Mrs. Goldman owned a long, heavy gold necklace, which weighed almost three ounces. She was preparing to travel abroad last summer for an extended period, and did not want to take the necklace with her.
Her brother, Chaim, had a personal safe at his work. “Could you please watch my necklace in your safe?” Mrs. Goldman asked him.
Chaim agreed. Mrs. Goldman gave him the necklace in a sealed envelope, which he placed in the safe.
Towards Purim, Chaim needed to make order of the contents of his safe. He put the envelope with the necklace on one desk, and meanwhile went through the documents and other envelopes on another.
Chaim’s wife suddenly called. “Please come home immediately!” she exclaimed. “A pipe burst and there’s water all over! I called the plumber, but I need you here!”
Chaim quickly gathered everything from his desk and returned the items to the safe, but forgot the envelope with the necklace on the other desk. When he returned the following morning, the necklace was gone!
More than 25 people worked in Chaim’s office, so he had no way of suspecting who might have taken the necklace.
“I took the necklace out of the safe yesterday, but forgot to return it,” Chaim apologized to his sister over the phone. “Someone apparently took it. I realize that this was negligence on my part, and will pay you for it.”
“See if it turns up,” sighed Mrs. Goldman. “If not, we will deal with it when I return.”
The necklace was not found.
When Mrs. Goldman returned, she tried to establish the value of the necklace. Chaim realized, though, that gold had fluctuated more than 20% during the year. In July 2023, when the necklace was entrusted to him, gold cost less than $2,000 an ounce; in March ‘24, when the necklace was lost, the price was about $2,250 an ounce; now the price approached $2,500 an ounce.
Chaim called Rabbi Dayan and asked:
“According to which date do we evaluate the gold necklace?”
“The Gemara (Kesubos 34b) presents two opinions on whether a guardian becomes liable for the entrusted item only from when the loss occurs, or retroactively from when the item was entrusted,” Rabbi Dayan replied.
Shulchan Aruch (C.M. 341:4) rules like the opinion that the obligation is from the time of loss.
The Achronim rule, accordingly, that a guardian pays according to the item’s value at the time of loss (Shach 295:7; Ketzos and Nesivos 291:1).
Ketzos and Nesivos (ibid.) explain that this differs from a thief, who pays according to the time that he stole the item, even if it became ruined and unreturnable only later, since the guardian’s liability actualizes at the time of loss, whereas a thief becomes fully liable from the time of theft.
Nonetheless, Sma (295:6), based on Maggid Mishneh (Hil. She’aila u’Pikadon 8:3), writes that if the guardian is not monetarily liable and could exempt himself with an oath, but nonetheless agrees to pay, then if the item’s value increased in the guardian’s hands he needs to pay only the value at the time of entrustment. Ketzos (295:2) explains, for example, that the guardian claimed that it was oness, but agreed to pay rather than swear (see, however, Chazon Ish C.M. Likutim #20, 35a).
Pischei Choshen (Pikadon 8:4[11]) explains that in this case the guardian is viewed as “buying” the item, rather than paying his liability as a guardian. Therefore, Sma maintains that we follow the item’s value when entrusted – when it entered his possession. However, Shach (ibid.) rejects the Sma’s distinction. and rules that either way we follow the time of loss.
“You were negligent with the necklace,” concluded Rabbi Dayan. “Therefore, clearly it is evaluated according to the price of gold in March, when it was lost.”
Verdict: A guardian who is liable pays according to the item’s value at the time he became liable. If he is exempt, but nonetheless elects to pay, some maintain that we follow the item’s value when it was entrusted, but others do not differentiate.
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This article is intended for learning purposes and cannot be used for final halachic decision. There are also issues of dina d’malchusa to consider in actual cases.
