By Rabbi Meir Orlian
Â Uri was shopping on erev Shabbos when he met his friend Netanel. “Are you heading back to yeshiva after Shabbos?” Uri asked. “My brother Eli asked me to send him some clothing.”
“I’m going back Sunday morning,” replied Netanel. “I’ll gladly take the clothing for your brother.”
After Shabbos, Uri brought over two bags. “This one has a pair of sneakers in it,” he said. “This one has some clothing.”
Netanel took the bag of clothing and packed it together with his own. He tied the bag with the sneakers to his knapsack.
In the morning, Netanel headed to yeshiva. He got off the bus a few blocks away from the yeshiva to buy something and walked the rest of the way. When he got to the yeshiva, Netanel realized that the bag with the sneakers had fallen off his knapsack. He retraced his steps but could not find it.
Netanel gave the clothing to Eli. “There was also a bag with sneakers,” he said. “They were tied to the knapsack, but fell off.”
“That’s really a shame,” said Eli. “They were good sneakers. How did they fall off?”
“I’m puzzled,” said Netanel. “I’m sure that I tied them on securely.”
“I think that you owe me for the sneakers,” said Eli. “You lost them!”
“I’m sorry about it,” replied Netanel, “but I was doing you a favor.”
“I appreciate the effort,” said Eli, “but if you lost the sneakers, you’re liable.”
“I don’t agree,” replied Netanel. “Since I’m a shomer chinam, I’m not liable for loss.”
“I don’t think that applies to a loss like this,” argued Eli. “I’m going to discuss this with Uri.”
The three decided to consult Rabbi Dayan. “I gave Netanel a bag with sneakers for my brother,” said Uri. “He claims that he tied it securely to his knapsack, but it fell off and got lost. Is he liable?”
“The term ‘lost’ takes on different meanings, depending on the degree of responsibility,” answered Rabbi Dayan. “As you know, a shomer chinam (unpaid guardian) is liable only for negligence, but not for loss and theft. A shomer sachar (paid guardian) is liable also for loss and theft, but not for oness (circumstances beyond control).”
“How is ‘loss’ defined regarding a shomer chinam?” asked Netanel.
“The Gemara (B.M. 35a, 42a) teaches that if the guardian misplaced the entrusted item and does not know where it is, this is not considered ‘loss’ but rather negligence, and he is liable,” replied Rabbi Dayan. “Loss in the context of guardians means that he placed it in a known place, but it is nonetheless missing. The liability depends on whether the place and manner of placement was sufficiently secure. For a shomer chinam a simple degree of security suffices, whereas a shomer sachar requires a greater degree of security” (C.M. 291:7; 396:8).
“What does this mean in our case?” asked Uri.
“Since Netanel was a shomer chinam, if he tied the bag on with a reasonably secure knot, in a manner that is considered acceptable, he is exempt,” answered Rabbi Dayan. “This is included in aveidah (loss), for which a shomer chinam is exempt. If Uri does not trust that he tied it securely, Netanel would be required to make an oath. However, if he tied the bag loosely, it is considered negligence and he is liable. A shomer sachar would have to make a very secure attachment.”
“Does it make any difference what was in the bag?” asked Eli.
“The required degree of security also depends on the item,” replied Rabbi Dayan. “For example, the Mishnah (B.M. 42a) teaches that a bag with money must be kept tied in front of the person, so that he can see it, not slung behind him. Similarly, if the item was one that should not be tied outside a bag, but rather kept only inside, it would be considered negligence” (C.M. 291:13, 20).
From The BHI Hotline: Hashavas Aveidah
Q. In a parking lot in Monsey, I found a bundle of documents that apparently fell from someone’s car. I asked a local friend to return them to the owner. On my way back to the city, I wondered whether I did the right thing. Perhaps as the finder, I am responsible and may not hand off that responsibility to someone else. Was I permitted to give the documents to my friend to return?
