Lesson # 261 (part one) •The Craftsman as a paid bailee Reuven's watch is broken and he brings it to a watch repairman. His wife's dress is soiled and she brings it to the dry cleaners. Shimon's automobile needs servicing and he brings it to the automobile dealer. The list is almost endless of the types of services that are available to repair, enhance, and generally work on objects by the craftsman on behalf of the owner of the object. When the craftsman works on the object, both he and the owner derive some benefit - the craftsman, in that he will receive compensation, and the owner, in that his object will be repaired or enhanced. This places the craftsman in the class of a paid bailee where both the owner and the bailee enjoy benefits. As a paid bailee he has certain liabilities to the owner. I have used the word destroys to indicate that the object can no longer be used by the owner for its intended purpose; the word spoils is used to indicate that the owner can still make use of the object for its intended purpose but not in the manner he wanted to. Caveat: Throughout this and the next lesson, when the craftsman spoils or destroys the object, it is assumed that it is done without the intent to spoil or destroy the object entrusted to him by the owner. Also closely linked to the job of the craftsman is that of the expert who gives advice, sometimes charging a fee and sometimes without charge. This lesson discusses these special issues that may arise between (1) the craftsman and the owner, and (2) the expert rendering advice and the person to whom the advice is given. Very often the craftsman posts notices limiting his liability in case of loss or damage to the object that is entrusted to him for repair or enhancement. The conditions so posted, if they do not contravene the laws of the land and are clearly stated to the owner, or clearly posted, are generally binding on the parties. There is one view that holds that one is included in the definition of a craftsman if he is an independent contractor, but not if he is in the employ of the owner of the object. Thus, if he is hired by the owner by the day to work on the object, he is an unpaid bailee regarding the object. A second view holds that he is deemed to be a craftsman even if he is not an independent contractor if he is hired to work for the owner by the day and works on the object in his own home or place of business. However, if he is hired to work on the object by the day and works on the object on the premises of the owner, he is not a craftsman. If it is anticipated that the craftsman is to get compensated for his work, absent any agreement to the contrary, from the moment that the owner of the object delivers the object to the craftsman, he becomes a paid bailee. He is deemed a paid bailee whether or not he has already been paid for the repair to the object. He is thus liable for loss, damage, destruction, or theft of the object, whether or not he is negligent in guarding the object. He is not liable if the object is lost, damaged, destroyed, or spoiled through force majeure. The amount of the compensation is not determinative; any compensation makes the craftsman a paid bailee. This holds true even if the compensation is contingent; for example, a slaughterer of meat for kosher purposes is paid only if the resulting slaughter is kosher. If he has the possibility of being compensated, he is a paid bailee. In addition to the other liabilities of a paid bailee, such as loss occasioned by the negligence of the bailee or his liability for loss or theft, the craftsman is liable for destroying the object. The owner gives the craftsman something to repair and the craftsman, in attempting to repair it, destroys it; the craftsman has full liability to pay for the value of the object at the moment of destruction. The amount he pays is for the entire value of the object as determined by Beth Din after hearing the testimony of appraisers. In many instances the parties will settle the matter by themselves since the amounts involved are usually small, for example, in cases such as dry cleaners who have lost or destroyed a shirt or skirt. The valuation is determined by the value of the object when it was destroyed. Most often this will be the same as when it was delivered to the craftsman. However, there are times when the value at the time the object is destroyed is greater, for example, when an owner delivers lumber to a craftsman to fashion into a closet, and the craftsman fashions the closet and then destroys it. The payment to be made is for a completed closet, because at the time he destroyed the object it was a closet belonging to the owner since the owner had supplied the lumber and the transformation of the lumber into a closet is for the benefit of the owner. Reuven hires Shimon to plant trees for him on Reuven's land. The local custom is that the planter receives half of the improvement to the property. Shimon's planting results in improvements on some of the land and loss in other areas. Reuven and Shimon share the losses and the improvements. There are special laws regarding the slaughter of animals for kosher meat. When it is not certain that the slaughtering was valid, the meat may not be eaten, yet the owner must prove that the slaughter was not valid. In addition to his other liabilities as a paid bailee, the craftsman is also liable to the owner if he spoils the object or deviates from the instructions of the owner. This assumes that the work cannot be corrected to eliminate the spoilage or the deviation from the instructions of the owner. These laws also assume that the object as spoiled or deviated still has some market value, sometimes as high as or even higher than what would have been the value had the instructions been followed. If it is not of value to the owner, there may be a readily accessible market available to sell such second-hand or spoiled goods. That which is deemed spoiled to the owner is not necessarily spoiled to a third party. The owner of an object may seek the advice of an expert. The expert may or may not charge a fee. His wrong advice may result in loss to the owner of the object who seeks his advice about the object. A purchaser wants to pay for his purchase in cash. The seller does not know if the cash is genuine or counterfeit. He takes the money to his bank and seeks the advice of his banker, who advises him that the money is genuine. It turns out that the money is counterfeit. If the banker was paid for his advice, he is liable to the seller for the loss he suffers whether or not the seller told the banker that he relies upon him to make his decision to accept the money. If the banker was not paid for his advice, the banker is not liable if he is an expert in appraising if cash is genuine or counterfeit unless the seller told the banker that he relies upon him on whether to accept the money; if the banker is not an expert, he is liable to the seller for his loss. <to be continued> The subject matter of this lesson is more fully discussed in volume IX chapters 305 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il [The Parshat
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