Over the recent vacation season families around the country flocked to different vacation venues such as tzimmers[1] and hotels, giving rise to many interesting halakhic questions. The following situation is a case in point:

Reuven and his family spent a few days on vacation in the northern part of Israel. They rented a tzimmer in the region for the duration of their stay. Reuven’s young children were playing with a ball in the tzimmer, when one of the boys threw the ball too high and it shattered the expensive chandelier that hung from the ceiling. When the tzimmer owner heard what had happened, he immediately demanded that the family pay for damages (the family and the owners had not signed an agreement regarding potential damages ahead of time).

Is Reuven indeed obligated to pay the owner for damages caused by his young son? The following is an analysis of the relevant halakhic considerations.

The Liability of a Katan as a Mazik

The Shulchan Arukh (CM 124:8) rules, based on the Gemara (Bava Kamma 87a), that a cheresh, shoteh, and katan are not liable to pay for damages that they cause. This is due to the fact that they are not viewed as a “bar da’at” (an individual with the intellectual capacity to bear responsibility for his actions). Even if they subsequently become a bar da’at, such as if the cheresh and shoteh are healed from their conditions or the katan grows up and becomes a gadol, they are still not liable to pay for damages, since they were not a bar da’at at the time when they caused the damage.

Similarly, the Shulchan Arukh (CM 249:3) rules that if a katan steals, he is required to return the object that he stole if it is still in his possession. However, if the object is no longer in his possession, he is not required to compensate the owner of the object. The Shulchan Arukh does not indicate that the father of the katan bears any responsibility to compensate the victim. Nonetheless, in order to prevent this underage individual from becoming a chronic thief, the Shulchan Arukh (CM 249:5) rules that it is appropriate for Beit Din to punish him and thereby ensure that the child’s thievery will not become habitual. This would be the case for a katan who causes damage in other ways as well.

Although a katan who caused damage is not liable to pay even once he grows up, it would still be appropriate for him to make amends with the individual he harmed. This is both for the sake of atonement and to keep the peace, as indicated by the Rama (OC 343).[2] However, this does not necessarily require him to pay in full for the damage he caused.

Reuven’s Obligation as a Shomer

Whereas Reuven and his children are not technically liable to pay for the damage under the halakhic category of mazik, it must also be assessed whether Reuven is liable as a shomer. Since he rented the tzimmer for the duration of his stay, Reuven is classified as a socher, and is therefore liable for certain types of damage caused to the property while it was in his care, even if he did not personally cause the damage. A socher is not obligated to pay for damages that are beyond his control (ones), but he is certainly obligated to pay for damages caused by negligence (peshia). It may be argued that Reuven was negligent in that he did not properly supervise his children, and therefore he should be obligated to pay for the chandelier.

However, it may be argued that Reuven is exempt even if he is classified as negligent, due to the halakha of “ba’alav imo.” The Gemara (Bava Metzia 95a) discusses a case in which the owner of an object provides a service to a borrower,[3] and the owner is also available to assist the borrower during the time when he makes use of the item. In this case, the borrower is not liable for damages that occur on his watch,[4] even if the owner is not physically present when these damages occur.[5]

The Amoraim disagree (in the Gemara cited above) if the exemption of “ba’alav imo,” which absolves the borrower of culpability in the case of damages, would apply even in a case of negligence. The Shulchan Arukh (346:1) rules like the Rambam, that a borrower would be exempt even in a case of negligence.

It is interesting to note that the Gemara goes so far as to suggest that a borrower who does not want to be held liable for potential damages that may occur on his watch, should ask the owner to provide some sort of service, such as bringing him a cup of water (before he assumes control of the object), which will activate the exemption of “ba’alav imo.” The Shulchan Arukh codifies this ruling (346:3).

In light of this halakha, it is possible to argue that Reuven is not liable to pay for damages caused by his son. In a tzimmer rental, the owner of the tzimmer offers his services to the people who have rented the tzimmer for the duration of their stay. The tzimmer owner will often say things like: “Please let me know if you need anything,” which indicates that he is on-call. This coincides with the position cited by the Shulchan Arukh:

“If the owner lends out [his cow], and agrees to be ‘loaned out’ together with it, even if he did not yet begin [to perform] labor for the borrower at the time when [the borrower] pulled the cow, but he is preparing and readying himself to go, he is considered “with him in his labor.” However, through speech alone, that he has said he will be lent out to him, but he has not prepared himself for the labor, it is not considered borrowing with the owner [she’eila b’baalim]” (Shulchan Arukh CM 346:3).

Therefore, on a halakhic level, when the tzimmer owner rents out his vacation unit and all of its facilities, he himself is also “on loan” – ready and willing to provide necessary services during the duration of his guests’ stay. Consequently, on account of the halakha of “ba’alav imo” Reuven is not liable to pay for the chandelier.

Hotels: “Ba’alav Imo” Through Shelichut?

Unlike a tzimmer, in the case of a hotel, the owner is not directly involved in serving the hotel’s guests. Most hotels are fully staffed with many different workers who provide services on behalf of the owner. Would the halakhot of “ba’alav imo” discussed earlier still apply?

