Rabbi Meir Orlian
Purim was less than a month away. An advertisement for Mishloach Manos baskets on the shul bulletin board depicted an assortment of mouth-watering baskets.
“Manny’s Magnificent Mehadrin Mishloach Manos offers a range of baskets to suit every taste and budget. Your shul representative is Mr. Jerry Lewis. Please place orders by Rosh Chodesh Adar to ensure timely delivery.”
A week before Purim, Manny brought 250 baskets of Mishloach Manos to Jerry’s house.
“We’ll put them over there in the corner of the living room,” Jerry said. The two men unloaded the baskets into the house.
“Manny’s Mishloach Manos baskets have arrived,” Jerry announced in shul. “Orders can be picked up from 7 to 10 PM.”
During the following days, most of the baskets were collected. Jerry looked forward to receiving 20% of the sales profits from Manny as payment for his efforts.
Three days before Purim, Jerry came home from work in the afternoon and saw that one of the windows was pried open. The remaining Mishloach Manos baskets were gone!
Jerry called Manny to inform him of the theft. “Our house was broken into,” he said. “Fifty baskets of Mishloach Manos were stolen!”
“I can’t believe it!” exclaimed Manny. “That’s a thousand dollars worth of baskets. Who’s going to pay for this?”
“I suggest we let Rabbi Dayan work this one out for us,” replied Jerry.
The two came before Rabbi Dayan.
“We have an unfortunate case to discuss,” Manny said. “Mr. Lewis agreed to sell Mishloach Manos baskets for 20% profit, but some baskets were stolen from his house. Is he responsible for them?”
“Was the house properly locked?” asked Rabbi Dayan.
“Of course,” said Jerry. “The thief pried open one of the windows.”
Rabbi Dayan turned to Manny. “Were you aware that the baskets were being kept in the living room?”
“Yes,” answered Manny. “I unloaded the baskets there.”
“It might seem, at first glance, that Mr. Lewis is responsible,” said Rabbi Dayan, “but there are two reasons to exempt him.”
“Can you please explain?” asked Manny.
“A sales agent is considered a shomer sachar (paid guardian) on the merchandise he holds,” said Rabbi Dayan. “Therefore, in principle, he is responsible for theft and loss of the merchandise. This is true even if he hasn’t earned any profit yet, since he has the potential of profit from the sales (C.M. 185:7; 186:2; Pischei Choshen, Pikakon 1:5).”
“But I kept the baskets in my house like the rest of my possessions,” said Jerry. “We’ve never had a break-in before.”
“A shomer sachar is obligated in theft even if he guards the entrusted item the same as his own property,” replied Rabbi Dayan. “He is being paid to watch extra carefully (303:10-11).”
“Why, then, should Jerry be exempt?” asked Manny. “This seems a classic case of theft.”
“Although a shomer sachar is generally obligated in theft and is expected to watch extra carefully, he can stipulate with the owner for a lower level of responsibility (296:5),” said Rabbi Dayan. “A number of authorities maintain that when the owner was aware of the conditions in which the merchandise would be kept, it is considered as a stipulation that such guardianship suffices. Here, you knew that the baskets would be kept in the house and that Mr. Lewis would go to work daily. Similarly, some exempt a sales agent if he guarded the merchandise in the customary manner of such merchandise, since this is the common business practice and expectation of the supplier (P.C., Pikadon 3:; Divrei Geonim 95:69).
“Although a sales agent is considered a shomer sachar on account of the expected share of profits, he is not being paid explicitly to guard the merchandise, but for his efforts in selling it,” added Rabbi Dayan. “Therefore, some authorities write that he does not carry liability when he kept the merchandise the way people regularly do, unlike a true shomer sachar who is expected to be extra careful (Pischei Teshuva 303:1; P.C., Pikadon 3:).”
“If I am exempt from the theft,” said Jerry, “I suppose Manny also has to pay my share of profits?”
“Because both reasons to exempt are subject to debate,” concluded Rabbi Dayan, “if Manny has not paid you and you do not hold any of the sales money, he can withhold payment of your profit or wages against the value of the theft.”