Question
My elderly parents live in Safed. I live in Yerushalaim and take care of their bank affairs. Occasionally, I send them money with a lady from Safed who comes every week to a shiur in Yerushalaim. Since I don’t attend the shiur, often I leave the money with the lady in whose house the shiur is given. Last week I left the money with this lady and I also left a present for the lady who takes the money to Safed. I told this to the hostess of the shiur when I left her the present and the money, but she just handed the present and the envelope with the money to the delivery lady without mentioning to her that there was money inside the envelope that was to be delivered to my parents. The delivery lady thought that the envelope was a note to her accompanying the present, and she threw out the envelope without opening it. Who is responsible for the lost money?
Answer
In order to answer the question, we must first understand the halachic standing of all those involved and then we can apply the relevant halachos.
The hostess of the shiur has the status of a shomeir chinom (See Shulchan Aruch 291, 2) since she accepted the envelope and was informed that there was money inside and she agreed that the envelope will remain by her until she gives the envelope to the courier. While she could have stipulated that she refuses to accept any responsibility, since she did not stipulate that, she automatically assumed the halachic status of a shomeir. Since she did not receive any remuneration, she has the halachic status of a shomeir chinom.
The lady from Safed who attended the shiur would also have the status of a shomeir if she had been informed that the envelope contains money. The rule is (See Shulchan Aruch 185, 1) that if a courier is paid for his services, he assumes the status of a shomeir sochor, but if he does not receive remuneration he has the status of a shomeir chinom. In our situation, if the lady had been informed that the envelope contained money that she was to deliver, it could very well be that she would be classified as a shomeir sochor. The reason is because the Rama (185, 1: 303, 1) writes that if a volunteer courier was given a present, he becomes a shomeir sochor.
The Beis Yosef (siman 303) wrote that one has to ponder whether this is correct. He did not explain what and why one has to ponder. The Taz (185, 1) writes that the Beis Yosef meant that the courier becomes a shomeir sochor only if he received the present specifically because he was delivering for free. When the Beis Yosef said one has to ponder the point, he meant that in each situation one has to ponder whether the present was given because the courier was working for free or not. Therefore, according to the Taz, the lady from Safed would have the status of a shomeir sochor if she had been told that the envelope contained money since the present she received was only because she was doing a favor.
However since she was not told about the money at all, she does not become a shomeir of any kind.
Now that we have determined the halachic status of the two ladies we have to examine how the halacha views their behavior.
The behavior of the hostess is paralleled in an anecdote that is recorded in the Gemara. The Gemara (Bava Metsiyo 42A) discusses the case of a person who was given money to watch without remuneration. He gave the money to his mother to safeguard but did not inform her that he was watching the money. The money was subsequently stolen from the mother. The Gemara says the mother can’t be held liable because she was not informed that the money did not belong to her son. The Gemara also exonerates the son from liability even though he failed to inform his mother, because he argued that his mother would safeguard the money better if she thought that the money was his.
From this we can derive two points that are relevant for us. First, we can derive that it is the responsibility even of a shomeir chinom to inform the one to whom he turns over the money, that he is now becoming a shomeir. We can derive this from the fact that the son would have been classified as a poshei’a if he hadn’t correctly assessed that his mother would do a better job if she was not informed that the money belonged to someone besides her son. (This is also the ruling of the Pischei Choshen Volume 2, Chapter 4, note 21.) The second important point is that we see that one does not assume the status of a shomeir if he was not informed that he is receiving something that needs to be watched.
A similar question was posed to the Minchas Yitzchok (6, 166). In his case, a messenger delivered dollars to the manager of a yeshiva. The manager assumed that the money belonged to the yeshiva and placed the dollars in the yeshiva’s safe, as was the standard procedure at his yeshiva. However, the money from the safe was stolen. Afterwards, the messenger realized he had made a mistake and informed the manager that the stolen money actually belonged to a different yeshiva. They asked the Minchas Yitzchok whether the manager was liable for the stolen money. He ruled that he was not because he was justified in assuming that the money belonged to his yeshiva since he was not informed otherwise.
From the above discussion, we can derive that since the lady from Safed only occasionally delivered money the hostess is liable and not the lady from Safed. The hostess was negligent since she gave the money to someone who did not know that it was necessary to watch it.
