Story LineMuktzah Mitzvah!Rabbi Meir Orlean
Shmuli Fogel was walking home with his parents Shabbos morning after davening.
“It’s been heavily overcast all morning,” said Mrs. Fogel. “It looks like it’s about to pour!”
“I suggest that we walk faster,” said Mr. Fogel. “We have another ten minutes until we get home, and I don’t want to get caught in the rain.”
It began to drizzle, and then rain. “Another two minutes and we’ll be safe at home,” said Mrs. Fogel.
As they passed the house of their neighbor, who was away for Shabbos, Shmuli spotted a plastic chair with a saw on it.
“Our neighbor was fixing his fence yesterday, and apparently left his saw outside,” Shumuli said. “I’ll move it onto their porch so that it won’t rust. It’s good that we have an eruv.”
“How can you move, it, though?” asked Mrs. Fogel. “A saw is muktzah!”
“It’s going to get ruined,” said Shmuli. “I learned that protecting a neighbor’s property from loss is included in hashavas aveidah!”
“I’m not sure whether hashavas aveidah allows moving muktzah,” said Mr. Fogel.
“Let’s go inside,” said Mrs. Fogel. “You can discuss it there.”
Mr. Fogel looked in a sefer, but couldn’t find the answer.
“I heard that Rabbi Dayan is in town for Shabbos,” said Mr. Fogel. “He’s staying at the Bloombergs’ down the block. Let’s ask him!”
Shmuli and his father walked over to the Bloombergs’.
“Gut Shabbos!” Mr. Bloomberg greeted them. “What brings you over in this rain?”
“A question arose on the way home from shul,” replied Mr. Fogel. “We heard that Rabbi Dayan is staying with you.
“Indeed,” said Mr. Bloomberg. He ushered them into the dining room and introduced them to Rabbi Dayan.
“Go ahead,” Mr. Fogel said to Shmuli. “It was your question!”
“A neighbor left a saw out in the rain,” said Shmuli. “Can I move it inside, even though it’s muktzah?”
“The Gemara (B.M. 30a, 32a) teaches that a person may not violate a prohibition for the mitzvah of hashavas aveidah,” replied Rabbi Dayan. “For example, a Kohen may not enter a cemetery to retrieve a lost item” (C.M. 272:2).
“Even where there is an eruv, and the prohibition is only one of muktzah, which is Rabbinic,” continued Rabbi Dayan, “one may not desecrate Shabbos for the mitzvah of hashavas aveidah, since a person may not violate a prohibition for monetary reasons” (Shulchan Aruch Harav, Aveidah #40).
“Is a saw really muktzah?” asked Mr. Fogel.
“A saw belongs to a category of muktzah call ‘kli shemelachto l’issur,’ a utensil whose primary purpose is prohibited,” replied Rabbi Dayan. “Such an item can be moved if needed for a permitted purpose (tzorech gufo) or for its place (tzorech mekomo), but not to protect it from the elements or other loss (me’chamah l’tzeil). Thus, a person may not move his own saw out of the rain” (O.C. 308:3).
“Couldn’t we consider this tzorech gufo, though?” asked Shmuli. “I want to move it for a permitted purpose — that of fulfilling hashavas aveidah!”
“Indeed, the Gra (O.C. 586:22) cites a dispute whether a person can use a muktzah shofar or lulav for the purpose of a mitzvah,” replied Rabbi Dayan. “Moreover, Rabi Akiva Eiger (O.C. 306) allows sending a kli shemelachto l’issur as a gift to a chassan on Shabbos, since the mitzvah of rejoicing with the chassan is considered a permitted purpose.”
“Nonetheless, Chasam Sofer (O.C. #82) rules that one may not move kli shemelachto l’issur on Shabbos for hashavas aveidah,” continued Rabbi Dayan. “A person is obligated in hashavas aveidah only where he would tend to his own; where the owner cannot move it, there is no mitzvah on others” (Shemiras Shabbos K’hilchasah 20:; Pischei Choshen, Aveidah 1:8.
“Thus, you may not pick up the saw to protect it,” concluded Rabbi Dayan, “but you can cover it with plastic or move it with your foot or elbows” (Mishnah Berurah 311:30).
From the BHI HotlineSwiped!
In last week’s issue, we discussed the case of a taxi driver who was paid to drive a group of passengers to a wedding in Bnei Brak, wait for an hour, and then drive them back to Yerushalayim, and the halachos that applied after that driver took other passengers to Tel Aviv during the waiting period and failed to return on time.
