Hilchos Choshen Mishpat

Volume II : Number 14

An Expert Opinion

Question:

A. Reuven was interested in selling some household furnishings. He had many people interested in buying them, but one particular buyer offered the highest price, and offered to pay cash. Reuven decided to sell it to him, but decided to first bring the cash to Shimon, who was a government certified money changer, to determine that the bills were not counterfeit. Reuven agreed to pay Shimon his fee for this service, which was two percent of the total if he would determine that the bills were authentic, and nothing at all if he would find them to be counterfeit.

After spending some time examining the money, Shimon determined that the bills were authentic, and Reuven accepted them from the buyer based on this. He told Shimon that he would pay him his fee after depositing the money in his bank account. The following day, Reuven attempted to deposit the cash into his bank account, but the bank manager tested them and told Reuven that they were actually very high quality counterfeits! In the meanwhile, the buyer had taken the furnishings and was nowhere to be found.

Considering that Shimon has not received any payment for his services, does he have to compensate Reuven for his loss?

B. Reuven asked Shimon to sell an expensive diamond ring for him at the diamond exchange in Tel Aviv to the highest bidder, and agreed to pay him five percent of what he would receive for it. On the way to the exchange, a thief grabbed Shimon's briefcase, which contained the ring.

Reuven is claiming that Shimon should have to pay him for the ring. Since he had agreed to pay him for selling it, he should be considered a Shomer Sochor (paid watchman - see below) who is liable for theft and loss. Shimon is arguing that he should be considered a Somer Chinnom (unpaid watchman), since the payment was to be for the sale and not for transporting the ring to the exchange, and should not be liable for theft and loss. Proof to this is that if he would not be successful in selling the ring at all, he would not have received any payment. This indicates that the payment is only for successfully selling it and not for watching it!

Who is correct?

Answer:

1. A. In the first case, Shimon (the money changer) is not liable for the loss he caused to Reuven through his advice.

2. B. In the second case, Shimon is liable to pay Reuven for the value of the diamond ring that was stolen from him.

Sources:

The Gemara in Bava Kamma (99b) states that a worker who is considered to be an expert in his field who unintentionally causes financial damage on the job to the person that hired him, must pay for that damage, if he is being paid. This is because he is considered a Shomer Sochor (a paid watchman), who is liable for any damage caused by him. If he is not being paid for his work, he is considered a Shomer Chinnom (unpaid watchman), and can not be held liable for damages caused by him, unless he was negligent. This is stated as the Halacha in the Shulchan Oruch (Choshen Mishpat 306:6).

In the case discussed in Question B, it is clear from the Gemara in Bava Metzia (81a), and in the Teshuvos Maharam (quoted in the Mordechai in Bava Metzia, Siman 359), that the messenger (Shimon) must be considered a paid worker, even for transporting the diamond to the exchange. Since he is planning on benefitting from Reuven by making a percentage of the sale of his diamond, we consider transporting the diamond to be part of the transaction that Reuven will pay him for. To retain the lesser liability of a Shomer Chinnom, the watchman must be doing the owner a favor, and not have his own interest in mind at all (as discussed below). In our case, Shimon's transporting the diamond is clearly in his own interest, and therefore he has the liability of a Shomer Sochor.

Therefore, although it is true that if Shimon would not find any buyers for the diamond he would receive no payment at all, the fact that there is the possibility that he will receive payment qualifies him as someone working for money, who has the liability of a Shomer Sochor.

This is why the Rema (Choshen Mishpat 306:4) states that a Shochet (slaughterer) who receives payment only for animals that he slaughters that are found to be Kosher, is considered a paid worker on all of the animals. Consequently, if he unintentionally causes one of the animals to be non-Kosher, he must compensate the owner, even though he receives no payment for slaughtering non-Kosher animals. This is also discussed there in the SM"A (14).

However, regarding the money exchanger discussed in Question A, the Ketzos HaChoshen (227:11) quotes the Teshuvos Tashbatz (Vol. 2, Siman 174) that he can not be held liable for his mistake. Even if he would have advised Reuven correctly, that the bills were actually counterfeit, he would have received no payment for his service. He only receives payment when the bills are authentic. Therefore, according to the presently known reality, Shimon was an unpaid expert worker, since there was no possibility that he would get paid for his advice, either it would be correct and he would not get paid, or it would be incorrect and he certainly would not be deserving of payment. Consequently, as long as he caused the loss unintentionally and not at all through negligence, he can not be held liable.

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This week's class is based on a column by Rabbi Tzvi Shpitz, who is an Av Bais Din and Rosh Kollel in the Ramot neighborhood of Jerusalem. His Column originally appears in Hebrew in Toda'ah, a weekly publication in Jerusalem. It has been translated and reprinted here with his permission and approval.

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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!