I was asked if I can buy a expesive item for my friend and to lay out the money. I bought it and a אונס happened on the way back. I told him he has to pay because I was a shomer chinum– he claims that he was never Koneh it and he is very sorry but it is my loss (Chutzpah!!)– who is right??
Excellent question. The answer is you both are right. There is a dispute between the Shach and Nesivos on this very question. The Shach says that if the sender did not tell the sheliach that he takes responsibility the shliach has to bear the full loss but the Nesivos disagrees and holds that since the sheliach forked out money on the request of the sender he is considered his sheliach and therefore the sender has to absorb the loss. Also even according to the Nesivos the sender can claim that the shliach was neglegant which means that the sheliach has to swear that he wasn’t. Since now days people don’t swear in Beis Din they are required to pay something e.g. a third, so even according to the Nesivos the shliach only gets 2/3 of the value of the item lost. (All the above is applicable if the sender told the sheliach to “buy” him an item but if he told him “bring” me an item, then the shliach is responsible because the item belongs to him until he brings it back and receives money from the sender. For the sheliach to have any claim he has to prove that the sender said explicitly to him “buy” for me the item).
CH:M 176 Shach 43 Nesivos 43, CH:M 183:4