Story LineHanding It OverRabbi Meir Orlean
Mrs. Aviva Feldheim was celebrating the wedding of her daughter.
“I’m going to dance!” she told her Aunt Esther. “Could you please watch my pocketbook? I have a lot of cash in it!”
“As long as you trust me,” Esther replied, with a wink.
“I do, with my eyes closed,” said Mrs. Feldheim. She went off to dance.
Esther watched the dancing for a while. Next to her stood her daughter Michal, who was watching her baby.
“I have to go to the rest room,” Esther told her daughter. “Aviva asked me to watch her pocketbook; it has a lot of cash. Could you hold it for a few minutes?”
“As long as you trust me,” Michal replied, with a laugh.
Esther handed Michal the pocketbook.
The baby started crying. Michal put the pocketbook down on the table in front of her and reached into her bag to take out the bottle and formula. As she did that, she noticed a hand reaching for the pocketbook. She turned around, expecting to see her mother. Instead, she saw an unknown person racing towards the exit!
It took a second for Michal to recover from her shock. “Police!” she cried out. “Thief!”
Someone dialed the police. It was too late, though. The thief had already fled the hall and disappeared into the street.
Esther returned from the restroom to find a commotion.
“I’m sorry, Aviva,” she said. “I shouldn’t have given the pocketbook to Michal. I’ll pay you what was lost.”
“No, it’s not your fault,” Aviva replied. “The thief could have taken it regardless. I know that Michal is reliable.”
“It’s my fault,” said Michal. “I should have held the pocketbook and not put it down on the table. I’ll have to pay.”
Meanwhile, Mr. Feldheim came over and heard the women arguing. “Rabbi Dayan will be at sheva brachos,” he said. “We can ask him.”
Rabbi Dayan heard the story. “There are a few factors to consider,” he replied.
“First, your aunt was not paid to watch the pocketbook,” he explained. “Therefore, she is a shomer chinam (unpaid guardian) who is exempt from liability for theft. Nonetheless, the Gemara (B.M. 36a) states that a guardian who handed the entrusted item to another is liable.”
“Then I should have to pay!” Esther said, emphatically. “It was my negligence!”
“Not so fast,” said Rabbi Dayan. “A person who entrusts an item to another relies also on his household members, since a person is not expected to be home 24/7. This may not apply here, though, since the item was not meant to be watched in Esther’s home and because Michal is married and no longer a regular member of the household” (C.M. 291:21).
“In any case, Rava explains that the reason that the first guardian is liable is not that he is considered inherently negligent for having handed the item to another,” continued Rabbi Dayan. “The reason is that a guardian is exempt only with an oath that the item was stolen, and the owner can refuse to accept the oath of the other person, whom he might not trust.”
“I trust Michal completely,” said Mrs. Feldheim, “even without an oath!”
“In that case, when there is no issue of credibility of the second guardian, or when there are witnesses,” replied Rabbi Dayan, “the first guardian remains exempt, as if the incident had occurred to him” (C.M. 291:26; Shach 291:47).
“Still, I shouldn’t have put down the pocketbook,” said Michal.
“While traveling, a person is required to hold money in his hand,” noted Rabbi Dayan. “However, in our situation, it seems normal to put a pocketbook down on the table in front of you, unless there were specific instructions otherwise” (C.M. 291:18,20).
“Thus,” concluded Rabbi Dayan, “The two women are not liable for the theft.”
From the BHI HotlineLost Shoe
Our cousins came to visit. Afterward I found a shoe that I assumed belonged to my cousin’s teenage son. I realized that the son of a friend of ours went to the same yeshivah as this cousin. I sent a message to my cousin that I would send it with my friend’s son, and before hearing from her, I gave the shoe to my friend. The next day my cousin told me that it was her husband’s shoe, not her son’s. I told my friend not to send the shoe with her son and I would pick it up. Later my friend couldn’t find the shoe.
Q: Who is responsible for the lost shoe?
A: The halachah that a shomer who gives the object in his care to another shomer is responsible for loss is not due to negligence, since he gave it to a competent person. The liability stems from the owner’s claim that he does not trust the second shomer, even if he takes an oath. He only trusts the shomer whom he entrusted with his object. Therefore, in circumstances where the owner trusts the second shomer, the first shomer is exempt from liability if he gave it to a second shomer (C.M. 291:26).
Furthermore, when the owner trusts the second shomer, he may not claim that he does not trust him in order to impose liability on the first shomer (Chochmas Shlomo).
Most people would not be particular about who watches their shoe since it is unlikely that someone would steal a single shoe. Therefore it would seem that you are not liable for giving the shoe to your friend. However, there are grounds for liability since the owner does not know whether the second shomer will watch it properly and may even lose it due to negligence (C.M. 342:1; see Business Weekly Issue #334).
In your situation, your friend is liable. Although she was an unpaid custodian (shomer chinam), nevertheless, unpaid custodians are liable when negligent, and not recalling where she placed the item is considered negligence (C.M. 291:7). Therefore the owner may file a claim against you or your friend (Shach 291:41; see also Nesivos 27).
However, there are authorities who assert that the restriction against giving something to a second shomer is limited to when the owner gave it to the first shomer. When the first shomer was watching an aveidah (lost object), he may give it to a second shomer whom he considers reliable. The finder of the lost object is a shomer because Hashem commanded him to watch the lost object, and regarding mitzvos we have the principle shelucho shel adam k’moso — a person’s agent is like himself — that allows the finder to transfer responsibility to a second person (Shulchan Aruch Harav, Metziah 32).
Alternatively, the owner cannot claim that he doesn’t trust the second shomer since he did not even give it to the first shomer (Bas Eini, B.M. 36a; see Chochmas Shlomo, C.M. 291:26). Others argue that even the custodian of a lost object may not give the object to another shomer (Zayis Raanan on Yalkut Shimoni 930; Chazon Yechezkel, B.M. 2:9 and Chochmas Shlomo). Therefore, whether the first shomer is liable is subject to debate.
Your friend is certainly liable since she was negligent. However, your friend’s liability is for a used shoe, which is difficult to appraise. There is also a debate whether she is liable for the other shoe, which now has no value without the shoe that was lost (See Business Weekly Issue #359). To satisfy one’s moral obligation, one should negotiate a compromise as in any other case of indirect damage.
Money mattersA Limited Gift#393
Q: Can I grant a gift for a limited purpose? For example, money to fund a specific project, or an item to be used in a defined manner or with the stipulation that it not be sold?
A: A person can grant a gift for a limited or exclusive purpose, even just to fulfill a mitzvah, e.g., lulav and esrog. The gift is fully valid for that purpose (C.M. 241:5; Sma 241:15; O.C. 658:4).
If the recipient did not fulfill the stipulation and used the item inappropriately, since the gift is not valid for that purpose, he has to pay for the usage (C.M. 241:9).
However, if the gift is fictitious, to evade the appearance of ownership by the giver, but without sincere intent to give, the gift is invalid. Some apply this whenever the evasive purpose is evident, even if not stated. Others apply it only if the evasive purpose is stated; otherwise, it is considered devarim shebalev and the gift is valid (Y.D. 221:9; Aruch Hashulchan, C.M. 241:9; Pischei Choshen, Kinyanim 15:42).