaah could work in this instance to prove that he was forced into it. Another factor to consider is that some Acharonim say that a forced sale is only valid if it is an actual sale and not merely a “hischayvus”, where one party obligates himself to give something to the other. As we said, the reason a forced sale is valid is because we assume that the seller really does consent to sell when faced with the threats of the buyer; however, this reason may not apply in the case of a hischayvus, where the seller is not really receiving anything and, therefore, may not really consent. The Chochmas Shlomo uses this idea to explain the Gemara that says that Klal Yisroel has a “modaah rabbah l’ohraysa”, meaning that we can say that we were forced to accept the Torah. Although a forced sale is valid, this is still a good claim because receiving the Torah was a hischayvus, not a sale.