Mr. Meyers scurried around the wedding hall, making sure everything was properly in place; his son was getting married. “Could you please watch this envelope?” he asked his close friend, Mr. Koenig.
“Sure, no problem,” Mr. Koenig answered, taking the envelope.
Toward the end of the wedding, Mr. Meyers asked his friend for the envelope. Mr. Koenig reached into his shirt pocket for it but found nothing. He checked his other pockets, but still no envelope. “I know I put the envelope in my shirt pocket,” he said. “It must have fallen out during the dancing. What was in it?”
“There was over $3,000 cash to pay tips and other expenses,” Mr. Meyers said.
“You’re kidding me!” exclaimed Mr. Koenig. “You didn’t tell me there was money in the envelope.”
“I didn’t think it was necessary to tell you what it contained,” said Mr. Meyers. “Anyway, I assumed you would realize it was money.”
“I’ll check with the office whether anyone found an envelope,” said Mr. Koenig. He went to the office, but the manager said, “Nobody brought in an envelope.”
“I really had no idea what the envelope contained,” said Mr. Koenig.
“What, you don’t trust me?!” said Mr. Meyers. “I’m telling you there was over $3,000 cash in it.”
“I’m not denying what you say,” said Mr. Koenig. “However, if you want me to pay, you need some evidence. Furthermore, even if you’re right, I’m not sure I have to pay the $3,000, since you never told me there was cash in the envelope!”
“I don’t see why not,” replied Mr. Meyers. “If you agreed to watch the envelope, you are responsible for whatever it contained.”
“On the other hand, I’m a shomer chinam (unpaid guardian),” argued Mr. Koenig. “I’m not responsible for loss anyway.”
“There are different kinds of loss,” countered Mr. Meyers. “If it fell out while dancing, that seems like negligence to me. I need the money to cover the expenses of the wedding.”
“I saw Rabbi Dayan here earlier,” said Mr. Koenig. “Is he still here?”
“He’s seated at table 24, over there,” replied Mr. Meyers. “If he’s still here we can ask him.”
The two walked towards table 24. “Yes, I see he’s still there,” said Mr. Koenig. When Rabbi Dayan saw Mr. Meyers walking toward him, he greeted him. “Mazal Tov, Mr. Meyers! What a beautiful simcha,” he said. “May you be zocheh to true yiddishe nachas from the couple.”
“Amen, thank you,” replied Mr. Meyers. “I have an issue here with my friend, though, if you could help us.”
“Certainly,” offered Rabbi Dayan. “Have a seat.”
The two sat down. Mr. Meyers related what happened, and claimed Mr. Koenig owed him the $3,000 that was in the envelope. Mr. Koenig responded that he didn’t feel he needed to pay, for a number of reasons.
“What a fascinating case,” replied Rabbi Dayan. “Let’s go through the issues one by one.”
“Even an unpaid guardian is responsible if he lost the entrusted item through negligence,” said Rabbi Dayan. “Placing the envelope in a deep, secure jacket pocket would seem acceptable under the circumstances. However, in a shirt pocket, where it can easily fall out, is considered negligence.” (Pischei Teshuvah C.M. 291:5,8) “What about the fact that I had no idea what was entrusted?” asked Mr. Koenig.
“When the owner misrepresented the contents, the guardian only has to pay the value of what he agreed to watch,” answered Rabbi Dayan. (291:4) “For example, had Mr. Meyers told you it was just some receipts or a check, you would not have to pay the $3,000, even if he had evidence it contained cash. However, if the contents were not specified, you accepted responsibility for whatever was inside.”
“But how do I know what was inside?” Mr. Koenig asked. “There’s no evidence at all! Do I have to pay without evidence?”
“If you trust Mr. Meyers’s word completely, you must pay even if he does not bring evidence,” said Rabbi Dayan. “If you doubt his word, the Shulchan Aruch rules that when the guardian was negligent the owner should swear what was entrusted and collect that amount, if reasonable. This is included in takanas nigzal.” (90:10; Shach 90:16) “What if Mr. Koenig knew there was money in the envelope, but didn’t know how much?” asked Mr. Meyers.
“In that case, since the guardian admits partially and cannot swear about the remainder, some maintain he must pay even without an oath by the owner, based on the rule of mitoch she’aino yachol lishava meshalem,” replied Rabbi Dayan.
“Others maintain that this principle does not apply, though, since the guardian is not expected to know how much was inside, so that an oath by Mr. Meyers is still required.” (90:10; 298:1)
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 firstname.lastname@example.org. 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 email@example.com.Rabbi Meir Orlian
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 firstname.lastname@example.org. 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 email@example.com.
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