Submitted by the Bais Hora’ah
Q: A woman gave her diamond ring to a jeweler to have the diamond placed in a new setting. Two weeks later, she suddenly noticed that the diamond was missing, apparently having slipped out of its new setting. Can she demand compensation from the jeweler for negligence?
A: There is no way to prove that the jeweler was in fact negligent in setting the diamond into the new ring. A person’s hands are constantly moving (see Taharos 7:8). It is conceivable, therefore, that even if the diamond was secured properly, at some point, the woman might have banged the ring against something and jarred loose one of the prongs securing the diamond, causing the diamond to slip out. Since in all monetary cases, the plaintiff is required to prove that the defendant owes money (hamotzi meichaveiro alav haraayah), beis din cannot require the jeweler to pay for the lost diamond.
But let’s examine what the halachah would be if the jeweler could be proven to have been negligent in resetting the diamond. Would he then be required to pay for it if it subsequently fell out of the setting? Clearly, a professional is required to perform to the highest level of his capability, and if he is negligent and causes a loss to the person who hired him, he must compensate him for that loss. We find, for instance, that a paid shochet whose negligence causes an animal to become a neveilah during the shechitah is required to compensate the owner of the animal (Choshen Mishpat 306:4).
The case of the jeweler differs from that of the shochet, however, because the loss does not occur as a direct result of the negligence, but afterward as a result of his earlier negligence. We therefore must consider the likelihood of the diamond getting lost due to his negligence. If there is clear causation of damage (bari hezeika), it would qualify as garmi (direct causation of loss — which does require compensation). In this case, however, causation of loss is not a given. The diamond could have remained in the setting despite the jeweler’s negligence, and even if it did slip out, the woman could have noticed it falling. It would likely qualify as a case of grama (indirect causation), in which beis din cannot require compensation (see Shimru Mishpat 1:84).
Another reason why the jeweler might be responsible for the loss is that when he receives the ring for resetting, he becomes a shomer (custodian) of the object (Choshen Mishpat 306:1). A shomer is responsible even for a grama, as we can determine from the fact that a shomer chinam (unpaid custodian) is responsible for the loss of the object he agreed to safeguard if he was negligent in guarding it — although that negligence is no more than a grama (see Shu”t Ritva 199, cited in Beis Yosef, Choshen Mishpat 66:41; and Shulchan Aruch Harav, Orach Chaim 143, Kuntres Acharon 2).
Under ordinary circumstances, a shomer is no longer held responsible for an object once he returns it to its owner. It would seem, then, that when the negligent jeweler returned the ring, he was absolved of any further responsibility.
We find instances, however, in which we do hold someone responsible for their actions even after they have returned an object to its owner. Someone who stole an animal, for example, and then returned it to the flock without informing the owner has not absolved himself of responsibility for that animal, because now that the animal is used to being away from the flock, it is more likely to escape. The owner has to be informed that it has been returned so he can be on guard for that possibility (Choshen Mishpat 355:2).
We might say, therefore, that since the jeweler’s negligence made it more likely that the diamond would get lost, he had a requirement to warn the owner when he returned it that she guard it carefully.
It is possible that the halachah that applies to a thief who has trained the animal to escape would apply to a shomer who has been negligent causing the further loss of the object (see Shu”t Mahari”l Diskin, Pesakim 197).
Until this point, we have discussed the possibility of beis din ruling that the negligent jeweler must pay. But every perpetrator of a grama should recompense the person he wronged “latzeis yedei Shamayim” — to absolve himself from the rule in Heaven, where he could face punishment for not paying for causing another person’s loss (Bava Kamma 55b). Therefore, if the jeweler was negligent, it would be proper to compensate the customer, latzeis yedei Shamayim.