Paying for Unused Articles by Freelance Writers and Journalists

Rav Chaim Weg

June 10, 2020

Case: A freelance writer was approached by several editors of a publication prior to the spread of Covid-19 to write some time-sensitive articles, such as spending Yom Tov in hotels, issues of safety during Lag B’omer trips, and having small weddings vs. large weddings. However, after these articles were written, the publication could not use them anymore since the subjects were entirely irrelevant due to the restrictions and lockdowns imposed because of Covid-19.

Question: Who is responsible to bear the brunt of the financial loss in this case? Must the editors who hired the writer bear the loss and pay the writer the full agreed upon fee, or does the writer bear the loss and not receive payment for his work?

Answer: We can analyze this case using the halachic principles of sechirus poalim, employee-employer relations, since the editor hired the writer to write the article.

The Shulchan Aruch discusses two general types of models of sechirus poalim. The first one is where the employee is paid by the hour. In this case, if the employee works for a certain number of hours, he must be paid for his work, regardless of whether the employer actually benefits from the work or not. Therefore, the Shulchan Aruch states that even if someone hires another to work on an ownerless field or a field belonging to someone else, he must pay the employee for his labor. The second scenario discussed is that of a kablan, one who is paid by the job. In this context, the Shulchan Aruch (C.M. 333:8) cites the Teshuvos HaRosh that if someone hired a craftsman to build a particular type of kli (utensil) and then says he doesn’t want it anymore, the one who commissioned the craftsman is responsible to pay him (if it can no longer be sold to someone else).

It seems that our case would be more similar to a kablan, as the editor commissions the writer to write an article and will pay them by the job. Thus the editor would be chayav to pay if the article is no longer usable at this point in time.

Question: If the article has retail value, can the editor tell the writer to search for a different publication in which to publish the article?

Answer: This question is subject to a major machlokes of the poskim and depends upon why the one who commissioned the employee is chayav to pay in the case of the craftsman. If it is based upon the regular rules of the employee- employer relationship, then the reason the writer gets paid is because of the work done, and the employer must bear the loss.

But the Nesivos holds that the reason the employer must pay in the case of the craftsman is because he indirectly caused damage to the employee, known as garmi. According to his opinion, the writer would indeed be responsible to try to sell the article and see whether he can earn any profit from it. Whatever payment is still missing afterward would then be the responsibility of the editor to pay as compensation for the loss caused.

We should also point out that if there is an accepted practice in the field, the halacha would follow that practice. Therefore, where the accepted practice is that if the article is not published, the publisher pays a 50% fee, called a “kill fee,” then the editor would be obligated to pay the 50% kill-fee but no more than that.

Whose Purell Is it? Rav Chaim Weg June 9, 2020

Question: During the last few months, it has become more common to do shopping for others, such as for elderly neighbors or relatives. In one case, a person went shopping for his elderly neighbor, who gave him cash with which to purchase her products. She requested that he buy Purell for her, among other items, but he discovered upon reaching the store that a limit was imposed of one bottle per customer. The person decided that since he also needed one, he would purchase it for himself. However, he then realized that he had forgotten to bring his own means of payment, and ended up using her cash for the entire purchase (he would pay her back afterwards). The question is who actually owns the Purell according to the halacha – the person who went shopping, since he bought it for himself, or the elderly neighbor, since her money was used? Answer: According to the Torah, there is a concept known as shaliach adam k’moso, whatever is done by a person’s agent is considered as if he had done so himself. Thus, in this case, if the meshale’ach (sender) requests that the shaliach (agent) go to the store on her behalf, the moment that the shaliach picks up an item and makes a kinyan (acquisition) on it, it belongs to the meshale’ach immediately thereafter. However, in this case the shaliach clearly indicated that he no longer wanted to serve as a shaliach, but instead wished to purchase it for himself. Therefore,if he had bought the Purell with his own money, it would certainly belong to him. But since in this case he used the money of the meshale’ach, most poskim hold that the Purell enters the possession of the owner of the money that was used to pay for it. Consequently, the Purell should in fact belong to the elderly neighbor, as the shaliach was using her money. Question: Is it clear that a kinyan kesef was indeed the method of halachic acquisition? What type of kinyan indeed do we use practically when purchasing products in the store? Answer: Some poskim suggest that when one lifts a product off the shelf, it is considered a kinyan meshichah (pulling) or hagbaha (raising up). If so, then the kinyan would be effectuated before the product was actually purchased with the money, and in this case it would belong to the shaliach. But most poskim hold that the store does not transfer ownership of the product to the consumer until after one pays for it. According to this more widely accepted approach, the kinyan used would be that of the purchase money, thus in our case, the Purell would belong to the elderly neighbor, since her money was used. It should be noted though that the halacha may differentiate between a case where the owner of the store is Jewish (where the above considerations would apply) and where the owner is non-Jewish.

