Purim was less than a month away. Advertisements for Mishloach Manos baskets sprouted on the shul bulletin board. The most prominent ad depicted various mouthwatering baskets, with prices to match:
“Make Purim Memorable! Manny’s Magnificent Mehadrin Mishloach Manos offers a range of baskets to suit every taste and budget. Your shul representative is Mr. Jerry Lewis. Please place orders by Rosh Chodesh Adar to ensure timely delivery.”
A week before Purim, Manny brought 250 baskets of Mishloach Manos to Jerry’s house. “We’ll put them over there in the corner of the living room,” Jerry said. The two men unloaded the baskets into the house.
“Manny’s Mishloach Manos baskets have arrived,” Jerry announced in shul. “Orders can be picked up from me 7-10 p.m.”
During the following days most of the baskets were collected. Jerry looked forward to receiving 20 percent of the sales profits from Manny in payment for his efforts.
Three days before Purim, Jerry came home from work in the afternoon. He grew concerned when he saw one of the windows was open. He entered the house and saw that the remaining Mishloach Manos baskets were gone.
Jerry called Manny to inform him of the theft. “Our house was broken into,” he said. “Fifty baskets of Mishloach Manos were stolen!”
“I can’t believe it!” exclaimed Manny. “That’s a thousand dollars’ worth of baskets. Did you keep the house locked?”
“Yes, the door and windows were locked,” said Jerry. “The thief pried open a window.”
“It’s a shame there weren’t window gates,” replied Manny. “Who’s going to pay for this?”
“I suggest we let Rabbi Dayan work this one out for us,” replied Jerry.
The two came before Rabbi Dayan. “We have an unfortunate case to discuss,” Manny said. “Mr. Lewis agreed to sell Mishloach Manos baskets for 20 percent profit, but some baskets were stolen from his house. Is he responsible for them?”
“Was the house properly locked?” asked Rabbi Dayan.
“Of course,” said Jerry. “The thief pried open one of the windows.”
Rabbi Dayan turned to Manny: “Were you aware that the baskets were being kept in the living room?”
“Yes,” answered Manny. “I unloaded the baskets there.”
“It might seem, at first glance, that Mr. Lewis is responsible,” said Rabbi Dayan, “but there are two reasons to exempt him.”
“Can you please explain?” asked Manny.
“A sales agent is considered a shomer sachar [paid guardian] on the merchandise he holds,” said Rabbi Dayan. “Therefore, in principle, he is responsible for theft and loss of the merchandise. This is true even if he hasn’t earned any profit yet, since he has the potential of profit from the sales.” (C.M. 185:7; 186:2; Pischei Choshen, Pikakon 1:5)
“But I kept the baskets in my house like the rest of my possessions,” said Jerry. “We’ve never had a break-in before.”
“A shomer sachar is obligated in theft even if he guards the entrusted item the same as his own property,” replied Rabbi Dayan. “He is being paid to watch extra carefully.” (303:10-11)
“Why, then, should Jerry be exempt?” asked Manny with surprise. “This seems a classic case of theft.”
“Although a shomer sachar is generally obligated in theft and is expected to watch extra carefully, he can stipulate with the owner for a lower level of responsibility,” said Rabbi Dayan. (296:5) “A number of authorities maintain that when the owner was aware of the conditions in which the merchandise would be kept, it is considered as a stipulation that such guardianship suffices. Here, you knew the baskets would be kept in the house and Mr. Lewis would go to work daily. Similarly, some exempt a sales agent if he guarded the merchandise in the customary manner of such merchandise, since this is the common business practice and expectation of the supplier.” (P.C., Pikadon 3:; Divrei Geonim 95:69)
“What is the other reason to exempt?” asked Jerry.
“Although a sales agent is considered a shomer sachar on account of the expected share of profits, he is not being paid explicitly to guard the merchandise, but for his efforts in selling it,” said Rabbi Dayan. “Therefore, some authorities write that he does not carry liability when he kept the merchandise the way people regularly do, unlike a true shomer sachar who is expected to be extra careful.” (Pischei Teshuvah 303:1; P.C., Pikadon 3:)
“If I am exempt from the theft,” said Jerry, “I suppose Manny also has to pay my share of profits?”
“Because both reasons to exempt are subject to debate,” concluded Rabbi Dayan, “if Manny has not paid you and you do not hold any of the sales money, he can withhold payment of your profit or wages against the value of the theft.”
The two men thanked Rabbi Dayan and left the beis din.
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 email@example.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 firstname.lastname@example.org.Rabbi Meir Orlian