Rabbi Meir Orlian
Mr. Eric Roth lived in Israel.
“I’m flying to America next week,” he told his neighbor, Shraga. “My niece is getting married!”
“Mazal Tov!” said Shraga.
“Do you want anything while I’m there?” Eric offered.
“I need a new zoom lens for my Nikon camera,” said Shraga. “It’s hard to get that part here.”
“I’ll try,” said Eric. “How much does it cost?”
“Between $150 and $200,” said Shraga. “I’ll give you money.”
That evening, he brought $200 cash to Mr. Roth.
“Do you want me to keep the money separate?” asked Eric. “I may prefer to use my credit card for the purchase and save the cash for other expenditures.”
“Either way is fine,” said Shraga. “You can use the money if you want.”
Mr. Roth put the money in his wallet. He wrote down the specifications of the lens that Shraga wanted.
When Mr. Roth landed, he took a taxi to his sister’s house.
“The ride will cost $40,” said the taxi driver.
“That’s fine,” Mr. Roth said. He opened his wallet and pulled out two of the $20 bills that he had received from Shraga.
The following day, Mr. Roth went shopping for the lens.
As he turned off the main avenue and walked onto a side street, two men accosted him. One of them pulled a knife. “Gimme your money!” he ordered.
Eric took out his wallet, shaking. The men grabbed the cash and ran off.
Eric flagged down the next police car and reported the mugging.
“There’s not much we can do other than taking a description of the men and fingerprints from the wallet,” said the policeman. “If we should later catch the muggers, we can possibly charge them for this also.”
Mr. Roth was dazed by the experience and decided to cut his day short. As he headed back to his sister’s house, he wondered, “What do I about the $200 that Shraga gave me? Do I have to buy the lens with my own money?”
That evening, Eric saw Rabbi Tzedek in shul. He related the whole story and asked, “Am I responsible for the money that was stolen from me in the mugging?”
Rabbi Tzedek replied, “Since you requested permission to use the money for your own purposes and even used some of it for the taxi, you are responsible for the entire $200.”
Rabbi Tzedek then explained. “An armed mugging is considered an oness, uncontrollable circumstance, for which only a borrower is responsible, not a shomer chinam (unpaid watchman) or shomer sachar (paid watchman) (303:3). However, if a person is entrusted with money that he is allowed to use and uses it, he is considered a borrower and is fully responsible, even if lost through oness (292:7).”
“I used only $40 of the money,” argued Roth. “Why should I be responsible for the full amount?”
“A number of authorities write that by using even a small part of the money, you are considered a borrower of the entire entrusted amount,” replied Rabbi Tzedek. “The reason is that by spending some of it, you indicate readiness to use the money as your own (Nesivos 292:10; Pischei Choshen, Pikadon 5:17).”
“What if I hadn’t used the money for the taxi?” asked Roth.
“That’s a complex issue,” answered Rabbi Tzedek. “When a person is entrusted with money in an open manner that implicitly indicates permission to use it, he is considered a shomer sachar because of the privilege of using the money, even if he did not use it. He is then responsible for regular theft, but not for armed mugging. If the person already had the status of a shomer sachar, it is questionable whether he now becomes a borrower on account of the privilege to use the money (292:7; 267:25; P.C., Pikadon 1:).
“However, if someone entrusted money and then gave explicit permission to use it,” continued Rabbi Tzedek, “the Shach (72:31) writes that the guardian, whether a shomer chinam or shomer sachar, becomes fully responsible for the money as a borrower, even for circumstances beyond control. Other authorities disagree, but the Tumim (72:19) concludes that the dispute is only when the owner granted permission on his own. If the guardian initiated the request for permission, though, he is certainly liable. Here, you asked for permission to use the money; this is an additional reason to hold you liable (P.C., Pikadon 5:18).”
Mr. Roth thanked Rabbi Tzedek. The following day, he bought the lens with his credit card.