Hilchos Choshen Mishpat

Volume I : Number 5
Confiscating Student's Possessions As A Disciplinary Method

Question:
A teacher confiscated a pocket calculator from a student who was playing with it during class. The teacher placed the calculator in a closet in a classroom, with the intention of returning it at the end of the week. At the end of the day, the teacher left the classroom without locking that particular closet. [School policy is to lock up anything of value every night, because of the possibility of theft by the night janitorial staff.] The next morning, the calculator was missing. The teacher is now asking the following questions:

First of all, is a teacher permitted to confiscate items from a student as a method of discipline?

After an item is taken from a student, is it permitted for the teacher to use the item for his personal needs?

In the above mentioned case, is the teacher obligated to compensate the student for the missing calculator?

What is the Halacha?

Answer:

It is permitted for a teacher to confiscate items from students as a disciplinary measure. However, after taking the item, the teacher is not permitted to use it for his own needs without express permission from the student.

A teacher that confiscates an item from a student has the status of a Shomer Chinom (an unpaid watchman - see below) in regard to any items that he has taken with the intention of returning. Therefore, in our case, since the teacher was negligent in not locking the closet door before leaving the classroom, causing the calculator to be stolen, the teacher is obligated to compensate the student for the calculator.

Sources:

It is stated in the Gemara (Makkos 8b) that a teacher has the same status as a father. Therefore, a teacher is permitted to discipline a student so that he should learn better, even if the situation calls for physical discipline. As a matter of fact, if, in the opinion of the teacher, the student would be aided in his learning process via discipline, yet the teacher refrains from administering it, the teacher is shirking his duties and is included in the curse of Yirmiyahu Hanavi - "Orur Oseh Mileches Hashem Rimiyoh" (Cursed is he who is derelict in doing the work of Hashem) (Yirmiyahu 48:10). Additionally, since the teacher is receiving a salary to teach his students properly, he is considered a hired worker. If the situation demands it, he is obligated to administer discipline according to the laws of Choshen Mishpat. Otherwise, he isn't deserving of his salary. This applies to any salaried teacher, whether in Judaic or Secular studies. In most cases, the student can have his behavior corrected in a more gentle way, by having him write something during recess, involving the parents, sending him to the principal, etc. However, if it is clear to the teacher that the most effective method of discipline in that particular instance is confiscation of an object, the teacher is permitted to do so, just as a father is permitted to do so in order to educate his child. (Even in a situation where the object belongs solely to the child, i.e. it was given to the child with the express condition that it belong only to the child and not to the parent.)

[See note below regarding physical discipline.]

Similarly, it is clearly stated in Shulchan Oruch (245:10) that in extreme situations, if it is clear to the teacher after trying less extreme measures, that only corporal punishment will be effective, he is permitted to gently hit the child. How much more so should he be permitted to confiscate the student's objects! The student's possessions should be no worse than the student's body.

However, the Pischei Teshuva (245:4) and the Teshuvos Shvus Yaakov (vol. 3, ch. 140) both say that if a teacher were to hit the child any harder than he has to, and inflict injury, he is obligated to pay damages, like any person who assaults another.

The Gemara in Bava Basra (88b) states that if a father gave an object to a child to use, this is called an "Aveida Midaas" (financial suicide?!) - deliberately causing himself loss, because the child cannot care for it properly. Therefore, if the child were to lose it and you were to find it, there is no Mitzvah of Hashovas Aveidah (returning a lost article). However, it is forbidden to take it away from the child and use it. One who does so is a "Shoel Shelo Medaas"- a borrower without permission, who has the Halachic status of a Gazlan (thief). Therefore, in our case, whether the calculator belongs to the student or to his father, although the teacher is permitted to discipline the student by confiscating it with the intention of returning it later on, the teacher has no right to use the calculator without the owners permission. This is true, even though if the teacher had decided that the proper response to the situation was to take the calculator and break it in front of the student, he would have been permitted to do so. Nevertheless, in a situation where the teacher has ascertained that the temporary confiscation of the calculator would be sufficient, the calculator remains the property of the original owner.

It appears that the teacher has the status of a Shomer Chinom (unpaid watchman), even though he confiscated the object as a punishment, with no intent at all of accepting the responsibilities of a Shomer. This is because, since the teacher is required to return the object to the student at the appropriate time, he automatically becomes a Shomer, even against his will. This is similar to the status of a "Shomer Aveidah" (someone who has found a lost article and is holding it for the original owner) who involuntarily takes on the Halachic responsibilities of a Shomer. Since the salary that the teacher receives is for teaching, and not for watching confiscated objects, he remains a Shomer Chinom and not a Shomer Sachar (paid watchman).

Shomer - There are four main categories of Shomrim (Watchmen) in Halacha, and each has a different degree of liability for the watched item, proportionate to the amount of benefit that the Shomer is permitted to derive from the item.

Shomer Chinom - An Unpaid Watchman. He is not getting paid for watching the item, nor is he permitted to derive personal benefit from this item. Therefore, although he would be liable if the item were to be damaged through his negligence, he would not be liable if, through no fault of his own, the item was lost or stolen.

Shomer Sochor - A Paid Watchman. Although he is not permitted to derive personal benefit from the item, since he is getting paid to watch it, his responsibility increases. Not only is he responsible for negligence, he is also responsible for loss and theft. However, he would not be held responsible for an "Oness", i.e. if the item would be damaged through a totally unforeseeable hazard. (In secular law this would be termed "an act of G-d.")

Soecher - A Renter. Someone who is paying for use of the item. He is permitted to derive personal benefit from the item, but must pay for this right. He has the exact same status as a Shomer Sochor.

Sho'el - A Borrower. Such a person has a right to use the item, and is not paying anything for that right. Therefore, he has the greatest amount

of responsibility. Not only is he liable for negligence and theft or loss, he is also responsible for an "Oness." The only thing that a Sho'el

would not be responsible for (nor would any of the other Shomrim for that matter) would be if the item would be damaged only because of normal wear-and-tear (Maysuh Machmas Melacha).

PLEASE NOTE: Although we have stated above that administering physical discipline is Halachically permitted for a parent or even a teacher, as an educator I would like to point out that in today's educational climate it is extremely rare for a situation to arise that would benefit from such discipline. Invariably administering physical discipline backfires, and there is no benefit at all. The only situation that comes to mind in which such action might be appropriate would be the proverbial three-year-old who doesn't quite realize that he isn't permitted to cross the street on his own, and needs a "potch" to get that message across. Even there, extreme care must be taken not to hit out of anger, but only the amount necessary for the benefit of the child. As I once heard from one of my teachers, the difference between discipline and child abuse is that discipline is administered for the benefit of the child, to educate him. Child abuse is when the parent or caretaker is lashing out to relieve their own pent-up frustration.

For further discussion on the Halachic approach to discipline, please see the Kitzur Shulchan Oruch (The Concise Code Of Jewish Law) Ch. 165, Halachos 1 and 13.

This class is translated and moderated by Rabbi Aaron Tendler of Yeshivas Ner Yisroel in Baltimore. Rabbi Tendler accepts full responsibility for the accuracy of the translation and will be happy to fax originals of the articles in Hebrew to anyone interested.

Feedback is appreciated! It can be sent to atendler@torah.org.

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Please Note: The purpose of this column is to make people aware of Choshen Mishpat situations that can arise at any time, and the Halachic concepts that may be used to resolve them. Each individual situation must be resolved by an objective, competent Bais Din (or Rabbinic Arbitrator) in the presence of all parties involved!