Hilchos Choshen Mishpat
Volume I : Number 26
Liability Of A Gabbai (Synagogue Officer)
Money was collected in a synagogue for the purpose of purchasing new
furnishings, and it was given to the Gabbai. The Gabbai evidently
misplaced the money.
Is the Gabbai obligated to compensate the synagogue members for the money
that is lost?
There are many variables that must be taken into consideration when
answering this question:
- If the Gabbai is getting paid for his job, and part of his duty that
he is paid for is collecting and dispensing synagogue funds, he would be
obligated to replace the lost funds with his own personal money.
- Even if the Gabbai is not getting paid for his job, if he has an
understanding with the synagogue board that when necessary he may borrow
synagogue funds for his personal use as long as the money is repaid when
needed by the synagogue, he is still obligated to replace the lost funds
- If the Gabbai is not getting paid, and has no such agreement as
mentioned above (B), then we must make the following distinction. If it
is known that the money was lost as a result of the Gabbai's negligence,
he would still be liable to pay for the lost money. If there is no
indication that he was negligent, he is exempt from reimbursing the
congregation. However, if the synagogue owes him money for some reason,
they would be Halachically permitted to withhold this money to replace
the lost money. It is more proper, however, that the congregation
conduct themselves Lifnim M'Shuras HaDin (Beyond The Letter Of The Law)
and not hold the Gabbai responsible at all in this case.
The Shulchan Oruch (Choshen Mishpat 301:6) states: If a Gabbai Tzedakah
(Charity Collector) collected money to be distributed to the poor, and
due to his negligence it was lost or stolen, if the money was not
designated for a certain specific poor person he is not obligated to
replace this money.
The reason for this is because there is no one who has a claim on him.
Although the money was given to the Gabbai with the understanding that he
would care for it properly until the time that it will be distributed to
the poor, he does not fall into the category of Shomer (watchman) on this
money. This is because when the Torah tells us about the responsibilities
of a Shomer, it states (Shemos 22:6) "When A Man Will Give His Friend An
Article To Safeguard", and our Chazal infer from here "To Safeguard" - and
not to distribute to others. Additionally, the poor have no claim on the
Gabbai, because each poor person that may file a claim against the Gabbai
can be told that he would not been one of the recipients of this money.
It might have been given to another poor person. This is known as
"Mommone She'ein Lo Tovaim" - money which has no claimants.
However, the Nesivos there (301:6) notes that if a community collected
money for synagogue use and entrusted it to their Gabbai, this does not
fall into the above category, and the Gabbai can be held responsible for the
loss of this money. In this case, he was not given the money to distribute,
since ultimately it will be used for the donors. (For example: They are
depositing the money with him until he is ready to use the money to purchase
the synagogue furnishings for them, not to distribute to a third party.)
Consequently, in this case the Gabbai can be considered a Shomer on this
Therefore, if the Gabbai is being paid for collecting and dispensing
community funds, or if he has permission to borrow community funds for
his own needs if necessary - he is in the category of a Shomer Sochor (a
paid watchman) who is liable for theft or loss, as is explained in the
Nesivos (301:9). However, if he is not getting paid for this service in
any way, then if the loss of the money came about due to his negligence,
he is liable to pay just like any other Shomer. If the loss is not due to
his negligence, he would not have to pay. This is because a Gabbai in this
situation is actually classified as a Shomer Aveidah (watchman of a lost
article), as stated in the Shitta Mikubetzes at the end of Perek HaChovel
(8th Perek of Bava Kamma). There is disagreement among the Rishonim (as is
discussed in the Shulchan Oruch, Choshen Mishpat 267:16) whether a Shomer
Aveidah is like a Shomer Sochor who is responsible for loss and theft, or
like a Shomer Chinnom (unpaid watchman) who is not held responsible for
loss and theft. Consequently, we can not force the Gabbai to pay, because
he can say "Kim Li!" (It is established to me!), i.e. "In my opinion those
who hold that a Shomer Aveidah is like a Shomer Chinnom are correct, and
therefore I am not obligated to pay!" [We will elaborate on this concept
in next week's class]. If he is owed money by the congregation, the
congregation can do the reverse, and say that they have a right to retain
the money according to those who are of opinion that a Shomer Aveidah is
like a Shomer Sochor.
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).
This week's class is based on a column by Rabbi Tzvi Shpitz, who is an
Av Bet 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.
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.
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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!