Chapter Two - Business in Tefillin Scrolls

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1. What care is needed regarding buying from merchants who deal in tefillin scrolls, mezuzos and sifrei Torah?
The merchants must not deal with scribes who do not possess written certification ("diploma") that they learned the laws and know them, as well a "hormina" i.e. written permission from beis din to actually write (Shevet HaLevi).

2. If a scribe is commissioned to complete the writing of a sefer Torah by a certain date but he fails to meet the deadline, is the one who commissioned him allowed to back out of the deal?
If the deadline was stated explicitly at the time of the initial agreement and the delay (in the eyes of beis din) is considerable, then yes, it is permitted. On the other hand, if the deadline was stipulated only after the time of the initial agreement, then even if they wrote the deadline into the contract, if the scribe's delay was not his fault, backing out of the deal is forbidden (Shulchan Aruch, Choshen Mishpat 21:3, Shach).

3. If a tefillin scroll is damaged while checker is taking it out of the tefillin box, must he pay for the damage?
Since he was asked to remove the scroll he is exempt, provided that he was not negligent.

4. After a check, if it comes to light that the checker failed to notice a disqualifying flaw in the writing, does he lose the right to be paid for his work?
No, he still must be paid (Chavas Ya'ir 154).

5. A tefillin scroll is checked and a flaw is found but it is unclear whether it creates a "posul." It is not clear whether it is a flaw that "disqualifies." According to the rabbi brought in by the seller, it does not disqualify, but according to the rabbi brought in by the buyer, it does disqualify. What is the halacha?
The buyer, having relied upon his rabbi's opinion and his rabbi maintained that the flaw disqualified, cannot use the tefillin for the sake of the mitzvah. The seller, having relied upon his rabbi's opinion, and his rabbi had said that the flaw did not disqualify, need not pay any damages (HaGaon R. Yosef Shalom Eliashiv, VaYishmah Moshe 38).

6. If a question of halacha arises, who is obligated to clarify the matter?
The obligation is the scribe's, not the merchant's (Shevet HaLevi, Chelek 8, Siman 9).

7. If a sefer Torah, mezuzah or tefillin scroll is handed over to someone to check it, and while it is in his possession it accidentally is damaged (not through any action of his), must the checker pay for the damage?
The checker has the law of "a paid guard," which obligates him to pay only in the event of his own negligence, or theft, or loss of the item. (Shulchan Aruch, Choshen Mishpat 306). Even if the damage happened while he was conducting the check, he is still exempt.

8. If a checker damages parashas "Kadesh li" of tefillin, must he pay for having damaged the other three parshiyos, too?
No, although the damage is "garmi" – "nearly direct" damage, and not just "causal" damage ("gromma") -- still, had he been able to find a "Kadesh li" parashah that had been written prior to the writing of the other three, the other three would have remained usable (because the newly found "Kadesh li" sould be attached to the other three). Therefore, although he did not find such a replacement parashah, he is exempt and it is considered as if he damaged only "Kadesh li" (HaGaon R. Nissim Karelitz).

9. If a sefer Torah, tefillin or mezuzah is handed over to merchant so that he will sell it to one of his customers, but while it is in his possession damage to it occurs due to factors beyond the merchant's control, what is the halacha?
If the owner could have come at any time and taken the item back into his own hands, then the merchant is considered only a "paid guard" and is exempt, since the damage resulted from factors beyond his control. On the other hand, if the owner could not have retrieved his item (e.g. the merchant went abroad with it, hoping to sell it, or the owner had guaranteed the merchant a fixed amount of time to sell the object, and the time was not yet up) the merchant is considered a borrower and is liable for the damage (Choshen Mishpat 167:7, Nesivos HaMishpat 3).

10. If a sefer Torah on loan to a beis knesses is stolen from there, who must pay the owner?
The gabbaim of the shul must pay out of their own pockets, and not from the coffers of the shul, unless ahead of time they had stipulated otherwise (HaGaon R. Yosef Shalom Eliashiv, Tel Talpiot 59). Some dispute this ruling (Responsa, Sfat HaYahm 47).

General Business Practice

11. When an item is bought on credit with a due-date for payment, and after the transaction the buyer sees that, due to factors beyond his control, he cannot pay on time, is there a permissible way for him to delay payment?
It is preferable not to buy on credit in the first place. Those who are meticulous about their deeds always pay "up front" i.e. at the time of the purchase [so as not to rely just on "m'shicha" i.e. on having physically "pulled" the item into one's possession. It is better to hand over payment, for then one certainly has acquired the item according to the Torah] (Biur Halacha, Orach Chaim 11, "M'tzemer"). If the payment is not made on time and the seller continually is asking the buyer for payment, it is considered as if the buyer stole the item, and if it is a mezuzah, tefillin or sefer Torah, he is unable to fulfill the mitzvos for which these items are prescribed (Shulchan Aruch, Orach Chaim 190, Mishnah Berurah 11:27).

