By Rabbi Yair Hoffman

The story seems a little far-fetched. A group of eighth-graders, it is said, collected money for a graduation trip. The amount was about $5,000. The students gave the money to the school to disburse to the necessary vendors.

However, the boys, it seems, were playing ball in the classroom. The ball broke a window. The principal was furious. To teach the students a lesson, he confiscated $2,500 of the $5,000.

A parent was horrified and decided to replace that confiscated $2,500 with another check. The principal was not pleased. He then canceled the entire graduation trip.

If the story is true, and we all hope it is not, is there any halachic basis for the principal’s actions?

The poskim (cited in Limud HaTorah by Rabbi Aharon Zakkai) write that it is forbidden to confiscate an item from a student on condition that it will not be returned. Rather, it must be returned at least by the end of the year. This is the opinion of the Mishnah Halachos (Siman 384) and of Dayan Blau in his Pischei Choshen (Siman 1 note 17). This is also the ruling of the Sheivet HaKehasi.

There is an exception to this ruling, however. If the child is playing with the item or the money in such a way that it is disturbing others, the rebbe may take it away even on a permanent basis. This is because the rebbe is aware of the educational level of his students and can generally determine what is best. In other words, if something is disturbing the learning and the rebbe feels that taking it away would create a learning moment, then halachah would permit it because the student should not have been doing that activity during learning time.

What is the rationale behind this? The answer is that the father had hired the rebbe to take his place. That being the case, the rebbe can take on the role of the father in ensuring the son learns a lesson. It is equated by the poskim to an apotropis, a temporary guardian over the child.

Here, however, the situation is significantly different. Here, the money was already put away in a different location for safekeeping. There would not be a heter to take it from there in order to teach a lesson.

Four Types of Guardians

There are four types of guardians of an item that are discussed in the Torah. Each one possesses a varying degree of halachic responsibility. (1) The unpaid guardian; (2) the paid guardian; (3) the borrower; and (4) the renter.

The halachah is that the rebbe becomes a shomer chinam, an unpaid guardian, when he confiscates something. This is the ruling of the Mishpat Shai (p. 40). This means if he is negligent in watching the item, he is obligated to pay. On the other hand, if it was lost or stolen, he is exempt from paying for damages. However, this is only if someone else stole it. If he himself had taken it, then he is obligated to pay for it.

Why does the rebbe not take on the role of a paid guardian, where he would have to be responsible for theft? Is he not getting a salary for being the teacher? The answer to this is that he is not paid for guarding the item; he is being paid for teaching. Since the two are unconnected, he is given the status of an unpaid guardian.

What happens if the item belonged to the child and not his parents? Do we say that there is a concept of a shomer chinam in regard to a child? This is actually a debate among the Rishonim.

The Property Rule

A rule could exist that states since the students are on the school’s property, they must automatically adhere to the school’s rules. Thus, this could be likened to a condition that was previously agreed upon to change the responsibility level of the teacher. There are two caveats to this, however.

It cannot exempt a person from the laws of the Torah, which forbid stealing. The second caveat is that, in most cases, this stipulation is never expressed. When the stipulation was expressed, however, it would be permitted to confiscate the item. This is the rationale for many yeshivos confiscating basketballs that have not been placed in bags.

Taking a Rebbe to a Din Torah

Technically, it is permitted for a student to sue his rebbe in a beis din. However, the Ksav Sofer (in a responsum in Yoreh De’ah #107) states that he should try to refrain from doing so. If the student persists, then the beis din should make every effort to minimize chillul Hashem and to conduct proceedings in a manner that would minimize embarrassment to the rebbe.

Rabbi Hoffman can be reached at Yairhoffman2@gmail.com.

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