Question
My mother gave me three thousand dollars in cash to take from the U.S., where we live, to my brother who lives in Eretz Yisroeil. When I arrived by my brother in Eretz Yisroeil I could not find the money. I then thought that perhaps I left it in the U.S. but when I checked after I returned, I could not find it there either. I know that I wanted to put it together with my own money that I took to Eretz Yisroeil but I do not remember if I actually did so. Furthermore, it is unlikely that I actually did so since I put my money in my carry-on and I found it there when I opened my bag in Eretz Yisroeil but I didn't find my mother's money. Am I liable?
Answer
The first issue is what relationship you had with the money that was given to you to deliver to your brother. Since you were not paid to deliver the money, you have the status of a shomeir chinom over the money since an unpaid shliach is a shomeir chinom. We recall that a shomeir chinom is liable for negligence but not for loss or theft.
Based on the above we have to determine whether you, who don't know where you put the money and cannot find it, are considered as having acted negligently with your mother's money or you just lost the money.
The Gemara discusses an issue like this in two places. In one case (BM 35A) a person was given earrings to watch but when the owner asked for their return, he could not find them and could not recall where he had placed them. The Gemara rules that the watchman is liable because a watchman who does not know where he placed the object that he was entrusted with is considered negligent. Therefore, he must pay the owner for the earrings immediately.
In a second place the Gemara (BM 42A) discusses someone who was entrusted with money but could not recall where had placed the money when he was approached by the owner. Again, the Gemara rules that the watchman-shomeir was liable because his lack of knowledge is considered as negligence on his part.
The commentaries discuss which aspect of the watchman's behavior is negligence. The approach of the Ritvo and the Ran (commentaries to BM 35A) is that the watchman is negligent even if he is certain that he placed the earrings in a safe place since it is incumbent upon him not only to choose a safe place but also to place them where he would be able to find them when the owner demands their return. Thus, the shomeir's negligence was in the manner he placed the earrings. They deduce from this ruling that similarly if one appointed a deputy to take his object to someone who will lend him money and accept the object as collateral, and the deputy got the loan but later is unable to recall to whom he gave the object, the deputy is liable for the value of the object that exceeds the value of the loan he secured.
The Nesivos (291, 14) goes even further and says that the watchman's action is considered as an act of damage and not just negligence. The reason it is an act of damage is because effectively the watchman took an object whose whereabouts were known and placed it where its whereabouts were no longer known. Based on this approach, the Nesivos maintains that even one who is not a shomeir is liable if he does not recall where he placed someone else's object.
Many meforshim, including the Maharshal (Yam Shel Shlomo Beitzo 2, 6), differ with this explanation and understand that the reason the watchman was negligent is not because of the manner that he placed the object but because he later forgot where he placed the object that he was entrusted with. These meforshim ask that we find instances where forgetting is not considered negligence. For example, the Gemara rules that if a person forgot one time to make an eiruv tavshilin he may rely on the Rabbi who makes an eiruv tavshilin for everyone in town. However, if he forgot twice (some say only if they are consecutive) he cannot rely on the Rabbi because by forgetting twice he shows that he is negligent in his observance of the laws of eiruv tavshilin. We thus, see that forgetting one time is not considered negligence.
The Beis Yacov (siman 70) explains why the watchman is liable for forgetting once based on the Maharshal's explanation of why, if one forgets twice to make an eiruv tavshilin, he may no longer rely on the Rabbi. The Maharshal explains that forgetting per se is not considered negligence, but if one forgets twice, it indicates that he is lax in his observance of the obligation to make an eiruv tavshilin. Similarly, explains the Beis Yacov, one who is entrusted with an object and yet fails to recall where he placed it shows that he was lax in his duty to watch over the object he was entrusted with.
The Sha'ar Efraim (res 28) similarly, writes that one who is a watchman should take care not to forget, since one day he will have to return the object.
A third approach is based on a ruling of the Terumas Hadeshen (333). His explanation is cited by Sema (291, 12) and Shach (291, 15) to explain why a shomeir is liable if he does not recall where he placed the object he was entrusted to watch. In the Terumas Hadeshen's situation a person was entrusted with a precious object and placed it in a safe place in his house. One day he allowed his neighbor access to that place to retrieve his escaped chicken. Later, when the owner asked for his object, it was no longer where it had been placed. The Terumas Hadeshen ruled that the guardian is liable since he acted negligently in allowing his neighbor access to the place where the object was. The guardian raised the point that while he may have acted negligently in allowing his neighbor access, he should not be liable since perhaps the object had been stolen before that and he was not liable for theft since he was not paid (i.e., a shomeir chinom).
The Terumas Hadeshen ruled that even though this possibility existed, the burden of proof rested upon the watchman. The source that the burden of proof rests on the guardian is that every shomer chinom who claims that he was not negligent must swear a Torah mandated vow that he did not act negligently and since in this case he could not swear because of his lack of knowledge, he is liable (metoch she'eino yochol leshova meshalaim).
This ruling of the Terumas Hadeshen is controversial because Tosafos (BM 6A beg. wo. shevuo) and SA (294, 2) maintain that a shomer who cannot swear that he was not negligent is not liable.
It is important to understand the point of contention since it bears on your question. We note that the Gemara (BM 6A) rules that a shomeir chinom who wishes not to pay must take three vows: one that he was not negligent and another that the object that he was entrusted with is no longer in his possession (and another that he did not use the object without permission). The dispute among the Rishonim is which vow(s) is the main vow.
This is crucial because one who fails to swear is only liable if he fails to swear the main vow. If one fails to swear a peripheral vow (gilgul shevuo) because he is ignorant of the facts, he is not liable to pay for failing to swear. The position of the Trumas Hadeshen is that the vow that he was not negligent is a main vow and therefore, a shomeir who cannot take that vow is liable.
However, those who disagree maintain that the main vow is only that what the shomeir was entrusted with is no longer in the shomeir's possession but the vow that he was not negligent is only peripheral. We should note further that the ruling of the Ramo (294, 2) is like the Rosh (BM 3, 20) that both the vow that he was not negligent and the vow that it is not in the shomeir's possession are main vows, whereas the SA maintains that only the vow that it is not in his possession is a main vow.
In your situation, you cannot swear that the money is not in your possession since you must be one hundred percent certain before you can swear. Therefore, all of the explanations why the Gemara rules that one is liable for not knowing the location of the object he was entrusted with apply to you and you are liable for the three thousand dollars. If you eventually find the money you can keep it, but in the meantime you must pay. This is what happened in the case of the earrings. The shomeir eventually found them and the Gemara ruled that he must return them to their owner and the owner must return what he collected as payment for the lost earrings.
The Chiddushim-that-are-ascribed-to-the-Ritvo asks on this Gemara (BM 42A) that if the Gemara rules that one who can't find what he was entrusted with is liable because he is considered negligent, what was the Gemara (BM 33B) referring to when it ruled that one who is a shomer chinom is not liable for loss (aveido)? He answers that when the Gemara says a shomeir chinom is not liable for loss, it refers to an animal which the shomeir put in a safe place but someone opened the door and the animal left. Or it could refer to money or an object that the shomeir knows for sure that he placed it in a specific place but it is no longer there and it is not known to have been stolen.
In conclusion: You must give your brother three thousand dollars right away and if you find the money you may keep it.
