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By: Rabbi Max Sutton


Ann, an elderly widow, was scheduled for a complicated operation in two weeks’ time.
In preparation, she deposited her valuable jewelry with Janice, her close friend and neighbor. Janice received the jewelry along with explicit instructions of its distribution in the worst-case scenario. Thank Heavens the operation was a success, though Ann needed four weeks to recover at a rehabilitation center. In the interim, Ann’s daughter-in-law spotted Janice at a wedding wearing a diamond brooch which was identical to that of her mother-in-law’s. Unaware that her
mother-in-law deposited her jewelry with Janice, she dismissed the occurrence. Thereafter, while Janice was away for the weekend, her home was professionally burglarized, and many of her own valuables along with Ann’s bag of jewelry were stolen. In Bet Din, Ann’s daughter-in-law testified against Janice claiming that she illegally wore the diamond brooch. She claimed that upon consultation with a rabbi, she was told that such an offense in considered a form of theft, making Janice liable for the brooch’s ultimate loss. Janice defended, by confessing that she indeed wore the brooch and other pieces that belonged to Ann, but she always immediately returned the jewelry to the bag and securely locked the bag in the designated drawer.

Is Janice responsible for the theft of the jewelry? How should the Bet Din rule and why?


According to the ruling of the Shulhan Aruch, one who is entrusted with another’s item for safekeeping is completely restricted from using the item for his personal use. Such usage is considered a form of theft. If a watchman violates this law and the item is subsequently lost or stolen, he is liable for its loss. Since the watchman is legally viewed as a thief, the item consequently becomes his responsibility, making him liable for any sort of loss or damage. Interestingly, anytime a deposited item is missing, and the watchman claims exemption, he is required to take an oath that he was faithful and did not use or steal the item for himself. Unfortunately, too often, people who are otherwise trustworthy make allowances which are forbidden and unethical when safeguarding another’s property.

Leading halachic authorities debate whether a watchman is liable for loss if he returns the item to its original spot of safekeeping after his unauthorized usage. Although he unlawfully used the item, since he returned it to its original designated place prior to its loss or damage, some authorities exempt him from liability. The rationale behind this leniency is that after a watchman returns the item to its original storage place agreed upon by its owner, he effectively resumes his role as a watchman and no longer retains the status of a thief. Other opinions disagree, explaining that once a watchman violates his role by unlawfully using the deposit, we assume that he is no longer trusted as a watchman, and does not resume that role even if he returns the item to its original spot.

The above halachic dispute is relevant only to a watchman who temporarily uses a deposit and thereafter returns it to its original spot for safekeeping. If, however, a watchman intended on stealing the deposit, he is always liable for its subsequent loss. Hence, even if he returns it to its original place for safekeeping before it is lost or stolen, he is nevertheless responsible. While, as mentioned, some halachic authorities rule leniently when the item is unlawfully used, all agree that if the watchman took the item with intent to steal it, he is not eligible for exemption upon its return. The intent to steal is too severe to be forgiven by the owner, and the return of the item to its original spot does not rectify the violation.

As with nearly all halachic disputes, by law a defendant is entitled to withhold payment from a plaintiff by relying on halachic opinions which rule in his favor. Providing the halachic view is supported by at least two major halachic authorities, a defendant is entitled to rely on their ruling. One exception to this rule is that a defendant is not acquitted from liability in instances in which his legal position is contrary to the opinion of the Shulhan Aruch. A defendant of Sephardic origin is not entitled to withhold payment from a plaintiff by relying on a halachic view on the subject, which rules contrary to that of the Shulhan Aruch.


Off the Hook

Our Bet Din ruling absolved Janice from paying for the stolen brooch, even though she illegally wore it without Ann’s explicit consent. As mentioned, since Janice returned the brooch to the designated locked drawer in her home after she wore it, she automatically resumed the status of an unpaid watchman, and is exempt in the instance of theft or loss. Although some halachic authorities reason that Janice does not resume her status as a watchman after violating her role, nevertheless, since numerous halachic authorities rule in her favor, she is exempt from payment. As a rule, a defendant can withhold payment from a plaintiff when relying on recognized halachic authorities that rule in their favor.