Submitted by the Bais Hora’ah
In last week’s column, you responded to the person whose friend rented a car on his credit card and did not return it at the prearranged time. At the rental agency’s suggestion, he returned the car directly to the agency and kept his friend’s computer, which was in the car, as a mashkon (collateral) to ensure his friend would repay the debt he racked up on the credit card. He asked whether he was permitted to seize it as a mashkon, and you responded that he was.
I have two questions on your ruling:
Q1: I’ve heard that the Ketzos Hachoshen states that if something was given to a person as a pikadon (for safekeeping), he should not keep that item as a mashkon. Shouldn’t that halachah apply to his seizure of the computer?
A: According to the letter of the law, a person is permitted to seize a pikadon as a mashkon (Shulchan Aruch, C.M. 4:1). You are correct, however, in your assertion that the Ketzos Hachoshen warns against this practice. Citing the Zohar (vol. 3, 119a), the Ketzos (4:1) writes that we are “in debt” to Hashem because of our misdeeds, yet when we entrust our neshamos to Him each night for safekeeping, He returns them to us in the morning and does not keep them as a mashkon. The Ketzos writes that a person should do the same in his interactions with other people and return a pikadon even if the person who gave it to him owes him money, and he adds a very severe condemnation for someone who fails to do so.
According to the Ketzos, then, even if a person doesn’t transgress the prohibition of “Lo savo el beiso laavot avoto” by keeping a mashkon under such circumstances (as explained last week), it still is incorrect to hold onto the item.
Now, some poskim limit this injunction to cases that directly parallel Hashem’s interaction with us – namely, cases in which the loan precedes the pikadon, just as our debt to Hashem is incurred before we place our neshamos into His Hands for safekeeping. If the pikadon was placed in the shomer’s care before the loan, however, this injunction does not apply (Pischei Teshuvah 4:1).
In our case, although the credit-card debt preceded the confiscation of the computer, the Ketzos’s injunction would not apply, because the Zohar is referring only to an item received as a pikadon. When a shomer receives such an item, he is implicitly agreeing to return it whenever the person who gave it to him asks for it, and when he retains it – even as collateral for an outstanding debt – he is reneging on that implicit agreement.
Since in our case, the computer was not handed over to the credit-card owner for safekeeping, this injunction does not apply.
You wrote that before returning the car to the rental agency, the credit-card owner was obligated, under the rubric of hashavas aveidah, to retrieve his friend’s belongings, to avoid the possibility of an unscrupulous employee at the rental agency taking those items and denying having found them.
If the card owner returned the car without retrieving those belongings, and his friend was not able to get them back, would he be liable for the loss?
A: Generally speaking, a person who sees a lost item and does not return it is not liable for the loss (Ramban, Kuntrus Dina D’garmi; Ketzos Hachoshen 61:21, see Business Weekly #449). Nevertheless, in this case, there are several reasons why the cardholder might have been liable had he not removed the computer from the car.
First, once someone takes possession of a lost object, he becomes a shomer and is liable for negligence. It is possible that when the cardholder took control of the car with the computer in it, he became a shomer of the computer, and handing it over to the rental agency would therefore have been considered negligence (see C.M. 348:7; Shaar Mishpat 354:1; Pischei Choshen, Geneivah p.47).
Second, even if someone doesn’t become an actual shomer of a lost object, if he takes that object and leaves it in a place where it can easily be damaged, he is considered a mazik, as though he had inflicted direct damage to it (Nesivos 25:1, 291:7 and 301:2; Avnei Nezer, C.M. 12; see, however, Sma 291:48 and Shu”t Imrei Shefer [Kletzkin] 240).
Finally, a person who hands his friend’s possession to someone who will unlawfully keep it is required to pay for it (see Shulchan Aruch 388:2).
It would appear, then, that had the cardholder left the computer in the car, rendering it irretrievable, he would be liable for it.