Mr. Rhein headed to his backyard to build a sukkah. “Our tree grew a lot this past year!” he said to his wife.
“Will it interfere with the sukkah?” she asked.
Mr. Rhein looked at the tree. “Yes,” he replied. “One of the branches goes over the sukkah and covers a big part of it.”
“Can you cut the branch?” Mrs. Rhein asked.
“It will be hard,” said Mr. Rhein. “I don’t have the proper equipment. However, our neighbor, Mr. Green, likes gardening. He has a chain saw and can do it easily. I’ll ask him.”
The following evening, Mr. Green came to cut the branch. Under the tree was some lawn furniture. He moved it aside and climbed the tree. “Watch out,” he called out as he began cutting.
When the branch was almost completely cut, it broke off, twisting as it fell. It hit another branch, bounced off, and crashed to the ground 15 feet away. One end landed on a lawn chair and cracked it.
Mr. Green came down from the tree. “I’m sorry about the lawn chair,” he said. “I’ll buy you a new one.”
“That’s not necessary,” replied Mr. Rhein. “It’s not your fault that the branch fell in that way.”
“I damaged the chair, though,” insisted Mr. Green.
“In any case, it wasn’t new,” said Mr. Rhein.
“But it was still usable,” argued Mr. Green. “Now you’re going to have to buy a new one.”
“Let’s speak to Rabbi Dayan,” Mr. Rhein suggested.
“Must I pay Mr. Rhein for his lawn chair?” Mr. Green asked Rabbi Dayan.
“Did Mr. Green pay you for your services?” Rabbi Dayan asked.
“He did,” replied Mr. Green. “Does that make a difference?”
“It might,” answered Rabbi Dayan. “The Gemara [Bava Basra 99b] discusses a shochet who slaughtered an animal improperly. A shochet who was paid is liable for the animal; one who wasn’t paid is exempt.”
“Similarly, the Mishnah [Bava Metzia 80b] teaches that a paid craftsman entrusted to work on an item is considered a shomer sachar,” continued Rabbi Dayan. “He is liable for theft and loss and exempt only for oness (circumstances beyond one’s control).
“I thought a person who damages is always liable,” said Mr. Rhein, “even in cases of oness.”
“The Mishnah [Bava Kamma 26a] says so,” replied Rabbi Dayan. “Nonetheless, Tosfos [Bava Kamma 27b s.v. ‘U’shmuel‘] writes that a person is liable only if he is to blame to some extent, even if he’s not negligent (oness k’ein aveidai). A paid worker carries additional liability so long as he could have prevented the loss (oness k’ein geneiva) with extra care. Even a paid worker, though, is not liable for damage completely beyond his control. [Choshen Mishpat 306:4, 378:11]
“The Ramban [Bava Metzia 82b] is more stringent,” added Rabbi Dayan. “He maintains that one who damages is liable regardless of the circumstances, unless the owner was remiss in allowing the damage. He concedes, though, that a worker who acted upon instruction is not liable for circumstances beyond his reasonable control.”
“What about our case?” asked Mr. Green.
“Circumstances were not beyond your control since you could have moved the chairs further away,” answered Rabbi Dayan. “Thus, as a paid worker, you are liable. There is possibly also an element of blame, if you didn’t take sufficient reasonable caution, so that even had you not been paid you might be liable.”
“How much do I have to pay?” asked Mr. Green.
“You are not liable for a brand new chair, only for value of the broken one,” replied Rabbi Dayan.