Hilchos Choshen Mishpat
Volume III : Number 10
Ticketing The Driver
A. A company hired a van service to pick up it's workers every morning
from their homes and bring them to work. The van was licensed to carry a
maximum of 10 passengers. One morning, 12 workers needed a ride, and the
extra two workers squeezed in. Sure enough, a police officer noticed,
pulled over the van, and issued a ticket to the driver of the van.
The driver is requesting that the passengers pay the fine, since it was
issued because of them. The workers are arguing that the fine is issued
to the driver, not to the passengers! Also, at the very most, the two
extra passengers should have to pay, not all of the workers!
Who is correct?
B. What would the Halacha be in the above case if originally the driver
had refused to take the extra passengers, and only did so after being
assured by the other passengers that if he would be fined, they would
pay for it?
1. Is such a verbal assurance Halachically binding?
2. If such a verbal assurance is Halachically binding, do all passengers
divide the fine equally among themselves, or must the last two passengers
pay the entire amount?
- A. In the first situation, the driver alone must pay the fine. The
passengers have no obligation at all to help defray the expense. (1)
- B. In the second situation, the verbal assurance of the passengers is
binding, and the cost of the fine should be divided equally among all
passengers that agreed to pay. (2)
(1) First of all, we must realize that there is no violation of law to
overload a parked vehicle with more passengers than it has a legal
capacity to carry. The violation is for driving such a vehicle.
Consequently, it should be obvious that according to Halacha, the person
responsible for the penalty is the driver. Since the van was stopped when
the last two passengers entered, and afterwards, the driver commenced
driving, the driver is the one who caused the fine to be levied, and is
held solely responsible for payment of the fine.
(2) The Teshuvos HaRosh (Klal 1 Siman 5) states an important rule
regarding appointing messengers (Shelichus) and hiring workers. These
types of agreements are binding even if only done verbally, without any
physical Kinyan. In other words, if someone instructs someone else to do
work for him, and the worker does the work, the employer must pay the
full wages as agreed upon between them, and can not argue that since no
Kinyan was made, he is not Halachically bound to their original agreement.
Therefore, in the second situation, since the driver started driving only
after the passengers instructed him to do so and verbally committed
themselves to paying any potential fines, they are Halachically obligated
to stick to their agreement, and they must pay the fine.
Additionally, this agreement would not be considered an Asmachta - a
gambling agreement [which is not binding according to Halacha, as stated
in the Shulchan Oruch (Choshen Mishpat 328:1)]. Any time a person
guarantees to reimburse his friend for any damages that his actions might
cause even indirectly, this is not an Asmachta, rather it is a bona fide
agreement that is Halachically binding. This is only an Asmachta if he
would make a bet and state that he would pay an amount above and beyond
any compensation for damage incurred.
The Nesivos Mishpat (9:1) states that if someone hires someone else to do
something that is in violation of Halacha, and the person he hired does
as he is instructed, the wages must be paid. Therefore, the passengers
would not have a claim that they should be exempt from the fine since the
activity that they "hired" him to do was illegal.
However, we must now discuss how the payment should be divided among the
passengers in the situation when they are liable. The Gemara in Bava
Kamma (10b) discusses a similar situation where five people sat on a
bench, and it broke. The Rema (Choshen Mishpat 381:1) quoting the Rosh,
states that if all five had permission to sit on the bench, and after the
fifth person sat down, there was time for the first ones to get up to
prevent the bench from breaking, they are all equally responsible to
compensate the owner of the bench. It would seem to follow that in our
case also, since all of the workers had an equal right to enter the van,
the last two have no greater responsibility for what occurred than the
first ten. Since the first ones could have left the van after the last
ones entered and they did not, all passengers share equal responsibility
in payment of the fine.
Although the GR"A there (1) differs with the Rema and states that
according to the Rambam, only the last person who sat on the bench must
pay, it appears to me that the GR"A would agree that in our case they all
share liability. It is specifically in the case of the bench that the
GR"A is of opinion that the last fellow is the damager, since it was
ultimately the last fellow's weight which caused the collapse of the
bench. However, in the case of the van, the actions of the last workers
did not cause the fine because they sat down in a parked van. It was the
assurances of their fellow passengers to the driver and his subsequent
driving that actually caused the fine, so even the GR"A would agree that
the liability for the fine should be shared by all passengers equally.
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. His columns have recently been compiled and published in a
three volume work called Mishpetei HaTorah, which should be available
from your local Sefarim store.
Feedback is appreciated! It can be sent firstname.lastname@example.org.
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av
Bais 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
We hope you find this class informative and stimulating! If you do not see a subscription form to the left
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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!
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