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Shabbat Parashat Mishpatim| 5766
Ask the Rabbi
In honor of our parasha, which is full of monetary issues, including those discussed below, we share a question that arose in an informal din Torah that came before us.
Question: Reuven and Shimon traveled together. Reuven allowed Shimon to put valuables, which, Shimon is sure included a 50-shekel bill, in one of the compartments of his backpack. Before getting on a bus, Shimon ripped the zipper while opening up the compartment but left his items inside. (Reuven was able to fix the zipper on the bus). When they reached their destination, Shimon found all of his items except the 50-shekel bill. Suggested versions of what might have happened to the money include that Shimon did not put in the money or took it out, it fell out, or it was stolen. The two disagree only on interpretation of events, and do not accuse each other of lying. Is Reuven responsible to pay for losing the money?
Answer: A shomer chinam (an unpaid watchmen) is exempt when the object is lost or stolen but is liable if that occurred due to p’shiya (negligence). There are two main points of contention to clarify. [We had to omit other, smaller issues in this forum]. One is whether Reuven was a shomer or just a “carrier,” a matter they had not discussed. The second is whether the money’s disappearance was due to p’shiya after the zipper opened, as Shimon claims, or whether Reuven watched it reasonably. Only if both points are decided to Reuven’s detriment will he have to pay.
Status as shomer- There is a dispute among Tanaim (mishna in Bava Kamma 47b) whether when one allows his friend to put his animal in the former’s pen without further stipulation, the former accepts responsibility for the animal or whether he just gives permission without accepting responsibility. The gemara (Bava Metzia 81b) suggests that this is a global machloket whether one who agrees to receive control over another’s property becomes obligated as a shomer without explicit agreement to that status. It concludes that more local, psychological factors may explain the various positions in their specific context.
To skip to the bottom line of the halacha, the Shulchan Aruch (Choshen Mishpat 291:2) rules that when the wording of the agreement is “plain” the one who ends up with the object does not receive the responsibilities of a shomer. However, he continues that if Levi agreed for Yehuda to place his shoes on Levi’s donkey before Levi went alone to another city, then, since the shoes are in a precarious situation if not cared for, we presume that Levi accepted responsibility and did not only give permission to put the shoes on his donkey. Despite similarities to our case, the rationale of the Rosh, the source of this halacha, shows differences. Since our Shimon accompanies Reuven, Reuven likely intended that Shimon retain responsibility that his items not be lost, especially since, at the time he put them in the knapsack, it seemed unnecessary for Reuven to give them further thought. Although the situation became more complex when the zipper broke, the parties’ accounts indicate that Reuven did not intend to accept a new status of shomer as a result.
Was there p’shiya? – Reuven is adamant that he was sufficiently careful under the circumstances that arose, whereas Shimon feels that he was apparently not. Ordinarily, a shomer has to take a Torah-level oath that he was not negligent and since we avoid oaths, this may be grounds for monetary compromise. However, in this case, neither friend accuses the other of lying, but sees the apparently borderline case differently. (Had there been clear p’shiya, Shimon would have taken back his items and/or checked earlier if they were still there, as he generally saw Reuven’s actions during the time in question.) Regarding a doubt whether there was p’shiya, a shomer is exempt from paying (see K’tzotz Hachoshen 340:4).
Based on indications (albeit not fully conclusive ones) on both issues, and certainly given the convergence of the two, there are not grounds to require Reuven to pay.
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