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A watchman’s rights to a returned stolen item / By Rabbi Ariel Ovadia
Last week, we learned that one who borrows an item solely for the purpose of fulfilling a Mitzvah, may not be considered a “Sho’el” – a borrower – with the strictest level of liability, but rather a “Shomer Sachar” (a paid watchman), which is not liable in an event of an unforeseeable circumstance[1], or maybe even a “Shomer Hinam” (an unpaid watchman)[2], who is only liable in the case of negligence.
When Reuven, the dedicated Gabbai of his small Minyan, learned that, after all, he may not be liable for the stolen Sefer Torah he had borrowed from Jack, he felt a great sense of relief. Obviously, this sentiment was not shared by Jack. Jack quickly filed a suit in Bet Din to determine whether Reuven was negligent or not. When Reuven received the summons, he got very nervous. He did not want to be drawn into a full-fledged battle with his cousin Jack, besides, his reputation as a reliable Gabbai would be at stake. He had to figure something out. He immediately called the president of his Minyan, who huddled some members, and together they decided to commit to paying Jack the full value of the Sefer Torah. This would require some time and a big sacrifice on their part, but what won’t one do for the sake of peace! Reuven went to Jack’s office to inform him of their decision, and handed him the initial ten thousand dollars they have somehow managed to scrape. Jack thanked him and gave him a big hug, and together they called the Bet Din to rescind the case.
The next morning, when Reuven turned on the lights at the Shul before Shaharit, he could not believe his eyes. Jack’s Sefer Torah stood proudly on the Tevah. Tears of joy flowed from Reuven’s eyes. It was clearly a sign from Shamayim, he said to himself, that they made the right decision. As the president walked in, he was at a loss of words as well. After a few minutes, the president exclaimed: “We’re keeping it! We committed to paying for it, Jack gave up on it, and this can be our very own Sefer to serve us for years to come!”
A Gift of Gratitude
The Mishna in Bava Metzia[3] discusses a similar case. As we mentioned, an unpaid watchman who was a victim of theft is exempt from liability. However, he may voluntarily decide to pay for the item (for the sake of peace, reputation etc.). If he does, and the item is returned by the thief, then he is entitled to the penalty of the double-payment (Kefel) that a thief must pay the owner. The Gemara explains that this is a reward for the watchman’s voluntary payment. Originally, when the owner handed the item to the watchman, says the Gemara, he had in mind that if the watchman goes beyond the letter of the law, and pays for the item even when he does not have to, then he will be entitled to certain benefits that come with the return of the stolen object – such as the double-payment, a price increase, etc.
There is a discussion in the Rishonim whether this also applies to the object itself. The Rambam writes[4] that if the object is indeed returned by the thief, then it should be returned to the original owner. This is the opinion of other Rishonim as well[5]. These opinions maintain that the owner never gives the watchman a right to keep the actual item, only the rights to certain fringe benefits, even if the watchman goes above and beyond his call of duty. However, it seems that the opinion of the Tosafot[6] is that because the watchman receives some sort of stake in this object in this scenario, he may also opt to keep the item itself. Maran is silent with regards to this issue[7] and since there is no clear conclusion, we would generally keep the item by the one who is in possession of it (Muhzak) – in our case – Reuven.
Furthermore, the Shach[8] writes, that even according to the Rambam, the watchman has the right to keep the item if he wants to. According to the Shach, all of the Rishonim would agree that if the watchman insists on keeping an item after committing to pay for it, he has the right to.
Cash on Demand
Still, there is one more point that has a bearing on our case. While the Halacha is that even a commitment to pay entitles the watchman to special benefits upon the return of the item[9], this privilege is only accorded to a watchman who “did not burden the owner with going to Bet Din”[10]. In our case, Jack and Reuven did not have to sit in Bet Din, but Jack had to nevertheless file a claim and send a summons. The Shach points out[11], that it seems from the Rif and others that such a minor engagement of Bet Din would not detract from the watchman’s rights if he still decides to pay. Only if Bet Din had to order a sale of the watchman’s properties or other forms of collection (in the event the watchman refuses to swear, thus being liable for payment), then the watchman is no longer rewarded for paying “voluntarily”, if he chooses to do so at that point.
However, the Shach writes, this is only true when the watchman paid in full for the item. In such a scenario, the owner is assumed to be so grateful for not having to haggle in Bet Din for payment – even if he had to sit through the Din Torah – that the Shomer is rewarded with rights to the item and its benefits. But if the Shomer merely committed to paying, which is still very valuable in the eyes of the owner, but only after being sued in Bet Din, he would not be accorded these special rights to the item and its benefits. Therefore, in our case, because the value of the Sefer Torah was not paid in full to Jack, and Jack had to file a suit in Bet Din, Reuven would not be entitled to keep the Sefer Torah, and it would have to be returned to Jack (obviously, Jack would return the 10,000 he received)[12].
Sources:
[1] Siman 20
[2] Hilchot She’ela 3
[3] 33b
[4] She’ela U’Pikadon 8:1
[5] Talmide HaRashba, Bava Metzia 33b, citing the Gemara in Bava Kama 108b
[6] Bava Metzia, ibid. DH “Kegon”
[7] H.M. 295
[8] Ibid. SK 11
[9] See Shach ibid. SK 3
[10] Bava Metzia, ibid. and Rashi
[11] Ibid. SK 4
[12] והג”ר שמואל הוניגוואכס שליט”א טען דיש לדון אם שייך הך דינא דהקנאת כפילא בס”ת, אם הוא כעין מכירת ס”ת והיה מקום לומר שיש אומדנא שלא ירצה המפקיד לעשות שלא כדין, וצ”ע.