By Rabbi Meir Orlian
“I’m going to a cousin’s wedding,” Moshe said to his classmate, Yossi. “Could you take my backpack home with you? I’ve got a new laptop in it.”
“No problem,” said Yossi, taking the backpack. He met up with a group of friends and headed home.
On the way, Yossi’s father called. He was stuck with the car away from the house and needed help.
Yossi turned to Nachman, who lived near him. “Someone asked me to watch his backpack, with a laptop inside,” he said. “Can you please take it home? I’ll pick it up in the evening.”
“Sure,” said Nachman.
While the group was walking, someone came from behind Nachman, grabbed the backpack, and sped off on a bicycle.
In the evening, Yossi came to collect the backpack.
“I’m sorry, but a thief came and stole it,” Nachman related. “You can ask the rest of the group; they all witnessed it.”
“You’re kidding!” exclaimed Yossi. “What am I going to tell Moshe?”
“You were an unpaid guardian (shomer chinam), and so was I,” replied Nachman. “Just say that an unpaid guardian is exempt from theft” (C.M. 291:1).
Yossi called Moshe. “Sorry about the backpack,” he apologized. “My father needed help, so I entrusted the backpack to one of my friends, Nachman, and it got stolen.”
“You shouldn’t have given him the backpack,” Moshe said. “You were negligent! You’ll have to pay for the laptop.”
“How was I negligent?” replied Yossi. “Nachman’s a reliable fellow.”
“Why should I trust Nachman?” asked Moshe. “I barely know him.”
“But there were witnesses there,” said Yossi. “They’ll tell you that it was stolen!”
“It’s still your fault,” argued Moshe. “Had you kept the backpack, it wouldn’t have been stolen.”
“That doesn’t make me negligent,” insisted Yossi. “I entrusted the backpack to someone competent.”
“Let’s take it up with Rabbi Dayan,” Moshe suggested.
“I entrusted my backpack to Yossi,” Moshe claimed. “He handed it over to his neighbor, Nachman, and it was stolen. Is Yossi liable for the backpack?”
“If there is no evidence to the theft, Yossi is liable,” answered Rabbi Dayan. “However, if there are witnesses, Yossi is exempt.”
“The Gemara (B.M. 36a–b) discusses the case of a guardian who handed the entrusted item over to another guardian (shomer shemosar l’shomer),” explained Rabbi Dayan. “If the item is stolen, Rav exempts the initial guardian, because he gave it to a competent person. However, the ruling is like Rav Yochanan, who obligates the initial guardian.”
“So why isn’t Yossi liable when there is evidence?” asked Moshe. “What is Rav Yochanan’s rationale?”
“This is a dispute between Abaye and Rava,” answered Rabbi Dayan. “Abaye explains that a person does not want his item entrusted with a third party. Thus, the initial guardian was inherently negligent in handing it to another person.
“Rava, however, maintains that although it was wrong to hand the item over to another person, this does not constitute negligence. Rather, the first guardian is liable because the owner can refuse to believe the oath of the second guardian that the item was stolen; the concern of real negligence remains.”
“What is the difference between these two reasons?” asked Nachman.
“There are three differences, situations in which the reliability of the second person is not an issue,” replied Rabbi Dayan. “First, if the owner commonly entrusts the second guardian with comparable items; he cannot say that he does not trust him and would have to accept his oath.
“Second, when the initial guardian was also present at the time of the theft, he can swear about the theft to exempt himself.
“Third is our case, when there are witnesses to the event; there is no need for an oath by the second guardian.”
“The halacha is in accordance with Rava’s rationale,” concluded Rabbi Dayan. “Thus, Yossi is exempt from liability on the basis of the witnesses, despite the fact that he handed the backpack over to another person” (C.M. 291:26; Shach 291:47).
From The BHI Hotline: Refund Or Resale
Q. I purchased a garment for my daughter at a clothing store that had a “30% off” sale. It was not the correct size and she never wore it. A few weeks after the sale was over, I returned the garment. Even though I did not have a receipt, they accepted the return and gave me a refund for the regular price, not realizing that I had bought it on sale. Am I obligated to inform them that they refunded more money than I paid?
A. It seems your rationalization for returning the garment without informing the proprietor that it was purchased on sale is that when a customer returns a garment for a refund, he is actually reselling the garment to the store. Accordingly, as long as the customer does not overcharge the store, there is no reason it should be prohibited.
However, there are numerous reasons that halachically obligate you to inform the store that you purchased the garment on sale.
1. Even if we assume that the store is actually purchasing that item back from the customer, it is clear that they certainly would not agree that the customer should make a profit off of this policy. Therefore, when you “return” a garment without informing the store it was purchased on sale, they mistakenly believe they must purchase the garment from you at the higher price, when in reality, they do not have to pay any more than you paid for the garment. Although it is true that when one forces someone to purchase something at its actual price, he has not violated the prohibition of theft (C.M. 359:9-10), nevertheless he violated the prohibition of coveting—lo sachmod (Pischei Choshen, Geneivah 1: and Erech Shai, E.H. 42:1).
Other authorities maintain that one violates the prohibition of coveting only when coveting a friend’s object, but not when one covets his money (Imrei Yaakov, Gezeilah 5). However, in your case, since the seller is under the mistaken impression that he is obligated to repurchase at the regular price, the sale is invalid (Nesivos 205:1), and whatever money the customer receives would be similar to “stolen” money (see Rema 205:12 with Pischei Teshuvah 12).
2. The truth is that your notion that a return policy entails reselling it to the store is mistaken. One does not resell the garment; he cancels the original sale. A return policy is a condition of the sale that empowers the customer to cancel the sale (C.M. 207:1). Consequently, you cannot collect the current cost of the garment as if you are reselling it, because you are canceling the original sale and you are not entitled to any more money than the amount you originally paid. Any additional money collected is treated as stolen and must be returned to the store.
3. Lastly, there is an issue of geneivas da’as—fooling someone. Obviously, it does not occur to the storeowner that the article was purchased on sale (C.M. 228:6), for if it did, he certainly would have asked you about it. To avoid violating this prohibition, it is incumbent on you to inform the store that you purchased the garment on sale.
Lost And Found #31
Q. Can I demand a reward for returning the aveidah? Whose aveidah takes priority?
A. You are required to return lost items without charge, even if the hashavas aveidah requires time and physical effort on your part, as with any other mitzvah. You may not demand a reward for returning the item. If the owner offers a reward, though, some permit taking it. Others recommend that you tell the owner, “It’s not necessary,” but allow taking if he persists, or that you give the reward to tzedakah (C.M. 265:1; Hashavas Aveidah K’halachah 10:2; Teshuvos V’hanhagos 3:463; Pischei Choshen, Aveidah 8:).
Nonetheless, you are not required to suffer monetary loss for hashavas aveidah. Therefore, your own aveidah takes priority over someone else’s. This is true even if his item is worth much more than yours and he promises to compensate you for your item. A person should not be particular on this point, though, and should help others unless he will suffer a clear loss (C.M. and Sma 264:1).
By law, a person’s own aveidah takes priority over his father’s. His father’s aveidah takes priority over his rebbi’s nowadays, since we have multiple teachers and pay tuition (C.M. 264:2; Shach 264:1). 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 email@example.com. To receive BHI’s free newsletter, Business Weekly, send an e‑mail to firstname.lastname@example.org.