Community Magazine December 2012

According to Torah Law, if an item is entrusted to a party to safeguard, the guardian is not entitled to transfer the item to someone else. If a guardian violates this restriction, and the item is subsequently damaged while in the possession of the unauthorized party, the owner of the item may collect payment from the original guardian for his loss. This ruling applies even if the unauthorized party handling the item is more competent than the original guardian, and even if he is being paid by the guardian to safeguard the item. Moreover, even if the unauthorized party testifies in court that the item was lost or damaged due to circumstances beyond his control, nevertheless, the original guardian is liable for payment, because the owner may rightfully claim that he refuses to accept the testimony of a stranger with regard to damage caused to his property. He may therefore proceed to collect payment from the party to whom he entrusted the item, with the claim that the item was damaged as a result of negligence. If, however, two valid witnesses are available to testify that the item was lost due to an innocent mishap under circumstances beyond the second party’s control, and not due to negligence, the original guardian is absolved from liability. Alternatively, if the guardian himself witnessed the accident which caused the damage to the item, then he may give testimony to this effect under oath and thereby be absolved of liability, even if the mishap occurred when the item was in the possession of the unauthorized party. Although the item was transferred illegally, nevertheless, the guardian displayed a minimal measure of responsibility by ensuring that the item was transferred to a responsible, capable individual, and thus cannot be deemed negligent if he can verify that the mishap occurred under circumstances beyond the second party’s control. (An exception to this rule is where there is a direct link between the illegal transfer and the subsequent cause of damage, in which case the original guardian is liable. Since it was due to the illegal transfer that the item was ultimately damaged, the guardian is liable even though he transferred the item to a responsible party.) However, if the guardian transferred the item to a second party to whom the owner regularly deposits this type of property, and the item was subsequently damaged in an innocent mishap, the original guardian is absolved of liability because the owner is required to accept testimony from someone who he regularly entrusts with this kind of property. However, the Shulhan Aruch makes an exception in the case of a hired guardian who transferred the item to an unpaid watchman. Even if the owner regularly deposits the item with the unpaid individual, since he paid the original guardian for his services, he implicitly bars him from transferring it to an unpaid guardian, who bears a lower level of accountability. The unpaid individual cannot replace the original guardian, as we can assume that the owner would not have consented to the downgrading of the degree of protection for his item. The Shulhan Aruch’s ruling would similarly apply to a renter who entrusts the rented item to an unpaid guardian. Since the degree of liability was reduced, the owner need not accept the testimony of the unpaid guardian with regard to the cause of damage. As mentioned, this ruling applies even if the owner regularly entrusts the item to that unpaid individual. ON WHEELS? Rabbi Max Sutton, Rosh Bet Din Aram Soba, Jerusalem, Israel FROM THE FILES OF THE Bet Din Torah Law photo by: abraham amzalak The Case Sam, a New York resident, needed to transport merchandise to Philadelphia, and rented a private pickup truck from Benjamin, owner of a Chevy Silverado 4x4. After making the trip to his destination, he decided to delay his return for a week, on account of a potential business opportunity. Sam was pleased when he coincidentally met Alex, who works as a driver for Benjamin’s company, vacationing in Philadelphia. So as not to incur any additional rental expense for the truck, Sam handed the keys to Alex and asked him to drive the truck back to New York. Although Alex already had means of transportation back to New York with his wife, he nevertheless agreed and arranged to follow his wife home in the 4x4. Unfortunately, while crossing the Betsy Ross Bridge, the wheels of the Silverado skidded on an oil slick sending Alex and the truck crashing into the railing. The truck sustained significant damage and needed to be towed. Benjamin incurred a $1500 insurance deductible, as well as miscellaneous expenses amounting to $500. Benjamin attempted to collect these expenses from the original renter, but Sam refused to pay. In Bet Din, Sam explained that he had given over the truck to a responsible person who regularly drove Benjamin’s trucks. Benjamin countered that he had rented the truck only to Sam, and the transfer was an unauthorized action. The Bet Din analyzed the police report of the occurrence and no mention was made as to the cause of the accident. Alex, who appeared in Bet Din, firmly denied any fault in the matter, claiming that the accident was due to circumstances beyond his control. Is Benjamin entitled to compensation? And if so, who is liable – Alex or Sam? 60 COMMUNITY MAGAZINE