לעילוי נשמת

יואל אפרים בן אברהם עוזיאל זלצמן ז”ל

Question: Two people with a disagreement asked us the halacha in the following case, hoping to resolve the matter without litigation. Reuven hired a painter for his apartment while he was away. After the work was done, Shimon, his neighbor, was broken into, and both suspect that the painter either did the robbery or tipped off the thieves where Shimon kept his valuables. If this, indeed, happened and Reuven was unaware that the painter was a criminal and Shimon saw the painter and did not complain, must Reuven compensate Shimon?

Answer: There is no construct through which to obligate Reuven. We will examine those that are close and see how they fall short.

• Responsibility for a worker: When a worker damages a neighbor in the process of doing a job, the basic halacha is that the worker alone is obligated, except possibly if he is paid on the basis of time (see Rama, Choshen Mishpat 306:2; Pitchei Choshen, Sechirut 7:25). Common practice is for the employer to take responsibility, and this practice may be binding (see Eretz Hemdah ruling 79062; Dinei Avoda (Sadan), page 434). Even so, this is only when the worker is in the midst of work on the employer’s behalf, certainly not when he steals—all the more so—if it is after the work is done. Even if a slave damages, his master is not obligated—all the more so—for a simple worker (Bava Kama 87a).
• Creating a theft danger: There is a machloket as to whether one who knocked down the door of someone’s stable—enabling an animal to escape—is obligated to pay for the loss (Shulchan Aruch, Choshen Mishpat 396:4). The Yam Shel Shlomo (Bava Kama 6:3) explains that the reason to be obligated is that opening the door is a direct action to undo that which is keeping the animal in. This does not apply to just improving the chances for someone from without to succeed at stealing.
• A neighbor’s obligation to remove danger (nizkei shecheinim): The Rama (Bava Batra 1:18) obligates someone who did not fence off his property, thereby allowing robbers to come in and steal from his neighbor, whereas the Rosh (Bava Batra 2:17) exempts him. The Rama compares this to the case in which Levi owns a wall separating his field from that of Yehuda, and Yehuda informs Levi that that the wall fell down so that their different crops will become kilayim. In that case, if Levi does not act, he must pay for the lost crops (Bava Kama 100a-b). The Rosh counters that the obligation is only when the mechanism that creates the problem begins immediately, which is not the case with robbers. The Rama (Choshen Mishpat 155:44) cites both opinions without a clear ruling. However, this cannot obligate Reuven, because even the Rama requires Shimon to warn him, which he did not do.
• Comparison to “moser” (garmi): The Gemara (Bava Kama 116b-117b, codified in Shulchan Aruch, Choshen Mishpat 388:2) has a construct called “moser,” which obligates Levi to pay for causing Yehuda’s things to be stolen by criminals. The classic case is when Levi gives (without being severely coerced) criminals information about Yehuda’s property, which encourages and/or aids their ability to steal his property. The Gemara raises the question whether this obligation is a normal application of the laws of “garmi” (semi-direct causation of damage) or a special penalty. The more accepted opinion is that it is a normal application (see Maggid Mishneh, Chovel U’mazik 8:1).

While our case has similarity, the following are crucial differences that are important in the laws of “garmi” (whose parameters are very complex and elusive). Reuven did not realize that his hiring of this painter would bring about a theft (see Shach, Choshen Mishpat 386:6). It was not necessarily likely that the hiring would cause the theft (it is unlikely that every neighbor of a place that the painter worked at is robbed). There is no “act of damaging” comparable to the moser’s act of informing the criminal. Therefore, we cannot use “moser” as a model for obligation without a source, of which we are not aware.

Therefore, we do not see any grounds to halachically obligate Reuven (in some cases, voluntary payment might be laudable).

This column is written by Rabbi Daniel Mann on behalf of the Eretz Hemdah Institute in Jerusalem, which trains dayanim and has many projects on behalf of klal Yisrael, including its “Ask the Rabbi” service in conjunction with the OU. Rabbi Mann is a dayan at Eretz Hemdah, a senior member of the “Ask the Rabbi” project, and author of its “Living the Halachic Process” series. He is also a Ram at Yeshiva University’s Gruss Kollel in Israel.