The Gemara (Bava Metzia 95) considers such a case: “If a person says to his messenger, go and be lent out for me along with my cow - what is [the halakha]? Do we need the actual owner and he is not [present], or perhaps a messenger is just like the person himself and he is [present]?” The Gemara notes that this issue depends upon a dispute among Tanna’im, and the Gemara does not arrive at a clear conclusion. The Rambam and the Shulchan Arukh rule that the halakhic exemption of “ba’alav imo” does not apply in this case:

“If a person tells his messenger, go out and be lent out for me with my cow, this is not a case of an object being lent out together with its owner, as it says “im ba’alav imo” – the actual owners, and not a messenger” (Shulchan Arukh CM 346:6).[6]

Accordingly, if the incident of the broken chandelier would take place in a hotel, Reuven would be obligated to pay as a shomer, as the exemption of “ba’alav imo” does not apply.

The Rama however, disagrees with this position and cites the opinion of the Tur, who maintains that the exemption of “ba’alav imo” applies even when the owner sends his messenger instead of being personally involved.

It follows that if Reuven is Ashkenazic, he can claim to follow the opinion of the Rama, and he would be exempt from paying for the damages. If he is Sephardic though, he is obligated to pay.

However, it is possible to argue that even the Rama would agree that Reuven is obligated to pay if the hotel is staffed by non-Jews, given that from a halakhic perspective non-Jews cannot serve as messengers.[7]

The Difference Between a Messenger and a Worker

One can make the case that Reuven should still be exempt from payment even according to the position of the Shulchan Arukh, and even if the workers are non-Jews, based on the position of the Machaneh Ephraim (Hilkhot Sheluchim, siman 11). The Machaneh Ephraim maintains that there is a difference between a salaried non-Jewish worker and an unpaid messenger, based on a ruling of the Gemara (Bava Metzia 96) and the Shulchan Arukh (CM 346:6) regarding a Canaanite slave. The Shulchan Arukh states:

“If one says to his Canaanite slave: Go and be lent out for me along with my cow, this is a case of borrowing an object together with its owner, as the hand of a slave is like the hand of his master.”

On this basis, the Machaneh Ephraim explains that even though a non-Jew cannot function as a messenger and the principle of shelucho shel adam kemoto would not apply, a worker might have a status similar to a slave, and therefore since a slave is like the ‘long arm’ of his master, it is still a case of “ba’alav imo.”

Rabbi Akiva Eiger (glosses to the Shulchan Arukh) points out that this position of the Machaneh Ephraim is debatable given that the law of a Canaanite slave may not be applicable to a salaried employee. Nonetheless, in the case we are discussing, Reuven can claim that he is exempt from paying because he holds like the Machaneh Ephraim.

What is the Status of the Hotel Manager?

Despite everything that we have said until this point, it is still possible that the exemption of “ba’alav imo” would not apply and Reuven would be liable to pay for damages. The Mishna (Bava Metzia 98b) rules that if one asks to borrow a cow and specifies that the cow should be sent with the owner’s slave, and the cow dies on the way, the borrower is liable to pay for the cow.

Tosafot question: Why is the borrower liable? Shouldn’t this be a case of “ba’alav imo,” given that the slave is the ‘long arm’ of the master?

Tosafot explain that in this case it is important to ascertain who is actually initiating the sending of the slave with the cow; if the owner sent his cow with his slave of his own initiative, then the slave would be considered the ‘long arm’ of his master. But if the borrower is the one who asked for the slave to deliver the cow, this would not be a case of “ba’alav imo.” In Tosafot’s words: “It is as if the borrower has asked the owner for two cows, as one’s slave is like his cow.” In this case, we would not say that the slave is the ‘long arm’ of the master, given that the slave himself can be categorized as something “borrowed.”

As such, if a hotel is staffed by non-Jews, we must ascertain: Who is initiating the service? Is the service initiated by the workers themselves? Or is it initiated by the hotel owner? If we would conclude that the workers come and help hotel guests on their own initiative, it follows that on a halakhic level, the guest has rented two different things – the room and the service of the hotel workers. Accordingly, the guest (“the renter”) would not be exempt from paying for damages on account of the principle of “ba’alav imo,” given that in this situation the worker is not the ‘long arm’ of the master.

It would seem that there is room to distinguish between different types of workers in the hotel – housekeeping services and waitstaff[8] on the one hand, and the hotel manager on the other. The former group is indeed considered to be “a second cow” that has been rented by hotel guests. The hotel manager though, must ensure that the guests’ needs are properly met. In this sense, the service provided by the manager is entirely different than the service provided by other hotel workers. Essentially, the manager is the ‘long arm’ of the hotel owner, and he performs his tasks and responsibilities on behalf of the owner.[9] Since the owner initiates the manager’s services – the manager is sent by the hotel owner to serve the hotel guests – it follows that Reuven would be exempt from paying for damages.

In conclusion, from a strictly halakhic perspective, Reuven would be exempt from paying for damages caused by his young son. Nonetheless, it would be fitting for him to reach a compromise with the owner.

This shiur was was published in Eshkolot #470, Parashat Shoftim 5778

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