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November 28, 2014 / 6 Kislev, 5775
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Guardian’s Oath!

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“Look at this sefer,” Yoel said to his friend Menashe. “It’s written by Rav Mordechai Eliyahu, zt”l.”

“I’ve seen that sefer,” replied Menashe. “It’s very good. I was thinking of buying it.”

“That’s not all,” added Yoel. “Look inside…”

Menashe opened the sefer. Inside he saw a signed inscription by Rav Eliyahu. “Wow! How did you get an inscribed copy?” he asked.

“I have a relative who was close with the Rav,” answered Yoel. “He gave me this sefer as a gift for my bar mitzvah, and arranged to have it signed.”

“That’s really exciting,” said Menashe, “and a tremendous zechus.”

“If you don’t mind, I have a favor to ask,” said Yoel. “I have a few errands to do on the way home and don’t want to carry the sefer around. Do you mind taking it home? I’ll pick it up this evening.”

“That would be my great pleasure,” answered Menashe. He took the sefer and put it in his knapsack.

Later that evening, Yoel came to pick up his sefer.

“You’ll never believe what happened,” Menashe told Yoel. “On the way home, I stopped off to daven Minchah and Ma’ariv. I left the knapsack next to the coat rack of the shul.”

“So, what happened?” asked Yoel.

“When I finished davening, I put on my coat and reached for the knapsack, but the knapsack was gone!” Some dishonest person must have entered the shul and stolen it!”

“You mean the sefer is gone!” cried out Yoel. “I don’t believe it!”

“That’s what I’m saying,” admitted Menashe sadly.

“How do I know what you’re saying is true?” snapped Yoel. “Maybe you’re making up a story?”

“You don’t trust me?!” asked Menashe.

“Normally, I trust you,” said Yoel. “Don’t get me wrong. It’s just that this story sounds strange. I also treasure that sefer and am not willing to give it up so easily.”

“I have nothing more to say,” said Menashe. “I left the knapsack in the coatroom of the shul, and it was taken. I’m a shomer chinam [unpaid guardian] on the sefer, so I am not liable for theft.” (C.M. 291:1)

“That’s it?” retorted Yoel. “You just say it was stolen and you’re off the hook?!”

“What more do you want me to do?” asked Menashe. “That I should pay for the sefer? I’m not liable for it.”

“I’m not sure what to do,” said Yoel. “But I don’t think it’s so simple. Let’s ask Rabbi Dayan!”

Yoel and Menashe went to Rabbi Dayan. “I entrusted a specially-inscribed sefer by Rav Mordechai Eliyahu with Menashe, and he claims it was stolen,” said Yoel. “What do we do?”

“This brings us to the third, and final, Torah oath,” answered Rabbi Dayan. “If a guardian claims exemption – e.g., a shomer chinam who claims the entrusted item was stolen – he is required to swear. The sages required the guardian to include three elements in his oath [B.M. 6a; C.M. 295:2; Taz]: He was not negligent but guarded the item properly; the item was lost in the stated manner and is no longer in his possession; he did not misappropriate the item for his personal use beforehand (once the guardian misappropriated the item, he remains liable until he returns it).”

“What if I choose to pay for the item?” asked Menashe. “Certainly if I pay there is no need for any oath!”

“If the guardian will pay for the item, e.g., he admits it was lost through negligence,” replied Rabbi Dayan, “he is not required to swear the regular Torah oath of a guardian but is still required to swear that the item is no longer in his possession, unless the item is a standard one readily available on the market.”

“What difference does that make?” asked Yoel.

“If the item is not readily available,” answered Rabbi Dayan, “we are concerned that the guardian desires the item and is scheming to ‘acquire’ it by admitting guilt and paying for it. Therefore, the Sages imposed an oath that he is not holding the item. If the owner disputes the stated value, the guardian must also include the item’s value in his oath.” (C.M. 295:1)

“If a guardian were to swear, does he need to bring any other proof?” asked Menashe.

“No, but a guardian is believed with an oath only if the event is not a well-known one,” answered Rabbi Dayan. “If the guardian claims the item was stolen in broad daylight in a public place, though, we do not suffice with an oath; he must bring witnesses. Similarly, if he claims there was a large fire, he would have to bring proof, since this is easily ascertainable by witnesses.” (C.M. 294:2-3)

About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to subscribe@businesshalacha.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com.


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