Business Competition During Covid-19 Rav Chaim Weg

June 8, 2020

Question: Someone has been selling masks in his development for the last several weeks. He now discovers that his neighbor is beginning to sell masks as well, and he feels that this will impact negatively on his sales. Does he have the halachic right to prevent his neighbor from selling them due to the prohibition of hasagas gevul (unfair business competition)?

Answer: In order to answer this question, we first need to review a few key points about business competition according to the halacha. The Shulchan Aruch (C.M. 156:5) rules based on the Gemara in (Bava Basra 21b) that two individuals in the same city may compete with each other for the same business market. Therefore, it is permitted for one resident of the city to open a business even though the same business already exists in the city, as both have the right to run a business in their city.

However, a number of poskim, including the Rema, Chasam Sofer (both cited in the Pischei Teshuva there), and Rav Moshe Feinstein (Igros Moshe, C.M. 1:38) rule that the aforementioned rule applies only where there is enough business for both, and the existence of the second will not force the first to close completely despite the negative impact upon its revenue. But if there is insufficient business to support both, and the first will be forced to close, then the second one may not open, and the Beis Din must force it to close.

If the first business owner can earn some profit following the opening of the second business but not sufficient profit to earn a decent living, it is still considered to be causing the first to close. Thus, even in such a case, the second would not be allowed to remain open.

Selling masks, though, would inevitably be considered an extra dimension of the business, as no one was selling masks until recently in this part of the world, and one cannot earn a living from that alone. It would therefore likely not be a case where both cannot make a profit, but rather be treated as a case where both are attempting to earn additional profit. Accordingly, it should be permitted for the neighbor to sell masks as well.

Question: Does it make a difference if the neighbor is selling masks at a lower price or selling a different type of mask?

Answer: It seems from the Shulchan Aruch that competition is always permitted if the second business sells a different product than the first, even if it will cause the first business to close. In addition, if the second business sells the same product for a significantly cheaper price, it is always permitted for it to remain open. However, if the second sells the same product for only slightly cheaper than the first, it is a machlokes whether the second may remain open if his business renders the first business non-viable. If the second business opens specifically in order to force the first to close, then all agree that it is forbidden in all circumstances to remain open, and it would be forced to close.

Bais HaVaad on the Parsha – Parshas Beha’alos’cha LEGAL HOLIDAYS

Excerpted and adapted from a shiur by Harav Chaim Weg

June 11, 2020 http://baishavaad.org/wp-content/uploads/2020/06/BAM80_003_Behaaloscha_Are-You- Ready-Learning-Hilchos-Pesach-Before-Pesach.mp3

In the second month, on the fourteenth day in the afternoon they shall make it.

Bemidbar 9:11

The Gemara (Pesachim 6a) says that sho’alin v’dorshin b’hilchos Pesach (we ask and expound about the halachos of Pesach) for thirty days beforehand. The Gemara explains that the source is in our parsha, where Moshe teaches the halachos of Pesach Sheini while it was still Pesach Rishon, which is thirty days prior. The Bais Yosef (O.C. 429) asks that the Gemara in Megilla 32a states that Moshe instituted that we expound the halachos of each chag during the chag, not beforehand, which appears to contradict the Gemara in Pesachim.

The Bais Yosef’s first answer is that the primary obligation to darshen the halachos of Yom Tov is on the Yom Tov itself, as per the Gemara in Megilla. The Gemara in Pesachim, though, is referring to when two people are asking questions, only one of which pertains to Pesach, and the Gemara is saying that we address the one related to the chag first. But there is no obligation to study the halachos beforehand. According to this answer, the halacha does in fact apply to all holidays.

The second answer of the Bais Yosef is that Pesach is different from the other holidays because it has many elements that must be studied beforehand, such as destroying chametz and baking matzos. According to this answer, the halacha applies to Pesach alone.

Q&A From the Bais HaVaad Halacha Hotline Minyan Money

Harav Chaim Weg

June 11, 2020

Q: While davening at a backyard minyan, I noticed a man searching frantically in the grass under his chair. When he stopped, I heard him mutter, “The $500 is gone forever.” He then left early. I searched the area and found five well- camouflaged hundred-dollar bills in the grass. To whom does the money belong?

