Terumo-A Deliveryman Accidentally Ruined a Fruit Arrangement

Question

I sell fruit platters and a customer ordered a two-hundred-dollar fruit platter to be delivered to his parents for Shabbos. I charged the customer’s credit card and contacted a deliveryman and paid him thirty dollars out of my pocket for the delivery. However, when the deliveryman got to the building where the customer’s parents live, accidentally the fruit platter fell and the entire fruit arrangement became one big mess. When I informed the customer what happened he was understandably very upset, so I told him he doesn’t owe me any money. Does the deliveryman owe me two hundred dollars for the damages to the fruit platter and can I demand that additionally he should return the thirty dollars I paid him for the delivery since what he did was worthless?

Answer

We should first note that since you were responsible for delivery, you were obligated to return the customer’s money to him because you were the owner of the fruit platter and responsible for the delivery of the fruit platter. By receiving money for the fruit platter, you became obligated to give your customer a fruit platter but it only would have become his when it was delivered to his parents since paying money is not a valid kinyan-not a legally effective means to transfer ownership. Therefore, even if your customer would not have been upset you were obligated to return his money.

Since you were the owner of the fruit arrangement the deliveryman damaged you when it dropped. Therefore, your first question is whether he is liable for the damages that you incurred and your second question is whether he is obligated to return the money you paid him in advance for his work.

We should next note that since he was paid for his work the deliveryman had the status of a shomer sochor. This is a ruling of the Mishna that states (BM 80B) “All craftsmen have the status of a shomer sochor“. The rationale is that since the deliveryman used the fruit platter to earn money, he “rented” the fruit platter from you and a renter of a movable object has the status of a shomer sochor. Since a shomer sochor is liable for any damages that are not an oness-an event that was beyond the shomer’s control, it would seem obvious that your deliveryman is liable for your loss of a fruit platter and you have every right to force him to pay you for your loss.

The only reason that there is an issue is due to two sections of the Gemoro that discuss porters and in this article we will discuss one of them.

The Gemoro (BM 83A) records the authoritative opinion of Rabbi Eliezer that even a porter who was paid to transport a barrel of food is not liable for the damages that he caused to the owner of the barrel if he tripped and broke the barrel. The Gemoro explains that the reason for this unusual exception is that otherwise people would not work as porters and Rashi says that the reason is because they would fear that they would trip and be liable for the damage. Therefore, the Rabbonon enacted a special waiver exonerating porters from liability for certain damages. The Gemoro states that, nonetheless if the damage results from the porter’s carelessness the porter is liable for the damages.

You didn’t write why the platter fell. Based on the above, if the deliveryman was careless, he is liable. It should be noted that the Gemoro specifically discusses the case of a porter who tripped and rules that tripping is not considered negligence. However, the Nesevos (304, 1) rules that this is only valid if the porter carried the maximum that he was able to bear but if the load was light, he is liable if he tripped. The Minchas Pitim (304, 1), Avnei Choshen and Shoshanas Yacov claim that this is only a minority opinion amongst the Rishonim and the authoritative opinion of the Rambam is that even if the porter did not carry the maximum that he was capable, he is not liable.

There is a further dispute among the poskim concerning this enactment that affects your second question. The Sema (304, 3) claims that the Gemoro writes that the enactment was not only that the porters were not liable for damages but even that the employer must pay them for their work. However, the Taz points out that firstly the Gemoro that says that the employer must even pay the porters is not discussing this issue but a second issue as we will see in the ensuing. Furthermore, he argues that if one follows the Sema’s approach the enactment would be unfair to the employer.

Thus, we have determined that in case your deliveryman would have the status of a porter in the time of the Gemoro whether he has to pay for the loss of the fruit platter would depend on whether he was careless or not. Furthermore, even if he was not careless there is a dispute between the Taz and Sema whether you need to pay him for his work. However, we have to consider whether this is at all relevant to your situation since while both your deliveryman and the porters of the Gemoro transport merchandise, their methods vary greatly and work conditions have changed. Therefore, we have to consider if the Gemoro’s dispensation for porters is relevant to deliverymen.

The Mishberei Yam (res. 18) was asked to rule concerning a store that sold a barrel of oil and used a horse and buggy delivery service to transport the oil to its customer but the buggy got caught on something and consequentially the barrel fell and broke and the oil spilled. He exonerated the delivery service because he maintained that the dispensation that was given to people who trip applies to animal drawn wagons as well. He argued that if the exoneration would have been limited to where people tripped on objects there would be reason to differentiate between people and animals since people don’t walk with their heads down but animals do. However, since even when a person did not trip over an object but simply fell the messenger is not liable, therefore the person who made deliveries with a wagon that was drawn by horses should be free from paying.

However, the Beis Yisroeil (Horowitz, res CM 34) was also asked about a horse drawn wagon and disagreed. He based his position on Rashi’s comment that the reason why people would not want to work as porters is because they would fear that they would trip and the barrels would break. He argues that this enactment was necessary only in the Gemoro’s time when people carried the earthenware barrels themselves and frequently would fall and the earthenware barrels would break. However, horses and wagons which traveled on roads would rarely turn over and even if they did their load would not be destroyed since they no longer use earthenware receptacles. Therefore, since the reason for the exemption did not apply to horses and buggies one cannot extend the Gemoro’s exemption to include them.

The Shevus Yacov (3, 177) as well ruled that the exemption only applied to the Gemoro’s situation where people would transport barrels and damages were frequent since the loads were heavy and additionally the pay for porters was low.

Based on the above, certainly nowadays where goods are delivered by truck or car and damages are infrequent one cannot invoke this Gemoro and SA to free your deliveryman from paying if something would have happened while the platter was being transported by car. However, in your situation the arrangement fell when the deliveryman was carrying it i.e., he was acting as a porter. Therefore, perhaps since this part of the deliveryman’s job is exactly like it was in the time of the Gemoro we should invoke the Gemoro’s enactment to free the deliveryman from paying.

However, for two reasons the deliveryman is not exempt from paying. Firstly, even if a part of your deliveryman’s job was to act as a porter, since this was only part of his job and not the essence of his job the exemption of the Gemoro does not apply, according to many (Leiv Meivin, Eim Hamasores), since it was given only for porters. For that reason, the Chavos Yo’eir (res 106) ruled that a maid was liable for objects that broke because she tripped since this was not the essence of her job.

A second reason is similar to the Shevus Yacov cited earlier that general circumstances have changed obviating the need for such an enactment even for porters. Firstly, pay is not poor and secondly insurance is available to cover damages. Thirdly, this enactment would be detrimental to Jewish porters since people will hire non-Jews if this issue would be significant.

Thus, we have established that your deliveryman cannot invoke this ruling to free himself from paying for the loss of the fruit platter and to make you pay him for delivery, even according to the Sema.

However, there is perhaps a second section of Gemoro that could serve as a basis to free the deliveryman from paying, which we will Be’ezras Hashem discuss in a future article.