Simon Jackson
Legal Advisor to Torah Mitzion
1. I invite guests to a party at my house and they hang their coats up in the area designated for this purpose. In the course of the party, a thief entered my house and stole one of the coats. Am I regarded as a Shomer who is therefore responsible for the loss caused to my guest whose coat was stolen?
2. The Synagogue Committee installed hangers for the congregants to hang up their coats outside of the Synagogue, and one coat is stolen. Are the Committee members responsible for the coat that was stolen from its place?
As we saw in our last column, the general principle of Jewish Law is that a Shomer Chinam (unpaid guardian) is absolved from all liability in the case of theft, and is only responsible for any mishap caused to the money or goods entrusted to him where he has been neglectful in his Shemira over those objects.
The above receives expression in the Bailees Law, 5727-1967 (Chok HaShomrim). The Law first defines the various types of Shomrim (Shomer Chinam, Shomer Sachar and Shoel). The Shomer Chinam is thus defined, in total conformity with the Torah’s definition, as: “a trustee of property who himself derives no benefit for his favor”. The Law then delineates the liability of the Shomer Chinam, again in conformity with Jewish Law:
“A Shomer Chinam is liable for loss of or damage to the property, if it is caused through his negligence.”
The question we need to answer is whether there was any negligence on the part of the “unpaid guardians” in the cases described on page 1?
The Sridei Eish (Rabbi Yechiel Yaakov Weinberg, one of the great post-Shoah Poskim) ruled that there is no requirement (neither from the community’s purse nor from the Gabbaim’s own pocket) to pay for a coat which was stolen from Synagogue premises (vol. 3, section 73). The rationale? Firstly, because they did not assume the obligations of a Shomer Sachar (paid guardian) – all they did was to put up hooks to aid the public. But, secondly, and most importantly, because they are not to be regarded as Shomrim at all, as they never assumed the responsibility of guarding in the first place! A congregant who fears that his coat might be damaged as a result of leaving it on the hooks provided for his benefit should bring his coat into the Synagogue, and it is self-evident that one who opts to place his coat outside the Synagogue does so solely at his own risk.
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According to Jewish Law, the duty of Shemira applies only where the custodian agrees (whether expressly or impliedly) to guard the object. Only in very limited cases will the Halakha impose a duty of Shemira against the will of the guardian (such as a finder of a lost object on whom the Torah imposes an obligation to look after the object). In contrast, under the Israeli law, a person with whom an object is entrusted even against his wishes will still assume the responsibilities of a Shomer! The position advocated by Torah Law thus appears more just: a person is not to be regarded as a Shomer – with the duty of compensation which stems therefrom – when he has not assumed any duty to look after an object.
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Jewish Law contains a number of special instructions that pertain specifically to Jewish life and practice. One interesting responsum addressed the case of a person to whom a ring had been entrusted. The person wore the ring on his finger in order to look after it – except for netilat yadayim when he removed it and placed it between his belt and his shirt. At that point, he was suddenly called outside on an urgent matter, and in his haste he forgot to return the ring to its place and the ring got lost!
The Mabit ruled (vol. 3, para. 133), in this case, that to remove a ring from one’s finger when washing one’s hands before eating bread is not regarded as negligence, because this is the norm (and even though many do not actually require the removal of the ring before netilat yadayim).
However, there is a dispute as to the definition of those circumstances in which ‘haste’ will be regarded as duress. One responsum (Sha’ar HaMayim) ruled that where the Shomer was called out to daven, and he had time to check whether the box with which he had been entrusted was open but forgot to check this – he was liable in negligence.
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The above examples are drawn from an incredible Hebrew work published by the Library of Jewish Law in 1998 as part of the series “Jewish Law for Israel”. This series is intended to serve as “a systematic and up to date presentation of Jewish Law as a basis for legislation and judicial decision arranged according to the Law of the State of Israel”. Each work covers a different Law enacted by the Knesset (Restoration of Lost Property Law, Hire and Loan Law, Unjust Enrichment Law, Bailees Law etc.) and proceeds to analyze each section of the Law in light of the Halakha. After all, if Israel is meant to be “a Jewish and Democratic State” then the position of Jewish Law should also be considered in interpreting its laws – certainly where the drafters of the laws actually took into account the provisions of Jewish Law in drafting the original laws!
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What duty would be owed to a person who filled in a football pools coupon which was subsequently found to be missing and consequently was not included in the weekly competition? In a case which came before the Israeli Supreme Court in 1980 (having been dismissed in the lower court), the appellant claimed that his coupon had contained the winning forecast (all 13 numbers!) and he was therefore entitled to the first prize!
In the course of its judgment, the Court stated:
“The classification of Shomrim under Chok HaShomrim, 1967, follows Jewish Law, as explained in the Explanatory Notes to the Bill of the Law… Since Jewish Law was considered by the draftsmen of the law, we may be assisted by Jewish Law in understanding the concepts employed by the statute (although not all its provisions follow the rules of Jewish Law).”
What type of Shomer was the person in the ticket booth? Did he effect proper Shemira over the winning coupon? And how did the Court rule at the end of the day?!