A: Because the owner experienced yiush (loss of hope of retrieving his money), he no longer owns the money.

When a hefker (ownerless) object enters someone’s property—even if he’s unaware of it—the property automatically acquires it on his behalf via kinyan chatzer, provided the property is a chatzer hamishtameres, i.e., the item is secure and protected within it. Nevertheless, it would seem that for two reasons, kinyan chatzer wouldn’t work in this case, even though a fenced-in backyard would qualify as mishtameres:

First, because the money entered the chatzer prior to the yiush, the chatzer wouldn’t acquire it for him. (See explanation in Shach 268:2 and Nesivos Hamishpat 262:1).

Second, the Mishnah states that one who finds a lost object in a store may keep it. The Rishonim ask, why doesn’t the property owner automatically acquire it with chatzer before it is found? They answer that the traffic of patrons makes the store not mishtameres, because anyone could happen upon the object (Tosafos, Bava Metzia 26a; Shulchan Aruch Choshen Mishpat 260:5). Similarly here, it would appear that during minyan times, when a crowd is present, the chatzer is not mishtameres.

Based on the above, the money would legally be yours to keep as the finder. However, Chazal recommend that in a case like this, where the finder knows who lost the item, he should go lifnim mishuras hadin (beyond what the halacha requires) and return it, unless the loser is rich and the finder is poor (Shulchan Aruch Choshen Mishpat 259:5).

Going Public: Unauthorized Disclosure in Halacha May secrets be revealed for the public good?

Adapted from the writings of Dayan Yitzhak Grossman

June 11, 2020

In the previous issue (tinyurl.com/y7ergrhk), we noted that software-based contact tracing of those infected by COVID-19 might entail privacy violations, and we discussed some halachic guidelines for the balancing of privacy rights against other considerations.

One context in which privacy rights are set aside for the benefit of the public welfare is mamzeirus. To prevent the illegal intermarriage between mamzeirim and non-mamzeirim, a mamzer’s status was deliberately publicized at his bris,[1] he was given the name Kidor to indicate his status,[2] and there is even an opinion that the word “mamzer” should be branded on his forehead![3] (These practices are not generally followed today, perhaps because reliable and durable record keeping has rendered them unnecessary.[4]) In the same vein, the standard sanctions for public humiliation are not imposed upon someone who truthfully calls another a mamzer,[5] and some Acharonim explain that this is because publicizing mamzeirus is a mitvzah.[6] There is an opinion that extends this to the exposure of an individual’s past criminality, since disclosure of such information is also in the public interest, both because criminal behavior disqualifies someone from giving testimony or taking an oath and because the public may reasonably wish to be wary of someone with such a past.[7] Others disagree and assert a “right to be forgotten,” particularly when the infraction occurred “a long time ago” in the perpetrator’s youth and his current conduct is upstanding.[8]

Similarly, there is extensive discussion in the poskim over the text of the kesubah for a woman who is a be’ulah but wasn’t previously married. Some rule that the explicit term “be’ulah” should be used, to publicize the fact that the woman is prohibited from marrying a kohein. Others argue that this goal can be accomplished by simply omitting the standard term “besulah,” or by substituting a variation such as “kalsa,” “arusah,” or “ulemta,” which will be sufficient to indicate that she is not a besulah, and it is unnecessary and therefore wrong to publicly shame the woman. If the bo’el was someone who does not render the woman prohibited to a kohein, and certainly if it was the groom himself, some poskim even allow the use of the term besulah, since in those cases there is no public benefit to exposing her conduct. But most poskim object to such explicit falsehood and recommend the substitutes mentioned above, with some maintaining that “beulah” should be used even in this case.[9] The halachic discussion most relevant to our context of COVID-19 contact tracing comprises various responsa concerning the disclosure of private medical information to forestall harm to others:

