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Home Delivery: It’s On Your Lawn But Is It Yours?

By Rabbi Tzvi Price, Faculty Member, Business Halacha Institute

Published in: Hamodia. Publication Date: 02/13/2008.

Even in our age of constant hi-tech innovation, home newspaper delivery seems to have gotten a pass. Let’s face it. Your daily newspaper is delivered to you roughly in the same way that your alter-zaide received his. The basic idea has always been a flick of the wrist from someone riding on or in a moving vehicle. There is something so simple, skillful, and honest about this low-tech method that it’s downright graceful! However, this external simplicity belies a legal complexity that is both surprising and fascinating. I hope that after reading this article you will view that newspaper lying innocently on the lawn in a whole new light- the Torah light of Choshen Mishpat, Jewish monetary law.

While most people are careful not to leave things unguarded on their front lawn, I have an especially good reason to be wary. For some reason Hashem decided that I should have as my neighbor a lady they call ‘Scratchy’. I’m not sure how she got this knick-name, but I suspect it has something to do with her being a bit eccentric (well, maybe more than a bit). Her situation is quite sad and everyone in the neighborhood feels badly for her. Truth be told, her various strange habits are harmless except for one which is more problematic. Scratchy likes to ‘collect’ things. She collects all kinds of things; scraps of paper, soda bottles, cardboard boxes… you get the idea. Mostly, she collects these things from our garbage cans, but she is not above lawn pilfering in order to add to her collection. She has taken all kinds of things from me and my other neighbors, including newspapers. So the question arises, if Hamodia delivers a newspaper to my lawn and I never actually get to read it because Scratchy takes it first is Hamodia halachically responsible to reimburse me for the stolen paper? In all honesty, Hamodia does offer its subscribers the option of having those handsome-looking yellow plastic boxes installed in the front yard in order to prevent this very thing from occurring. However, for the purpose of illustrating these halachos let us first discuss the case of lawn delivery.

The most obvious issue that needs to be clarified in order to answer our question is the nature of a newspaper subscription. According to the halacha, the sale of a non-existent item is not legally valid even after that item has come into existence[1]. Therefore, when one purchases a newspaper subscription, one does not actually attain any ownership of the yet to be published papers. Rather, a newspaper subscription is a commitment made by the publisher to provide to the customer the newspapers that will be published in the future in return for a fee. Commitments to provide future goods are not always legally enforceable[2]. However, even in instances where the commitment is not enforceable, if both parties continue with their agreement and the goods are provided to the customer, then the money that was given initially becomes payment for the goods. Let us assume for argument’s sake that Hamodia did not make me sign a written contract detailing our agreement and that no prevailing custom exists regarding this issue. Our original question can now be restated as follows: Under the terms of our unspoken agreement, does the newspaper landing on the lawn constitute fulfillment of Hamodia’s responsibility of providing me with a newspaper?

Undoubtedly, the simplest way to fulfill a debt is to transfer ownership of the object that is owed. According to the Torah in order to legally transfer ownership of an object, an ‘act of ownership transfer’ must be performed on the object[3]. In halacha this is known as a ‘kinyan’. In other words, until a kinyan is made on the newspaper, it is not yet owned by the subscriber. There are a number of possible ‘acts of ownership transfer’ recognized by the Torah, but only one kind, ‘kinyan chatzer’, is relevant to our discussion. Namely, an object can be acquired by placing it in the guarded domain of the new owner[4]. Examples of guarded domains include a house, a field when guarded by a watchman, a box or other walled vessel, and most importantly for our discussion, a fenced-in front lawn[5]. Therefore in our case, if the front lawn has a fence around it and the newspaper cleared the fence upon descent (which depends upon the expertise of the delivery man) then the newspaper has legally changed hands. However, if the lawn does not have a fence or the toss was not up to par, then the subscriber does not yet own the paper. Since my front lawn is not surrounded by a fence it follows that I do not own the newspaper when Scratchy steals it. At this point, those yellow Hamodia delivery boxes take on new meaning because, in fact, they have the halachic status of a guarded domain owned by the subscriber[6]. Therefore, when a Hamodia newspaper is placed in that box it becomes the property of the subscriber and Hamodia’s responsibility of payment has certainly been fulfilled.

