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Behar-Part of a shipment was lost in Transit



I recently made aliya from the U. S. We hired a company to ship the contents of our house to Israel. The company sent someone to our house to see what we were sending and quoted us a price which was based on the amount of goods that we were sending. We packed everything into eighty large crates which we numbered, and we compiled a list of the contents of each crate. The company sent a truck that picked up the eighty crates and the driver signed that this is what he received. Shortly after our arrival in Israel we received our shipment. Much to our dismay only seventy-four boxes arrived. We called the company’s agent in Israel and he reported back that the container containing our crates was opened by customs and this is what they got back from customs. There were no items that were listed as confiscated by customs and I wasn’t charged any customs duties since I am a new immigrant. It seems that the six boxes were lost or stolen while they were in customs’ warehouse. I was under the impression that the lift was insured since I was just given a price by the company and they never said anything about insurance but I took it for granted that my lift was insured. However, again to my dismay the company said that they didn’t take insurance and if I wanted insurance I would have had to pay for it. I asked the company if I could contact their representative who oversaw clearing the shipment at customs since they are entitled to have a representative present when customs opens a shipment and the agent could have ensured that everything was repacked properly. The company would not give me this information from which I concluded that either they didn’t use an agent or that he was negligent. Since I prepared an itemized list, I know how much I paid for the lost items and the state they were in and I feel I am entitled to this amount plus the cost to reship these items since I will have to repurchase these items and reship them. Additionally, one of the six boxes contained my grandfather’s handwritten chiddushei Torah which are priceless since there is no other copy. Am I entitled to anything from the company and if so how much, or can they just blame the loss on customs?


In order to determine if the company is liable, we have to clarify the company’s relationship to your goods. The company charged you money to ship your goods but did not discuss the issue of responsibility for safeguarding your shipment.

There is a Mishna (BM 80 B) which is ruled by the Shulchan Aruch (306, 1) that gives a general principle which covers your situation well. The Mishna states that craftsmen who do not discuss the issue of responsibility, automatically assume the status of a shomeir sochor, a paid watchman. The reasons that the craftsman assumes the status of a shomeir sochor, even though he is not paid specifically to watch over the item he is fixing, are given by the Gemara, Rishonim and Poskim as: First, because by virtue of the fact that the object is in the craftsman’s possession he benefits because thereby the craftsman can ensure that he will be paid, since he will not surrender the object until he is paid. Second (See Shach 306, 1), since it is because of the object that the craftsman is able to earn money, it is as if the craftsman rents the object in order to earn money by fixing it. These reasons clearly apply to your situation as well, so the company had the status of a shomeir sochor even though they never discussed the issue.

Having determined the company’s relationship to your shipment, we can now determine whether they are liable for your loss. Since the company should have had an agent present when it was opened by customs, precisely in order to prevent what transpired, the company behaved negligently with your shipment and it was due to this negligence that your boxes were lost. As the Torah (Shemos 22, 9) rules that a shomeir sochor is liable for losses that are suffered due to the shomeir’s negligence, the company is liable for your loss i. e. the contents of the lost boxes. In fact, a shomeir sochor is liable for theft or loss even if he is not negligent.

The next issue that needs to be decided is how much the company must pay. You wrote that you itemized your list and you know how much you paid for the lost items and feel you should be paid for the cost to replace them plus shipping. However, this is an incorrect approach.

The Gemara (BK 4B) writes that when one suffered a loss because his shomeir was negligent, we view it as if the shomeir damaged the owner of the lost objects since the owner’s loss ensued from the shomeir’s improper behavior. The Magid Mishna (Sheilo 8, 3) who is cited by the Shach (295, 7) and many others (e. g. Ketsos 291, 1, Nesivos 291, 1 and 13) rules that the watchman must pay the value of the lost goods at the time they were lost. Thus, their original cost in the U. S. and the cost of shipping are not directly relevant. The determinant is their value in Haifa on the day your shipment was inspected and the boxes were lost. Thus, in order to determine the amount that you are entitled to receive you will have to present your list to someone who knows prices in Israel in order to give an exact value.

We should add that the company does not have to believe your itemized list since they have no way of knowing whether you are telling the truth. However, the Shulchan Aruch (90, 10), based on the Rambam, rules in precisely these circumstances that you are believed under oath to state what were the contents of the lost boxes. Nowadays, when beis din does not allow litigants to swear, beis din will have to use its judgment as to whether to give you the full amount that you can claim.

You also claim that one box contained the only copy of your grandfather’s chiddushei Torah which are priceless. Indeed, they are priceless. However, the Radam (res CM 13 and cited by Divrei Geonim (51, 23)) rules that the company does not have to pay for their loss. Even though we disagree with the Nesivos (148, 1) and we rule that one is liable even for damaging objects that have no market value when the only one for whom they are valuable is their owner (e. g. eyeglasses), nevertheless, one is not liable for damaging items like chiddushei Torah that are not slated to be sold for profit.

The reasoning of the Radam is that the value is not a monetary value but a non-material benefit for which the one who damaged is not liable. We can describe the situation as if the one who damaged this item prevented you and your descendants from deriving spiritual pleasure from your grandfather’s efforts for which they don’t have to pay even if the loss is terrible.

This is somewhat similar to one who prevented someone from performing a mitzvah for which one does not have to pay, even if the one who prevented another from performing the mitzvah, himself performed the mitzvah. It is only because Chazal imposed a fine in this situation that he has to pay anything.

You asked for the cost of reshipping the lost goods. As we mentioned, this does not play the role that you thought. However the cost of shipping does affect the amount of compensation you are entitled to, since it affects the value of the lost items have in Israel.

There is a second issue that concerns the amount you paid for shipping. You paid the company to deliver eighty boxes to your home in Israel and they only delivered seventy-four boxes. The Beis Dovid (res. CM 1 and cited by Pischei Teshuvo (301, 1) and many others) proves from the Gemara (Avodah Zora 65A) that when one who was contracted to deliver one hundred barrels for a hundred shekels, delivers only ninety-nine barrels, we don’t prorate the agreement and say that if the agreement was to pay a hundred shekels for a hundred barrels that implies that if he delivers only ninety-nine barrels he is entitled to ninety-nine shekels. Rather, the original contract is no longer valid since the worker did not fulfill his part of the agreement. Therefore, the company worked for you without a contract since the contract only covered the situation where they would deliver the entire eighty boxes and did not specify what they are entitled to in case they deliver only seventy-four boxes.

When one works without a contract he is classified as a yoreid, and he is only entitled to the cheapest going rate. Therefore, you should check out the rates of other companies that provide a similar service and you need to pay your company the cheapest rate you find to deliver seventy-four boxes under terms that are similar to the terms of service that your company obligated itself to provide. Even if you already paid the company its original price, you can halachically force the company to return the difference between the amount you paid and the amount that you would have had to pay an alternate company for seventy-four boxes.

In conclusion: You are entitled to payment for both the items that were lost in transit as well as the difference between what you paid for shipping and the cheapest rate you can find for transporting the boxes that did arrive.  You should consult with a beis din to determine exactly how much you are entitled to for the items lost in transit.





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