Hilchos Choshen Mishpat
Volume II : Number 14
An Expert Opinion
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
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
Who is correct?
- A. In the first case, Shimon (the money changer) is not liable for the
loss he caused to Reuven through his advice.
- B. In the second case, Shimon is liable to pay Reuven for the value of
the diamond ring that was stolen from him.
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
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
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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!