Old Mr. Sender lived by himself, but was close with his neighbors, who checked in on him and tried to help him as needed.
One evening, Mr. Davis stopped by. “How are you?” he asked.
“Pretty OK,” replied Mr. Sender. “I have a cough, though.”
“Do you take anything?” Mr. Davis asked.
“I usually do,” answered Mr. Sender, “but I ran out of cough medicine.”
“We don’t have any cough medicine at our house,” said Mr. Davis, “but the drug store two blocks away is still open.”
“I know, but I’m afraid to go out at night,” said Mr. Sender. “The neighborhood is not 100% safe. Would you be willing to get it for me?”
“Sure,” said Mr. Davis. “I don’t mind going to the store at night.”
On the way to the store, though, Mr. Davis was accosted by two thugs, who beat him and forced him to hand over his wallet, which contained over $500.
The thugs fled and were not caught.
Mr. Davis required medical attention for his cuts but fortunately had no lasting injury. He called Mr. Sender. “I apologize, but I’m not able to complete the errand,” he said. “I was accosted and mugged en route to the store.”
“I’m sorry,” replied Mr. Sender. “I feel bad that it occurred on account of me – I certainly did not expect such a thing to happen.”
“It’s not your fault,” Mr. Davis calmed him, “but it did cost me over $500, in addition to the medical costs… I was trying to do you a favor, and look what happened!”
“Let me think about it,” said Mr. Sender. “I’ll see what I can do.”
Mr. Sender called Rabbi Dayan and asked, “Do I bear any liability for Mr. Davis’s injury or loss?”
“Seemingly, the Rishonim dispute this issue,” replied Rabbi Dayan. “They mostly address the case of one who is taken captive en route on behalf of another and needs to be ransomed” (See Pischei Choshen, Sechirus 7:29-31.)
“Beis Yosef (C.M. 188) cites Rashba that a person is liable only for damage that he or his property caused, but not for financial damage that occurred to his partner or agent – unless there is a clear common practice otherwise – even if the agent served gratis, and certainly if he was a paid employee. Even if the damage was on account of the service, it is at most grama.
However, Mordechai (B.M. #367, 461) cites from Maharam that if a person sent his son on an errand and he was taken captive, the father is required to redeem him. Furthermore, if an agent did the errand gratis, it is like the sender borrowed him. He is therefore liable even for oness that occurred, as there is no difference between damage to a person’s property and damage to his body. However, if the agent was paid, the sender is not liable to redeem him when the damage is not his fault.
Rema (C.M. 178:48) cites the two opinions, whereas the Mechaber (C.M. 188:6) cites only the Rashba, who exempts the sender. Taz (176:48) concludes that the halacha is like the Rashba. Sma (188:11), however, resolves the seeming dispute by ruling that the sender is exempt from financial loss of the agent, but not from bodily injury to the agent.
Many poskim qualify, though, that if the damage occurred due to negligence on the part of the sender or employer, he is liable even according to the Rashba (Mabit 3:156, 188).
The poskim further discuss whether the exemptions of be’alav imo and/or meisa machamas melacha should apply, and whether there can be liability of guardianship on a person (Nesivos 176:60; Pischei Teshuvah 176:36; Maharashdam C.M. #435; Chasam Sofer C.M. #52).
Nonetheless, Mishpat Shalom (176:48[64]) rules that even according to the opinions that there is no liability in beis din, the sender has a heavenly obligation to pay for what he caused, as grama. The degree of moral responsibility may depend on the degree of connection between the sender and the damage (Tzemach Tzedek #6).
“On account of the dispute,” concluded Rabbi Dayan, “you cannot be made to pay Mr. Davis but have a heavenly obligation to compensate him.”
Verdict: Rashba exempts a person from incidental damage that occurred to his agent; Mordechai holds him liable as a sho‘el when the agent served for free. Nonetheless, there exists a heavenly obligation even according to the Rashba.
