Community Magazine October 2012

The Bet Din did not require the mother to pay Solomon the $400, since, as discussed, according to many halachic authorities one who intercepts and then misplaces an item entrusted to a minor is exempt from liability. Although the mother was most definitely negligent by allowing a complete stranger access to the money she intercepted, nevertheless, she never explicitly accepted responsibility and in this specific instance, she is exempt from payment according to one halachic opinion. This ruling was based on the fact that Solomon gave the money to a minor, thereby implicitly relinquishing claims of negligence affected by the mother. By depositing the money with a minor, he is considered as having partially abandoned the funds, and cannot later demand compensation for its subsequent loss due simply to negligence. In essence, he is the one who bears initial accountability for carelessness. Sources: Baba Batra 88a Shulhan Aruch 188:2 Rabbenu Yonah to Baba Batra 87b Nimukei Yosef, Netivot Hamishpat 261:2 Mishpat Shelomoh 3:14 Divrei Mishpat 261:4 Aruch Hashulhan 261:4. According to the ruling of the Shulhan Aruch, a person entrusted with an item to safeguard is liable in case of theft if he had left the item unattended. Even if the third party who was left alone with the item is not a suspicious character, and has no prior criminal record, nevertheless, it is considered negligence and the custodian is liable. Unpaid custodians are generally exempt in case of theft, but if the item was lost or stolen due to a custodian’s negligence, he bears liability and must reimburse the owner for the loss. This ruling applies even if it is never proven that the third party who was allowed unattended access to the item, was in fact the thief. Unless the custodian can prove that there is no link between the third party’s access and the subsequent disappearance of the item, he is held accountable for negligently leaving the item unattended. These guidelines apply only to a custodian who agrees to safeguard an item. However, in instances where one obtains an item belonging to another through a minor, the degree of responsibility may vary. Certainly, one who destroys or damages an item received from a minor is liable for his destructive actions, but many authorities exempt an offender in instances of mere negligence. Since the owner handed over the item to a minor, it may be assumed that he implicitly relinquished all claims of negligence affected by another. Although the negligent party took the item from the minor’s possession, he does not automatically assume responsibility as a custodian. By willingly entrusting the item to a minor, the owner himself can be said to have already compromised the safety of the item. So even if the item was intercepted and subsequently lost by another, since the item may have already had a status of misplacement from the onset, the intercepting party can be exempted from liability. However, several halachic authorities dispute this ruling and maintain that one who intercepts an item from a minor assumes the status of an unpaid custodian. Since the item may have likely been protected by the minor and ultimately returned to its owner, one who interferes with that process bears liability in cases of negligence. As a general rule, when faced with a case subject to two conflicting views among the halachic authorities, a Bet Din will not issue a judgment for payment. Since there are halachic opinions to rely on, a defendant has the legal right to withhold payment. As a side note, in instances where a third party takes an item entrusted to a minor, and afterwards returns it to the minor, he is not liable if the item is subsequently lost. Since the owner himself placed it in the custody of a minor, it is legally acceptable to return it to that same minor. A BACK-TO-SCHOOL BLUNDER Rabbi Max Sutton, Rosh Bet Din Aram Soba, Jerusalem, Israel FROM THE FILES OF THE Bet Din The Case During the summer, Solomon borrowed $400 from his good friend, and was unable to return the outstanding loan until after the summer. As a schoolteacher, Solomon received his first paycheck at the start of the back-to-school season. Anxious to return the loan, he handed the $400 cash he owed to a ten-year-old student and asked him to deliver it to the lender. Solomon was confident that the ten-year-old would safely deliver the cash to the lender, since the lender resided next door to the young boy’s home. But when the ten-year-old arrived home and told his mother of the cash he was carrying, she immediately confiscated the money and was appalled by Solomon’s reckless behavior. She then placed the money on top of the piano adjacent to the entrance of the home. A short while later, a delivery boy from a local grocer who was dropping off groceries entered the home, and evidently made off with the $400. The lady of the home notified Solomon of the unfortunate turn of events, and chastised him for his reckless conduct. Solomon acknowledged that he acted unwisely, but claimed that had she not intervened, the money would have surely reached the next door neighbor. Unwilling to compensate Solomon for the lost funds, and unable to find the delivery boy for collection, the matter was presented to Bet Din to resolve. How should the Bet Din rule? Is Solomon entitled to compensation or not, and why? Verdict: A TEACHER’S FOLLY Torah Law photo by: abraham amzalak 60 COMMUNITY MAGAZINE