More Discussions for this daf
1. Responsibility from intention 2. Shelichus Yad 3. המפקיד חבית אצל חבירו

Robert Chesler asks:

The Gemara in 41a discusses someone who intends to misappropriate an item, that his responsibility for loss may start with his intention, and not with when he actually misappropriation.

I'd like to ask about scenarios of a con-artist coat check or valet parking attendant, same type of crime, where "marks" would be in a position to entrust him with their belongings.

If he pretends to be an honest worker but took the job with the intention that at some time he'll be given the task to park a ferrari or have access to some other very valuable item, and would then take it. Maybe he'll take one coat at the end of the day, or the best car. Or maybe he'll do honest work for a few days and take all the valuable coats on a good day with helpers.

In any case, if his intention in taking the job was to watch for good marks, then does he have liability for all items even those which he handled properly?

And to compare this with an honest worker who had every intention of parking all the cars according to customary standards of care, only enjoying the fancy car in a permitted fashion to drive it around the block shortest path to the parking lot... but one day for one particular car... was overcome with temptation and drove it extra, or stole it outright.

At what point does his "intention" kick in?


In a similar vein, if there is no misappropriation without damage, does that mean that if it is illegal to take candid photographs of a person (particularly a child) without their (parent's) consent, that if he intends to take a picture, but didn't realize he forgot to load in a roll of film, that despite focussing and clicking the shutter, he has not actually damaged the person?

If so, then do various other "targets" of the D.C. sniper whom he targetted with his rifle sights but for whatever reason did not squeeze the trigger not have a valid beef?

In a famous recent hollywood murder trial, the defendant was denied bail because there were two victims...

If we hold that there can be misappropriation without damage, would there be grounds to withhold bail for a sniper who even only had 1 bullet, but who admits somehow to having sighted in more than one target before selecting his one murder victim?


Surely these cases are not the specific sorts of misappropriation crimes that the gemara intended. But they are significant because only the wrongdoer and Hash-m will know the time of intention.

If the earthly court punishes the wrong-doer based on the provable part of liability from time of misappropriation damage, does the Heavenly Court sign on and withhold punishment from the time of intention until the time of damage?

Thank you. L'Shana Tova!



The Kollel replies:

Dear Robert

First of all the Gemara deals only with a Shomer (watchman) who has already accepted responsibility. The Torah makes the Shomer responsible even more (for accidents, etc.) if he does "Shlichus-yad". Only Beis Shammai in 43b calls it Shlichus-yad when the Shomer decides (without any action) to take it for himself. Tosfos adds he must at least speak out his decision. However, Beis Hillel (the accepted opinion) says Shlichus-yad only begins with action, with the taking of the object.

Our Gemara(41b) discusses according to Beis Hillel, if the Shomer must also remove for himself (at least) part of the object or if it is enough to take the object with a decision to remove part (even though in the end he didn't remove a part, although he did take the item into his hands).

So even if a loss is not required with Shlichus-yad, the parking attendant is only responsible when he got in the car with intention to possess it, as is true with the previously honest worker.

In the case of the photographer and sniper, the would be criminal cannot be punished for a crime didn't do, However the Torah gives power to the court to punish as they see fit in order to protect the community (see Choshen Mishpat 2).

Obviously the Heavenly Court will punish a person who sins even if the earthly court doesn't punish him. The court here can only deal with what it knows. But no one can escape the Almighty.

All the best

Reuven Weiner.