My daughter attended a party at her friends home and upon arrival checked her belongings (contained in a shopping bag) and received a claim check. At the end of the party she presented her claim check and was told to go to the basement to retrieve her shopping bag. In the basement the station was unattended and when she got her bag discovered her Blackberry was stolen. She brought the matter to the attention of the caterer before leaving the party. The following day I recovered the item from the purchaser who paid the thief $140 for the item only 2 hours after my daughter discovered it was stolen and 20 miles away from the party.
I claimed with the caterer for the $140 who stated that
his Rebbe said he is not liable. How can this be true?
Especially when his Rebbe cannot give a Psak without hearing both sides?
A Shomer Sachar is liable for negligence, lost or stolen property. The caterer thinks I need to prove that the my daughter attended the party, received a claim check, that the her Blackberry was in the shopping bag, I paid money to recover it and how much.
Is this the Halacha?
Sincerely
Robert Dvir, Brooklyn USA
One thing you say: "his Rebbe cannot give a Psak without hearing both sides" is certainly true. Obviously, a Din Torah between two parties must be adjudicated in front of both parties. It is even forbidden for the Dayan to hear one side of the story without the other party present. In your case, I dont think his Rebbe did anything wrong because I am sure he was not issuing a Psak Halachah but rather telling him what the Halachah would be according to the facts as he presented them. He clearly was not absolving him of having to go to Beis Din if that is what is required to settle the case.
I, of course, am also not issuing a Psak Halachah, but I will make some points which I think are germane to the case.
The Rambam (Sechirus 2:12) says that if Reuven claims that Shimon was his Shomer and Shimon completely denies it, then he takes a Shavuas Heses (he is Patur from taking the Shavuah d'Oraysa of ha'Modeh b'Miktzas because he is denying everything). In our case, the caterer is not outright denying being your Shomer. He is saying in effect that he's not sure and that you have to prove that he was. Therefore he cannot take this Shavuah because he is not sure that he was not your Shomer. The question is what happens now that he cannot take the Shavuah? Do you have to take it instead? The answer to that seems to be contained in a similar din.
Even if the caterer admitted that he was your Shomer there would still be a dispute as to what was deposited with him. You claim that it was a Blackberry. He doesn't know because they don't examine everone's bag when it is given to them. The Rambam (Hilchos She'elah U'Pikadon 5:7) says that when the Mafkid says "I deposited such and such at such and such a value" and the Shomer says "I don't what it was, it could of been something worth much less", the Mafkid takes a Shavuah and takes the money (assuming that the Beis Din decides that it was possible that the Mafkid could have had such a sum of money). The Kesef Mishnah there explains that we don't apply the principal of "Mitoch" and allow the Mafkid to take the money without a Shavuah, because the Shomer was not obligated in a proper Shavuah, only a Shavuas Heses and therefore the Mafkid has to take a Shavuah to get the money. The same logic would seem to apply in the above din of the Shomer claiming he wasn't a Shomer. It could be that just as the Mafkid in this case takes the Shavuah, also in the above case he also takes the Shavuah.
Therefore, theoretically, you might be required to take a Shavuah that the caterer was your Shomer and that the item stolen was worth $140. Practically, though, the Minhag in Batei Dinim for approximately the last hundred years has been to avoid Shavuos altogether. In place of Shavuos, monetary comprises are made by the Beis Din. Typically one third of the claim is taken off. Accordingly, you would be rewarded two thirds of your claim of $140.
Kol Tuv,
Yonasan Sigler
This is not a Psak Halachah