Photo Credit: Jewish Press

Mrs. Aviva Feldman was celebrating the wedding of her daughter.

“I’m going to dance!” she told her aunt, Esther. “Could you please watch my pocketbook? I have a lot of cash in it!”

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“As long as you trust me,” Esther replied, with a wink.

“I do, with my eyes closed,” said Mr. Feldman. She went off to dance.

Esther watched the dancing for a while. Next to her stood her daughter, Michal, who was watching her baby.

“I have to go to the restroom,” Esther told her daughter. “Aviva asked me to watch her pocketbook; it has a lot of cash. Could you hold it for a few minutes?”

“As long as you trust me,” Michal replied, with a laugh.

Esther handed Michal the pocketbook.

The baby started crying. Michal put the pocketbook down on the table in front of her and reached into her bag to take out the bottle and formula. As she did that, she noticed a hand reaching for the pocketbook. She turned around, expecting to see her mother. Instead, she saw an unknown person racing towards the exit.

It took a second for Michal to recover from her shock. “Thief!” she cried out.

Someone dialed the police. It was too late, though. The thief had already fled the hall and disappeared into the street.

Esther returned from the restroom to find a commotion. “I’m sorry, Aviva,” she said. “I shouldn’t have given the pocketbook to Michal. I’ll pay you what was lost.”

“No, it’s not your fault,” Aviva replied. “The thief could have taken it regardless. I know that Michal is reliable.”

“It’s my fault,” said Michal. “I should have held the pocketbook and not put it down on the table. I’ll have to pay.”

Meanwhile, Mr. Feldman came over and heard the women arguing. “Rabbi Dayan will be at Sheva Berachos,” he said. “We can ask him.”

Rabbi Dayan listened to the story. “There are a few factors to consider,” he replied.

“First, Esther was not paid to watch the pocketbook,” he explained. “Therefore, she is a shomer chinam, an unpaid guardian, who is exempt from liability of theft. Nonetheless, the Gemara [B.M. 36a] writes that a guardian who handed the entrusted item to another is liable.”

“Then I should have to pay!” Esther said, emphatically. “It was my negligence!”

“Not so fast,” said Rabbi Dayan. “A person who entrusts an item to another relies also on his household members, since a person is not expected to be home 24/7. This may not apply here, though, since the item was not meant to be watched in Esther’s home and because Michal is married and no longer a regular member of the household.” (C.M. 291:21)

“In any case,” continued Rabbi Dayan, “Rava explains that the reason that the first guardian is liable is not because he is considered inherently negligent for having handed the item to another. Rather, he is liable because a guardian is exempt only with an oath that the item was stolen, and the owner can refuse to accept the oath of the other person, whom he might not trust.”

“I trust Michal completely,” said Mrs. Feldman, “even without an oath!”

“In that case, when there is no issue of credibility of the second guardian, or when there are witnesses,” replied Rabbi Dayan, “the first guardian remains exempt, as if the incident had occurred to him.” (C.M. 291:26; Shach 291:47)

“Still, I shouldn’t have put the pocketbook down,” said Michal.

“While traveling, a person is required to hold money in his hand,” noted Rabbi Dayan. “However, in our situation, it seems normal to put a pocketbook down on the table in front of you, unless there were specific instructions otherwise.” (C.M. 291:18,20)

“Thus,” concluded Rabbi Dayan, “Esther and Michal are not liable for the theft.”

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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.