Community Magazine February 2014

46 COMMUNITY MAGAZINE Sally borrowed a diamond pendant from her friend, Alice, to wear at her daughter’s wedding. Sally wore the diamond for a large part of the evening, but sometime towards the end of the reception, she realized it was missing. She searched the wedding hall throughout the night, but was unable to find the pendant. In the morning she contacted Alice and informed her of the unfortunate turn of events, and offered tocompensateher friend for the loss. Shortly after Alice collected from Sally $9700 for the missing pendant, the caterer called Sally notifying her that he found the diamond wedged between the floor and a beam in the ballroom. Sally rushed to pick up the pendant and immediately went to Alice’s home with the find. At the front door, Alice refused to accept the pendant and was unwilling to return Sally her money. In Bet Din, Sally demanded the right to return the pendant and retrieve the $9700 that she had paid, explaining that the pendant was Alice’s property for which she mistakenly paid. Alice responded that she had already spent a large portion of the funds on other jewelry and clothing, and was therefore unwilling to return the money. According to the ruling of the ShulhanAruch, in instances in which a Bet Din collects from a custodian liable for misplacing an itementrusted to him, various verdicts apply if the lost item is subsequently found. If a Bet Din collected or foreclosed on the custodians property to enable payment, and the lost item was later found in the very home of the custodian, according to all halachic authorities the custodian may legally repossess his property in exchange for the returned item. As the item was found in his home, it is considered to never have been actually lost, and thus the collection of the property is rendered null and void, having been made in error. Furthermore, even if the item was truly lost and a Bet Din exacted payment from the custodian through collection of property, the collection is reversed if the item is subsequently found. Since the plaintiff took legal action against the custodian, and forced a premature foreclosure, a leniency is extended to the custodian, allowing him to recover his property in exchange for the newly-found item. However, according to leading halachic authorities, these rules do not apply if the custodian had made a monetary payment to the owner. Even if the item is later found in the custodian’s home, the cash payment is not refundable. The rationale behind this ruling is that once cash is paid it is likely to be at least partially spent by the time the lost item is found, and therefore the original owner cannot be obligated to return the cash at that point. Additionally, even if the custodian did not pay money, and instead transferred property to compensate the owner, he may not later retrieve his property if the compensation payment was made voluntarily. Since he willingly paid without the involvement of a Bet Din, we can assume that the payment he initiated is final, similar to a purchase. It is only when Bet Din exacts compensation that the payment is retrievable when the item is found. But when a custodian willingly pays for the lost item, he is legally viewed as having purchased it, and the sale is not refundable. It is interesting to note that since the lost item was willingly paid for by the custodian, he is now viewed as the item’s owner in all respects. Therefore, just as he cannot force the original owner to repossess the item, by the same token, he is not obligated to return it in exchange for a refund. Hence, even if the item appreciated in value in the interim, the custodian is entitled to keep it and reap the benefits of his purchase. PENDING PENDANT 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 Verdict: INDEPENDENT OF THE PENDANT The Bet Din ruled in favor of Alice, preventing Sally from returning the lost pendant in exchange for the $9700 she paid. Since Sally took the initiative to pay Alice for the missing pendant, her actions are legally viewed as a bona fide purchase. Alice did not forcibly collect the funds, and merely participated in Sally’s decision to prematurely pay. Furthermore, even if Alice had collected the funds through litigation, nevertheless, according to leading halachic authorities, she would not be entitled to a refund of her payment, because, as discussed, cash that was transferred is not refundable. Bet Din advised Sally to sell the pendant if she wished to immediately recoup her expenditure, or to maintain the pendant in her possession so that it may appreciate in value over time. Endnotes: Shulhan Aruch Hoshen Mishpat 103:11 ; Rabbi Akiva Eiger to Sema 103:29 ; Taz 103:11 ; Mishpat Shelomoh 19 ; Hidushei Meiri, Baba Metzia 34a; Shach, Hoshen Mishpat 295:6.