Simcha walked into the dorm room holding his arba minim. "Look what I got," he said to his roommate, Aryeh. "A beautiful lulav and esrog!"

Simcha put the esrog box down on the table. He unzipped the lulav case and took out the lulav. "Almost completely closed on top," he said to Aryeh, as he examined the tip of the lulav once more.

"I bought an esrog with a pitam," Aryeh replied, while quietly reaching for a yellow tennis ball that was sitting on the table.

Suddenly, without warning, Aryeh tossed the ball to Simcha. "What do you think of my esrog?" he said loudly. Simcha took his eyes off the lulav and saw the yellow mass flying at him.

"Your esrog!" Simcha gasped. He lunged with his free hand to catch the "esrog" so that it shouldn't fall and banged his lulav hard against the table.

"Just joking," said Aryeh meekly, but Simcha was not joking at all. He examined the tip of his lulav and saw that the bang had caused a split in the middle leaf, along most of its length, rendering the lulav invalid.

"That was no joke," he said sternly. "You just ruined my lulav."

"I didn't ruin it," said Aryeh. "You banged it! I didn't ask you to catch my 'esrog' at the cost of your lulav. Anyway, it wasn't even an esrog."

"But you startled me!" said Simcha "It's your fault that my lulav got broken." He ran over to Aryeh's desk and grabbed his lulav. "I'm taking your lulav until you buy me a new one!"

"You can't do that," said Aryeh. "Even if I startled you, I don't owe you anything "

News of the incident spread through the dorm like wildfire. Did Aryeh owe Simcha for the lulav? Was Simcha entitled to take Aryeh's lulav? Could he use it for the mitzvah if Aryeh didn't buy a new one?

The boys huddled in groups in heated arguments about the case.

Avner walked in from the Bais Medrash. When he heard the commotion, he said: "The office just posted a sign that Rabbi Dayan will be giving a shiur tonight!"

"What great timing," they all exclaimed. "Let's ask Rabbi Dayan!"

That evening, Rabbi Dayan gave a shiur about the law of "shelachem," the requirement to own the arba minim. "This also means that you can't use someone else's arba minim against his will," he said. "They are not yours and like stolen."

Avner raised his hand. "A case just occurred in yeshiva related to your shiur," he said. "Would you be willing to resolve it?"

Simcha came forward. "I was in the room holding my lulav," he began. "Aryeh startled me and threw a yellow ball at me, as if it were his esrog. I lunged to catch it and in the process banged my lulav and it became ruined. I demand that he buy me a new lulav!"

"Simcha did it to himself," Aryeh responded. "He also grabbed my lulav; I demand that he return it!"

Rabbi Dayan closed his eyes in thought for a moment.

"Startling another person or animal without any physical contact, which made the person or animal injure itself, is considered grama (causation), not actual damage," Rabbi Dayan said. (C.M. 410:31; 420:32) "According to most authorities, a person is not legally accountable for grama." (Rama 386:3; Shach 386:24)

"The Gemara [B.K. 56a] notes, however, that although grama is not legally obligated, there is a strong moral responsibility to pay, chayav b'dinei shamayim," added Rabbi Dayan. "This means he is expected to pay and some consider him wicked if he doesn't."

"We discussed this in shiur," Simcha said. "We also learned that if the victim grabs payment when there is chiyuv b'dinei shamayim, he is legally entitled to keep it, so I can keep Aryeh's lulav until he pays." (See Rashi B.M. 91a s.v. Rava)

"Excellent," said Rabbi Dayan, "but the Shach [28:2] limits Rashi's comment to that particular context (kim lei b'draba minei)and rules that in cases of grama the victim is not entitled to keep forcibly what he grabbed."

"But still, he is supposed to pay me?" asked Simcha.

"Actually, it seems that in this case Aryeh does not carry even a moral obligation to pay," replied Rabbi Dayan. "A person is responsible for grama only when he had intention to damage, not when the damage occurred accidentally [Pischei Choshen, Nezikin 3:39]. Although Aryeh was trying to play a joke on Simcha, which is reprehensible and was poorly timed, he did not have any intention at all to cause damage to Simcha's lulav."

Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI's free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.

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