Hilchos Choshen Mishpat

Volume II : Number 5

A Silversmith's Liability For Theft

Question:

Rivka brought her candlesticks to a silversmith to be fixed. After finishing the job but before Rivka could pick them up, the silversmith's store was burglarized and the candlesticks were stolen, along with many other items. Neither Rivka nor the silversmith had insurance for theft. Rivka would like the silversmith to reimburse her for the candlesticks, and the silversmith feels that he should not be responsible for her loss.

Who is correct?

Answer:

1. In the following situations we would consider the silversmith negligent, and he must pay for the candlesticks:

   1- If the store did not have the protection that is customary for such a store in that neighborhood, such as a burglar alarm, reinforced locks, bars on the windows and doors, etc.

   2- If it is customary for such a business to have theft insurance, and the owner either did not take out a policy, or did not obey the terms of the policy (causing the customer loss of reimbursement for the item).

   3- If it was stolen at a time when the store owner was not paying proper attention to who was entering his store, e.g. he was busy either opening or closing the store when it was taken.

2. In any of the above situations, if the customer had paid the silversmith the full amount for the job before it was done,thesilversmith must reimburse the customer for the full value of the fixed candlesticks. However, if the customer had not yet paid for the work, or had only given a down payment, there is disagreement among our Rishonim whether the silversmith would have to pay the full value of the fixed candlesticks, or only what they could have been sold for before being fixed. Therefore, we can not obligate the silversmith to pay the full amount.

3. If the silversmith did take all of the precautionary measures customarily taken by owners of businesses such as his, but does not have insurance (since this is not customary practice in his area) or has not expressly accepted responsibility for theft under all circumstances, he is not responsible for the theft, and he does not have to compensate the customer. As a matter of fact, he would have the right to request and expect payment for the work done to the candlesticks, even though the customer will derive no benefit from it.

Sources:

The Mishna in Bava Metziah (6:6) tells us that a skilled craftsman (Uman) that has been given an item to fix, has the status of a Shomer Sochor - a paid watchman (see below). The Gemara there (80b) explains that although he is not receiving payment for watching the item, only for fixing it, since he has the additional benefit of knowing that he is guaranteed payment for his work by using the item as collateral, he has a higher level of responsibility for the item.

However, the Ketzos HaChoshen (75:5) and the Teshuvos Chassam Sofer (16) state that there are two different types of paid watchmen. On the one hand there is a watchman who has an obligation to constantly watch the item deposited in his care. This is the case where he is being paid specifically to watch the object, such as in the case of a guard being paid to guard something. If it is stolen while in his care, he will be held liable for this theft. On the other hand, we have someone who is being paid to fix an item, as in our case, but because of a side benefit that he derives in doing so, it is considered as if he is getting paid for watching it also. In this case he has no obligation to constantly watch the item, and it is sufficient to take all customary precautions to prevent loss or theft. If, despite these precautions, it is stolen or lost, it is included in the category of Onais, and he has no liability.

The Ketzos HaChoshen (305:2) states in the name of the Tashbatz, that in any situation that a craftsman has fixed something and can not be held liable for subsequent loss through theft, he has a right to expect full payment for his work. The reasoning behind this Halacha is that, if he can not be held responsible for watching the item, it is considered to have been returned to the original owner upon completion of the work. Consequently, he should be paid for the work done, since it is no fault of his that the owner never received the item!

If the craftsman expressly accepts responsibility for any loss, or even if he has an insurance policy that provides compensation for loss or theft, as is usually the case in silver stores or jewelry stores, since ultimately the store owner is responsible, it is considered as if it was stolen from his possession, not the customers. In this case, if the item is never recovered the customer would not have to pay the craftsman for the work done.

The disagreement referred to in Answer B is the famous disagreement that our Rabbis have if "Uman Koneh B'Shvach Kli", does a craftsman who has fixed or improved an item acquire that item for himself until the original owner pays for this improvement. Consequently, according to the Rabbis who are of opinion that the item belongs to the craftsman until paid for, if the customer has not yet paid he need only reimburse the owner for the value of the item before fixing it. This issue is discussed in the Shulchan Oruch in Choshen Mishpat 306:2, and in the Rema and the Shach (3) there.

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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!