Responsibility For Stolen Deposits
Yissochor, the treasurer of the local gemach (free-loan fund) received a visit from
Zevulun late on Friday afternoon. Zevulun wished to deposit $5000 in the fund.
Yissochor gratefully accepted the money and locked it away in his safe. When
Yissochor returned from visiting his parents after Shabbos, he met with
an unpleasant surprise. His house had been burgled. The items stolen included
the money deposited by Zevulun. He now wishes to know whether he has to
compensate Zevulun for the loss, and if he is liable, does the payment come from
other gemach funds or out of his own pocket?
The mishna in tractate Bovo Metzia (43a)
discusses whether it is permissible for a person who deals in money (shulchoni)
to use money deposited with him. The mishna states that if the money is
not wrapped in a special way, it can safely be assumed that the depositor has no
objection to his using it. If the money bag is tied in an unusual way, this
should be taken as a sign that the money should not be touched. The
responsibilities of the person watching the money change accordingly. If he may
not use the deposited money, he is considered a shomer chinnom (an unpaid
guardian), who is only liable for negligence. On the other hand, if he is
allowed to use the money, he becomes a shomer sochor (a paid guardian),
who is liable for theft or loss. The Shulchan Oruch (Choshen Mishpot
292:7) points out that this liability does not commence when he actually uses
the money. The very fact that he has the option of using the money is
regarded as a form of payment, conferring shomer sochor status upon him.
When he does takes up the option of using the money, his status again changes.
He is now considered a sho’el (a borrower), who is even liable for
accidental loss of the money. What happens if the guardian, having finished
using the money, returns it to its former safe place? Surely he should resume
his previous shomer sochor status, since he is no longer using the
money? Not so, says the Shulchan Oruch. He still retains his borrower
status until he returns the deposited money to its owner. The Sema
(No.17) and the Shach (No.10) quote the Rosh, who explains that if
the guardian has taken up the option of using the money once, he is likely to do
so again. We therefore do not view this borrowing as having ended until the
money has been finally returned to its owner, when the option of using the money
no longer exists. Is there any way that this guardian can limit his
responsibility to that of a shomer chinnom? If he decides at the time of
receiving the deposit that he definitely does not want to avail himself of the
option to use the deposited money, he has the status of a shomer chinnom,
even if he has not informed the depositor of his decision (Shach, No.11,
in the name of the Rosh).
Thus, if Yissochor had
decided that he did not want to borrow the deposited money for his own purposes,
he bears no liability for it having been stolen (unless he was negligent, e.g.
he forgot to lock the safe). However, if he had not made such a decision, we
assume that the depositor made these funds available for him, just as for anyone
else. He would then be a shomer sochor, who is liable in the event of
theft. He would have to repay the stolen money out of his own pocket, and not
from other gemach funds. This is his personal responsibility.
Similarly, if the money had been stolen after Yissochor had used it and returned
it to its place in the safe, he would have been liable even in the event of