The Torah states the responsibilities and liabilities of custodians for items entrusted with them to safeguard.
There are four basic types of custodians: Shomer Chinam – someone who takes responsibility to watch an item without payment. Shomer Sochar – someone who is paid to watch an item. A Shoel – a borrower, and a Sachir – a renter.
If the safeguarded item was lost, stolen, or damaged, the liability of the custodian depends on how he offered his services. A custodian who did his service without payment is only responsible to pay if the loss was due to his negligence, however, he must take an oath in the Jewish court that he did not have any personal involvement in the loss of the item.
A custodian who is paid for watching the item carries further responsibilities. He is responsible for loss, theft and damages unless it was accidental. If there were no witnesses to the accidental claim the paid custodian must swear in the Jewish court to support his claim.
Both a paid and unpaid custodian are forbidden to make personal use of the item, unless there was a stipulation with the owner. If the custodians used the items it is considered as theft and they are responsible for any type of loss.
A borrower/Shoel is responsible for every type of loss, unless it became damaged in the normal course of use.
There is a discussion in the Talmud concerning the liabilities of Sachir/renter. Rebbe Meir states that since a renter is rendering payment, he has the same liability as an unpaid custodian and only pays if he was negligent. However, the opinion we follow is that of Rebbe Yehudah, who says that the renter has the responsibility of a paid custodian, who is responsible unless the loss was beyond his control.
The question asked is when a custodian is asked to take an oath that he did not steal the item, and there is reasonable concern that he personally stole it, how can we trust him with his oath?
The Talmud tells us that a robber is trusted to take an oath because oaths are taken very seriously. This is because when G-d proclaimed the third Commandment not to take a false oath the entire earth trembled. This instilled in mankind the fear of taking an oath in vain. Therefore, even a robber is believed when he takes an oath. This reverence for taking an oath applies to Jew and non-Jew alike, because all people felt the world shake during this command.
A lawyer friend of mine shared with me that he was representing a client who claimed that certain services weren’t rendered by a hired company. When his client took the stand and the judge asked him to confirm his claim, he remained silent. The judge asked the question again and the client was silent. The judge granted the lawyer permission to approach his client to see if he was okay. He asked his client what was going on? His client told him that he lied and his claim was false. The bewildered lawyer asked him what he was thinking? The client told him, “all along I thought I was going to be successful with my false claim, however, after I took the oath to say the truth, I cannot utter my false claim.”
There are of course exceptions to the rule. The great Rabbi Moshe Isarlish, the world renown Ramah in Shulchan Aruch, was approached by a visitor to his city with the following problem. He arrived as a guest of a family before Shabbos, and since he had a significant amount of money with him, he asked his host if he could put his pouch in a safe place, and he did so.
After Shabbos, when the guest was ready to leave, he asked his host for his money, and he blatantly denied ever taking money from him.
The guest went to Rabbi Isarlish and told him what happened. The rabbi was aware that the host was a shady person, and he summoned him to his home. He came to the rabbi’s study, and arrogantly denied taking any money. The rabbi asked him if he was willing to take an oath, and he said yes. The rabbi realized that he would swear falsely, and with great wisdom and creativity took a different approach. He noticed that the host had an expensive watch and asked if he could see it in order to show it to his wife to see if she liked it. The man was flattered and gave it to the rabbi.
The rabbi left the room and instructed one of his students to take the watch to the host’s home and tell his wife that her husband instructed him to give the ‘pouch of money’ to him and as proof that it is true, he should show her his watch. He went, and the wife gave him the pouch, and the messenger returned it to the rabbi.
The rabbi came back into the room while the pouch was still concealed, and asked the host again if he was ready to take an oath, and he said yes. The rabbi then took out the pouch of money and asked the man if he was still willing to take the oath!
First Down:
As over one billion people around the world await to watch the upcoming Super Bowl, I recently read a beautiful life lesson from the rules of football that relates to Jewish philosophy.
The object of the game is to move the ball forward to get 10 yards in four tries. If this is accomplished, it resets the play to a first and ten – first down, and then the team gets another four chances to gain another 10 yards for a first down with the intent of crossing the goal line for a touchdown.
What we learn from this is the power we each have for renewal and to make a fresh start. We each face challenges of setbacks, disappointments, lethargy and feelings of despondency, yet our focus and goal to restart is essential for us to meet our goals. So, yes, we might be down… 1st, 2nd, 3rd, but with our goals in mind we can recharge ourselves and start anew. Even in the event that we don’t achieve them at this time, we’ll get additional chances when the ball is turned back over to us.
