The Case
One Sunday at a Torah Academy of Bergen County softball practice a student (“batter”) picked up a baseball bat as he went up to hit during batting practice. The owner of the bat (“bat owner”) immediately instructed “batter” not to take the bat since it was an expensive bat whose purchase price was eighty dollars. “Batter” asked if he could use the bat whereupon “bat owner” stated clearly and unequivocally that were ”batter” to break the bat, he would have to pay “bat owner” eighty dollars. “Batter” agreed to the condition (point of clarification for those not familiar with baseball - non-metal bats break occasionally).
Before each pitch during the batting practice “bat owner” repeated his stipulation of “you must pay me eighty dollars if you break the bat” and “batter” expressed his consent. All was going smoothly until “batter” swung and broke the bat. The bat cost seventy five dollars to replace.
The Dispute
“Batter” and “bat owner” agreed on the facts but “batter” argued that he did not have to pay eighty dollars as stipulated. He noted that when “bat owner” purchased the baseball bat it came with a promise of a one time replacing the bat if it broke during normal usage. Prior to the incident described above, someone borrowed the bat and it broke and the company replaced the bat. “Batter” argued that the eighty dollars charge should be shared by him and the person who broke the bat the first time.
I responded that the first borrower bore no responsibility since his breaking the bat did not cause a loss. This situation may be compared to one who dug a bor (pit) that is less than ten tephachim (approximately forty inches) deep and another came and added to the bor so that it is ten tephachim deep. If an animal fell in and died from the fall, only the one who completed the ten tephachim is responsible to pay for the loss of the animal since a bor that is less than ten tephachim deep is not capable of having an animal die of a fall within it (Bava Kama 51a and Shulchan Aruch C.M. 410:15). Similarly, only the second person to break the bat caused the monetary loss and not the first so the first is not obligated to pay anything.
Stipulations that Contradict Halachah
In addition, it is possible to excuse the first person to break the bat since the bat broke as a result of normal usage (meitah machmat melachah). The Torah distinguishes between four categories of people who watch property belonging to others – shomer chinam (unpaid watchman), shomeir sachar (paid watchman), socher (renter) and sho’eil (borrower). Halachah assigns different degrees of responsibility for each category (see Mishnah Shavu’ot 8:1). The borrower is responsible for all situations except for meitah machmat melachah (see Bava Metzia 34a). Thus, the first person to break the bat should not be responsible for the damage he caused since the bat was broken as a result of normal usage.
Accordingly, “batter” should be excused from payment since the bat was broken as a result of normal usage. Moreover, the stipulation for payment should be invalid since it contradicts Torah law. Indeed, the Mishnah (Bava Metzia 7:11) states “kol hamatneh al mah shekatuv baTorah tena’o batel”, a stipulation that runs counter to Halachah is invalid.
However, the previous Mishnah (Bava Metzia 7:10) contradicts this rule. This Mishnah teaches that a borrower may make a condition that he excused from payment in all situations. The reasoning for this Mishnah is that tenai shebemammon kayam, that stipulations in regard to financial matters are valid even if they contradict Torah law. One owns his money so he may waive his Torah given right to collect money or conversely is permitted to agree to obligate himself to pay money that the Torah does not require him to pay.
The Gemara (Bava Metzia 94a) explains that the two Mishnayot reflect two differing opinions. Rabi Meir forbids making stipulations that contravene Halachah whereas Rabi Yehudah permits doing so regarding financial matters. The Shulchan Aruch (E.H. 38:5 and C.M. 291:17) codifies the opinion of Rabi Yehudah as normative. Thus, “bat owner’s” condition to obligate the borrower in case of meitah machmat melachah is valid and “batter” seems to be required to pay.
The Absence of a Kinyan Suddar
This conclusion might not be warranted in light of the fact that “batter” did not receive any “consideration” in exchange for obligating himself to pay beyond his halachic responsibility as a sho’el. Consideration refers to the halachic requirement for someone who obligates himself to pay or sell something to receive something in exchange in order for the obligation to be halachically binding. The kinyan suddar (often simply called a kinyan), where the recipient of an obligation hands the one who obligates himself an item of some value, even though it will be returned, is the traditional means among our people to present symbolic consideration that makes the obligation halachically binding (see Rut 4:7, which describes the use of the kinyan suddar l’kayeim kol davar”, to uphold all matters). We are familiar with a rabbi conducting a kinyan suddar with a groom to validate the obligations the groom has assumed in regards to the ketubah and a rabbi conducting a kinyan suddar with one who has agreed to appoint the rabbi as his agent to sell his chametz.
