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Beit Midrash Series P'ninat Mishpat

Chapter 295

Bank Notes Lost by Paid Messenger

116
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(from Shoel U’meishiv I:III:23)
P'ninat Mishpat (577)
Various Rabbis
294 - When the Defendant Goes to the Plaintiff’s Place
295 - Bank Notes Lost by Paid Messenger
296 - Inferences from Records of Past Testimony
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[Reuven worked for Shimon, providing whatever services Shimon requested of him on an ongoing basis for three rubles a week. Shimon gave Reuven "depositin" (it seems that it is some type of open bank notes) to deliver to a third party, and they were lost along the way. Shimon is not suspicious that Reuven stole them or that he was negligent with them. Is Reuven responsible for their disappearance?]

There are two possible reasons to obligate Reuven. One is that since the notes were given open (i.e., not in a sealed envelope or bound together), Reuven could arguably have used them and replaced them with an equivalent. In that case, it is considered as if he borrowed the money, in which case he has to pay back what he borrowed even if the original money was lost without his negligence (see Bava Metzia 43a). However, this does not apply to a messenger, as he is to deliver the money as is (see Shulchan Aruch, Yoreh Deah 169:16). There is another distinction, between a money changer and other people who receive money to hold, but it seems, in opposition to what the Shach (Choshen Mishpat 121:35) says, that even a money changer cannot use the coins and replace them if he was given them to deliver. The Beit Shmuel (35:9) says that if Levi is given Yehuda’s money by Yehuda’s messenger and Levi uses it for kiddushin, the kiddushin is valid if Yehuda does not particularly mind that it was used in that way. While this seems to indicate that the messenger can use the particular coins as he sits fit and then is obligated to replace them, this is difficult and is contradicted by the Beit Yosef.
However, Reuven is still liable for the loss of the notes because he has the status of a shomer sachar (a paid watchmen). It is true that Reuven was not paid specifically for doing the courier service with the coins, but rather was paid globally irrespective of that specific responsibility. Nevertheless, we look at things from the perspective of the beginning of his employment, and as such, we see that Reuven was hired to do work, and each piece of work that he did is thus considered for pay (see Choshen Mishpat 182). Only if his job was specified for other tasks and in that framework he agreed to do an additional job of being a messenger can we talk about his not being paid for the work and not being obligated as a shomer sachar.
One might want to claim that the notes are considered documents of debt rather than money, of significance because the laws of watchmen’s obligations do not apply to documents (Bava Metzia 57b). However, the truth is that these depositin are liquid enough to be considered money rather than documents.
In the final analysis, Reuven is obligated to pay for the lost depositin.
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