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Case: The defendant (=def) moved the contents of the plaintiff’s (=pl) home. Pl is suing def for the following damages: 1) Several items are lost; 2) Several items were damaged; some can be fixed, others cannot. Def responds that everything that was put in the moving truck was brought to pl’s new home. Def is willing to fix items as feasible. Also, def claims that some of the items were broken because they are too old to survive a move, which should exempt him.

Ruling: Since def is a paid service provider, his obligation to pay for loss/damage is like a shomer sachar (paid watchman), who is obligated when the object is lost or stolen (Shulchan Aruch, Choshen Mishpat 306:1). However, that is when it is accepted that it was lost or stolen, whereas here, def claimed he returned everything for which he had taken responsibility.

P'ninat Mishpat (802)

Beit Din Eretz Hemda - Gazit

755 - Disagreements over Renovations – part II

756 - Damages of Movers

757 - Conditions of the Leasing of a Community Supermarket

The gemara (Bava Batra 45b) rules that a shomer is believed to say that he returned the object even if he received it with witnesses. On the other hand, if he received the object with a document, he is not believed to say he returned it (ibid. 70a). That is because of the assumption that if he had returned the object mentioned in the document, he would have taken back the document. If the watchman is willing to take an oath that he returned it, he is believed due to a migo – he should be believed because had he wanted to lie, he could have claimed that it was lost under extenuating circumstances (Shulchan Aruch, CM 296:2). In this case, while there is a written agreement about taking responsibility for the contents of the house, it is not the type of document that is returned after the watching is over. Therefore def should be believed that he returned what he received.

The problem with def’s claim of return is that he does not really know what he returned but only that he believes that he must have returned everything he received. However, the gemara (Shvuot 42b) posits that if a watchman received a collection of objects without knowing exactly what they were, his claim that he gave back the entire contents is considered a complete claim that he returned all. The Rama (CM 298:2) rules that this is so even if the shomer says that he does not know if anything was stolen.

On the other hand, here def admits that he has to pay for some of the items he watched due to the damages, and a partial admission makes it necessary to swear on that which he denies, as long as they are part of one claim (see Shulchan Aruch, CM 88:12). In lieu of the oath, which we do not administer in our times, batei din rule based on compromise.

Beit din does not accept the claim that def is exempt due to the furniture’s age. This is because the damages are unrelated to age and because def knew what he was moving and did not demand an exemption in advance.

Although usually one can fix what he damaged, here def had an opportunity to do so and did not take advantage of it. Even if def gave a reasonable explanation as to why he did not fix it yet, pl is still not required to wait long, as he has a right to expect to get his objects in working order.

Based on compromise, beit din obligated def to pay pl 3,000 NIS.

P'ninat Mishpat