By Rabbi Yair Hoffman for 5tjt.com

He was a ninth grade Yeshiva student – a good boy, who learned well.  For some reason, however, he kicked the door in the school building – to keep it open, in all probability.  Unfortunately, the door broke.

It was a glass door, and it spontaneously shattered – completely.  The young man felt badly, and informed the Rosh Yeshiva immediately.  He took full responsibility.

The Rosh Yeshiva responded, “I am very sorry, but this is mammon hekdesh.  I cannot just let it go.  You must pay for its replacement, and it is several hundred dollars.”  The boy took responsibility and for the next 2 years – every penny that he made he brought to the Yeshiva to pay back.  He did not tell his parents, so as not to put additional financial pressure on them. His father is a talmid chochom who learns all day and his mother is in chinuch. His parents found out about it two years later, by accident.

WHAT IS THE HALACHA?

Of course, if this question comes up, one must ask his own Rav or Posaik and not rely on this article,  But what is the halacha?  Is the Yeshiva in its full rights in demanding full payment from the student?  Does the Rosh Yeshiva not have the right to forego the damage?

THE GENERAL HALACHA

The general halacha found in Shulchan Aruch (Choshain Mishpat 421:3 and Siman 278) is that if someone damages another, even if it is not done on purpose (shogaig) and even if it was not his fault at all (an onais) he is obligated to pay.

The Gemorah in Gittin (49a), however,  darshens, “shor ray’ay’hu – velo shor shel hekdesh.”  The Torah specifically states that damage must be paid when damage is done to the ox of his peer – and not when it is done to an ox that was donated to the Temple.  This Gemorah actually states that the one who does such damage is technically exempt.  However, the Baalei Tosfos on that Gemorah write that miderabanan, by Rabbinic decree, there is an obligation to pay.   There are other Rishonim that have different approaches, but it seems that this is the essential view – lehalacha.

DOES THE ROSH YESHIVA NOT HAVE A RIGHT TO BE MOCHEL?

Before the second World War, Rav Elchonon Wasserman hy”d was visiting America and had made the acqauntance of R’ Shraga Feivel Mendelevitch ob”m.   R’ Shraga Feivel had posed to Rav Elchonon a question regarding long hair [bluris] that the bochurim at the time sported.  The Mishna Brurah (27:15) seems to be very stringent about the matter.  Rav Elchonon Wasserman responded that a Yeshiva must be careful not to turn off the bochurim and advised R’ Shraga Feivel not to make an issue of it.  Although this incident is illustrative, it seems that just as a Rosh yeshiva has certain leeway to give gifts from a Yeshiva to donors even though it is mammon hekdesh – by the same token he should be able to have that leeway in whether to force someone to pay for something that happened inadvertently. It would seem that this is the rationale of the Steipler in the following incident.

YESHIVA BE’ER YAAKOV INCIDENT

Rav Moshe Shmuel Shapiro (1917-2006) zt”l was the Rosh Yeshiva of Yeshiva Be’er Yaakov and a talmid of Rav Elchonon Wasserman.  A bochur had lit candles on a wooden table and the table caught fire.  Subsequently, four rooms in the Yeshiva completely burned down.  When the bochur told Rav Shapiro about it, Rav Shapiro told the bochur that, in the future, when the bochur has money – he must pay back the Yeshiva.   The bochur approached the Steipler Gaon who responded that the Rosh HaYeshiva MUST BE MOCHEL.  When Rav Shapiro heard the Steipler’s ruling he responded, “While I don’t necessarily agree, but since the Steipler said to, he must listen to what he says.” (See Brischa Yintzoru p. 81).

In a footnote contained within a Sefer entitled, “Toras HaYeshiva,”chapter 21 (p. 282), the author Rav Meir Pinchasi is unsure as to whether or not a Rosh Yeshiva has a right to forego the damage payments that a Talmid may be obligated to pay.

However, the Sefer entitled,  “Teshuva HaGrach” Vol. II p. 889, written by Rabbi Aharon Ben Yaakov HaLevi Grenedish, the author cites Rav Chaim Kanievsky shlita as ruling that a Rosh Yeshiva is permitted to forego an obligation to pay when Yeshiva students broke a bookcase in the Yeshiva.  It seems clearly that a glass door would be no different. {It is interesting to note that his father, the Steipler, ruled in the previous case that the Rosh Yeshiva MUST forego the payment, whereas in the latter case. It seems it is optional}.

שבירת ארון בישיבה לעניו מחילה

תשובה תתתתתרכט שאלה: חו”מ.  בחורים שברו ארון בישיבה האם יכול מנהל הישיבה למחול להם או שאין מועילה מחילה שלו על ממון הישיבה מב”א

תשובה: כן

This author believes that Rav Chaim’s position and that of his father, the Steipler, can be backed up by the Rambam’s ruling in Hilchos Tefillah 11:20 that a shul’s Gabbai’s can sell it or even give it as a matana  The point is that the Rambam seems to be giving more leeway to the Gabbaim which would include the hanhallah of the Yeshiva.

On the other hand, it could very well be that the Rosh yeshiva is trying to impart a lesson to the student to be more careful.

A number of Rabbonim have suggested that since the door is attached to the building – we should look at the loss of value of the entire building which is negligable.  However, the Chazon Ish Bava Kamma 6:3 writes that we only look at the entire building when the building is for sale, but otherwise – it is replacement value.  The Nesivus in the Biurim (#2) indicates the other way.  However, the Poskim that this writer has consulted over the years said that we cannot even use the Nesivus with Kim Li – that is the extent that the Chazon Ish has become normative halacha.

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