R’ Yaakov Breish obligated a physician to violate medical confidentiality and disclose his patient’s terminal cancer (of which the patient himself was unaware) to his fiancée, due to the prohibitions of lo sa’amod al dam reiecha (do not stand by your fellow’s blood) and lifnei iver lo sitein michshol (before the blind do not place a stumbling block.[10] R’ Eliezer Yehuda Waldenberg and R’ Ovadia Yosef obligate physicians to violate medical confidentiality and disclose their patients’ medical conditions to the authorities when necessary to forestall harm to the public, e.g., to prevent an epileptic from driving a motor vehicle,[11] or to stop a vision-impaired person from driving, engaging in industrial work, or registering for military service.[12] R’ Shlomo Zalman Auerbach reportedly maintained that disclosing illnesses in appropriate circumstances is permitted but perhaps not mandatory.[13] On the other hand, he also reportedly maintained that a person’s positive HIV status must be disclosed to his or her spouse.[14] R’ Asher Weiss discusses the case of a young man diagnosed with a dangerous but treatable heart arrhythmia, which was apparently a genetic disorder. He considers whether the parents are obligated to inform the young man’s cousins so that they, too, can be tested for the problem and treated if necessary. He concludes that it is difficult to formulate a clear halachic rule, since it is hard to properly assess the level of danger to the cousins and to determine the correct balance between that danger and the concern of the family for the infringement of its privacy. The correct course of conduct, he says, is to privately inform the cousins and request that they keep the information secret. With regard to a physician’s responsibility, R’ Asher Weiss declares that halacha recognizes no unique confidentiality obligation of physicians beyond that of everyone else. In general, forestalling danger to others overrides privacy concerns, and while as above, in this case the level of obligation is unclear, once again the correct course of conduct is to give the cousins the chance to get tested for the condition. While the physician is not obligated to expose himself to litigation and professional discipline and risk his livelihood by violating medical confidentiality, he should ideally devise a way to warn the cousins without breaching his confidentiality obligations.[15]

[1]Rama Y.D. 265:4 (citing Maharil).

[2]Taz ibid. s.k. 8 (citing Maharil).

[3]Shu”t Zera Emes cheilek 3 siman 111, cited in Darchei Teshuvah Y.D. siman 180 s.k. 1.

[4]See Shu”t Bnei Vanim cheilek 4 siman 24.

[5]Rama C.M. 420:38.

[6]Shu”t Chavos Yair siman 62 and Shu”t Shevus Yaakov cheilek 1 siman 179, cited in Pis’chei Teshuvah ibid. s.k. 7.

[7]Erech Shai ibid. and Shu”t Teshuras Shai (kama) siman 336.

[8]Chavos Yair and Shevus Yaakov ibid.

[9]See Otzar Haposkim E.H. Vol. XVII siman 66 s.k. 145-146.

[10]Shu”t Chelkas Yaakov E.H. siman 79

[11]Shu”t Tzitz Eliezer cheilek 13 siman 81 os 2.

[12]Ibid. cheilek 15 siman 13 os 1. In both these cases, Rav Waldenberg rules that the physician is obligated to violate medical confidentiality despite having taken an oath to uphold it. See also cheilek 16 siman 4.

[13]Cited in Nishmas Avraham (Second Expanded Edition) E.H. p. 61.

[14]Ibid. p. 63.

[15]Shu”t Minchas Asher cheilek 2 siman 127. For extensive discussion of medical confidentiality and halacha, see the entry for Sodiut Refuit in the Encyclopedia Hilchatit Refuit.

Bais HaVaad Halacha Journal Parshas Naso Click below to print the Parshas Naso PDF

Parshas Naso Print Version Wedding Hall Cancellations in Light of Covid-19 Rabbi Baruch Meir Levin

Question: Someone rented a banquet hall for a bar mitzvah but was then unable to have the event due to the governmental restrictions on public gatherings as a result of Covid-19. Can he get his deposit back according to the halacha?

Answer: As we mentioned in the previous session, there is a discussion among the poskim whether a landlord can keep a deposit in a rental if the tenant could not make use of the property due to a major catastrophe.

However, some dayanim feel that a simcha hall rental is different and there is no basis for the hall to keep the deposit (and certainly not the entire fee, if paid in advance). Their reasoning is that the use of the hall is not an actual property rental.

For example, if one rented a hall in Eretz Yisrael, (where a tenant is obligated to put up a mezuzah on the first day) we would not say that he is obligated to put up a mezuzah (if it did not have one beforehand).

Rather, one is simply paying to have the right to hold an event there, similar to buying a ticket to a museum, which gives one the right to enter the museum without transferring ownership in any way. Therefore, there is a strong argument to be made that just as a museum that was closed due to Covid-19 would certainly refund the ticket, so too the hall should be required to refund the deposit.

Question: What is the status of a deposit made to a caterer? Must this deposit be returned?

Answer: There is even less basis for a caterer to keep a deposit than the simcha hall, where one could possibly make an argument for the hall to keep it. If the caterer was not able to provide food for an event, there is no reason for the caterer to be allowed to keep the deposit.

