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- Bemare Habazak - Rabbis Questions
- Family and Society
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- Theft and Damage
Answer: In my school days, such discussions focused on baseball cards. School distractions are now more expensive … and addictive. Our answer cannot be applied to a case whose specifics have not been presented by both sides, but we can discuss halachic indications.
Tannaim disagree whether one who suggests to another to put an object in his proximity without clearly accepting responsibility is obligated as a watchman (see Bava Kama 47b, Bava Metzia 81b). The halacha is generally that he is not obligated (Shulchan Aruch, Choshen Mishpat 291:2). Sometimes circumstances dictate that he accepts responsibility without stipulation (ibid.). In this case, on one hand, the fact that the teacher commands the students to put the phones in a certain place increases the chances he accepts responsibility. On the other hand, if the phones were in a place where the whole class could keep "one eye" on them while the teacher taught, this decreases the chances he intended to be responsible.
If the teacher accepted responsibility, it seems he was a shomer chinam (unpaid watchman), who is exempt in cases of theft. One could claim he is a shomer sachar since this happened as part of his job. However, since watching cellphones is not (yet) considered part of a teacher’s obligation, the connection to teaching is incidental, and he is a shomer chinam.
Even a shomer chinam is obligated to pay when an object is stolen due to his negligence (ibid. 1 with commentaries). We thus must address the question (see below, as well) whether the setup (phones visible to all but otherwise not guarded) is valid or negligent. Our general feeling is that, unless the school is crime-ridden, this is quite an innocuous, standard situation. (Kids playing ball often leave bags on the side in the open. Airlines assume people won’t try to slip out with another’s luggage.)
Assume that the teacher is not obligated as a watchman for one of the above reasons. Does forcing a situation of lower supervision of another’s object, which led to theft, obligate him as one who damages? Let’s view related cases. Regarding one who breaks a wall, enabling an animal to escape (Bava Kama 56b), there is a machloket whether he must or at least has a moral obligation to pay for the animal (see Rama, CM 396:4; Gra ad loc.; S’ma ad loc. 8). However, there it is very common that breaking the wall will cause the animal’s disappearance, unlike in our case. The gemara (Bava Kama 56a) also says that if one maneuvers someone’s stalks so that they are burnt by an existing fire, he must pay if it was expected for the fire to reach it, and there is a moral obligation if only an unusually strong wind would cause the fire to get there.
These sources indicate that here there would be no more than a moral obligation. Even a moral obligation does not apply here for a few reasons. In the latter case, the person had in mind to harm the object (see Shulchan Aruch, CM 418:11, Meiri Bava Kama 56a). Also, the list of cases of moral obligations is apparently a primarily closed one, and it applies where the nature of the act is considered damaging, even if indirectly. In contrast, here, while the confiscation of phones might have upset the children, it likely was not considered damaging to the phones. Finally, we find that teachers are exempt from damages caused in the course of necessary educational discipline (see Pitchei Teshuva 424:4). (On the other hand, we do not want to give teachers too much leeway. The teacher probably should have warned the children/parents of this policy and have them decide whether to bring phones. Still, trying to obligate a teacher to pay dearly for dealing in a way that many educators are finding unavoidable is wrong and educationally problematic.
Bemare Habazak - Rabbis Questions (655)
Rabbi Daniel Mann
122 - A Teacher’s Responsibility for Theft of Phones
123 - Lighting a Candle When the Ner Tamid Is Out?
124 - Buying With Intention to Return
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