Child (don’t) care
Shani Levi opened the car door, and sank down into the seat. She smiled at her husband, David, and thanked him again for his great idea. He was the one who had suggested getting their twelve year old neighbor, Baruch, to watch the Levi’s two young children, so that Shani and David could go out together that evening, to celebrate their anniversary. It had been so nice for Shani and David to get out of the house for a little while, and enjoy each other’s company.
As the car came within a block of the Levi’s house, Shani’s phone rang. It was Naomi, the Levi’s neighbor. "Uh, Shani, are you home?" Naomi began.
"Actually, no. Why do you ask?" Shani inquired.
Naomi paused. "Shani, I’m a little nervous about what’s going on in your house. Your baby’s been screaming for a long time, and the noise is only getting louder. I’m hearing the sound of chairs being dragged around your floor. Who’s in your house now?"
Shani could barely get the words out. "We left the kids with a babysitter. We should be home in less than a minute."
David pulled into their parking spot. Even from there, they could hear the noise. Shani’s heart beat wildly, as she and David raced up the steps to their apartment. Why was the baby screaming like this? And where was Baruch?!
David pushed his key into the lock, and swung the door open. Within seconds, Shani was holding little Yael, and kissing her red, swollen cheeks.
It didn’t take long for David to find his three year old, Avraham. David followed the raucous noise to the kitchen, where he found Avraham excitedly banging on several pots, simultaneously. The little drummer had apparently taken advantage of his parents’ absence, and had helped himself to most of the contents of a chocolate gift box, sent by David’s parents, as an anniversary present. Colorful wrappers littered the floor, and Avraham’s face, hands and feet were tinted a deep brown color.
And Baruch? Baruch lay stretched out comfortably on the couch, from time to time emitting a loud snore, blissfully unaware of the goings on around him.
After David regained his composure, and shook Baruch awake, the Levis angrily informed Baruch that it was time for him to go home, and that they would not be paying him for his services.
Are Shani and David correct? Or are they required to pay Baruch, anyway?
Rabbi Yosef Tzvi Rimon, shlita:
The Levis are required to pay Baruch. The fact that Baruch fell asleep is not considered an act of negligence, on his part. If Baruch saw that the children were sleeping, and everything was under control, there was nothing wrong with him going to sleep, as well.
The problem began when the children needed help, and Baruch was sleeping too deeply, and was unaware that his assistance was required. However, his behavior falls under the category of "oness," (literally "force") meaning that, on some level, he was compelled to act as he did, and the results were not entirely his fault.
The Tosafot commentary (Bava Kama 4a) cites a similar ruling, based on the Jerusalem Talmud. Tosafot states that if a person went to sleep, and, while he was sleeping, another person placed utensils next to the one who was sleeping, and the utensils then broke, the person who was sleeping is not held liable. This is because a person is not held responsible for typical behavior that occurs during the course of sleep.
One might argue that the Levis’ agreement with Baruch was a mekach ta’ut (a transaction based on a mistaken premise), because they did not know that he would sleep so deeply, and therefore the agreement was nullified. However, there is no basis for this argument, and, therefore, the agreement between Baruch and the Levis remains intact.
Nonetheless, it would be proper for Baruch to voluntarily return a portion of the money to the Levis, because his babysitting work was not up to par.
Translated by Avigail Kirsch