Question
I fix watches and I carry insurance for my store and all of its contents, both mine and my customers’. I recently had a fire which consumed much of the store and its contents. One of the watches which got destroyed was a very expensive watch that was brought to me to repair. I filed a claim with the insurance company and they paid for everything including my customer’s watch. The fire was due to circumstances that were beyond my control and it seems to me that according to halocho I am not liable for my customer’s loss. Must I give him the money that I collected from the insurance since if not for his watch I would not have gotten the money from insurance?
Answer
The first issue to clarify is whether you are liable according to the halacha. In order to decide this question we must clarify your relationship to this watch. This issue is discussed in the Mishna (BM 80B) which rules that craftsmen have the status of a shomeir sochor on the objects on which that they perform work. Even though they are not paid in order to watch the objects that they repair, since the craftsman earns money because he works on the customer’s object he has the status of a shomeir sochor on the object.
Since you had the status of a shomeir sochor it is correct that you are not liable for his watch since a shomeir sochor is not liable for unforeseen damages that are beyond his control. Therefore, we have to consider whether you must nevertheless, give your customer the money you received from insurance for the loss of his watch.
We should note that this issue comes up in different situations. For example, sometimes a renter has insurance and the owner of the apartment does not and the renter collects for the owner’s property. Or, a person may take out life insurance on someone else’s life.
There is a Gemoro that deals with a similar situation and seems to indicate that you must turn the insurance payment over to the owner of the watch. The law is that one who rents an object is liable for theft but not for damages beyond his control. However, one who borrows an object is liable even for damages beyond the borrower’s control. The Mishna (BM 35B) records a dispute in case B rented A’s animal and then lent it to C and then the animal died (a natural death). Since C was a borrower, he is liable for this loss of the animal and must pay. Since B was a renter he is not liable for this loss of the animal
The dispute is who is entitled to C’s payment. The first opinion in the Mishna is that B is entitled because he was the one who lent C the animal. However, the authoritative opinion is that of R. Yosi who explains that he disagrees because, “How can B engage in business with A’s animal?”
The simple understanding of R. Yosi’s comment is that since B only collected money from C because A’s animal died, A is entitled to the money that C paid. This means that any money that B collects must be given to A. If one follows this interpretation, since the insurance company paid for the loss of your customer’s watch, your customer is entitled to the payment. It follows further that whenever B is not entitled to collect money, A receives nothing.
However, Tosafos and many Rishonim prove that this is not the correct understanding of R. Yosi. Their proof is from the Gemara (BM 96B) that discusses the situation of a woman who borrowed an animal before she got married and after she wed her husband used the animal and subsequently the animal died a natural death. The Gemoro states that if the husband is considered as having borrowed the animal from his wife, he has to pay the owner for the loss of his animal according to R. Yosi, even though (for technical reasons) the husband does not have to pay his wife for the loss. Since we see that C needs to pay A, according to R. Yosi, even when B does not collect any money from C, we see that the simple explanation is incorrect.
The Rosh and others (Tosafos Shantz, Nimukei Yosef) write that the correct interpretation is that when B lent A’s animal to C he assumed the legal status of an agent for A to lend his animal to C. Even though A did not ask B to lend the animal to C (and may have even been totally unaware), nevertheless the proper understanding is that C borrowed A’s animal from A and not from B since B had the legal status of an agent of A to lend his animal to C. (The Kehillos Yaacov (BM 33) explains that the reason is because C assumed B’s responsibility to A to watch A’s animal.)
Therefore, when C received A’s animal as a borrower, his relationship was not that of a borrower from B but rather of a borrower from A. Since he was a borrower from A, he had the liability that every borrower has towards his lender. Since a borrower has to pay his lender even for damage to the object which he borrowed due to circumstances beyond his control, C must pay A if A’s animal died.
Thus, it is not because B is not entitled to earn money from A’s property that A and not B is entitled to the money that C must pay, but because C’s responsibility was to A and not to B, at all times.
Similarly, the Rashbo (BM 35B) explicitly states that according to R. Yosi, C borrowed the animal from A and not from B.
This is also the explanation of a ruling of the Nimukei Yosef (BK 9A, ruled by the Ramo CM 363, 10) that was derived from the ruling of R. Yosi. He rules that if a renter sublets his rental for more than the amount he pays, then if the renter was allowed to sublet he can keep the entire rent that he received from his renter. However, if he was not allowed to sublet then the additional rental income goes to the apartment owner.
The rationale is that if the renter was allowed to sublet then the one who sublet, rented from the renter. However, if he was not permitted to sublet then the one who really rented to the new tenant is the owner of the apartment since the renter did not have the right to rent the apartment. Since the owner is the one who really rented the apartment to the one who subleased, he is entitled to the entire rental money that was paid by the new tenant.
In your situation, since the insurance company has no relationship and no obligation to the owner of the watch and the only reason they paid you is because you paid them to insure the contents of your store, it seems that you are entitled to keep whatever they paid you.
A question similar to yours was answered by the Maharya Halevi (2, 77). In his situation a renter asked his landlord to insure his house, which he refused to do. The renter then took out insurance on the house. Subsequently, the house burned down and the renter collected insurance. When the owner found out he took the renter to a din Torah to collect the insurance payment.
The Maharya Halevi ruled that the owner is not entitled to the money. He does not cite the Rishonim as we did, but argues that the ruling of Rav Yosi only applies to a case like lending an animal where the renter allowed the borrower to use the animal and R. Yosi only ruled that one cannot keep the money he earned by doing business with the owner’s possession. However, in his situation since the insurance company did not use the property, the renter who paid the premiums is entitled to the insurance payment, since he did not “do business” with the owner’s property. The Minchas Pitim (307) cites this ruling and wholeheartedly agrees, unless the secular law rules otherwise.
The Maharash Angel (6, 103) was asked the same question as the Maharya Halevi and he also ruled that the owner is not entitled to the insurance payment. His rationale is different though, and is very similar to what we brought from the Rishonim. He says that only in the case of one who borrowed a rented animal is the owner entitled to the renter’s payment since the borrower had to watch the owner’s animal and then return the animal and his payment is in lieu of returning the owner’s animal. However, insurance never used the property and was not obligated to return the object and its payment is just a consequence of the renter’s payment of the insurance premium.
Thus, according to these poskim plus our ruling based on the Rishonim, you can keep the insurance payment.
However, in case it is customary for watchmakers to insure watches that are brought to them to fix, you must give the money to the owner of the watch. The reason is because if that is the custom then there was an unwritten agreement between you and the customer to insure his watch and you obligated yourself to pay whatever insurance pays. This is similar to any custom that even if it was unspoken, custom governs the agreement.
An example of this is auto insurance. Since (See Otzar Hamishpot page 470 the ruling of Rav Zafrani) everyone must carry insurance for personal injury, if A, due to totally unforeseen circumstances, hurt B in a crash, he must give B whatever insurance paid for B’s injury, even though based on pure Torah law he would not have been liable. On the other hand, since one is not required to carry insurance for damages to a victim’s car if, based on Torah law, A is not liable (e. g. his pre-bar mitzvah son unexpectedly opened his door), even if he collected from his insurance for the damages sustained by B’s car he does not have to pay B the money he collected from insurance.
In conclusion: Unless there is a custom to carry insurance on watches which are brought to watchmakers, you may keep the insurance payment.
