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- A Gate to the Din
Case: A neighborhood [in New York, apparently] emptied out of Jews and its shul closed. The shul decided to keep their sefer Torah in a yeshiva; no payment was exchanged. Hooligans burned down the yeshiva, including the sifrei Torah. This created publicity and sentiment around the Jewish community, and donors were elicited to give sifrei Torah to replace those that were burnt. Now, the owner of the shul’ssefer Torah wants that yeshiva to "return" a sefer Torah. The yeshivaresponds that they are exempt as a shomer chinam (unpaid watchman). The owner also claims that since the yeshiva received new sifrei Torahthrough their campaign to replace the old ones, including the one he owned, he should get it.
Ruling: While hekdesh (the infrastructure of the Beit Hamikdash) was exempt from the obligations of shomrim, this does not apply to yeshivot (see Shulchan Aruch, Choshen Mishpat 95:1). However, in this case, where the sefer Torah was destroyed by arson, it is considered oness(an extenuating circumstance), and the yeshiva is exempt for a few reasons.
A shomer is obligated to pay only if he accepts upon himself, at least implicitly, the obligations of a shomer. If he simply allows one to keep his object in his possession, he is exempt (ibid. 291:1). Often one gives his sefer Torah to a shul or yeshiva because he lacks a good place to keep it, not because he expects their involvement in its safe-keeping. Even if, due to a sefer Torah’s sanctity/importance, one usually accepts responsibility to watch it, we must determine what type of shomer the shul is.
One could claim that, assuming the shul (or, in this case, the yeshiva) uses the sefer, they become like a sho’el (borrower), who is obligated to pay even when it is destroyed through oness. However, not everyone who uses the object he is watching is a sho’el. It is only when the borrower receives all the benefit from the arrangement. The Shach (72:29) says that when one lends a sefer to his friend, since the fact that the lender does a mitzva provides him with certain benefits, it makes the friend considered, according to some opinions, only ashomer sachar, who is exempt from oness. While the Netivot Hamishpat (ad loc.) argues, he will agree in a case like this where the owner’s benefit is strong, that the yeshiva is a shomer sachar.
Does the yeshiva owe the sefer Torah’s owner because they asked for donations to replace it? The gemara (Sanhedrin 48a) discusses what to do with money that was solicited for the needs of a specific dead person but exceeds the basic needs – does it go to the deceased’s minor needs or to his inheritors? We see that money that is raised for the needs of a specific poor person stays with the recipient (including his inheritors) even when it exceeds the needs for which it was raised.
One might think to apply the idea of "how can one make profit from his friend’s cow?" (see Bava Metzia 36b). In other words, in our case, how can the yeshiva be allowed to receive compensation from the community for the loss of someone else’s sefer Torah. However, the context there is different (we will not go into the details), as there the one who is paying has a level of obligation to pay, and therefore he pays the real owner, not the middleman. Here, in contrast, people decided to make donations to the yeshiva because of their losses, only one of which was the sefer Torah in question. There is nothing that naturally links those donations to the owner of the sefer Torah. Therefore, the yeshiva does not have to return a sefer Torah.
P'ninat Mishpat Complaints about Contractor’s Work – part II
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
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