Although the Gemara (ibid.) does not require a shomer chinam who wishes to assume the obligations of a borrower to engage in a kinyan suddar to seal this commitment, the Ketzot HaChoshen (340:1) raises the possibility that a sho’el who wishes to obligate himself in case of meitah machmat melachah must perform a kinyan suddar. The Ketzot notes that it is possible that the shomer chinam need not receive symbolic consideration because he receives consideration in the form of enhancing his reputation as a trustworthy person to whom people lend items. Tosafot (Bava Metzia 58a s.v. Amar Rabi Yochanan) cite one explanation that when he assumes the responsibilities of a sho’el he watches the item more carefully (like a sho’el would) and therefore people assume that the item was loaned to him, thereby enhancing his reputation.
However, a sho’el who agrees to exceed his responsibilities might require a kinyan because he does not receive such consideration. Thus since “bat owner” did not conduct a kinyan suddar with “batter” it is possible that “batter’s” halachic obligation did not take effect. Although the Ketzot concludes with uncertainty, “batter” could claim that the uncertainty works to his favor since a major principle in adjudicating monetary disputes is hamotzi meichaveiro lav hara’ayah, the burden of proof falls on the plaintiff (Bava Kama 46a). Thus in a case of doubt the case is resolved in favor of the defendant since the plaintiff is unable to prove his case.
Nonetheless, “batter” might be obligated to pay for the damage despite the absence of a kinyan suddar. The Netivot (340:2) distinguishes between a shomer chinam assuming the obligation of a sho’el where consideration is required and a sho’el’s obligating himself to pay in case of meitah machmat melachah. The shomer chinam accepts an obligation for which he would otherwise not be required to assume. He, therefore, requires consideration to effect his obligation. However, a sho’el would have been obligated to pay for an item that breaks during usage had he not received permission to borrow the item, since he would be a mazik (one who causes damage).
A mazik is responsible in nearly all circumstances, whether he broke the item deliberately or inadvertently (Bava Kama 26a). However, when one lends an item to someone one ordinarily permits the borrower to use the item and waives the right to sue for damages that happen during normal usage. If the lender stipulates that the sho’el is responsible even in a case of meitah machmat melachah, the lender is in effect withholding this waiver and the borrower must pay as a mazik like any other individual.
Thus, the Netivot argues, the sho’el in such a situation is not required to make a kinyan suddar since he is not assuming the responsibility to pay in case of meitah machmat melachah. Rather, the lender is simply not waiving his right to make claim in case the borrower breaks the item even during normal usage. Since neither party makes a commitment, a kinyan is not necessary to seal the agreement. Thus, according to the Netivot, “batter” is not excused from indemnifying “bat owner” despite the fact that he did not make a kinyan.
The question remains, though whether Halacha follows the opinion of the Ketzot or that of the Netivot. The Aruch Hashulchan (C.M. 340:7) rules in accordance with the Netivot especially since a Rishon (Shitah Mekubetzet to Bava Metzia 69b) already articulated the approach of the Netivot. The Pitchei Choshen (2:10:7) writes that “many Poskim” believe that a sho’el need not make a kinyan in order to assume the responsibility of meitah machmat melachah and does not present a dissenting opinion.
Thus, the opinion of the Netivot is accepted as normative. Indeed, Rav Zalman Nechemia Goldberg, a leading contemporary posek especially in regard to financial matters, ruled in accordance with the Netivot in the following situation (Techumin 17:292). A young man brought sefarim to a bookbinder to rebind. The process of rebinding the books involves using a special tool to make holes in the sides of each sefer. The young man asked if he could borrow the tool and make the holes himself. The bookbinder willingly lent him the tool while warning that if the tool would break, the young man would have to pay for damages. The young man subsequently broke the tool while making the holes. Rav Zalman Nechemia Goldberg ruled in accordance with the Netivot that the young man was required to pay for the broken tool.
