BS”D

Question

I brought my sheitel to my sheitelmacher for some work. When I called to pick it up the sheitelmacher said she couldn’t find it. This went on for a few weeks until she finally gave up and gave me money for the sheitel. With this money and a little extra I needed to add, I bought a new sheitel to replace the lost sheitel.  Recently, after about a half a year, she called to inform me that she found my sheitel and wanted to return the sheitel and I should return the money. I told her that I already used the money to buy a replacement sheitel and didn’t really need the sheitel anymore. Am I correct or do I have to return the money to her and have an extra sheitel?

Answer

The answer to your question is found in the Gemara and poskim. However, in order to find it we have to first classify the halachic status of the sheitelmacher and her liability. The Mishna (Bava Metsiyo 80B) states: “All craftsmen are classified as a shomeir sochor.” This means that your sheitelmacher had the status and responsibility of a shomeir sochor, a paid watchman on your sheitel.  Even though she wasn’t paid any money to watch your sheitel she is still classified as a shomeir sochor because the sheitel was in her possession in order to enable her to earn money from working on it. In this case, however, it is not relevant whether the sheitelmacher is a paid or an unpaid shomer, as we will see. But it is important to realize that she is a shomer.

The next point which needs clarification is how does the halacha view a claim made by a watchman, paid or unpaid, that he cannot find an object that was entrusted to him. The Gemara (Bava Metsiyo 35A) discusses exactly such a case. In the case of the Gemara, someone was entrusted with jewelry and the Gemara writes that the claim of a watchman that he cannot find an item which was entrusted to his care, is classified as peshiyo – carelessness. Since all shomrim, even those who aren’t paid, are liable for peshiyo, the shomer was liable for the loss.

The poskim offer various explanations why, even though in other situations (e.g. if one forgets to daven shemonah esrei we allow him to make it up with the next shemonah esrei) we excuse people for occasionally forgetting. Nevertheless, here the Gemara views it as an act of carelessness. The gist of many of the explanations (Shevus Yakov 148, Nechbo Bakesef C.M. 23 and others) is that we expect more from someone whose task it was to watch over the object. Moreover, the poskim (e.g. Rambam Sheilo 4, 7) deduce from this case in the Gemara that the shomer must pay right away and we don’t give him time to search for the lost object.

Thus, it turns out that your sheitelmacher was liable for the sheitel and had you gone with her to beis din they would have ruled that she must pay you for the sheitel that she couldn’t find. Therefore, you and she acted totally in accordance with the halocho.

In the case in the Gemara, when the watchman informed the owner that he found the jewelry R. Nachman ruled that even though the value of the jewelry increased in the interim, the owner had the right to give back the money and demand return of the jewelry. Rovo asked why the watchman didn’t acquire the object when he paid for it. The Gemoro differentiates that if one pays for the object willingly then the watchman acquires the object, but in the case of the Gemara the watchman did not pay willingly. It was only after they went to beis din (and he was forced by beis din to pay) that he paid for the jewelry.

Thus, it can be derived from the Gemara that one who pays willingly for an object that he initially couldn’t find acquires the object by paying for it. Moreover, the Shach (295, 11) writes that everyone agrees (including the Rambam) that by virtue of paying for the object one acquires the actual object and not only certain rights (e.g. to collect double damages from a thief). Furthermore, the Shach (295, 6) writes explicitly (and the Rashash 35A cv hossom concurs) that even in the case where the object wasn’t really lost but just couldn’t be found by the shomer, he nevertheless, acquires the object by paying for it and we don’t consider the payment as having been made in error.

Rav Moshe Feinstein (Dibros Moshe siman 41 note 12) holds that in your case even if you would have needed to go to beis din, the halocho would be the same. He writes that only if the object was found within a very short time from when the owner asked for it do we rule that if the parties needed the intervention of beis din the object is returned to its former owner when it is found by the watchman.  His reasoning is that we only say that the payment was made in error and is reversible when the object is found, if it was found so soon after it was asked for by its owner that, had the owner known it would be found so quickly, he wouldn’t have asked to receive money instead of his object. Since in your situation it took months until the sheitelmacher found your sheitel and you needed a sheitel in the meantime, therefore, the payment made by the sheitelmacher is considered final in any case.

Similarly, according to the Chiddushei R. Dovid Dov (Commentary to Bava Metsiyo 35A) you would not need to return the money even if you needed to go to beis din since he maintains that the payment is reversible only if beis din wouldn’t have made the watchman pay for it. However, in your case beis din (Choshen Mishpot 291, 7) would have ruled that the sheitelmacher has to pay right away.

In conclusion: You don’t have to return the money to the sheitelmacher.

 

 

 

 

 

 

 

 

 

 

 

 

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