BS”D
Question
We manage many apartments. We employ a handyman who knows how to fix many things and has very good hands. He is not a professional electrician or plumber but based on his skill and experience he is usually successful repairing whatever we ask him to repair. By employing such a handyman we save much money since his price is half of what a professional charges. Recently, we asked him to repair an electrically operated window shade. However, in his attempt to repair the blind, he damaged it. The reason he damaged it is that even though he has successfully repaired electric blinds in the past, he was unaware that this particular one was manufactured differently and what normally would work, damaged this blind. Is the handyman liable for the damages?
Answer
The Gemoro (Bava Kama 99B) discusses a shochet who erred when slaughtering an animal and the Gemoro rules that if the shochet can prove that he is experienced he is not liable if he worked for free but is liable if he worked for pay. If the shochet cannot prove that he is experienced he is liable even if he worked for free. There is a major dispute among the key Rishonim why the shochet is sometimes liable.
Tosafos (Bava Kama 27B, Ushmuel) explains that the reason the shochet is sometimes liable is that when the shochet damages he is classified as an adam hamazik. If he is experienced and worked for free we view the damage as the type of oness for which adam hamazik is not liable. If he is paid he assumes greater responsibility and therefore he is liable even for this type of oness. If he is inexperienced we view his damages as a result of carelessness for which one is always liable.
The Ramban (Bava Metsiyo 82B) disagrees and maintains that adam hamazik is liable for every type of oness. However, he argues that when one is asked to perform a task he cannot be viewed as an adam hamazik since he is acting with the permission of the owner. Therefore, the only reason he may be liable is that if he works for free he is a shomeir chinom who is liable for careless actions. If he works for pay he is a shomeir sochor, a paid watchman, who must take greater care.
Thus, we can deduce that according to all opinions the reason one who is inexperienced is liable is because we view the damages as a result of carelessness. Therefore, we must ask ourselves if your handyman’s actions can be viewed as carelessness.
The Terumas Hadeshen (1, 186) discusses the issue of a shochet who slaughtered in a manner that according to the strict halacha is kosher, but according to custom one may not partake of such an animal. For all practical purposes, the owner of the animal is in the same position as if the shochet had slaughtered improperly according to the letter of the law, since the owner may not consume the meat.
The Terumas Hadeshen ruled that whether the shochet is liable depends on whether this chumro is taught to shochtim or not. He explains that if it is taught to shochtim then the shochet should have been aware of the custom and he is liable. However, if it is not part of the usual curriculum then we can justify the shochet’s lack of knowledge and he is not liable.
Thus, we see that when the worker’s lack of knowledge is reasonable we absolve him of liability.
Another instance where this principle is evident is in the case of an expert in counterfeit coins. The Gemoro says that if a top expert errs then he is not liable because he can’t be criticized for lack of knowledge since he knows everything that one is expected to know. The Gemoro explains that the reason he erred in the case at hand is because it was only very recently that the government changed the coins and he hadn’t yet become aware of the change. There is a dispute whether the expert is liable even if he was paid for his services. The Rashbo rules that he is not liable since he is not guilty of lack of knowledge but the poskim (See Shach 306, 11) dispute whether the Rashbo is authoritative.
The Imrei Hatsvi in his commentary to this Gemoro, questions why one who is not an expert is ever liable since one who hires a non-expert should expect that the worker will err sometimes. He answers that the only time a non-expert is liable is where he told the employer that in spite of his lack of experience he can do the job properly. He also cites the Maharshal (Yam Shel Shlomo Bava Kama 9, 23) who says slightly differently: that the employee should have warned the employer not to rely on his expertise. In either case if the employer was aware of the employee’s lack of knowledge and hired him because he was cheaper, the employee is not liable for his mistakes. Similarly, if in the past whenever the handyman informed the managers that he doesn’t have experience they told him to try anyway, he would not be liable since that was the nature of his job.
In conclusion: Whether the handyman is liable depends on the circumstances. If he acted in a manner which the employer expected him to act – namely to try to fix items even if he lacks experience – then he is not liable for the damage. However, if he should have informed the employer that he has no experience fixing this particular brand, then he is liable for the damages. Furthermore, if during the course of the job he became aware that his actions could very well cause damage but went ahead anyway, he is liable.