A.Â Â Halacha maintains shomershe’masarl’shomer, patur–a custodian who gives the object in his care to another custodian is exempt. Therefore, if a mishap occurs while the object is in the possession of the second custodian, the first custodian is exempt since he entrusted it to someone capable of performing custodial duties and thus is not considered negligent.
Moreover, the owner’s claim that he does not want another person to care for his object is disregarded. The first custodian is liable only if the owner does not trust the second custodian’s oath (C.M. 291:26).
However, l’chatchilah, one should not give an object entrusted in his care to another since there is the possibility that the owner would not want others to have possession of his objects (Tosafos, Gittin 29a; Aruch HaShulchan 291:46). There are two explanations for the owner’s refusal. One relates to the concern that the second custodian will be negligent (Aruch HaShulchan 342:2). Others suggest that the concern is that the second custodian will decide to keep it for himself (Sema 316:1; 342:1).
A practical difference between these approaches is when it deals with an object for which there is no concern about theft; for example, our case of finding someone else’s documents. According to the first explanation, the concern that the second custodian will prove negligent remains (See Rav Akiva Eiger to Gittin 29a). However, the concern for theft does not apply to someone else’s documents. Seemingly this would certainly be true if despite the second custodian’s negligence it would be returned to the owner anyway, because his name is on each piece of mail (Geresh Yerachim and Birkas Avraham ad loc.).
Although according to many poskim the mitzvah to return lost objects is in force since the documents are worth a perutah to the owner (Moshe Yedaber, Gezeilah 6; Chiddushei Harim, E.H. 16), nevertheless, since they have no value to anyone else, it would be subject to the above debate.
Additionally, some maintain that the restriction against handing an object to another custodian is limited to cases where the owner entrusted his object to a custodian. Lost objects may always be given to another custodian since the finder’s status as a custodian is imposed on him by the Torah, and regarding mitzvos, we apply the principle shelucho shel adam k’moso–a person’s agent is like himself (Shulchan Aruch HaRav, Metziah 32). Stated differently, the owner’s claim of “I don’t want another person to have possession of my object” does not apply, since he never entrusted the object to the finder in the first place (Bas Einei, B.M. 36a; Chochmas Shlomo 291:26).
Others disagree and contend that even one who finds a lost object may not entrust another person with custodial responsibilities since he became the custodian for that object (Zayis Raanan to Yalkut Shimoni 930; Chazon Yechezkel, B.M. 2:9 and see Chochmas Shlomo, ad loc.).
Therefore, in your case it seems there is strong ground to be lenient, especially since you are not from Monsey and taking the documents home with you would increase th e owner’s difficulty in retrieving them. (Sema 125:13 and Nesivos 310:9 write that a custodian may return a pikadon with a shaliach, but see Taz 125:2, Avnei HaChoshen and Ulam HaMishpat.)
Terms Of Employment
Based on the writings of Rav Chaim Kohn, shlita
Q.Â If a dispute arises about the terms of employment, what determines the halachic ruling?
A. The terms of employment are determined, in order, by: the contract, local common practice, and the default halacha in Shulchan Aruch.
Since employment is a mutual agreement, the terms stated in the contract are binding. The parties have the right to state terms that are not required, or even against the default halacha, e.g., hours of employment, provided that they do not violate a prohibition (e.g., ribbis) (Rambam, Sechirus 2:9; C.M. 291:17).â€©Similarly, in the absence of a contract, or if the contract does not address a certain issue, the local common practice is binding. The parties presumably contracted each other in accordance with the local common practice if not stipulated otherwise. The common practice is often influenced by the local law (C.M. 331:1-2; Pischei Teshuvah 331:1).
In the absence of a contract or a clear common practice, the default halacha stated in Shulchan Aruch is binding.Â v
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 eâ€‘mail firstname.lastname@example.org. To receive BHI’s free newsletter, Business Weekly, send an eâ€‘mail to email@example.com.