(2009/5770)
In our previous issue (archived at www.koltorah.org) we concluded that mainstream Halachic opinion, which is reflected in practice in most Orthodox Jewish educational settings both in Israel and North America, permits confiscating items from students if the educator believes that the items distract students from learning. This week we discuss the responsibility of educators to properly guard the items confiscated and the ramifications if the items are lost.
Word of Caution
Rav Yehuda Henkin writes (in his argument to forbid educators from confiscating items, Techumin 8:186-199 and Teshuvot Bnei Banim 2:47) that many times the confiscated items are not returned to the students and thus the Rambam and Shulchan Aruch’s concern (cited in our last issue) lest one become habituated to theft is fulfilled. Although this is insufficient reason to ban confiscation altogether, the permission that most Poskim agree that teachers enjoy to confiscate items should not be abused by those in a position of authority. Indeed, Rav Asher Bush (Teshuvot Shoel Bishlomo number 57) cautions: “However, regarding those teachers who do not return the confiscated items after time, these justifications to not apply to them. It does not matter whether the items are lost through negligence or indolence by placing all confiscated items in an unorganized pile and forgetting which item belongs to which child. The educational loss exceeds the educational gain since the students are thereby taught poor character traits, instead of ethics. Even worse is the practice of some teachers who give the items to their children or other students. In such a case they certainly violate the prohibition to steal even if they had good intentions.”
If the School Loses the Item
As Rav Bush indicates, educators bear the responsibility to watch the items they confiscate. In fact, if they fail to watch it properly they can be held liable under the laws of Shomrim (guardians). The extent of the liability is disputed by Rav Uri Dasberg and Rav Zvi Yehudah Ben Yaakov (Techumin 19:53-54). Rav Dasberg believes that this is part of the job of a teacher so he/she is considered a Shomer Sachar (paid watchman) whose liability applies even to a case of theft or loss. The teacher’s salary, argues Rav Dasberg includes payment to watch the items confiscated in order to facilitate learning. He argues that the educator’s situation is similar to a worker who is hired (using the terminology of Bava Metzia 10a) “to work for me today” as opposed to one who is hired to do perform a specific task.
Rav Ben Yaakov believes that the teacher by watching the item is performing his/her duty, but this is not part of the teacher’s responsibilities. The teacher, he argues, is paid only to teach and thus is regarded only as a Shomer Chinam who pays only if the item is lost or damaged due to negligence and but does not pay if the loss is due to loss or theft. He cites Teshuvot Divrei Malkiel (3:172), which discusses a synagogue attendant’s status as a Shomer Chinam or Shomeir Sachar, as evidence to his assertion. The Divrei Malkiel cites the Radbaz who rules that since he receives a salary for his work and not for guarding lost items, he is classified as a Shomeir Chinam.
It appears that the dispute between Rav Ben Yaakov and Rav Dasberg is actually a dispute between the Machane Ephraim (Hilchot Shomerim number 31) and the Ketzot Hachoshen (291:21) that is cited by the Pitchei Teshuvah (C.M. 303:1). Nonetheless, since this issue remains a matter of dispute, it is resolved in favor of the Muchzak (the one in possession of the money). Thus, in practice an educator is held liable only to the extent that he acted negligently.
A Shomeir is expected to guard an item in the normal manner of watchmen regarding the item that is being guarded (Shulchan Aruch Choshen Mishpat 291:13, based on Bava Metzia 42a). Thus, if an educator does not label which item belongs to a particular student and thus is unable to return the confiscated items to the appropriate owner, he is held liable for losing the item.
Ba’alav Imo
The Torah (Shemot 22:13) sets forth the rule of Ba’alav Imo, that a watchman or borrower who employs the owner of the item he is watching or borrowing, is exempt from payment (see the Torah Temimah ad. loc. for explanations of this rule; one approach is that one cannot simultaneously be obligated to one person and have that same individual be obligated to you). The Shulchan Aruch (C.M. 346:13, based on Bava Metzia 97a) presents the rules regarding teachers and students in relation to the rule of Ba’alav Imo: “ A teacher whose students must study any Talmudic tractate he chooses and even if they started one tractate he may change it to another, are ‘lent to him’ and if the teacher borrowed from one of the students [the teacher is excused from indemnification in case of loss since it is a case of ] Ba’alav Imo. However, if the teacher must study whatever the students wish to study then ‘he is lent to them’ …..If the decision must be made by both teacher and students, neither is considered to be lent to each other.”
Rav Ben Yaakov argues: “It seems to me that in today’s schools the administration is permitted to set curriculum at all times without the consent of the students. Thus it is considered as if the students are lent to the school and thus it is classified [when an educator watches an item for a student] as Ba’alav Imo (and thus the educators are excused from payment if they lose the student’s items they must watch).”
