Question: We went away for Shabbos and returned home by bus. When we arrived, one of our suitcases was missing from the compartment beneath the bus. A security camera at one of the bus stops showed that a passenger removed our luggage to reach his and forgot to put ours back on the bus. Is this person responsible for our loss?
Answer: A similar incident was addressed by the Rosh (Teshuvos 94:2). Reuven was traveling to a fair, and Shimon asked Reuven to transport a pair of shoes. Reuven told Shimon to place them on his donkey. Along the way Reuven stepped away from the donkey, and the shoes were taken. The Rosh was asked whether Reuven is liable. The reason to exempt Reuven is that acceptance of custodial responsibilities requires explicit language to that effect. His statement “place them on the donkey” is insufficient and consequently he is not even a shomer chinam (unpaid custodian). The Rosh answers that although Reuven did not use language to commit to be a custodian, he is nevertheless liable.
The reason is that when the phrase “place it down” is used when they are inside a house, which is a safe place, Reuven is telling Shimon that he may place it there if he chooses. But when Reuven transports the shoes, he obviously accepts custodial responsibility for them. If he will not watch them, who will? Therefore, since he was negligent, he is liable (C.M. 291:2).
A simple reading of the Rosh implies that Reuven is liable because he was a negligent custodian. Some authorities prove, however, that even in a case in which Reuven is halachically not liable as a custodian — e.g., he did not make a kinyan — Reuven is still liable for damages. Since he moved them to an unsafe place, he is a mazik. It is comparable to someone who took a friend’s object and put it on the side of the road where it is not protected. This action is considered direct damage to the object (Nesivos 291:7).
Even though Reuven transported the shoes according to Shimon’s instructions, nevertheless, this permission is conditional on Reuven protecting them. Therefore, when Reuven left the shoes unattended by the side of the road, we realize that taking them from Shimon’s care in the first place was an act of damage and he is liable for the shoes.
It would seem, however, that some authorities opine that since he did not perform a direct act that caused damage he is only considered a grama (Rav Akiva Eiger, C.M. 291:2; Mishpat HaMazik 4:4).
In your case we might also consider whether the person who removed your luggage is liable as a shomer [in contrast to the Rosh’s incident, in this case removing the luggage from the bus may qualify as a kinyan if he is considered a shomer]. On the one hand, you never requested him, nor did he agree, to serve as a custodian for your luggage. On the other hand, he implicitly commits to watch the luggage since otherwise he does not have permission to remove it from the bus. Even though neither party consciously thought about this, it is mutually understood that a custodial relationship is created. Accordingly, he may be responsible when he negligently forgot to return it to the bus.
Even if one disputes this analogy, there is a moral obligation (latzeis yedei Shamayim) to reimburse you for indirectly causing you a loss that resulted from his negligence (Shach, C.M. 32:2).
Money Matters: Guarantor Of A Guarantor
Based on the writings of Rav Chaim Kohn, shlita
Question: I was asked to serve as a guarantor for the guarantor. Is such a backup guarantor liable? Does he need to make a kinyan?
Answer: Just as a guarantor can commit verbally when the lender relied on him to grant the loan, a guarantor of a guarantor becomes obligated even without a kinyan if the guarantor accepted responsibility relying on the backup guarantor. The commitment of the initial guarantor is parallel to the lender’s handing over money, so, similarly, the reliance on the backup guarantor obligates him (C.M. 131:14).
This is true whether the backup guarantor committed to reimburse the guarantor should he be called upon to repay the loan, or whether he committed to the lender to repay the loan should the guarantor fail to pay it (Sma 131:27; Shach 131:16; see, however, Tumim 131:11).
Even if the initial guarantor committed after the loan was granted, and therefore requires a kinyan, the backup guarantor does not, if he committed when the guarantor accepted responsibility, since the guarantee relied on the backup guarantor.
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 e‑mail email@example.com. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to firstname.lastname@example.org.