By Rabbi Yair Hoffman
A young child was dropped off at playgroup in the morning with two socks and two shoes. Upon pickup, however, the child is wearing the two socks but only one shoe. The shoes are relatively expensive ($60). Who is responsible for the shoe? Is the playgroup owner considered a shomer (a watchman) for the clothing of each child? If so, what type of shomer? Also, does the age of the child matter?
What happens when the shoe was lost not in a playgroup but during overnight visitation at a divorced parent’s home? The mother dropped off the child with two shoes at the father’s house. The child returned with one shoe missing. Must the father compensate the mother for the shoe?
Four Types Of Guardians
There are four types of guardians of an item that are discussed in the Torah (Sh’mos 22:6-14). Each one of them possesses a varying degree of halachic responsibility, as explained in the Gemara Bava Metziah 94a–95b:
- the unpaid guardian (shomer chinam)
- the paid guardian (shomer sachar)
- the borrower (sho’el)
- the renter (socher).
The Gemara discusses five types of losses: 1. negligence (pshiyah); 2. lost; 3. stolen; 4. broken or died; 5. taken captive. There are thus a total of twenty cases that the Gemara discusses in all. In cases of negligence, all four guardians must pay. In every other case (2–5) the unpaid guardian is exempt. Paid guardians and borrowers are responsible in all cases of property lost or stolen.
So is the playgroup owner considered a paid guardian or an unpaid guardian regarding the child’s shoes? If she is an unpaid guardian, then she would be exempt from paying the cost of the shoe. If she is a paid guardian, then she would be obligated to compensate the parents for the cost of the shoes. How does halachah view her?
In a sefer titled B’zos Yavo Aharon (by Rabbi Aharon Yehoshua Pessin, p. 504), Rav Nissim Kareliz is cited as ruling that for a playgroup with older children, it would not make sense to hold the playgroup owner responsible for the child’s clothing. Apparently, in Rav Karelitz’s view, she is being paid to watch over the children and not their clothing, per se. For younger children, however, Rav Karelitz, shlita, ruled that the playgroup owner is responsible. The case in question involved a child who was 18 months old. In that case, the playgroup owner would be responsible.
What would be the age at which the playgroup owner would be exempt? There is no further information given regarding this issue. This author would guess that the cutoff should be at four years of age. But we should defer to the experts in this area.
Rav Karelitz ruled that, notwithstanding the fact that the shoes were used, the playgroup owner should pay the cost of a new pair of shoes. Indeed, in this particular case, the shoes were purchased at a 30-percent-off sale that was no longer in effect. Rav Karelitz is cited as having ruled that there should be a compromise worked out, and that the playgroup owner should actually pay 15 percent more than the parent had actually paid at the 30-percent-off sale!
This ruling is interesting, because it seems to go against the standard procedure that batei din usually apply in such cases.
Generally speaking, damage is evaluated at the value that existed at the time that the damage happened (see Tur C.M. 404). At the time, the shoes were a used pair. The damages are arrived at by subtracting the value of the item before it was damaged with the value of the item after it was damaged. The broken item is given to the victim and the damager pays him the cost of the damage (See C.M. 387:1). Some are of the opinion that the damager is obligated to pay for the repair of the item, if the victim so desires (See Shach C.M. 95:18).
If so, why did Rav Karelitz rule (if we accept the account of the ruling in the sefer as accurate) that the playgroup owner should pay more than the original cost of the shoe?
There is another halachic debate that, in this author’s view, could weigh in significantly on our issue. It is a debate between the Nesivos and the Chazon Ish. The Nesivos (C.M. 148 Biurim #1) writes regarding someone who has damaged something that has no general market value but has a high value to the person whose item was damaged, the person who did the damage does not have to pay that value.
The Chazon Ish (Bava Kamma 6:3), on the other hand, is of the opinion that if the damaged item is only of personal value to the person, it is still considered to be damaging something of value (mammon) and one would be obligated to pay.
The debate between the Nesivos and the Chazon Ish is cited by Rav Ben Tzion Abba Shaul, zt’l, in his Ohr L’Tzion (Vol. I CM siman 4). Rav Ben Tzion Abba Shaul is of the opinion that the Chazon Ish is correct. Rav Shlomo Zalman Auerbach, zt’l (Minchas Shlomo Vol. II #135), also rules like the Chazon Ish.
The view of Rav Karelitz fits in with the aforementioned Chazon Ish—that the playgroup owner should pay the replacement value of the shoes.
Has the view of the Nesivos been entirely rejected from normative halachah? Can the concept of “Kim li kehani poskim” (I know that the halachah is like these poskim) be used by the playgroup owner to exempt herself from paying the damages?
It is this author’s understanding that contemporary batei din might combine the Nesivos’s view into a mix if there was another factor benefiting that side’s claim. Otherwise, they generally follow what the Pischei Choshen writes—that the custom is to follow the Chazon Ish’s view.
Regarding the actual damages, it would seem to this author that most batei din would negotiate a settlement between the current used value of such shoes and what the replacement value would be. Generally speaking, since evaluations are very different, the Mishpat HaMazik (32:3) rules that the owner and the person responsible for the damage should always try to negotiate settlements.
Although there is halachic significance to all cases, the people themselves should not be so demanding and rigid. Kids tend to be kids, and we should not hold people responsible for payments of these things, even if halachah would require them to pay. The jobs of playgroup teachers are hard enough. Let’s cut them a little slack.
Rabbi Hoffman can be reached at Yairhoffman2@gmail.com.