Robert requested of Simon, who was traveling to Israel, to take $4,000 to his sister who resided in Jerusalem. Robert placed the money in an unsealed white envelope and gave it to Simon. Simon did not count the money, but rather stipulated that he is not assuming responsibility for the funds. He placed the cash in his wife’s bag, which he stowed in the overhead bin on the plane. Upon arrival in Jerusalem, he took the envelope to Robert’s sister, who counted the cash and found that $590 was missing. In Bet Din, Robert’s sister reprimanded Simon for carelessly stowing the cash in an overhead bin. Simon responded that the $4,000 cash envelope he received consisted of many fifty, twenty, and ten-dollar bills. It was unreasonable to carry the overstuffed envelope in his pocket for the duration of the flight. Simon added that it was irrational to say that someone stole $590 and left the entire balance behind. Simon therefore suggested that perhaps he never received the complete $4,000 from Robert. Robert defended that he carefully counted the money before placing it into the envelope. Robert and his sister suggested that perhaps Simon or his wife mistakenly used the cash for their expenses, thinking the cash was their own. The couple responded that for the duration of their travels they did not use a total sum near the amount missing.
Is Simon responsible for the missing funds? How should the Bet din rule and why?
Torah Law
According to the ruling of the Shulhan Aruch, one who is entrusted with money for safekeeping is required by law to store the cash in a wall or floor safe. If traveling, one is required to keep the cash in hand or in a front pocket for safekeeping. Unless agreed upon otherwise by the owner, one who deviates from these requirements is liable in the event the cash is lost or stolen. This ruling is applicable even to an unpaid watchman since deviating from the above-mentioned instructions is viewed as an act of negligence.
Interestingly, by rule of the Shulhan Aruch, if loose cash is deposited for safekeeping, the guardian of the funds is viewed as a paid watchman. The guardian of loose cash is liable for theft or loss even if he protected the money as required by law. The underlying reasoning behind this ruling is that since the money was deposited loosely, the watchman is entitled to use the funds deposited if needed. The right to use another’s funds constitutes a clear benefit extended to the safekeeper and he is thus liable for loss or theft of the cash. By contrast, if the money is deposited in a sealed envelope, the watchman is not entitled to temporarily use the funds and is consequently not liable for loss or theft. Since such a custodian is not receiving a benefit or payment for his services, he is viewed as an unpaid watchman and is exempt unless he is negligent.
According to leading halachic authorities, a watchman can stipulate a clause of exemption at the time the item is first received. Hence, even an unpaid watchman can, from the onset, stipulate exemption of all liability including the loss of the item even due to his negligence. Contemporary halachic authorities suggest that a watchman that does not specify the level of exemption he is seeking is limited in his liability but is not completely exempt. Hence, if a paid watchman vaguely states that he is willing to protect the item without assuming responsibility, he is exempt from claims associated with theft, but is still liable for all acts of negligence. Unless he explicitly stipulates when first receiving the item that he is not assuming responsibility for his negligence, he is held accountable. If, however, an unpaid watchman makes a general stipulation that he is not assuming responsibility, he is exempt in case of loss due to his negligence. Since a standard unpaid watchman is only liable for negligence, it is obvious that his stipulation, even though it was unclear, must have included an exemption for negligence, the only thing he could have been responsible for in the first place.
According to early halachic authorities, a messenger sent to deliver cash to another is not considered a paid watchman even if the cash he received is loose. The reason for such a distinction is that since the messenger is required to deliver the cash at the first opportunity available, his access to using the funds if needed is limited. Hence, if he is not getting paid for his services, the mere fact that the cash is temporarily loose is not grounds to make him liable for loss or theft.
By rule of the Shulhan Aruch, one who deposits an item for safekeeping assumes that both the guardian and his wife will be involved in protecting the item. Unless otherwise stipulated from the onset, a plaintiff may not accuse a defendant of wrongfully transferring the deposited item to his wife’s possession.
By Torah law, if a plaintiff states that he trusts the defendant and does not insist he take an oath to validate his claim, a Bet Din will release the defendant of the required oath. The defendant’s position is accepted as fact, and the case is adjudicated accordingly.
VERDICT: A Legal Exemption
Our Bet Din ruled in favor of Simon and found him not liable for the missing cash. As mentioned in Torah law, although the money was in an unsealed envelope, nevertheless, Simon was instructed to deliver the cash to Robert’s sister. A delivery boy is viewed by law as an unpaid watchman. Although an unpaid watchman is responsible if negligent, since Simon stipulated that he is not assuming responsibility for the cash, his stipulation obviously included negligence. An unpaid watchman is only liable in case of negligence; hence the stipulated exemption was intended in case of his negligence. Robert and his sister expressed that they trusted Simon and his wife when they asserted that they did not mistakenly spend the missing cash. Thus, our Bet Din ruled that Simon was exempt from payment.
In Loving Memory of Vera Bat Carol, A”H
YOU BE THE JUDGE
The Art of Deception
Steven is the owner of a residential building complex. By contract, a tenant who wishes to rent an apartment in his luxury building is required to prepay a year in advance at the time of signing. Gary, an old friend of Steven’s, showed interest in one of the smaller apartments in the building. Steven quoted Gary the price of $5,800 for the apartment and Gary rejected the offer as the price seemed exorbitant. Steven then showed Gary a larger apartment he had just rented out on the floor below for the whopping sum of $6,500. Steven explained to Gary that based on the larger apartment’s square footage the going rate for his apartment is at least $5,800. Gary was convinced. He signed and prepaid for the first year of his two-year contract. A short time thereafter, Gary spoke with the tenant on the floor below and inquired about the size and cost of his rental. The tenant told Gary that he was paying $5,000 for his apartment, which was clearly larger than Gary’s. Gary confronted Steven and demanded his money back, claiming that the apartment was rented to him on false pretenses. Steven dismissed Gary’s claim with the wave of a hand, claiming that the contract made no mention of any contingencies or considerations regarding the $5,800 cost of rent. He added that he did not necessarily recall the exact figure he told Gary regarding the larger apartment. Furthermore, Steven explained that the larger apartment was, indeed, valued at $6,500 in the market. Gary contested and refused to be a victim of deception.
Is Gary entitled to breach his contract? Is he entitled to his money back? How should the Bet Din rule and why?