Legal Advisor to Torah Mitzion
You fill in a football pools coupon which subsequently goes missing through no fault of your own and is consequently not included in the weekly competition.
You argue that your coupon contained the winning forecast and as such you were entitled to the first prize.
What type of Shomer was the form holder in the ticket booth? Did he effect proper Shemira over the winning coupon? And how did the Israeli Supreme Court (applying principles of Jewish Law) rule at the end of the day in a case that that was brought before it involving the above facts?!
In an intriguing case which came before the Israeli Supreme Court in 1982, the appellant, Mr. Ali, argued that a football coupon filled in by him and subsequently found to be missing contained the winning forecast (all 13 numbers) and he was therefore entitled to the first prize. His action was dismissed in the lower court.
The Supreme Court first made it clear that since Jewish Law was considered by the draftsmen of Chok HaShomrim, 5727 (1967), the Court could and should be assisted by Jewish Law in understanding the concepts employed by the statute.
The Court noted that the football pools coupon was delivered by Mr. Ali to the person who manned the ticket booth, Mr Sasson. The latter was then meant to forward the coupon to the main “Sportoto” office. Because the purpose of his safekeeping was subordinate to the main purpose of his possession (i.e. merely to forward the coupon to the main office), Mr. Sasson was considered a ‘Shomer Sachar (paid guardian) with reduced liability’ within the meaning of the law. As such, the Court held that he would be exempt from liability provided the loss was caused otherwise than through his negligence.
The Court proceeded to analyze the scope of liability of Mr. Sasson in the above case, by comparing the bounds of liability in the similar case of a Shomer Chinam (an unpaid guardian). We learn from Bava Metzia 3:11, the Court cited, that:
If a person deposits money with his neighbour who binds it up and slings it over his shoulders or entrusts it to his minor son or daughter and locks the door before them but not properly, he is liable because he did not look after it in the manner (expected) of Shomrim.
Thus in Jewish Law, the Court proved, the Shomer Chinam is liable only for negligence (peshiah) – and not for the theft or loss of the object with which he has been entrusted. Whether an object was looked after “in the manner of Shomrim” depended on the nature of the deposit. Where the deposit is kept in a proper place, the Shomer is exempt, but not otherwise.
The Court examined the common features between the “negligence” (rashlanut) of a Shomer in Chok HaShomrim and the negligence (peshiah) of Jewish Law. It therefore ruled that a Shomer must act in the manner in which a reasonably intelligent Shomer would act and place the thing of which he is the Shomer in a suitable place under the circumstances. If he does not, he is negligent in his Shemira, both under Jewish and Israeli law.
The Court proceeded to distinguish between a case of forgetfulness due to other preoccupations [see the case cited in our last column of mislaying a ring placed in one’s trust after netilat yadayim after suddenly being called outside on an urgent matter] which would be regarded as compulsion (ones), and a case of inadvertence due to a person’s indolence which would constitute negligence (Yam Shel Shlomo ad M. Betza II, 6). Everything depends on the motivation behind the conduct.
“We also find,” the Court continued, “that conduct is evaluated according to the results which are proper in the circumstances of the Shemira.” The Court cited Resp. Shevut Ya’akov (by R. Y. Reisher), Part 2, Hoshen Mishpat 148, where the case of a Shomer who had forgotten where he had placed the deposit was distinguished from other cases of inadvertence. The conduct in the former case would be treated as negligence, because “great care should be taken with deposits to place them in a safe place and to make a note thereof, and a person who does not do so is guilty of utter negligence.” This is not the situation where inadvertence is due to compulsion or is at least faultless and does not amount to negligence.
Therefore, Justice Sheinbaum concluded:
We may examine the conduct of the form holder… in the light of these rules…
It seems to me that one can infer the proper rule for the present case from the well-known instance of the Shomer who said that he did not know where he had put the deposited article. This instance is given in Bava Metzia 3:11, where it was decided that “every plea of ‘I do not know’ is regarded as negligence: go and pay.”
All the later authorities accept this is as the law, but give different reasons. Hoshen Mishpat 291:7 sums it up by saying that “where a person deposits either utensils or money with his neighbour, and then on being asked for their return the latter says he does not know where he put them, that amounts to negligence and he must pay at once. Meirat Einayim to Hoshen Mishpat 291:12 explains the rule: “Every Shomer must pay attention to where he put the thing and see that it is in a safe place.”
In light of the above, the Judge ruled that the facts in the present case show that Mr. Sasson, the form holder, did not pay sufficient attention and place the form in a suitably guarded place. Therefore, he did not act like a reasonably intelligent Shomer in the circumstances.
As a result of the above analysis, the Court decided that (a) the form holder was a Shomer Sachar (of reduced liability), and (b) he did not effect proper Shemira over the winning coupon, which was mislaid as a result of his negligence.
Here, however, came the twist. “For the problem is that the appellant has no proof of his damage.” Only Mr. Ali in this case could testify to the fact that he had correctly guessed the results of the 13 matches! For only he held and filled in Part B of the form on which the winning results were registered. However, there was no external, independent testimony of the fact that both parts of the form were identical.
Therefore, the Court was forced to rule against Mr. Ali, in an unfortunate twist of direction in the case:
Our decision thus appears regrettable, because what emerges from it is the fact that there is no way an appellant could ever succeed in his claim, when the form which was handed in by him and which contained the winning guess got lost due to his negligence or even due to the deliberate misconduct of the agent, and even in cases where the appellant’s good conduct is not in doubt.
We can only conclude therefore that when it comes to cases decided on the basis of chance – the participator needs to gamble on his luck to the very end, and all it takes is a bit of bad luck, including the loss of the form, in order to foil his chances of winning for good…