?Is it legitimate to keep money or other articles received under conflicting assumptionsמהגולשים יג שבט, תשסד 2/5/2004
Another shiur given by Rav Kowalski of the Daf Yomi group:
Is it legitimate to keep money or other articles received under conflicting assumptions?
Another shiur given by Rav Kowalski of the Daf Yomi group: Is it legitimate to keep money or other articles received under conflicting assumptions? Reuven was a senior employee in the Widget Company. For years he traveled to work by bus. After rising in the company hierarchy he bought a car and wanted to drive it to work daily, as befitted his position in the company. He asked his boss for a car allowance to cover the use of the car. Being a valuable employee he received the allowance. Reuven’s wife traveled a similar path in her work and to her work, she too became a valued employee in her company and was granted a taxi allowance to travel to work. Thus, Reuven, his wife, and also one or two neighbors, who also received car allowances, traveled to work almost daily in a taxi paid by the wife’s taxi allowance. One day, in a pouring rain, Reuven’s boss was trying to hail a taxi. The taxi carrying Reuven and companions happened to pass by, they were all travelling the same route and could offer this boss a ride. However, they are uneasy and wondering whether it is wise to have the boss in the taxi with them. The boss would discover that they are all benefiting from the wife’s taxi allowance and are not spending the car allowances for the purpose they might have been meant for. They decide to chance it as this boss has already spotted them. Well, as they are riding along the boss asks the driver how much he has to add for the ride. The driver answers that the ride is already paid for and also adds that this ride, serving the whole group, is a daily occurrence. The ride makes some members of this group very uneasy as they feel that the boss will think that they are taking the allowances under false pretenses, and will cancel the allowance. Others of the group take an opposite view and say that they receive the allowance irrespective of its use as long as they get to work. Another example: a sick man named Levy in Tel-Aviv invites a physician from the Herzliya Medical Center to make an emergency house call. The physician itemizes the costs before getting underway: $200 for the visit and $ 50 for the taxi each way. As the physician is leaving the Medical Center he recognizes one of Levy’s neighbors getting into his car. The neighbor is happy to give him a ride and brings him directly to Levy. Is the physician entitled to the $ 50 fare money or not? Levy assumed he was paying the taxi fare, does he care if the doctor used alternate transportation? The doctor asked to be reimbursed for the taxi fare, should he be entitled to keep the $ 50 even though he didn’t incur the expense? There are no pat answers. Do what is reasonable, or what is the accepted norm etc. Two Mishnes deal with somewhat related topics; of course the leading law is “whoever wants to get the money from his fellow has to prove that he is entitled to it”. The Mishne in Ketuvot chapter 11 states: A man married a divorcee, she demanded and he agreed to assume the responsibility to provide for her daughter from a previous marriage for the next five years. He has to provide for the daughter even if they get divorced tomorrow. If the divorcee marries again under the same conditions then both the husbands have to provide for the daughter, one husband provides the food and the other one has to pay its equivalent. In summary, a blank contractual agreement has to be honored fully, no matter what. However, adds the Mishne, a smart husband would limit the agreement by adding that he would provide for the daughter for five years as long as they stayed married. This sage advice means that: agreements, contracts etc. should be detailed, spell out the conditions exactly and avoid doubt and sorrow. This would certainly apply in the case of car and taxi allowances. The companies did not specify that the allowances have to be used for that sole purpose, the main demand of the companies is that the employees come to work and do their work well ! It is understandable that the employee feels uneasy when first exposed but the law is on his side. In the Mishne quoted we do not stipulate that the daughter should only receive provisions once, if the husband/boss agreed to pay unconditionally he has to honor his agreement. A second Mishne in chapter 4 of Nazir states: A wife who vowed to become a Nazira (undertakes to abstain from wine and haircuts) and set aside her sacrifices (a Nazir has to bring sacrifices at the end of the Nazir period) and the husband negated her Nazir vows… the Mishne goes on to discuss the disposition of the sacrifices the wife set aside, which have now become superfluous. Gemarah Nazir on page 24b tries to understand the Mishne and asks: how can a wife own cattle for sacrifices? We know that in a marriage the husband undertakes to provide for the wife and in return all the earnings of the wife belong to the husband. The husband is also entitled to the fruits, or earnings, of the property the wife brought into the marriage (which indeed belong to the wife). This seems to preclude the wife from having cattle which she can sacrifice; sacrificing cattle she brought into the marriage would deprive her husband from enjoying the fruits of the cattle, wool, milk, work, etc. The Gemarah gives two answers, the first: that the wife scrimped on her food and other needs and saved enough money to buy the cattle. The Tosfes commentary examines this reply and says we have a rule that: if a wife receives an allowance then the money left over from her needs reverts to the husband. This would return us to square one. Here the Tosfes offers two answers: 1. The husband said to the wife use the fruits of your labors for your upkeep, if the wife earns more than she needs she can keep her excess earnings 2. The Tosfes distinguishes between two possibilities leading to the concept of “left over money due to the wife’s frugality”. If the husband was generous and the upkeep cost less than the allowance then indeed the money remaining should revert to him, however if the left over money is due to the wife’s eating less/or managing better then she should be entitled to keep the left over money. This last statement seems to fit our case of the doctor and to some extent also the car allowance. If the doctor walked, or made some other effort, or accepted some measure of discomfort to save the taxi fare then the saving is his, if he just got lucky and bumped into Levy’s neighbor then ethically he should not charge for the taxi fare. The group riding in the taxi can also claim to some measure of discomfort, they had to be punctual, they sat cramped together, etc. and the boss would have a hard case to prove the opposite. Generally, we also say that in an ongoing process like the taxi ride if the worker gets a free ride occasionally then he should not feel uneasy about it since the main purpose of the allowance is to facilitate his getting to work, if it is a daily occurrence then they should try to come to some arrangement with the company which might pay them less car allowance but they would enjoy the luxury of a clear conscience. Of course if the physician wants to go lifnim meshurat hadin, he wants to be righteous above the law, then he should indeed not charge for a taxi he did not use.
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