Shabbat Parashat Vayakhel| 5771
Ask the Rabbi: A Roommate Paying for Failing to Lock the DoorRav Daniel Mann
Question: My roommate (=Reuven) and I disagreed whether it is necessary to lock our dorm rooms when leaving, and he often does not bother or remember to do so. Recently, things were stolen from our room after he left it unlocked. I think he should pay, as his approach was proven overly optimistic at my expense. Am I right?
Answer: First, let us see whether Reuven, who as a roommate was able and arguably responsible to help guard your items, when applicable, should be obligated as a negligent shomer (watchman). One does not become obligated as a shomer unless he accepts responsibility, which probably did not happen in your case. It is not sufficient to be aware that the object’s owner left the object in his proximity (Bava Metzia 81b).
Yet, there may be grounds for obligation as a shomer, as follows. The Rambam (Sechirut 2:3) says that even in cases (such as guarding land) where the laws of a shomer do not apply, one is still obligated to pay for negligence because “negligence is like damaging.” We can suggest similarly that the negligence of not locking the door obligates one even if he does not do a damaging act and he does not have the obligations of a shomer. True, commentators (see Shach, Choshen Mishpat 66:126) say that this is true specifically to one who accepted being a shomer, as the moral obligation to watch exists, just without a shomer’s halachic obligations. Thereby one who fails to guard on the most basic level must pay. However, in our case, he never promised to guard. Yet, our case is more stringent, as roommates have a relationship of interdependency and responsibility (e.g., if you had complained to the school, they probably would have instructed Reuven to lock the door). Therefore, the Rambam’s opinion should apply to this case. Regarding halacha, the Shulchan Aruch and the Rama (Choshen Mishpat 301:1) cites the Rambam’s as the minority opinion, while the Shach (op. cit.) accept his opinion. In short, it is unlikely that a beit din would extract money from Reuven based on this logic, despite its significant merit.
Another avenue to explore is damages. The gemara (Bava Kama 55b) says that if one breaks his friend’s flimsy wall that was holding back his friend’s animal, beit din cannot make him pay, but he has a moral obligation to do so. There is a machloket whether he is forced to pay when he knocked down a strong wall causing the animal to get lost (see Shulchan Aruch, CM 396:4). The Yam Shel Shlomo (Bava Kama 6:3) says that even one who obligates there does so because felling the wall that holds back an animal is like removing the animal. In contrast, one who opens a door that allows a thief to come in, only introduces a new, potential damaging factor. The latter is gerama (indirect damage) and one is not obligated, although there is likely a moral obligation to pay (gemara, ibid.). Our case is even more lenient, as Reuven has every right to open the door, and the problem is his failure to lock it later (it might depend if he purposely did not lock it).
A final category, which is a mix of the two above, is nizkei scheinim (damages among neighbors). The Tur (CM 157) cites a machloket. The Ramah compares the case of a neighbor who warns another that his failure to close a door allows robbers in to the case where one warns his friend that his wall fell and the mingling of their different vegetations will render them forbidden and he does not act, where he must pay (Bava Kama 100a). The Rosh counters that in the latter case, the mechanism that creates the prohibition begins working immediately, which is different from the possibility that robbers may come from elsewhere to damage. The Rama (CM 155:44) cites both opinions regarding one neighbor who asked the other to remove an indirect damager and he did not. In our case, then, it is hard to extract money but also hard for Reuven to wipe the slate clear. Therefore, we think it is proper for you to suggest a compromise with Reuven about payment and have him accept the responsibility to lock the door seriously in the future.
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