The Case of the Flying CD Player- Part 1 by Rabbi Chaim Jachter

(2004/5765) In my Gemara Shiurim at TABC, we will occasionally
conduct a Din Torah when a monetary issue arises between the
students. This serves a number of purposes. It often brings
alive many situations that are discussed in the Gemara and it is
an effective means to teach Talmudic principles. It also teaches
students to honestly and forthrightly present their monetary
disputes to a Rav for adjudication (see Mishnah Berurah 606:1).
It teaches students the procedures of Beit Din, such as Kinyan
Suddar (the act of demonstrating one’s seriousness by
accepting a utensil such as a handkerchief or a watch as
symbolic consideration) and Pesharah (compromise). Finally,
and perhaps most importantly, the dispute is resolved in a
manner that the fairness of the proceedings and decision making
is apparent to all, as it is resolved and discussed in the presence
of the young disputants and their peers.
Parenthetically, we should note that one Dayan (rabbinic
judge) suffices to adjudicate a case if both parties agree to
submit to his authority (Shulchan Aruch Choshen Mishpat 3:2).
Rav Moshe Snow told me that he saw Rav Moshe Feinstein act
alone in adjudicating a monetary dispute. Rav Mordechai Willig
told me in 1992 (and I have observed the accuracy of his report)
that this is the widely accepted practice (see , for the rules of when a dispute will
be adjudicated by only one Dayan in the Beth Din of America).
The Case
In the 5764 “Y9” Gemara Shiur of TABC, we adjudicated a
most interesting dispute. Two Talmidim, whom we shall refer to
as Reuven and Shimon (R. and S), were playing basketball
together at S’s house. R drove his car to S’s house and parked
his car near the basketball court, leaving the windows open. S
put his CD player on the seat of the front passenger position in
order that R and S could listen to their favorite Jewish music
while they were playing ball.
In the middle of the game, R decided that he wanted to take
a break and drive his car for a few minutes (S raised no
objections to this). R drove his car while the CD player
continued to play music. In a bizarre turn of events, while R
drove his car around a traffic circle, the CD player came flying
out of the car and was destroyed. R and S subsequently asked
me to adjudicate the question whether R is responsible to
compensate S for the destroyed CD player. I will present the
stages of discussion in our Shiur of how the case was
Three aspects of how this case was resolved facilitated a
peaceful and fair decision. First was that all proceedings and
discussions occurred in the presence of both parties (see
Shulchan Aruch Choshen Mishpat 17:5). Second, considerable
efforts were undertaken in order to properly ascertain the facts of
the case. The Chazon Ish is often cited as saying that most
mistakes made in rendering Halachic decisions are due to
misunderstanding the facts of the case (see Sanhedrin 33a for
an example of this phenomenon). Third is that both sides were
committed to doing whatever the Halacha requires. Both
Talmidim presented their case honestly and free of
manipulations, exactly as the Mishnah Berurah (ad. loc.)

note that Beit Din must adjudicate any case that involves a
dispute over a matter that is worth at least a Perutah (the
equivalent of approximately two cents; Shulchan Aruch Choshen 

Mishpat 6:1). Civil courts (even small claims court) will not
adjudicate matters of such little value because of a
fundamental difference in the attitudes towards dispute
resolution. Civil courts do not resolve disputes involving very
small amounts since their goal is to maintain a peaceful and
orderly society, and disputes over very small amounts usually
will not cause disruptions in society. However, Halacha seeks
truth, and thus, even disputes over small amounts of money
are worthy of the attention of Rabbanim (even great
Rabbanim as we shall see in this case). Thus, this case
merited rabbinic attention even though this used CD player
was not worth a significant amount of money.
Shomer Chinam
At first we thought that R was a Shomer Chinam (an
unpaid watchman) who is only responsible to pay if the item
he watches is lost or destroyed as a result of negligence
(Peshiah; Shulchan Aruch Choshen Mishpat 291:1). We
sought to clarify whether the fact that the CD player flew out
of his car window proves that R was driving recklessly. R
insisted that he was not driving at an excessive speed or in
any other reckless manner. We decided that an expert
should be consulted to resolve this question, just as Chazal
(Sanhedrin 33a) consulted with Todos the physician to
resolve a monetary dispute. We asked Dr. Joel Berman, a
Ben Torah who teaches physics at TABC, for his opinion on
the matter.
Dr. Berman (who earned a doctorate in physics)
thought that this was an odd occurrence but he felt that the
fact that the CD player flew out of the window did not prove
that R was driving recklessly. Accordingly, since it seemed
that we were not able to resolve the question of whether R
was Poshe’a (negligent), R was excused from compensating
S for his destroyed CD player. The cardinal rule regarding
monetary issues is “Hamotzi Mechavero Alav Haraayah,”
“The burden of proof rests upon the one who demands the
money,” or colloquially, “Possession is nine-tenths of the law”
(Bava Kama 46a). Thus, R was excused from payment since
S was unable to prove R’s obligation to pay.
The students, though, raised the question of whether
R was only a Shomer Chinam regarding the CD player. They
thought that perhaps R. was a Shoel (borrower) regarding the
CD player, in which case R is responsible for damages to the
borrowed item even if the damage occurred accidentally and
not through negligence (Shulchan Aruch C.M. 340:1). This
question led to a more fundamental question – was R
considered to be a Shomer of S’s CD player?
The Shulchan Aruch (C.M. 291:5 and 307:1) cites
two opinions regarding when one becomes a Shomer of
someone else’s property. One opinion is that one becomes a
Shomer only when one makes a Kinyan (Halachic act
expressing one’s acceptance of responsibility, such as a
Kinyan Suddar that we are familiar with from weddings and
Mechirat Chametz) with the owner of the property. The
second opinion is that as soon as the owner entrusts the
other person to watch his item, the other person becomes a
Shomer (as long as the other party is aware that the owner’s
item is in his possession) even if no Kinyan is made.
Accordingly, the question of whether R is considered
a Shomer hinges on this dispute recorded in the Shulchan
Aruch. Since the Shulchan Aruch does not resolve this
matter, the money remains with the Muchz ak, the one who
possesses it (see Rav Ezra Basri’s Dinei Mammonot 3:263;
Rav Basri serves as a Dayan in the Jerusalem District
Rabbinical Court). Thus, it appeared again that R was
excused from paying.

