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Shabbat Parashat Matot Masei | 5769
Ask the Rabbi: Responsibility to watch unknown valuables
Question: I went with friends to play ball, one of whom decided to leave early. He asked me to take his bag back but I forgot about it, and it is now lost. He says that I owe him $500 for my negligence, as he had a lot of cash and some electrical devices. While I trust him on the facts, I would not have accepted such a big responsibility had I known what was in the bag. We asked a rebbe of ours what to do, and he said I should pay, which I did. Later, he said that it might be a complicated case and that we should ask someone who studied dayanut. Did I have to pay and, if not, can I get the money back?
Answer: Indeed, the question and the present situation are tricky. The gemara (Bava Kama 62a) says that if Reuven told Shimon that coins he wants him to watch are silver and they are really gold or if he covers a pile of wheat to be watched with barley, Shimon is responsible to pay only for the lower value of the objects he thought he was watching. Following this logic, you might claim that you accepted upon yourself to watch the normal value of a bag one brings to a playground, which is far less than $500.
However, there at least two distinctions between your case and the gemara’s. The gemara discusses a case where, after deceiving Shimon, Reuven wants him to pay according to conditions he had indicated did not exist. Here, while your friend did not volunteer pertinent information, he did not lie or refuse to answer your questions (he probably did not think twice about telling you what was in the bag). Also, Shimon accepted to watch certain objects and Reuven wants him to pay for different ones. In your case, you knew you were responsible for the unknown contents of the bag with unknown value. You just were surprised by the extent of your surprise.
We must find a precedent that is closer to your case. The Shulchan Aruch (Choshen Mishpat 72:8, based on the Haghot Mordechai, Bava Kama 207) tells of Levi who lost a sword that Yehuda received from a non-Jew as collateral. The non-Jew extracted a lot of money from the Jewish lender but, says the Shulchan Aruch, Levi has to pay Yehuda only the price of a normal sword. The S’ma (72:28) understood the case that the non-Jew made Yehuda pay an unreasonable price, which he may not pass on to Levi. However, the Shach (72:40) proves that the sword really was worth a lot of money, just that Levi could not have been expected to realize that. Still, says the Shach, we apply the rule from the gemara above that one is not responsible for values above what he reckoned for. What is important to us is that the Shach’s case resembles ours in the two elements that we discussed above, and the Shach still posits that the exemption applies.
The Yam Shel Shlomo (Bava Kama 6:34) and the K’tzot Hachoshen (291:4) agree that one cannot obligate a watchman for more than he accepted. However, they say, a watchman cannot claim that he was unaware of the object’s value (even if he is being honest), as one accepts an open-ended obligation for whatever the object is worth unless the owner actually deceives him. In our case, there was no deception. According to them, you should be obligated. The Netzach Yisrael (Grossman, 6) claims that the K’tzot Hachoshen would agree in some cases that the watchman is exempt from the higher value, as one’s acceptance of obligation is not fully open-ended. However, we believe that in his case, the surprise was qualitatively bigger than yours should have been.
It is likely (we cannot say in a one-sided forum) that had the case come before us, we would not have enabled your friend to extract money from you out of the doubt of a machloket. However, in a case of doubt, if the defendant paid even based on an erroneous p’sak, the former plaintiff now holds the benefit of possession (according to most opinions- see Shach, CM 25:2 and commentators, ad loc.). While you cannot demand the money back, we believe you have a moral right to request a compromise.
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This edition of Hemdat Yamim is dedicated to the memory of
R ' Meir ben Yechezkel Shraga Brachfeld
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