Shabbat Parashat Tetzaveh| 5771

Ask the Rabbi: Payment for One Who Collects for a Group Present and Loses Money

Question: I agreed to collect money for a teacher’s gift in my daughter’s fifth grade class. We decided that everyone would pay 40 NIS. Most families contributed fully, while some paid partially or not at all. What do I do about money that is unaccounted for? Two examples: 1) My daughter is sure she brought home money from a certain family, but it did not make it to where I am keeping the money. 2) Someone paid in part and says they paid the remainder later, but it appears to us that they never did.

Answer: At first glance, you are a shomer chinam (an unpaid workman) and thus are responsible for losses that occurred through peshiya (negligence). Whether you fit that bill is a judgment call you may be able to make yourself. However, there are additional reasons to exempt you.

It is not clear that there is anyone to whom you are obligated to pay. The teacher, the intended future recipient of the gift, is not owed the money and presumably has no rights to it even after money has been collected. Regarding individual parents, they have presumably permanently transferred money to your discretion, which is to watch the money for the group of parents toward the goal of giving a present, and not to return to anyone. If you were to, Heaven forbid, misappropriate the money, they could collectively require you to return the money to a new representative (see Even Haezel, Sh’eila U’pikadon 5:1). However, in your case, there is no reason to believe that the group as a whole would want to replace you over a few dozen understandably missing shekels.

One could question the above analysis based on the following. The gemara (Bava Kama 93a) learns that a shomer is obligated to pay as a shomer only when he watches something for someone who expects it back, but not if he is watching in order to give to the poor. Yet, the Shulchan Aruch (Choshen Mishpat 301:6) says that if there is a set group of poor recipients, the shomer is obligated. Seemingly, this is because those paupers can say that they have a specific claim on the lost money. In your case, then, we might say that the teacher is the clear recipient of the money and you would be obligated to her.

Yet, the cases are different, as the teacher can only hope to receive the money. The parents can change their minds and not give the present (e.g., if the teacher loses favor in the parents’ eyes). This is different from the tzedaka collector, where once money reaches his hands, it cannot be taken away from those poor people (see Arachin 6a and Shita Mekubetzet, Bava Kama 93). Thus, the teacher would not have a claim (at least if she is not deserving of tzedaka). Possibly, the parents as a group could complain that they are not getting the full value of good will from their present (based on Rashi, Gittin 54a, see Machane Ephrayim, Shomrim 16), but presumably they should not have that claim, given that the quality of the present need not change significantly.

In the case where your daughter received money, your daughter, who is a minor, is the shomeret, and she is too young to be obligated. However, if you told the parents that they should give it specifically through your daughter, then you would apparently be obligated (see Shulchan Aruch, CM 182:2 and Netivot Hamishpat 340:11). Regarding the case where you are not sure if you ever received the money, according to the strict law, one who is not sure if he was ever obligated to pay is exempt (Shulchan Aruch, CM 75:10).

In the final analysis, it is unlikely that if you were sued, you would have to pay. Therefore since the average person would thank you for your efforts, which are probably worth more than the missing money, and let you off, you are not obligated to replace the money. If the amount is less than your planned contribution, you can certainly have in mind to give it in lieu of payment.

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