Shabbat Parashat Ki Tisa 5772
Ask the Rabbi: A School’s Responsibility for Confisacted PropertyRav Daniel Mann
Question: We are a school whose policy is to confiscate objects that disrupt the running of the school. Recently, someone broke into safes and stole confiscated cell phones, and parents are demanding that we pay for them. Are we halachically required to pay?
Answer: First, we must briefly discuss your policy. There is halachic discussion whether (or for how long) a school may confiscate a student’s property as a preventive or punitive measure (see Techumin, vol. VIII). Our opinion is that it is permitted as part of the leeway halacha gives to parents and teachers who need reasonable measures to enforce discipline appropriately. Taking two steps, which are usually worthwhile in any case, more or less put the debate to rest. One is to have the parents agree to a set of rules spelling out school policy, including a teacher’s right to confiscate. The other is that, presumably, teachers do not grab the objects but firmly inform the students that they are to hand over the object, as failure to do so would result in further disciplinary steps. In any case, the school can confiscate responsibly as it feels it needs to.
Now let us deal with the stolen cell phones. Your school receives money primarily to teach, but your responsibilities extend to other services, including guarding the property that you confiscate. This is similar to a craftsman, whose main job is to work on his customers’ property but also must ensure that the property will not disappear. The mishna (Bava Metzia 80b) says that craftsmen have a status of a shomer sachar (a paid watchman), who is obligated for objects that are stolen under his watch (Bava Metzia 93a).
What if a shomer sachar watches the object as well as he can but it is stolen anyway, considering that he is exempt from damages that happen under oness (extenuating circumstances) (Shulchan Aruch, Choshen Mishpat 303:3)? Some Rishonim say that in any case of theft, even if the shomer did a professional job of guarding, the Torah still obligates payment of a shomer sachar. The Shulchan Aruch, (Choshen Mishpat 303:2) rules that he must pay, while the Shach (ad loc. 4) says that he is exempt from any oness including one that ends up in a theft.
Here, there is another reason for exemption. The Maharshach (II, 169) distinguishes between different kinds of shomrei sachar. A professional shomer is obligated to do an especially professional job and must pay for any type of theft. However, one who is on the level of a shomer sachar because of side benefits he receives (e.g., a craftsman- see Bava Metzia 80b) is not obligated when he did as good a job as one can expect. Not all agree with the Maharshach (K’tzot Hachoshen 72:5; see Pitchei Choshen, Pikadon 2:(5)), but his approach is another reason to exempt a shomer who is not a professional at guarding property.
In short, at first glance, it is not clear cut whether the school from whose safe children’s property was stolen is responsible to pay. We are not allowed to give a firm ruling or predict what would happen in a din Torah. One should never underestimate the impact of the claims of a litigant who has not had the opportunity to present his side of the story. Therefore, this, like many other cases, begs for some sort of agreement or compromise.
On the other hand, we do not want “your hands to be tied” educationally by fear of liability. Therefore, we recommend that you receive the parents’ formal agreement that in the case of confiscation, the school will not be responsible for loss of the property. This cannot be done unilaterally but must be agreed upon. While someone can refuse to take responsibility as a watchman (see Bava Metzia 81b) this is only when he does not demand of the other side to give him the object. (For example, one is a shomer over collateral even if he does not want to be and in cases where he has the right to force the borrower to give it to him- Shulchan Aruch, CM 72:2). Agreement in advance can exempt a watchman from his normal responsibilities (Bava Metzia 94a).
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