Let us further discuss the case in which a newspaper was delivered onto my lawn and not into a delivery box. In that case I do not own the newspaper yet, and if it were to be stolen, Hamodia would be responsible to replace it. So it seems. However, there is still one more important thing to consider. It is true that there was no actual transfer of ownership when the newspaper landed on my lawn. However, everyone certainly understands that home newspaper delivery always means ‘toss and go’. In effect every newspaper subscriber tells the publisher “It’s o.k. to throw it on my lawn even if I won’t own it yet.” One might surmise that every newspaper subscriber is inherently accepting ‘toss and go’ delivery in lieu of actual payment.

The following case found in the Shulchan Aruch in the section of Choshen Mishpat[7] will prove relevant to fully understand this point. A borrower approaches his lender with the money to repay his loan. Due to the circumstances it is more convenient for the borrower to throw the money to the lender than to actually put it in his hand. Understanding the situation, the lender suggests to the borrower that he throw the money to him. The borrower takes him up on the offer but due to no fault of his own the money misses its mark and winds up in the bottom of a lake or some other equally dreadful place. The halacha states that if the lender said “Throw it to me and you’ll be free of your debt” then the borrower no longer owes the money, even though it never reached the lender. After all, he explicitly stated that he will forgive repayment. However, if the lender just said “Throw it!”, then the borrower is still responsible for the loan. It seems that “Throw it!” only implies “and I’ll try to catch it, but it’s at your risk”.

At first glance this halacha seems to be a perfect match to our case of the newspaper delivery. The subscriber (our ‘lender’), realizing that it would be too difficult for the publisher (our ‘borrower’) to deliver the newspapers directly into his hands, agrees to have it thrown onto his property. It would then follow that the mere fact that the subscriber agrees to lawn delivery does not necessarily imply its acceptance in lieu of payment, but, rather indicates “Throw it at your own risk”. A very clear implication that the subscriber had agreed to more than just “Throw it!” is needed in order for the publisher to have fulfilled his debt. Do we have such an implication?

It would seem that Hamodia might still owe me a newspaper. However, this would be a faulty conclusion[8]. The case in Choshen Mishpat is describing the halacha that applies to a true borrower/lender relationship in which the borrower asks for a free loan from the lender. In that relationship the lender always has the upper hand since he receives no monetary benefit from the borrower. In short, the lender has no reason to accommodate the borrower. Therefore, we do not assume that the lender meant to absolve the borrower of his responsibility to pay back the loan unless it was explicitly stated. By contrast, the publisher/subscriber relationship is a mutually beneficial one in which both the subscriber and the publisher must accommodate each other. No-fault lawn delivery is, in all likelihood, an accommodation the subscriber must make for the needs of the publisher. He understands that the publisher cannot offer home delivery at a reasonable price if he would have to accept responsibility for all lost and stolen papers. Therefore, in our case the agreement to “throw it” does imply “and you’ll be free of your debt”. We may conclude that Hamodia does not owe me for the stolen newspaper. Of course, I would suggest that as a courtesy to their loyal readership, Hamodia might want to offer to pay for lost or stolen papers, but that decision would be entirely up to them.

A very important point about the newspaper on the lawn remains to be made. From our discussion, one might be led to the following assumption. Since I do not technically own the newspaper when it is on the front lawn, then Hamodia must have retained their original ownership of the paper. Although quite logical, the validity of this statement is questionable for the following reason. Let’s be honest. You and I both know that Hamodia does not have any further use for the paper that was just thrown on the lawn. In fact, they fulfill their responsibility to me by leaving it there. So in all likelihood, their intention is to relinquish their ownership of the paper as soon as it leaves the delivery man’s hand. We have come to an amazing realization about this newspaper on the lawn. According to what we have just said, no one owns the newspaper, and in truth Scratchy did not steal it from anyone![9] However, in my estimation it seems highly unlikely that she based her actions on this legal loophole. In fact, the extent to which this loophole applies is a matter of debate among the halachic authorities[10].

