Lost Funds

Question

Gavriel is the treasurer of the local synagogue. Funds
were collected from the members in order to buy new furniture and
deposited with him. Gavriel now wishes to order and pay for the furniture,
but finds that the money has disappeared! Is he responsible for replacing
the lost funds?


Answer

A sum of money was collected for the poor or in order
to redeem captives. The funds were deposited with Reuven, who was
entrusted with the task of distributing the funds. As a result of his
negligence, the money was stolen. The Shulchan Oruch (Choshen
Mishpot
301:6) rules that Reuven is not obligated to replace the
stolen money, even though he acted negligently. The Sema (Note 9)
explains that the Torah stipulates that the laws regarding guarding
the property of others only apply if the item was given "lishmor"
(to guard) and subsequently to return to the owner. They therefore do not
apply if the purpose of the deposit was in order to distribute the money
to the poor. Why do we not consider Reuven to be looking after the money
on behalf of the poor? The answer is that Reuven can distribute these
funds at his discretion. Since no single poor person has the right to this
money, there is nobody who can make a claim against him (momon she’ayn
lo tov’in
). Accordingly, the Shulchan Oruch (Ibid.) rules that
if the funds were intended for distribution to specific needy people the
negligent treasurer is liable for their negligent loss. Here the
treasurer bears responsibility to these specific claimants. By the same
token, if any treasurer of charity funds (or a private individual)
asks a third party to look after the funds, this person bears the full
responsibility of a shomer (guardian of the property of others). He
is responsible to a specific person, namely, the treasurer (see Remo).
The Nesivos (Note 6) derives a principle from this law. Whenever
funds have been collected for the purpose of a specific public mitzvah,
such as building a synagogue or a cemetery, this money is considered as
having specific claimants. If the original funds are not available, a new
collection will be made. The negligent treasurer is thus causing this
public a loss. One should also be aware that even where a guardian of
charitable funds has no legal responsibility for their loss, he does bear
a moral obligation to return the funds to the poor if he actively
destroys them (chayav bedinei shomayim – see Pischei Teshuvah,
Note 6).

What is the level of liability of a treasurer who is
responsible for the charity funds deposited with him? Under normal
circumstances, he has the status of a shomer chinnom (unpaid
watchman). He is looking after the money without receiving any payment for
his services. He would therefore only be liable for loss through
negligence (see Shulchan Oruch 392:7). However, if he is paid for
guarding the money or has the option of temporarily using the funds for
his own needs, his liability increases. He is then a shomer sochor
(paid watchman), who is also liable for theft and loss. If he had already
taken advantage of the right to use the money and replaced the borrowed
funds with other money, he is considered a shoe’l (borrower). He
would then even be liable for accidental loss (Sema, Note 17).

We can therefore conclude that since the funds were deposited with
Gavriel for a specific purpose and on behalf of a specific group of
people, he is liable for their loss through negligence. If he had the
right to use the funds till they are needed, he would even be liable for
their non-negligent theft or loss.