However, one of the students raised the
following question - didn’t R’s agreement (or lack of
objection) for the CD player to be placed in his car
constitute an implicit acceptance of responsibility
regarding S’s CD player? I responded that this question
appeared to hinge on a dispute between the Tannaim.
The Mishnah (Bava Kama 47a and b)
discusses a case where someone placed an item he
owned in another’s property with permission of the
owner and the item was subsequently damaged. The
Tannaim dispute whether the owner of the property is
responsible for the damage. The Tanna Kama (the first
anonymous view recorded in the Mishnah) rules that the
owner is responsible. Rebbe (Rabi Yehuda Hanassi, the
editor of the Mishnah) believes that the property owner is
not responsible unless he explicitly accepts upon
himself the responsibility of watching the item. Thus, if the
ox belonging to the property owner damages the item that
the other person placed in his property, then the
property owner is responsible according to the Tanna
Kama and is not responsible according to Rebbe.
The Amoraic scholars Rav and Shmuel (Bava
Kama 48b) disagree regarding which Tannaitic opinion is
accepted as normative. The Rishonim also disagree
regarding which opinion is accepted as normative. The Rif
(Bava Kama 21) and the Rambam (Hilchot Nizkei
Mammon 3:13 and 7:4) rule that the owner does not
assume the responsibility of a Shomer merely by
permitting the item to be placed in his property. On the
other hand, Tosafot (Bava Kama 48b s.v. U’Shmuel) and
the Rosh (Bava Kama 5:3) rule in accordance with the
opinion of the Tanna Kama that when a property owner
grants someone permission to place an item in his
property, he has implicitly accepted the responsibility to
guard and protect that item. This dispute depends to a great extent on
Talmudic rules of Halachic resolution. On the one hand, the
Halacha usually follows the majority opinion.
Accordingly, the Halacha should follow the Tanna Kama. On the other hand, Shmuel rules in accordance with Rebbe, unlike
Rav who rules in accordance with the Tanna Kama, and the
Halacha usually follows Shmuel in his disputes with Rav
concerning monetary matters.
This matter continues to be disputed in the Shulchan
Aruch (C.M. 398:5). The Mechaber rules in accordance with
the Rif and the Rambam who follow Rebbe, and the Rama
rules in accordance with Tosafot and the Rosh who follow the
Tanna Kama. This is hardly surprising as the Mechaber (Rav
Yosef Karo, the great authority for Sephardic Jews) rules in
accordance with the Sephardic Rishonim and the Rama (the
great authority for Ashkenazic Jews) rules in accordance with
the Ashkenazic Rishonim. Thus, it would seem that R is
responsible to pay since R and S are Ashkenazic Jews (it
would be even more interesting if R was Ashkenazic and S
was Sephardic, as it would have to be clarified whether the
case would be adjudicated according to Ashkenazic or
Sephardic Halacha).
Nonetheless, the Taz (ad. loc.; the Taz is a very
important Ashkenazic authority) writes that this dispute has
not been resolved even according to Ashkenazic standards.
The Taz notes that the Rama elsewhere (C.M. 291:2) cites
both the opinions of Rebbe and the Tanna Kama and does
not clearly state whom the Halacha follows. Thus, the Taz
concludes that this dispute remains unresolved and we may
not demand that a defendant pay money if such a situations
arises. Indeed, the Aruch Hashulchan (C.M. 398:5) cites both
the opinions of Rebbe and the Tanna Kama and does not
state which opinion constitutes the normative opinion. Thus,
it seems that R is excused from paying S for the broken CD
since the Halacha remains unresolved as to whether R
implicitly accepted responsibility for the CD when he
permitted S to put it in his car.
Next week, IY”H we will see how this issue was
concluded based on a Psak given by of Rav Herschel

The Case of the Flying CD Player- Part 2 by Rabbi Chaim Jachter

Torah Perspectives on Cloning- Part 2 by Rabbi Chaim Jachter