A Worker Paying for a Stolen Car – part I

Case: The plaintiff (=pl) gave a leased car to the defendant (=def), its employee, to use for both work and personal purposes. In the midst of using the car for work, pl stopped off at a carpenter on a personal matter. The two spoke for 14 minutes several meters from the car, with def’s back to the car, while the keys were in the car and the engine was running. According to security cameras, after 10 minutes, thieves drove away with the car, which also contained his work computer and smart phone. Pl came to an agreement with the leasing company (=lc) to pay them 20,000 NIS (less than the car’s value), as the insurance does not cover theft under these circumstances. Pl is suing def for that as well as the price of a replacement computer and phone. [We will raise some claimed exemptions this week, and others plus pricing questions in the coming weeks.] Def counters that pl never showed him the leasing agreement indicating full obligation if stolen with the car left running, and his employment agreement says that in the case of an accident, def only has to pay the deductible.

Ruling: Leaving a car running in an industrial area with his back to the car is considered an act of damage to the unsupervised object (Netivot Hamishpat 291:7). The understanding that this is unreasonable is strengthened by the law that it is forbidden to leave a car running unsupervised.

Even if it were not considered damage, def would be obligated as a watchman. One who benefits from the arrangement by which he is responsible for the object, e.g., he receives money from the situation, is a shomer sachar (paid watchmen), even if he is not paid to watch per se (Shulchan Aruch, Choshen Mishpat 306:1). Although there is a machloket between the S’ma (306:1) and Shach (306:1) whether this is so for a salaried worker, in this case, since def used the car for his private needs as well, he definitely was a shomer sachar (Bava Metzia 43a).

A shomer sachar is obligated for theft of the object, even if he was not negligent (which def was). Although things are somewhat more complicated regarding a theft by armed robbers, even if these were armed, they did not need to use the threat of violence in the theft.

We reject def’s claim that by not knowing that he could be obligated to pay the car’s full price, it is like the case of someone who was told to watch something inexpensive when in truth it was expensive (see Bava Kama 62a). First, even a watchman who did not know the value of what he was watching is obligated if he damaged it (Shulchan Aruch, CM 291:4), which our case is equivalent to (see above). Second, def knew how much the car was worth and that if he were recklessly negligent about it, he would have to pay its value. All he did not know was in which cases he would have to pay full price and in which he would just pay a deductible. Would we say that if a shomer did not know the relevant halachot of watchmen, he would not be obligated?! Third, according to many (see Maharsal 6:34), the exemption for lack of awareness is only when the owner deceived him.