More Discussions for this daf
1. Insurance 2. Shevuah she'Einah b'Reshuso 3. Meisah Machmas Melachah Lo Shachi'ach
4. Hareini Meshalem 5. Hareini Meshalem, Eini Meshalem 6. Misah Machmas Melachah Lo Shachi'ach
7. Rav Huna 8. Malveh al Ha'Mashkon 9. shomrim
10. Shomer 11. Lost Item 12. Kinyan

Todd E. Kobernick asked:

Does insurance change some of the rules we are learning relating to Shomer Hinam, Shomer Sachar, etc.?

The Kollel replies:

Insurance can play a role in a number of capacities, so I will reply in general.

Insurance as we know it has nothing to do with the Dinim of Shomrim. In order to become a Shomer one must take the item into his possession. There is no idea of an external Shomer in the laws of Shomrim. In addition, the basic responsibility of the Shomer is to *watch* the object, and not merely to pay in the eventuality of damages.

The insurance company's liability according to Torah Law is a separate deal such as any deal of monetary law, i.e. that a person can make himself liable under certain circumstances. It is actually a Hischayvus Al Tenai (a contingent obligation). In this case the fact that the object was damaged is only relevant as meeting of the condition of the contingency, which could just as well have been the passage of time or the Jets winning the Super Bowl.

As for the liability of the Shomer when the object he is obligated to watch is insured, the question is slightly more complex. The question relates not only to a Shomer but to any liability, such as one (not a Shomer) who damages someone else's insured property. According to what we wrote above, the fact that the object is insured should have no relevance to the responsibility of the Mazik or the Shomer since it is a secondary responsibility, and therefore the Shomer should be responsible even though the owner is being remunerated by the insurer.

D. Zupnik??

The Kollel adds:

The above, indeed, is the ruling of Rav Moshe Sternbuch (Teshuvos v'Hanhagos 1:422) with regard to a person who damages someone else's insured property (he cites the Teshuvos of Maharsham 4:7 who rules this way as well).

Rav Sternbuch adds, however, that this applies only when the insurance company is not informed whom the Mazik was. In contrast, when the insurance company will require the Mazik to compensate them, then the Nizak cannot demand from the Mazik that he pay him *and* pay the insurance company. Rather, the Mazik should pay the Nizak, with a condition that if the insurance company then pays the Nizak as well and then comes to collect compensation from the Mazik, the Nizak will return the Mazik's original payment to him. This would seemingly apply to a Shomer as well. Of course, we should note that a Shomer's liability can be altered by any conditions that he and the Mafkid agree upon initially. Hence, it would make sense for a Shomer to stipulate that if insurance covers the loss, that he will be exempt.

Y. Shaw