Reuven recently became engaged to be married, and is interested
in purchasing electrical appliances for his new home. He heard about a
store in another city that for one day is offering a substantial
discount on the appliances that Reuven and his bride are interested in
purchasing. Reuven's friend Shimon happens to be going to that city on
the day of the sale.
Reuven asked Shimon to please go to that store during the time of the
sale and purchase the appliances for him. Shimon agreed. Reuven gave
Shimon cash to make the purchases. After Shimon traveled to the other
city, he procrastinated and did not arrive at the store in time to
benefit from the sale. As a result, Reuven now must pay full price in
order to receive the appliances in time to set up his new home.
Reuven was late for work. He asked Shimon, who was going to the post
office, to do him a favor and mail a check which was payment for a bill.
Shimon agreed. Then, Shimon decided not to go to the post office that
morning, and waited a week before actually mailing the payment. Because
of this, Reuven was obligated to pay a penalty for late payment of his
In the above two situations, does Shimon have any liability for causing
Reuven additional expense through his negligence?
In the first situation, Shimon is not obligated to compensate Reuven
for his additional expense at all. However, Reuven has legitimate
complaints and grievances (Taromes- see below) against Shimon.
In the second situation, Shimon is obligated to compensate Reuven for
the additional expense incurred to him as a result of failing to mail the
payment when he agreed to mail it.
To understand the following discussion we must understand the following
three concepts in the Halachos of Nezikin (torts).
Mazik - Someone who directly inflicts damage or injury on his friend
is obligated to compensate him for the damage incurred. It makes no
difference if the damage was inflicted intentionally or unintentionally.
Gramma - Someone who indirectly causes damage to his friend. In these
cases, although it is forbidden to cause such damage, a Bais Din has no
authority to force the damager to pay for the damages, except in certain
situations called Garmi. (This is discussed in our class on Liability For
Bad Advice Vol. 1 No. 6). Despite the fact that a Bais Din can not force
the damager to pay, the Halacha still requires him to pay. This is known
as Chayav B'Dinei Shamayim, liable in the Heavenly Court.
Michusser Amana - Someone who verbally guarantees that he will do
something for you and then backs out of that agreement, causing you a
financial loss. Such a person is not liable to compensate you even
B'Dinei Shamayim (according to the laws of Heavenly Court). However, our
Rabbis say that you are justified in having Taromes, complaints and
grievances, against him. See the Mishna in Bava Metziah 6:1 for a classic
example of this.
[I have not found a source that discusses any practical ramifications of
the right to have Taromes. Perhaps it is relevant in that the damager
would be obligated to ask the victim for forgiveness. From the Mussar
perspective, it has been quoted in the name of Rav Yisrael Salanter,
that we see from this Halacha the extent to which the Torah must govern
our emotions. We are not permitted to even have a grievance against our
friend unless sanctioned to do so by the Torah!]
The Rosh in Bava Kama (Perek 2 Siman 6) discusses the following scenario:
If a person evicts an individual from the individual's own home and places
a padlock on the home, causing the individual to have to rent a hotel room
until the matter is settled and the individual is able to reenter his home,
this act is an act of Gramma (Number 2 above). As stated above, in the
Heavenly Court (Dinei Shamayim) he is liable, and therefore he must
compensate the homeowner for the expense caused by his actions.
It is evident from the above Rosh that the laws of Gramma apply, not only
where damage is indirectly inflicted on the victim, but even if your
actions only caused him added expense, it still qualifies as Gramma,
requiring payment but remaining unenforceable in Bais Din.
However, there is another Rosh in Bava Metziah that seems to contradict
the above Rosh in Bava Kama. The Gemara there (73b) states that if a wine
merchant appoints an agent to go to buy wine for him at the time of the
grape harvest when wine is available at a low price, and that agent is
negligent and does not acquire the wine on time, causing the merchant to
have to purchase the wine at a higher price, the agent is not liable to
pay the merchant for his loss. The Rosh there (Perek Eizehu Neshech
Siman 69) states that the agent is exempt because if someone causes
someone else an added expense, he may only have Taromes (complaints and
grievances) against him (Number 3 above).
The implication of this Rosh is that the agent can not be held liable
even in Dinei Shomayim, whereas the Rosh in the case of the home eviction
in Bava Kamma states that if someone causes someone else added expense,
it is a case of Gramma (where the damager can be held liable in Dinei
Shomayim and is obligated to pay, although the damages cannot be enforced
in Bais Din)! How can this contradiction be reconciled?
It appears that the difference between the two cases discussed in the
Rosh, and the determining factor in liability, is whether or not there is
ownership of an item that would ordinarily produce revenue. If someone
has in his possession something that generally turns a profit for him, or
prevents him from expense (such as a home, that prevents him from
incurring a rental expense) and because of someone else's actions he can
not receive that profit or must incur that expense, this is considered an
act of Gramma that it is forbidden and the damager is liable in Dinei
Shamayim to pay for the loss of revenue incurred. By blocking my access
to that which is rightfully mine, he is a Mazik (damager), albeit
indirectly. This is the situation in Question B regarding paying the
bill, where the person paying the bill has the money in hand and merely
asked his friend to mail the check. In that case, the friend's failure to
follow through on his undertaking deprived Reuven of the benefit of his
possession - his money - similar to the case discussed by the Rosh in
Bava Kamma concerning the home eviction.
This can be compared to a situation where someone has money designated
for investment purposes, but due to the actions of another person he has
no access to it and is therefore losing out on the interest revenue. In
this case the Yam Shel Shlomo (Maharshal) in Bava Kamma (Perek HaGozel
Siman 30), and the Shach in Choshen Mishpat (292:15) both state that this
is a case of Gramma and the damager is liable in Dinei Shamayim. This
would also apply in a situation where someone has a store and someone
else prevents customers from entering, causing him a loss of revenue.
However, if my friend is not blocking my access to something that is
rightfully mine, rather I had entrusted him to do something that would
have been profitable for me and he failed to do so, in such a situation
the damager has no financial liability at all, but you are permitted to
have Taromes (grievances) against him. Such a person is labeled by our
Rabbis as a MiChusser Amana - someone who is not trustworthy, as it is
stated in the S'MA (333:1) and in the Kitzos HaChoshen there (1) and in
the Rema in Choshen Mishpat (at the end of Siman 204). This is the
situation discussed in Question A regarding the new appliances for the
newlyweds, and in the Gemara in Bava Metziah regarding the wine merchant.
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an
Av Bet Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His
column originally appears in Hebrew in Toda'ah, a weekly publication in
Jerusalem. It has been translated and reprinted here with his
permission and approval.
This class is translated and moderated by Rabbi Aaron Tendler of Yeshivas
Ner Yisroel in Baltimore. Rabbi Tendler accepts full responsibility for
the accuracy of the translation and will be happy to fax originals of the
articles in Hebrew to anyone interested.
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Please Note: The purpose of this column is to make people aware of Choshen Mishpat
situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each
individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the
presence of all parties involved!