By Rabbi Meir Orlian

 

My friend gave me an item to transport overseas, and I placed it inside my suitcase, which went into the plane’s cargo. When I reached my destination, I realized that several items were missing from my suitcase—my friend’s item included. I placed a claim with the airline, and they reimbursed me for the item. Must I give that payment to my friend?

The halachah is that a renter (socher) is not liable for oness (circumstances beyond his control), but a borrower (sho’el) is. What happens when a socher lends to a sho’el the cow he rented, and it dies as a result of an oness? The sho’el is obviously obligated to pay the socher, but must the socher turn that money over to the owner, or can he claim that since the death was the result of an oness, he, as a socher, is absolved of liability?

The Mishnah (B.M. 35b) states that the socher must pay the owner, because, as Rav Yosi reasons, “How could he profit from his friend’s cow?” We view this case as though the socher was the owner’s agent in allowing the sho’el to borrow the cow, and the payment from the sho’el belongs to the owner (Shulchan Aruch, C.M. 307:5).

The poskim deliberate regarding a similar case. A shomer chinam (unpaid custodian) does not have to pay for lost or stolen objects, but a shomer sachar (paid custodian) does. What happens if a shomer chinam hires a shomer sachar to safeguard the object he was asked to watch, and the object is lost or stolen? Must the shomer chinam transfer the payment he receives from the shomer sachar to the owner? The Shevus Yaakov (3:148) rules that in this case, we would not say, “How can the shomer chinam profit from the owner’s object?” because the shomer sachar was obligated to pay only because the shomer chinam paid him to safeguard the object. Therefore, the shomer chinam would be allowed to keep the payment for himself.

The poskim argue with this ruling, however, proving from Rishonim that even in this case, we do not allow the shomer chinam to capitalize on the loss or theft of his friend’s object, and he must give the payment to the owner (Pischei Teshuvah 307:1; Shu’t Chelkas Yoav 2:91).

In your case, you were a shomer chinam on the object your friend asked you to bring overseas, and you handed that object over to the airline, which became a shomer sachar, accepting liability for the luggage in exchange for a portion of the price you paid for the flight. According to the latter poskim, you must remit the airline’s reimbursement to the owner of the object.

The consensus of many poskim is, however, that if a tenant insures the house he is renting, and a fire destroys the house, he does not have to give the owner the payment he receives from the insurance company. The insurance company does not take on the role of a shomer, accepting responsibility to safeguard the home; it merely commits to pay for damage to the property. Since their payment is not for negligence in shemirah, the tenant does not have to remit payment to the homeowner (See Shu’t Maharsham 4:7; Shu’t Maharash Engel 6:103; Minchas Pittim 307:5; Pischei Choshen, Sechirus, ch. 6, f.n. 44).

Since airlines do accept the role of shomer in place of the traveler, and are required to compensate the traveler for items lost due to their negligence in guarding those items, we apply the concept of “How can he profit from his friend’s property?” and the traveler must remit payment to the owner (Shimru Mishpat 1:65 and 3:48). If the traveler bought traveler’s insurance, however, the payment would be akin to a tenant’s insurance policy, and he would be allowed to keep the money.

It is also possible that there is a tacit understanding between the owner and the traveler that if the item is lost and the airline reimburses the traveler for it, he will remit that payment to the owner (see Rabi Akiva Eiger, C.M. 291:27 if it would require a kinyan).

In part II of this article, we will examine another aspect of this case: when the airline reimburses the traveler for the price of a new object, but the sender gave him a used one. Must he remit the full payment to the owner, or only the actual value of the object he was transporting?

Money Matters: Statute Of Limitations

Based on writings of Rav Chaim Kohn, shlita

Does the statute of limitations exempt debt among Jews?

In principle, halachah has no statute of limitations on debt; even if many years passed, it remains intact. Some places had a practice not to collect old debt from inheritors, or to more readily believe the borrower’s claim that it was paid (C.M. 98:1; Pischei Teshuvah 61:5).

Nonetheless, beis din must check carefully with long-past debt whether there is something suspicious; it would then refuse to deal with the case (C.M. 98:2; 61:9).

It is doubtful whether the concept of dina d’malchusa dina applies to the statute of limitations, but for debt in a commercial setting, the concept of minhag ha’medinah (common commercial practice) would apply (Mishpetei Uziel, C.M. 4:28; Pischei Choshen, Halva’ah 2:[72]).

Moreover, in most countries, the statute of limitations does not cancel debt or prohibit the creditor from requesting payment; it merely limits his ability to sue in court to enforce payment. Thus, even if dina d’malchusa applies, it would not exempt a debtor who knows that he owes.

This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’malchusa to consider in actual cases.

Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, which is headed by HaRav Chaim Kohn, shlita, a noted dayan. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, please call the confidential hotline at 877-845-8455 or email ask@businesshalacha.com. To receive BHI’s free newsletter, Business Weekly, email subscribe@businesshalacha.com.

LEAVE A REPLY

Please enter your comment!
Please enter your name here