Two more reasons exist to require “batter” to pay even according to the Ketzot, despite “batter’s” not having performed a kinyan. The reason why a sho’el is normally excused from paying is that the lender agrees to the borrower using the item despite the risk that it might break during usage. In our situation, however, “bat owner” did not want “batter” to use his bat. Thus, “batter” is not construed as a sho’el, who is excused in case of meitah machmat melachah, since he did not have permission to use it. Instead he is an ordinary mazik who is responsible to pay even though he did not intend to do damage. The stipulation “If you break the bat you pay eighty dollars” means that since “batter” is not borrowing the bat with permission, he does not enjoy the usual benefits of a sho’el who is excused in case of meitah machmat melachah. Thus, it seems that even the Ketzot would obligate “batter” to pay164Yakir Forman comments that “bat owner” did not want “batter” to use his bat at first but then acceded when he made the stipulation. Since “bat owner” did eventually let “batter” borrow his bat, it seems that “batter” is a Sho'eil. However, one could interpret “bat owner” as meaning ‘you have no permission to borrow this bat and if you break it you will be treated as an ordinary Mazik’. .
In addition, the parties agreed to adjudicate the case not only based on din (strict Haalchah) but also pesharah (equity and compromise; see Gray Matter 2:193-200). It certainly is not fair to excuse (or at least not to entirely excuse) “batter” from paying simply due to the “technicality” of not having made a kinyan. Thus, we have yet another reason to obligate batter to pay even according to the Ketzot.
Damages versus Replacement Value
It is clear that “batter” must pay something for having broken the bat. However, it is not clear how much he must pay despite his agreement to pay eighty dollars in case of his breaking the bat. We must still discuss whether the stipulation to pay eighty dollars was valid as it might constitute asmachta.
When one damages something he is obligated to pay in accordance with the damage he caused but is not obligated to pay replacement cost. Only if the item he damaged does not have a market value must he pay replacement cost. For example, if one rendered an automobile inoperable then one does not pay replacement cost of the car, rather one pays the value of that automobile at the time of damaging the car. However, if one broke someone’s eyeglasses one would most likely have to pay replacement cost since there is no market for used eyeglasses of a specific prescription (see Rav Yonatan Blass’s essay in Techumin 13:388-406 where he deals with this issue at length). We should note that the creation of internet marketing sites such as E-bay has greatly expanded the marketability of a wide variety of used items.
A used item is almost always worth less than if it were brand new. Thus, Halachah demands that “batter” pay the value of the bat at the time he broke it and not the amount it will cost to purchase a brand new bat (assuming there is a market for used high quality bats). Thus, it seems that “batter” did not do eighty dollars worth of damage. Accordingly, we must explore the validity of the agreement to pay eighty dollars were he to break the bat in light of the Halachot of asmachta.
Asmachta
Asmachta is where a party agrees to pay a penalty in case he does not perform a specific task, where the penalty exceeds the damage he caused. The Mishnah (Bava Batra 10:5) presents the following situation:someone paid a part of his loan and sought an extension of the loan. The borrower gave the original promissory note to a third party and instructed him that if he would not repay the loan by the specified time, the third party may present the original promissory note to the lender, enabling the latter to collect the entire loan despite the fact that part of the loan was paid. Although Rabi Yosi validates this agreement and would instruct the third party to hand the note to the lender, the Halachah (Shulchan Aruch C.M. 207:12) follows the opinion of Rabi Yehudah who invalidates such an agreement.
The Gemara (Bava Batra 168a) explains that Rabi Yehudah and Rabi Yosi disagree whether an asmachta is a valid condition or not. Rashbam (ad. loc. s.v. Asmachta) explains that asmachta is when one makes a condition in order to convince someone to do something with the promise that he will do something in the future. He thinks at the time when he makes the condition that he will be able to meet the condition but when it comes time to do so, it is beyond his ability to meet the condition. Rashi (Sanhedrin 24b s.v. Kol Ki Hai Gavna) explains that Rabi Yehudah regards such an agreement as invalid since the person never had the intention to carry out what he promised in case of default.
Limitation on Asmachta
One could possibly invalidate “batter’s” agreement to pay replacement cost instead of the actual monetary loss caused, since he agreed to pay the larger amount only in order to obtain consent to use the bat, and he did not believe the bat would break; therefore, his agreement would constitute asmachta. However, Halachah does not regard a situation where one pays only slightly more than the actual damage as asmachta. Thus we must refine our previously stated definition of asmachta - when the penalty fee is disproportionately high relative to the damage done (and not simply when the penalty exceeds the damage).
