Question:
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?
Answer:
- 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)
Sources:
(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.
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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 to[email protected].
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 and approval.
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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!