Even though we have only discussed the scenario of a newspaper on the front lawn, certainly these concepts can be applied to other cases as well. However, it is important to realize that every case has its own confusing twists and turns. Furthermore, this article only touches the tip of a very big halachic iceberg. Truthfully, only after I had started my research to prepare this article, did I begin to appreciate its immensity. Therefore, I certainly urge the reader to confer with a halachic authority regarding any of these matters.

I hope that this article was informative and enjoyable. More importantly however, it is my hope that I have whetted your appetite to see your world through the eyes of the Torah and its laws of Choshen Mishpat. Who would have thought that so much Torah could have come from such a simple thing as the newspaper on your lawn?

***

[1]   חושן משפט, ס' ר"ט, סע' ד'

[2]   יכולים הם להתחייב את נפשם על דבר שלא בא לעולם אם ההסכם ביניהם נאמר בלשון "אני מתחייב את נפשי לפלוני..." וצריכים לעשות קנין כגון שטר התחייבות או קנין סודר, ע' חושן משפט, סימן ס', סע'ו' ונו"כ שם. ויש להסתפק במה שנוהגים היום כשמזמין עיתונים לתקופת זמן מסוים שאינם מדקדקים לומר או לכתוב לשון התחייבות וגם נותנים כסף גרידא האם סגי כדי להתחייב וע' קצות החושן ס' ר"ג, ס"ק ד', ומחנה אפרים הל' מוכר דשלבל"ע, ס' ג', דעדיין יש לומר דיש כאן קנין סיטומתא כיון דהכי נוהגים ודעתם להתחייב, ע' חו"מ ס' ר"א, ואכמ"ל, וצּ"ע.  

[3]   חושן משפט, ס' קפ"ט

[4]   חושן משפט, ס' ר', סע' א'

[5]   ע' בחושן משפט, ס' ר', סע' א' ברמ"א שכ' ששמור ע"י המקנה מהני, וע' קצות החושן ס"ק ב' שסבר שהחפץ שמור ע"י בעלות המוכר ולא בעינן מקום משומר, ולפי דעתו בנד"ד העיתון נקנה אפ' כשאין מחיצות מסביב לחצר. אמנם נראה דרוב פוסקים חולקים עליו וסוברים דבעינן שמירה ממש ע"י המקנה וע' בנתיבות ס' ר', ס"ק ב', ובערוך השלחן שם, ובנד"ד אין המקנה שומר את העיתון כלל. עוד יש להעיר דבנד"ד דהמוכר פטור מאחראיותו בזריקתו אפשר לומר דהוא מפקירו ואין כאן שמירה ע"י בעלות המקנה אמנם זה תלוי בספקת רע"א דהביאתי לקמן ב8.    

[6]   ע' חו"מ ס' ר' סע' ג', וע' נתיבות המשפט בהקדמתו לס' ר' בענין חצר המוכר המושכרת לקונה

[7]   חושן משפט, ס' ק"כ, סע' א'

[8]   לענ"ד וע' משכ' האמרי בינה, ח' חושן משפט, הל' דיני גביית חוב, ס' כ"ז שהביא מח' בין הסמ"ע והמהרי"ט, ולפי דעת הסמ"ע פשוט דפטור, ומה שכתבתי הוא לומר דאפ' המהרי"ט מודה בנד"ד 

[9]   ע' חו"מ, ס' קצ"ד, סע' ב' ונו"כ שם לענין אם חייב החוטף לשלם למי שנתן הדמים למקנה.

[10] הגות רע"א חושן משפט, ס' ק"כ, סע' א', וע' באמרי בינה הנ"ל , ןבנתיבות המשפט ס' קצ"ד, ס"ק ד'