12. When someone sells items on credit and claims to have sold an item to someone without taking any money "up front," if his only proof is that the alleged transaction is written down in his notebook, is he believed?
No, he is not believed (Nodeh B'Yehuda (T'nina), Choshen Mishpat 15).

13. If a person admits that he bought something from someone but does not recall whether he paid for it, must he pay the seller's claim against him?
Yes, since he recalls that he bought the item, he must pay the claim against him. On the other hand, if he does not recall having bought the item, beis din cannot obligate him to pay the claim. Nevertheless, if, in fact, he did buy the item, he is obligated to pay for it "m'din shamayim" (i.e. according to the laws of the Heavenly Court). It therefore is fitting that the two parties to the dispute reach a compromise and each formally forgives the other for any resulting financial loss (Shulchan Aruch, Orach Chaim 75:9-11).

14. In the course of discussion about the purchase of a specific item, if the two sides have agreed to make the transaction but they have not yet agreed upon a price, is it still possible for either side to back out? Also, if a third party comes along and offers a higher price, can the owner sell the item to him instead?
Our chachamim frown upon anyone who goes back on his word. So, too, in such a case, no third party is allowed to come and offer a higher price. If someone does so, he is considered a rasha [i.e. a wicked person]. He is likened to someone who sees that a pauper has found and wants to take possession of an ownerless loaf of bread and eat of it, and the onlooker quickly comes over and takes the bread for himself!

15. Is a seller allowed to charge any price that he wants?
No, because overcharging is forbidden by the Torah. One is not allowed to charge more than one-sixth (16 per cent) of the market price in that particular area. If there is no fixed market price, then one is permitted to take no more than one-sixth more than the highest price that is charged in that locale (Shulchan Aruch, Choshen Mishpat 227). It is fitting to charge the price that the other local sellers charge (the Rosh is in doubt whether the seller has violated the Torah if he sells for more than that).

16. Is someone who is selling something allowed to exaggerate his praise of it?
Lavish praise is permitted so long as it does not contradict the facts and thereby deceive the buyer.
The seller is allowed to shine or polish the merchandise so as to attract potential buyers.
However, a seller is forbidden to denigrate merchandise of his competitors, even by means of gesture or hint. (Shulchan Aruch, Orach Chaim 228:18; and Smah, Siman 9:15).

17. Is a person allowed to open a store near a pre-existing store that sells the same products?
It is permitted, but in the case of store that sells divrei kedusha, such as tefillin and mezuzos, it is permitted only if the opening the second store will not cause the first one to close down. Regarding a pre-existing store that sells divrei kedusha, even if there is another such store far away, opening a third divrei kedusha store close to the pre-existing store remains forbidden, if it might cause the pre-existing one to close down. (Responsa of the Chasam Sofer, Choshen Mishpat 41).

18. If a buyer's check is not honored by the bank, who must pay the bank charge for the return of the check?
If the check came back because there were not sufficient funds in the person's bank account, or for a similar reason, the bank charge must be paid by the one who gave the check. If the seller, without the consent of beis din, hires a lawyer and takes the case to secular courts, the buyer is not obligated to cover those expenses (Rabbi Akiva Eiger, Choshen Mishpat 14, on the Shach S.K. 13).

If the check came back due to a flaw that had been noticeable (e.g. the check was unsigned, or the amount written in words did not correspond to the numerical amount) each party loses regarding the bank charge.

19. If a check given by the buyer turns out to be no good and the bank's rejection of it causes damage to the seller, must the buyer [the one who gave him the check] compensate him for the damages?
Beis din cannot obligate him, but if he knew that the check was no good and gave it to the seller anyway, he is obligated "b'din shamayim" i.e. according to the laws of Heaven (just as in any case of "gromma" – causal damage. The seller, for example, assuming that the check was good, wrote checks against it, and those checks "bounced" and he had to pay bank charges regarding them. Or, he thought that after depositing the check into his bank account, he would not be in the minus anymore, and when the check turned out to be no good, it caused him to remain in the minus and he had to pay interest for that to his bank. All this is only causal damage, so he is liable for it only "b'din shamayim"]. On the other hand, if the check's owner – the buyer – had told the seller to deposit it in the seller's account and had assured him that the check was good, and the seller had relied upon this assurance, the buyer, according to halacha, must pay for the resulting damage.

20. If a seller accepts a check from a buyer but loses it, can he ask the buyer to give him another check?
He can, but the buyer is not obligated to fulfill the request. Still, it is fitting for the buyer to go beyond the letter of the law and pay again, if the seller gives him assurances that he will suffer no loss as a result (Pischei Teshuva, Choshen Mishpat 54:1).