Menashe was approaching the end of tenth grade. During science class, he was playing with his calculator, which he had received as a present when he graduated from elementary school.
“Please put the calculator away,” said the teacher, Mr. Berger.
Menashe put the calculator in his desk. A few minutes later, though, he was again playing with it under the desk.
Mr. Berger walked over. “Give me the calculator,” he said. “You’ll get it back tomorrow.”
Menashe handed the calculator to Mr. Berger, who put it in his attaché case.
At the end of the day, Mr. Berger went to his car and put the attaché case in the trunk. He picked up his wife from an appointment and they did a few errands on the way home.
When the Bergers got home, it was already late. “I’m not going to do any schoolwork now,” Mr. Berger said to his wife. “I’m going to leave the attaché case in the car so it will be ready for tomorrow.”
The following morning, when he prepared to drive to school, he saw that his car had been broken into during the night. The thief had taken his attaché case!
When Mr. Berger got to school, Menashe timidly asked him for the calculator. “I’m sorry, but I left my attaché case in the car overnight and the case was stolen!” Mr. Berger said.
“The calculator cost $50,” Menashe said. “You said that you would return it.”
“It’s not my fault the calculator was stolen,” said Mr. Berger.
After class, Mr. Berger and Menashe called Rabbi Dayan and asked:
“Is Mr. Berger liable for the calculator? Does he have to pay the full cost?”
“A person who takes someone’s property without permission is tantamount to a thief and liable for it even in cases of oness – circumstances beyond one’s control,” replied Rabbi Dayan (C.M. 366:3).
“This does not apply here, though. Depending on the educational policy of the institution, Mr. Berger is likely considered as having confiscated the calculator with permission. If the policy allows confiscating without returning, and this had been Mr. Berger’s initial intent, Menashe would have no claim” (C.M. 2:1).
“However, if the policy allows only temporary confiscation, or circumstances warranted only this, or this was indeed Mr. Berger’s initial intent, he is considered a guardian – shomer – of the item.
“We know that a paid guardian – shomer sachar – is liable for theft, whereas an unpaid guardian – shomer chinam – is not, provided that he safeguarded the item in the normal manner” (C.M. 291:1; 303:2).
“Mr. Berger is considered a shomer chinam since he has no gain, even incidental, from guarding the calculator. Although a paid worker is generally considered a shomer sachar for holding items related to his work – even if not paid directly to watch them – since he benefits indirectly from them, holding confiscated property does not seem included in the responsibilities for which Mr. Berger gets paid” (C.M. 306:1).
“Nonetheless, in this situation, Mr. Berger is liable, since even a shomer chinam is required to guard in the normal fashion. One can argue that leaving items in the trunk while doing errands is normal, but leaving them overnight is not the normal manner of guarding. This is considered negligence – peshia – for which even an unpaid guardian is liable” (C.M. 291:13-14).
“In any case, halacha requires paying only the current value of the item, so that if the calculator was clearly in used condition, Mr. Berger is not required to pay the full cost of a new calculator” (C.M. 291:4; 362:1; Ketzos and Nesivos 291:1).
“Thus,” concluded Rabbi Dayan, “Mr. Berger is liable for the calculator according to its current value, since he did not guard it properly while it was in his hands.”
Verdict: A teacher who confiscates an item expecting to return it is responsible to guard it in the normal fashion. If not, he is liable for the item according to its current value.