The only exception might be if the caterer already spent money to purchase some of the necessary goods or foods in advance. With regard to these expenses already entailed, one could make an argument that the ba’al simcha should be liable for these expenses, which were incurred on his behalf.

Typically, in a case of cancellation where it is not one’s fault at all, one would not be obligated to reimburse the caterer for such expenses, since it is garmi b’ones (indirect damage caused not through one’s own fault). But in the case of a deposit, perhaps it is different, as the purpose of a deposit may be to ensure that the caterer feels secure in purchasing necessary items despite the fact that the strict halacha might not allow for compensation in cancellations. Due to the complexity of the issue, one should ask a shaila about this point.

Question: Would the halacha be different if there is one package for the hall, caterer, and other services, such as a musician, all together? Answer: Even in this case, the contract often breaks down each of the components into a separate fee, and the halacha would therefore view each of them differently as well, in line with the guidelines discussed above. If the same person actually provides all the services together and its truly one bundled fee, a shaila should be asked.

BAIS HAVAAD ON THE PARSHA, PARSHAS NASO FIRST OF FENCE

Excerpted and adapted from a shiur by Dayan Yitzhak Grossman

June 4, 2020 http://baishavaad.org/wp-content/uploads/2020/06/BAM80_002_Nasso_Abundance-of-C aution-Nazir-and-Other-Gezeiros-in-the-Torah.mp3

And grapes, fresh or dried, he shall not eat. (Bemidbar 6:3)

Why does the Torah forbid a nazir to eat grapes and not just to drink wine? The Midrash (Bemidbar Rabbah) explains that by forbidding the consumption of grapes, the Torah is creating a syag (fence) for the nazir, to distance him from the prohibition of drinking wine. Avos D’Rabbi Nasan and the Midrash here say that the prohibition of lo sikrav, barring close contact with a forbidden woman, is another example of a Biblical syag.

However, some mefarshim argue that there is no such concept as a syag de’Oraisa. The Rashbatz says the Torah legislates prohibitions, not gezeiros to distance us from prohibitions. The Sdei Chemed agrees but suggests that an exception is made in the cases of nazir and nida because they both were previously permitted, so there is greater concern that one will sin.

Rabbeinu Yonah in Sha’arei Teshuva argues that these examples do indeed demonstrate that the Torah institutes gezeiros. R’ Yosef Engel also suggests numerous examples of apparent gezeiros in the Torah. For instance, the prohibition of yichud (seclusion with a woman) is assumed by many Rishonim to be de’Oraisa, and the Sefer Hachinuch explains that the purpose of yichud is to prevent gilui arayos (illicit relations).

Q&A from the Bais HaVaad Halacha Hotline A CONFLICT OF INTEREST

June 4, 2020

Q: I am a residential landlord. When a tenant signs a lease, he provides me with a security deposit, which I am legally required to deposit into an interest-bearing escrow account. I confess that I often didn’t do so and instead used the funds for my own expenses. (I wasn’t concerned about coming up with the money to return to the tenant at lease end, because I have sufficient cash reserves.) I regret this and would like to return a now-departing tenant’s deposit with the interest it would have earned had I escrowed it. Is this a problem of forbidden interest, considering that this tenant is Jewish?

A: You are indeed correct; this would be a violation of ribbis. You effectively borrowed the money from your tenant (see Shulchan Aruch Y.D. 168:13), so returning more than you borrowed constitutes ribbis. Hence you may not pay the interest, and you must seek a way to avoid it. If the tenant isn’t religious and will forcibly require you to pay, many poskim would allow you to do so if you tell him that you aren’t giving the excess as an interest payment but to protect yourself.

There are poskim that allow an alternate resolution: Share your dilemma with someone you’re close with, and tell him that if a friend would pay the tenant, in your stead, the deposit principal plus the owed interest, that would resolve the issue. You may commit to reimburse the hypothetical donor (don’t say “you”) for the principal, but you can’t mention that you will reimburse him for the interest. This way, your friend will pay your debt, but not as your shaliach (proxy). You also may not inform the tenant that your friend will be paying the interest on your behalf. Later, you could repay your friend the principal you committed to pay as well as the interest that you didn’t (see Sefer Mishnas Ribbis, Perek 1, footnote 16).

Note that you may not repeat this routine with the same friend, as after he has completed the process once and been reimbursed, were you to approach him again with a similar request it would be akin to asking him directly.