Shabbat Parashat Shemot| 5771

Ask the Rabbi: Payment for Deficiencies in Handling Items One Ships for a Friend

[The following is adapted from a din Torah at Eretz Hemdah’s beit din with the litigants’ permission. We are sharing only portions of the deliberations.]

Question: The Cohens were making aliya from the US. In order to make it more financially feasible to send a lift in a large container (where one saves money if he can come close to filling it) which they could not fill with their own items, they decided to rent space to acquaintances. The Levis (also olim) were among those who accepted the offer and ended up paying $1,500 (out of a total of app. $10,000) for their things. They were told that in the professional packing process, their items (especially breakables) would take up much more room than one would expect. The Levis brought over many household items in marked boxes, where they were placed in a corner of the Cohens’ basement. The Levis took up the Cohens’ offer to insure part of their goods, but underpriced the value for insurance because they heard that the companies do not always pay. The Levis had no contact with the companies involved in the shipping; everything was in the Cohens’ name. The movers did not pack all of the breakables with bubble wrap and did not separate different families’ items as instructed. As a result, several of the Levis’ things were broken, and they had to return to the Cohens’ Israel home several times to look for things. Although the Cohens sent claim sheets to insurance three times, the insurance evaded dealing with it and the Cohens have given up. The Levis wants the Cohens to pay for the lost and broken items. They also want a refund of part of the shipping fee due to the poor service they received and the fact that their items were not packed in the bulky way that justified the $1,500 fee. How much, if at all, should the Cohens pay?

Answer: The Cohens are shomrei sachar (paid watchmen) for the shipment, even if they only charged per space, as defrayal of  costs is of value and a shomer sachar need not receive formal payment (Bava Metzia 80b).

If a shomer hands over responsibility for the items to another shomer, within expectations, shomer 1 is exempt from responsibility (Shulchan Aruch, Choshen Mishpat 291:21). If shomer 2 did an insufficient job, shomer 2 has to pay (ibid. 24). There is a machloket (two opinions in Rama, ad loc.) whether, when shomer 2 has no money to pay, shomer 1 assumes responsibility to pay. Since, according to the arrangement, the Levis cannot approach the shippers or the insurance, this case seems parallel. However, when owners knew who would be serving as shomer 2, shomer 1 is not obligated if shomer 2 fails to pay (Shach, CM 291:32; see Pitchei Choshen, Shomrim 4:(44)). That is the case here. In fact, the Levis’ description of why they insured as they did displays their understanding that the insurance company would be the address for such common problems. They should have raised the issue of the Cohens’ responsibility if they thought they should be responsible. Both sides realized the Cohens were obligated to do their part by filing a claim, which they seemed to have done. Thus, the Cohens are, on a certain level, exempt.

However, there are claims with some basis, that the Cohens were deficient in performing their part of the job, which includes giving the packers firm instructions how to pack, supervising the job, and filing with the insurance in a way that they would not evade payment. The gemara (Bava Metzia 42b) teaches us that even when giving responsibility over to shomer 2, how it is given over can obligate shomer 1. Even if their performance was not negligent (pshiya) given the difficulty involved, it is far from clear that they took all of the precautions a shomer sachar is obligated in. Since in any case, a shomer has to, in theory, swear that he fulfilled his obligation, and in lieu of oaths in our times a compromise is enforced instead, we obligate the Cohens to pay [a certain amount – the calculation is beyond our scope, as are other elements of the analysis].

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