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Beit Midrash Series P'ninat Mishpat

Chapter 320

Money Lost in Transit

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(based on Chelkat Yaakov, Choshen Mishpat 7)
P'ninat Mishpat (575)
Various Rabbis
319 - Taking Guarantees from Parties to Assure Mutual Participation
320 - Money Lost in Transit
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Case: In 1939, Reuven told Shimon’s wife (both in Zurich) that Shimon should send him 1,000 units of gold currency from Shimon’s home to Reuven’s (both in Poland) and wanted to give her 600 Swiss francs. She was not sure Shimon could send the money, so she did not take Reuven’s francs. Reuven was afraid to take the francs to Poland, and so he gave them to Levi to watch. Shimon informed his wife he could send the gold, and she asked Levi for the francs. Levi said he would give them francs only when Reuven sent word from Poland that he received the money. Shimon’s wife told Shimon to send the money to Reuven. By the time Reuven sent the money at the post office, thinking his wife had already received the francs, WW II had just broken out. A few months later, Shimon came to Zurich with proof he sent the money to Reuven, but Levi refused to give the francs because Reuven, now under Russian control and unable to be contacted, had not yet confirmed receipt. Shimon claims that since he followed Reuven’s instructions, he deserves the money, even if Reuven did not receive his. (Shimon needs the money immediately to move to Israel or elsewhere, as the Swiss authorities will not let him stay there.)

Ruling: The Shulchan Aruch (Choshen Mishpat 121:1) says that if a lender tells his borrower to pay via a messenger, even one who cannot be a halachic shaliach, and it gets lost in transit, the borrower is exempt. We assume this as long as it is not reasonable that the lender thought the borrower would accompany the messenger. In this case, Reuven could not have expected Shimon to accompany the money from one side of Poland to another; rather, he meant the money should be sent through the post office. Therefore, if Reuven were here, we would require him to pay Shimon.
It is true that CM 121 is referring to releasing the borrower from payment, and here we are referring to creating an obligation (to give francs). However, the Tiferet Yisrael (to Bava Metzia 91b) says that the two are equivalent. This is not a simple assumption when one sends the money with one who cannot be a shaliach, given that there are two opinions in the Rama (CM 380:1) whether one who says "Throw money to the sea, and I will pay you" is obligated if he does so. The Ran (Kiddushin 8a) says that when one gives money as instructed via a thinking person (as opposed to throwing to the sea), he is obligated like a guarantor. This applies in our case. It is even possible to consider the non-Jewish post office as a shaliach according to the Machaneh Ephrayim that a paid worker is considered a shaliach even if otherwise unfit.
Even though Levi stipulated that he would not give the money without Reuven’s confirmation, since Reuven owes Shimon and Reuven’s only available money is in Levi’s hands, Levi has to give it based on shibudda d’Rabbi Natan. It might also make a difference that Reuven was originally willing to give the francs before the gold currency was sent. Additionally, even if we view the matter as a doubt whether the responsibility for the lost money is Reuven’s or Shimon’s, there is a double doubt in Shimon’s favor, because it is possible that Reuven really did receive the money, even if Levi cannot confirm it.
Despite the above, I employed a compromise because it is possible that Shimon was negligent in sending the money two days after the war started, even though he claimed that at that time there was still order in Poland.
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