Question:
My wife left her car window open in a parking lot of a shopping centre in Johannesburg. The car was locked. There are car guards who watch over the cars. When she returned to her car she discovered that two tzedoka boxes that she had left in a closed compartment (not visible to the eye)had been stolen. The question is – is she liable to pay the estimated amount in the tzedoka boxes to the institutions? The answer she got locally from a Rov, who in turn consulted with one of the local dayonim, was that she is liable although they did so that we were free to seek another p’sak. I discussed the issue with Rabbi Flegg and he said he did not think she was liable. Please advise
Answer:
I tend to agree that there is no obligation to pay.
Firstly, at most your wife was a shomer chinam – an unpaid guardian. As such she would not be obligated if the item she was looking after was stolen, unless it was through her negligence. Without knowing the exact details of how secure the car park was, it could well be argued that placing the boxes in a closed compartment in the car which was left in a guarded car park would be enough to release her from the charge of negligence.
Furthermore, it is doubtful whether by placing the money in the tzeddaka box it actually belongs already to the tzeddaka. This is a matter of debate among the Poskim, as to whether the box itself aquires the money on behalf of the tzeddaka, although the concensus seems to be that it does. (In this case, though there is a possible difference; one of the reasons why many consider the box as not to have acquired the money on behalf of the charity is that keilov shel koneh birshus mocher ainom konnim – the box cannot acquire for the charity whilst it is in the domain of the one who puts the money in – in your case, however, the bos was at one stage removed from your house, so possibly at that stage the box acquires the money for the charity.)
Assuming the money did not yet actually belong to the charity, there would be no obligation to pay if it got stolen (and there is no issue of neder litzeddaka – a vow to give money to charity – because in this case no intention was indicated to oblige oneself to charity, only a commitment to give these coins to charity, and if for some reason they are no longer here there is no further obligation).
In addition, even if the money were to be considered to belong to charity before it was stolen, there would be no obligation to pay because charity funds are specifically excluded from the laws of guardianship, and there is no obligation for the guardian to pay if the money gets lost somehow. (However, there is a minority opinion that still obliges the guardian in a case where the loss was due to negligence.) Nonetheless, if the charity was collected for a specific person (and sometimes even for a specific institution) it may be considered as belonging to that person and not as “charity funds” with regard to this issue and tus would not have this particular leniency.
If we would consider the theft as being due to negligence, there would be a chiyuv latzeis yedei shomayim – a moral obligation to refund the money to charity, but this would not be actionable for example in a Beis Din.