This argument in my opinion is far too narrow and disregards the bigger picture. Schools today, at least in Modern Orthodox circles in North America, are hardly the autocratic educational environments of yesteryear. Teachers and administrators cannot capriciously change the curriculum. Moreover, schools which seek accreditation from prominent educational organizations (a widespread practice within the Modern Orthodox community in North America) must present an established curriculum to the school’s parent body. Certainly, in Jewish schools outside of Israel where the students pay to attend school and there is accountability to a private board of directors, the educational arrangement cannot be considered Ba’alav Imo. Thus, educators cannot excuse themselves from indemnification in case of loss with the claim of Ba’alav Imo.
Guarding an Item on Behalf of a Minor
In addition, even when the educator watches the item for a minor he is not excused from paying based on Shulchan Aruch C.M. 96:1, which excuses one from responsibility as a Shomer when watching an item for a minor. This is because the Shach (C.M. 96:2) rules that if the Shomer was negligent he still pay even if the owner is a minor. Although the Ran (Shavu’ot 22b in the pages of the Rif) disagrees and excuses the Shomer even in case of negligence, the Aruch Hashulchan (C.M. 96:2) rules in accordance with the Shach. In addition, Rav Yitzchak Elchanan Spektor (Teshuvot Nachal Yitzchak 96:2:2) presents an additional argument in favor of responsibility regarding one who guards an item on behalf of a female minor. Finally, if one assumes that the item is truly owned by the parent, the educator is essentially guarding the item on behalf of an adult.
Lifnim Mishurat Hadin – Acting Beyond the Letter of the Law
Finally, an educator whose negligence caused the loss of a youngster’s confiscated item creates an enormous negative impression of Torah if he seeks to escape responsibility with “technical excuses” such as Ba’alav Imo or the absence of responsibility to a minor. The Torah (Devarim 6:18) commands us V’asitah Hayashar V’hatov, to do that which is correct in the eyes of Hashem. The Ramban (ad. loc.) explains: “The intention of this verse is to teach that while we must keep God’s specific laws, we must also institute what is “the good and straight” in those areas for which God did not issue any specific rules. This is a great matter because it is impossible for the Torah to regulate every area of human behavior on both an individual level and a communal level. After the Torah presents a number of general ethical commands, such as not to gossip and not to take revenge, it commands us to do good and right in all areas.”
The Gemara strongly encourages us to act Lifnim Mishurat Hadin, beyond the strict letter of the law. In fact, the Gemara (Bava Metzia 30b) stresses the importance of a Beit Din ruling Lifnim Mishurat Hadin, suggesting that Jerusalem was destroyed because its courts ruled only according to strict justice, and not Lifnim Mishurat Hadin. Elsewhere (Bava Metzia 83a), the Gemara records another application of Lifnim Mishurat Hadin:
Some porters [negligently (see Rashi and Maharsha)] broke a barrel of wine belonging to Rabbah bar bar Channah. He seized their garments [as a form of payment], so they went and complained to Rav. Rav told [Rabbah bar bar Channah], “Return their garments.” [Rabbah] asked, “Is that the law?” Rav replied, “Yes, [as it says in Mishlei 2:20], ‘You shall walk in the way of good people.’” So [Rabbah] returned their garments. They further claimed [to Rav], “We are poor men, have worked all day, and are hungry. Are we to get nothing?” Rav ordered [Rabbah], “Go and pay them.” He asked, “Is that the law?” [Rav] responded, “Yes, [as the same verse continues], ‘And keep the path of the righteous’”.
Rashi (ad. loc. s.v. Bederech) explains that Rav’s ruling was not strict law but Lifnim Mishurat Hadin.
Educators who lose student’s property due to negligence should act Linim Mishurat Hadin and not seek to excuse themselves from responsibility based on Ba’alav Imo or lack of responsibility towards a minor. Educators must exemplify the highest of ethical standards and perhaps might even be obligated to act Lifnim Mishurat Hadin (see Rama C.M. 12:2 and Gray Matter 2:162-163). Indeed, Rav Yitzchak Herzog (Teshuvot Heichal Yitzchak C.M. 101) writes “The community must act Linim Mishurat Hadin.” Those representing a community organization such as a Yeshiva clearly are included in this statement.
Conclusion
Educators who are negligent in their guarding of confiscated items must indemnify the students the value of the item that was lost. The value is calculated by the market value of the item lost and if there is no market for the item (certain used items have no market value) the educator must replace the lost item (see Rav Yonatan Blass’ discussion of this issue in Techumin 13:388-406).