Two classic situations illustrate this principle. In the times of the Mishnah a classic clause in a sharecropper’s contract would be “im ovir v’lo a’avid ashaleim b’meitvah”: if I do not work the field, I will pay you generously (Bava Metzia 9:6). This means the sharecropper agrees to pay the landowner based on a high-end estimate of what the field would have produced had he worked the field. The Beit Meir (cited in Pitchei Teshuvah E.H. 50:9) explains that since the stipulated payment is only a small exaggeration it does not constitute asmachta. In such a situation we do not assume that the one making the agreement had no intention to fulfill it.
This distinction is apparent from the Rama (C.M. 207:13) as well. He explains that while the condition of “im ovir v’lo a’avid ashaleim b’meitvah” does not constitute asmachta, it is considered asmachta if the sharecropper stipulates “if I do not work the field, I will pay you one thousand zuz”.
The second classic example is the traditional Ashkenazic practice, recorded and endorsed by the Rama (E.H. 50:6) for tena’im, engagement contracts, to call for penalties if either side breaks the engagement. One opinion in Tosafot (Bava Metzia 66a s.v. U’minyumi; cited as authoritative by Beit Shmuel 50:14) explains that the payment does not exceed the damage (i.e. is not asmachta) because the payment is construed as demei boshet, compensation for the embarrassment caused by one’s engagement being called off. Recall that Halachah calls for one to compensate for serious embarrassment he causes to others (Bava Kama 83b). Beit Shmuel (ibid.) adds that even if the breakup causes no great embarrassment nonetheless the money paid is sufficiently similar to demei boshet that the obligation is not considered to be asmachta. The Beit Meir (cited by the Pitchei Teshuvah ibid.) explains “this is similar to the im ovir v’lo a’avid ashaleim b’meitvah agreement where it is not considered to be an exaggeration so too here where one obligates himself only somewhat more than exact demei boshet it is comparable to the sharecropper’s commitment to pay meitvah (a commitment to pay a generous, but not outrageous amount; where one cannot claim he did not intend to pay)”.
I consulted Rav Mordechai Willig to voice his opinion if agreeing to pay replacement cost when paying for damage is sufficient, is a great exaggeration or analogous to meitvah. He ruled that it is comparable to meitvah so “batter’s” obligating himself to pay replacement cost is legitimate and not an asmachta.
Eighty or Seventy Five Dollars
Somewhat surprisingly Rav Willig ruled, though, that “batter” is obligated to pay only seventy five dollars instead of eighty dollars as agreed, since the actual replacement cost was only seventy five dollars. Rav Willig argued that since it is obvious that “bat owner’s” intention was to recover the replacement cost for the bat and not specifically eighty dollars, he is entitled to only seventy five dollars and not the eighty he stipulated.
One may question Rav Willig’s ruling based on the following case recorded by the Gemara (Kiddushin 49b): A certain individual sold his property with the intention to move to Eretz Yisrael. However, he did not specifically condition the sale upon his successful move to Eretz Yisrael. When afterwards he was unable to move to Eretz Yisrael he was not entitled to demand the right to repurchase the house, even though he sold the house with the intention to move to Eretz Yisrael. The reason for this, states the Gemara, is that devarim shebeleiv einam devarim, unarticulated thoughts carry no Halachic significance. It would appear from the Gemara’s ruling that we should consider only “bat owner’s” words and not his thoughts and therefore award him eighty dollars as he specifically stipulated.
Tosafot (ad. loc. s.v. Devarim Shebeleiv Einam Devarim) clarify that there are exceptional situations where the parties’ intentions are so clear that we follow those intentions, even if the parties do not express them.165For example, Tosafot points to the Gemara's ruling (Bava Batra 132a) that if one, under the impression that he has no live son, gives all of his possessions as gifts to others but later discovers he has a live son, the gift is invalid even if the giver didn't explicitly stipulate that the gift was only due to his lack of sons. Tosafot state that in those situations “we assess that this was his intention”. In our case Rav Willig felt that “bat owner’s” intention was obvious and assessed that his intention was merely to recover replacement cost.
Conclusion
Although this matter may seem trivial to some and they may wonder why so much effort was expended to resolve a matter of relatively little money, this attitude is not shared by the Torah. The Gemara (Sanhedrin 8a) teaches us to treat disputes involving a small amount of money as seriously as we do a case involving a large sum of money. Moreover, the Gemara (Shabbat 10a) teaches that one who makes the effort to properly adjudicate a monetary dispute is considered to be a partner in Creation. No wonder this small-scale dispute among teenagers merited the attention of Rav Mordechai Willig, a leading halachic authority.