Hilchos Choshen Mishpat
Volume II : Number 5
A Silversmith's Liability For Theft
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?
- 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.
- 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.
- 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.
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
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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!
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