Parshas Vayeitzai 5786
- Torah Tavlin
- 2 days ago
- 2 min read
Monetary, Interpersonal Laws and Din Torah (55)
Question. Reuven hired Shimon, a business service messenger, to take a number of checks to the bank and deposit them. As Shimon stepped out of his car, the checks were stolen. Reuven does not remember all those who gave him checks for payment and cannot retrieve his loss. Is Shimon obligated to pay?
Answer: Even though Shimon is a paid guardian [shomer sachar] who is usually obligated for theft that occurs, here it is different. The Shulchan Aruch (1) rules that there is no monetary obligation for a shomer to pay unless the item has its own intrinsic value (גופו ממון). If, however, one is a shomer for documents, like checks, even though one must do his best to guard them from loss, he does not have to pay for a loss of such documents. In a case of blatant negligence (פשיעה), there is a difference of opinion whether the exemption still applies. The Mechaber (2) rules that the shomer is patur, whereas the Shach (3) argues on this, for the shomer can say that since it is a safek, I am not going to pay (המוציא מחבירו עליו הראיה).
Question: Is there any reason to pay Shimon for the part of the journey that he did before the checks were stolen?
Answer: The halacha states (4) that there is no obligation to pay for the service [or part of a service] until the worker swears that he watched it properly. Here, in this case, he did not watch it properly, and cannot swear, because a shomer sachar is obligated to make sure he guards the item from theft and loss.
Question: Is there any way for Reuven in the future to obligate Shimon to pay for checks or documents that he sends with him?
Answer: The Shulchan Aruch (5) writes that if they made up in the beginning to obligate the shomer even regarding documents, and they made a kinyan on it, he is obligated. This would be done by Reuven giving his item or garment to Shimon to acquire by lifting it up and in return obligating himself and his assets to this monetary obligation. The SMA (6) explains that even though shomrim can increase their degree of obligation without a kinyan, on documents where there is no din of payment, a kinyan is necessary to validate the obligation.
(1) שו"ע חו"מ שא:א על המקראות בפ' משפטים (2) חו"מ שא:א (3) ש"ך שם (4) שו"ע שם (5) שם (6) סמ"ה שם:ז