If, Chas va’chalilah, a Sefer Torah is stolen from a shul would the gabbaim or shamash be responsible for damages?
Answer:
In general, the gabbaim or shamash of a shul will not be liable to pay the shul if a Sefer Torah is stolen.
There are two basic reasons for this.
One reason is that the gabbai is generally not paid for his services, making him a shomer chinam, an unpaid guardian. Due to this status, the gabbai will not be liable to pay for the theft.
A second reason is that even if the gabbai is paid for his services, he will not be liable to pay for events that are considered an “oness,” meaning totally beyond his control. If the Sefer Torah was kept under lock and key, in a secure Aron Kodesh that Sifrei Torah are usually kept in, the theft will be considered a case of “oness,” and the gabbai will not be liable.
[An additional point is that even a paid gabbai is not necessarily paid for the service of looking after the Sefer Torah, and there is room to discuss whether or not he will have the status of a shomer sachar. However, the simple outlook is that a paid gabbai will be considered a shomer sachar, because the security of the Sefer Torah (ensuring the Aron is locked, and so on) is part of his job.]
However, if the gabbai was negligent in allowing the Sefer Torah to be stolen (for instance, if he left the Aron Hakodesh open), most authorities maintain that he will be liable for the theft, because he has, at the very least, the status of a shomer chinam, who is liable to pay for damages due to negligence.
Sources:
For sources on the status of the gabbai, see Shivas Tzion (no. 99), who writes that he is considered a shomer chinam. However, see also Shut Saba Kadisha (Vol. 2, no. 28), who writes that the gabbai does not have the status of a shomer (guardian) at all. See also Maharshal, Yam Shel Shlomo, Bava Kama 10:71. Although this is a matter of dispute, I have seen that later poskim assume that a gabbai is a shomer, and he is therefore liable for cases of negligence.
