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A Guardian’s Oath

By Rabbi Meir Orlian

“Look inside this sefer,” Yoel said to his friend Menashe. “It’s written by Rabbi Moshe Feinstein, zt’l.”

Menashe opened the sefer. Inside, he saw a signed inscription by Rav Moshe.

“Wow! How did you get an inscribed copy?” he asked.

“I have a cousin who was very close with the rav,” answered Yoel. “My cousin gave me this sefer as a bar mitzvah gift and arranged to have it inscribed.”

“That’s really exciting,” said Menashe.

“If you don’t mind, I have a favor to ask,” requested 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. “I stopped to daven Minchah and Ma’ariv on my way home. I left my knapsack next to the coat rack of the shul, and when I finished davening, the knapsack was gone!” exclaimed Menashe. “Some dishonest person must have entered the shul and stolen it!”

Yoel stared at him in horror.

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

“I have no proof, but that’s the truth,” insisted Yoel. “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 that it was stolen and you’re off the hook?”

“What more do you want me to do?” said Menashe. “You want me to 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 sefer especially inscribed by Rav Moshe Feinstein, zt’l, with Menashe, and he claims it was stolen,” said Yoel. “I don’t accept that simply. What do we do?”

“This brings us to the third and final type of Torah oath,” answered Rabbi Dayan. “If a guardian claims exemption—e.g., a shomer chinam who claims that 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). “First, that he was not negligent, but guarded the item properly; second, that the item was lost in the stated manner and is no longer in his possession; and third, that he did not misappropriate the item for his personal use beforehand. If 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!”

“Even if the guardian will pay for the item, i.e. if he admits that 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 that the item was stolen in broad daylight in a public place, though, we do not suffice with an oath; he must bring witnesses” (C.M. 294:2–3).

From The BHI Hotline:

At My Expense

Submitted by N. S.

Q. Shimon and I partnered to buy an apartment as an investment. We each put in $20,000 and secured a mortgage to cover the remainder. The first few years, we had tenants and their rent covered the mortgage; there was even some extra money we were able to take as profit. Recently, we haven’t been able to find a tenant, but mortgage and other maintenance costs continue. I repeatedly asked Shimon to contribute toward these expenses, but he always had an excuse not to. I had to put in an additional $10,000. We just decided to sell the apartment and will likely profit from the investment. Do I deserve a higher percentage of the profits, since I put more money into the house than Shimon?

A. There are two ways in which a partnership may be formed; the consequences for a partner who does not contribute to the partnership changes in each scenario.

Scenario #1: One partner contributes all of the money. The second partner commits to repay half the money to the first partner. In essence, half of the investment constitutes a loan from the first partner to the second, who is responsible to repay this loan and, if necessary, can be forced by beis din to pay that debt. Although the second partner has not yet personally invested any funds, he qualifies as a partner since money was lent to him toward the investment. But if the second partner does not honor his word and pay the money he owes the first partner, the partnership is retroactively dissolved. The first partner loaned money to the second and accepted him as a partner on condition that he be repaid. If the second partner does not repay that money, their agreement is nullified and the first partner is the sole owner of the investment.

Scenario #2: Two people contribute money to form a partnership. When additional expenses arise, the partners share responsibility to cover those expenses, and each one could force the other to make that contribution. In this scenario, if one of the partners does not continue to contribute to the partnership, the partnership does not retroactively dissolve. The reason for this is that since each partner acquired his portion of the partnership with his initial investment, it is impossible to take that away from him. Therefore, even though he has not been contributing to the partnership for a long period of time, he does not forfeit his share in the partnership.

Accordingly, even though one partner is covering all expenses, half of that money constitutes a loan to his partner. If the partner paying the bills does not dissolve the partnership by going to beis din, it remains in force and neither partner has a greater share of the partnership than the other.

However, the delinquent partner must repay his partner for half of the expenses for which he has not yet contributed (C.M. 176:41; Nesivos 55; and Mishpat Shalom).

Money Matters:

Damages #21

Q. Two people in a house got into a heated argument, and one walked away with a broken arm. What evidence must he bring to sue the other person?

A. Generally, we require the explicit testimony of two valid witnesses to collect payment and do not rely on circumstantial evidence. However, in injury cases, if there were witnesses that someone entered the house intact and exited injured, the Sages relied on the circumstantial evidence to allow the victim to swear that the other person injured him and collect (C.M. 90:16).

If the wound was such that cannot be self-inflicted, e.g. between the shoulders, this is considered definitive knowledge, equivalent to explicit testimony—and the victim collects without an oath. If a third person was in the house, but he could not have inflicted the injury—it is considered as if just the two people were present (see Pischei Teshuva 90:1; Aruch Hashulchan 30:17).

Although women and relatives are generally disqualified from testimony, the Rishonim instituted that in places where valid witnesses are usually not available, e.g. the women’s section or at sudden brawls, we can rely on them in certain instances (Rama 35:14; Aruch Hashulchan 35:13). v

This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’malchusa to consider in actual cases.

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

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Posted by on April 5, 2013. Filed under In This Week's Edition. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.