Shabbat Parashat Ki Tisa| 5765
One who was Checking Tefillin and Lost Them - Based on Piskei Din - Rabbinical Court of Yerushalayim - vol. I, pp.163-4
Case: The plaintiff (pl) sent a pair of parshiyot of tefillin with a messenger to a sofer to be checked, and they were lost. Pl says that the messenger said that the parshiyot were of the highest quality (worth $400). Since they also had sentimental value, pl asked for $1,000 dollars. The defendant (def) admits receiving the parshiyot and not being able to find them, but he claims that the messenger did not come to pick them up within the customary amount of time, which could be responsible for their having been lost. Def also says that he does not remember the quality of the parshiyot, but that old ones are rarely worth more than $100.
Interim Ruling: It is necessary to summon the messenger and ask him if he was told to pick up the parshiyot within a certain amount of time. If the time had not passed, then the sofer had the status of a shomer sachar (a paid watchman), who is responsible for theft and loss of the object he watches (Bava Metzia 80b). The logic of his being considered paid to watch is that a craftsman gains a livelihood from the busness arrangement, which includes the object being entrusted to him (see Tur, Choshen Mishpat 306). However, this relationship ends when the craftsman informs the owner of the object he is working on to come and pick up the object. From that point on, he is a shomer chinam (an unpaid watchman) who is exempt from payment on theft or loss. The K’tzot Hachoshen (305:2) rules that if the craftsman is unable to return the object for reasons beyond his control, then not only is he exempt from paying for the object, but he can demand payment for his work as well, as if he had returned the object.
Therefore, if the messenger substantiates the claim that he was told to pick up the object, then the sofer should get his wages and be exempt from paying. If not, def has to pay, and it is unclear whether he will be able to demand payment for the work he did for pl. [Ed. Note- Although it is not clear from the written teshuva, it appears that both sides were willing to accept the testimony of the messenger as truth. Otherwise, the halacha would be much more intricate to determine.]
We also need to ask the messenger if he remembers the level of quality of the parshiyot inorder to determine how much def will have to pay, if indeed he must pay. If def wants, he can make payment for the lost parshiyot by supplying other ones of the same value (see Bava Kama 5b). [Ed note- Def is not responsible to pay for sentimental value, but only for monetary value.]
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