One of the passengers sent a separate she’eilah that arose during that trip:
“Before stepping out of the taxi in Bnei Brak, I asked the driver if I could leave my packages in the car while I was at the wedding, and he agreed. When I returned to the car, the bags were missing. It seems that the Tel Aviv passengers took them.
Q: “Is the driver liable for my missing items?”
A: If the taxi driver was considered a shomer (guardian) of the packages, then he would be obligated to compensate you for the loss.
The halachah is that if a shomer allows someone access to the object he is guarding, and that object is stolen, he is considered poshei’a (negligent) in his guardianship (C.M. 291:21). This is true not only for a shomer sachar (paid guardian), but even for a shomer chinam (unpaid guardian), who is also liable for negligence.
Therefore, if someone asks his friend if he can place some packages in the trunk of his car for safekeeping, and the car owner allows another person access to the trunk without watching to ensure that the second person doesn’t take his friend’s packages, he would be liable for the packages if they were stolen. [If the items stored generally wouldn’t interest a thief, such as used clothing, the car owner would not be considered negligent for allowing someone to access his trunk without watching him, because such items are not ordinarily stolen (see Terumas Hadeshen 333).]
Similarly, in the case of your taxi driver, although the fare you paid him does not render him a shomer sachar, because you paid him to drive, not to guard your packages, he would still be obligated to pay as a shomer chinam (see Ketzos HaChoshen 291:6, and Pischei Teshuvah 303:1) — but only if he would be considered a shomer.
But not every person who watches an object is in fact considered a shomer.
The basic criterion for determining whether a person is a shomer, and therefore liable for loss or damage, is whether the mafkid (owner of the objects) specifically asked him to guard them — or made it obvious that he wants him to actively watch them — and he agreed.
For instance, if someone asks his friend for permission to store valuables in his safe, the safe owner would not be liable if those valuables were stolen, because he was not asked to guard them. He was simply asked to place them in his safe, with the assumption that they would be secure without any additional shemirah (Nesivos 291:2).
On the other hand, if someone asked a store owner if he could place some valuables in his store to be retrieved later, and those items were stolen, the store owner would be obligated to pay. With people coming in and out of the store all day, valuables are not secure unless they are actively guarded. Since the owner is leaving the store and cannot guard them, it is obvious that he was implying that he wanted the storekeeper to guard them for him, and the storekeeper’s agreement that he could leave them in the store is a tacit agreement to guard them.
The inside of a taxi is generally considered a place where items are secure, so your request to leave the packages in the taxi did not necessarily imply that the driver was required to guard them; you simply assumed they were safe there. And since the driver didn’t accept responsibility as a shomer, he would not be obligated to pay for the missing items even if the passengers he allowed in were known to be thieves (Shach 348:5). He would be liable for causing damage (grama), but that would obligate him to pay only in order to avoid repercussions in the Heavenly court, not in beis din.
Now, it’s possible that had you known that the driver was planning to take additional passengers during the wait, you would have specified that you wanted him to guard your packages, but since you didn’t know that and you assumed they were safe, he did not become a shomer, and the loss of the packages is considered only a grama.
If you did discuss the possibility that he would take other passengers during the wait, and then you asked him for permission to leave your packages in the car, it is possible that this would be considered a tacit request and agreement to guard the items. In such a case, a Dayan would need to determine the practical halachah.
Money mattersAdar I and Adar II#447
Q: If a person borrowed “until Rosh Chodesh Adar,” when does he have to pay in a leap year?
A: There is a dispute in the Gemara (Nedarim 63a) as to which Adar is referred to when not specified. Rosh rules like Rav Yehudah, Adar I, whereas Rambam rules like Rav Meir, Adar II. Rema (O.C. 427:1) and a simple reading of the Shulchan Aruch (C.M. 43:28) rule Adar I, but elsewhere the Shulchan Aruch cites both opinions (Y.D. 220:8). Later authorities consider the issue unresolved (Shach, Y.D. 220:17).
Therefore, we apply the rule “Yad baal hashtar al hatachtonah” — the owner of the document (i.e., the lender) has the lower hand. This rule is a corollary of the principle “hamotzi me’chaveiro alav hare’ayah” — the burden of proof is on the plaintiff. Since the lender is claiming payment from the borrower, he can collect only when the loan is clearly due, the second Adar (C.M. 42:8).
Similarly, when there are two days of Rosh Chodesh, it suffices to pay on the second day (Sma 73:29; Aruch Hashulchan, C.M. 73:13).