Question

Last year prior to Pesach, I went to the rabbi of our shul and filled out a form empowering the rabbi to sell the chametz that was owned by my business. I should note that my business owned a substantial amount of chametz. I was shocked when during Pesach the rabbi informed me that he forgot to include my form with those he gave to the goy when he sold him the chametz. Since he forgot to sell my chametz, he informed me that I would have to destroy the chametz, which I immediately did. Does the rabbi owe me for my loss since it was his fault?

 

Answer

First, we must clarify what role the rabbi plays in the sale of his congregant’s chametz. Some people mistakenly think that the rabbi buys their chametz from them. Actually, however, the rabbi is merely their shliach, their agent, to sell chametz on their behalf. Therefore, your question is whether an agent who failed to do what he agreed to do is liable for the loss which was suffered by the one on whose behalf he agreed to act.

 

If your rabbi is paid for selling the chametz – whether you paid him specifically or whether one of his rabbinic duties is to conduct the annual chametz sale – many Poskim maintain that the rabbi must compensate you for your loss. The opinion of the Nesivos (306, 6 and other places) and the Chasam Sofer is that a paid agent is liable even if his failure to act only resulted in unrealized potential profit. However, this is a minority opinion.

 

However, in cases such as yours, where the employee’s failure to act resulted in an actual loss, even many of those who disagree with the above opinion agree that the employee is liable for the resultant loss. It should be noted that this is the ruling of the Ramo (Siman 333, seif 6). The reason is that the rabbi is considered to have damaged you. Even though the rabbi only caused you a loss, this opinion maintains that this type of caused damage is classified as garmi (See Terumas Hadeshen (1,329)) for which one is liable. It should be further noted that this opinion holds that the rabbi is liable even if he was doing this as a free service since he was negligent.

 

Actually, it can be argued that your case is even worse than the general case of an employee’s failure to act resulting in a loss. The reason is that there is an opinion (See Chazon Ish (Bava Kama 23, 25)) that explains that the rationale of those who rule that an employee is not generally liable is because the employee was not aware that his failure to act would result in a loss. In the case of a shul rabbi, it is quite clear that if he fails to sell the chametz, a loss will result. Even though it is theoretically possible that the seller appointed more than one person to sell his chametz, it is not usual for a shul congregant to do so. Therefore, at the time the rabbi neglected to sell your chametz, the damage was fairly certain. Therefore, many more poskim would rule that the rabbi is liable.

 

Another reason in your case that the rabbi is liable (See Machane Efraim (Sechirus Poalim siman 7) and Mishpat Hamazik (volume 2: 15, 2)) is because the damage followed almost immediately after the rabbi failed to act. Chametz is generally sold shortly before the last time when chametz may be sold. Therefore, your chametz became forbidden almost immediately after the rabbi failed to include your chametz in his sale.

Still another reason why the rabbi needs to pay is that even though the damage resulted from the rabbi’s inaction and not an action of his (one of the reasons to exonerate the rabbi) almost all would agree that this is not classified as garmi which resulted from inaction. The reason is that the rabbi originally publicized the fact that one can make him their agent to sell chametz. In such a case (See Mishpat Hamazik (volume 1 chapter 16 footnote 43), the garmi is not classified as resulting from inaction.

 

Another important point to mention is that it was only in your particular situation that the chametz was completely lost due to the rabbi’s mistake. If you would have only discovered that your chametz was not sold after Pesach, your chametz would not have been totally lost. The reason is that the Sha’arei Teshuvo (448, 3) brings various poskim who rule that in case you only found out after Pesach what transpired, while you may not eat the chametz, you may sell or barter the chametz to a non-Jew, since then you are only deriving benefit from chametz-after-Pesach. This is also the ruling of the Mishna Berurah (Beyur Halocho, siman 448, seif 3) in case the loss is quite significant. It is only because the rabbi apprised you of the situation on Pesach that you had to destroy the chametz immediately, causing a total loss.

 

A further important note is that the rabbi could have easily prevented this scenario. When the rabbi sells chametz to the gentile, he can, and many rabbis do, write (See Chut Shani, Hilchos Ribbis that this is the practice of Rav Nissim Karelitz) in the sale document which he makes with the gentile, that he is selling to the gentile on behalf of all those who empowered him to sell chametz even if their details are not included in the papers that he is handing over to the gentile. In this case, your chametz would then have been included in the sale even though the Rabbi forgot to hand over your documents, and you wouldn’t have had to destroy the chametz.

 

In conclusion, it is advisable for rabbis to exercise foresight and avoid this type of problem but if they do not, they are probably obligated to compensate the congregant for his loss unless he forgives it.

 

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