גריי מאטר ד, בית דין, החרמת חפצים מתלמידיםGray Matter IV, Beit Din, Confiscating Items from Students
א׳
1Do educators enjoy a halachic right to confiscate items from students if those items are interfering with the learning in the classroom? The prohibition of theft is quite serious, as Chazal teach (Sanhedrin 108a, cited in Rashi to Breishit 6:13 s.v. Ki Malah) that the judgment of the generation of the flood was sealed due to its stealing. Thus, we must carefully investigate as to whether Halachah grants this right to educators.
ב׳
2Burning Clothes on Har Habayit
ג׳
3The Rambam (Hilchot Geneivah 1:2) and the Shulchan Aruch (C.M. 348:1) state: “One is forbidden to steal even the smallest amount. It is forbidden to steal even merely as a joke or with the intention to return the item, or even on condition to repay the item later. This is all forbidden lest one become habituated to stealing.” Rav Yehudah Henkin (Techumin 8:186-199 and Teshuvot Bnei Banim 2:47), in a responsum in which he advocates ending the practice of educators’ confiscating items from students, adds, “In my humble opinion, there is not one opinion in the Rishonim which permits afflicting a student by taking his property.” Rav Henkin concludes his responsum by noting that confiscation of students’ items “was unheard of in prior generations and is not mentioned by Poskim.”145It is important to note that even Rav Henkin concedes that it is a mitzvah to confiscate those items that are forbidden and/or dangerous, such as firearms or drugs.
ד׳
4Most halachic authorities (such as Rav Asher Bush, Teshuvot Shoel Bishlomo no. 57; Rav Zvi Yehudah Ben Yaakov, Techumin 19:52-53; and Rav Uri Dasberg and Rav Yehudah Shaviv in their critique of Rav Henkin, Techumin 199-201), however, strongly disagree. They discover sources and formulate arguments justifying educators’ taking items from students when appropriate.
ה׳
5One potential source is the Mishnah (Middot 1:2) which relates the following about those guarding at night the gates leading to Har Habayit (the Temple Mount):
ו׳
6The person in charge of Har Habayit (Ish Har Habayit) would inspect each guard and would have lit torches before him. Any guard who did not rise would be greeted, ‘Shalom Alecha’ (may peace be upon you). If it was apparent that the guard was sleeping, the Ish Har Habayit would hit the guard with his walking stick. In addition, the Ish Har Habayit had permission to burn his clothes… Rabi Eliezer ben Yaakov states that the brother of his mother was once found sleeping, and they burned his clothes.
ז׳
7One may deduce from this Mishnah that Halachah grants those supervising others the right to punish them by taking away property. Moreover, the Tiferet Yisrael (to Middot ad. loc.) explains that the clothes were responsible for warming the guard and facilitating his sleep. Thus, by burning his clothes (according to Tiferet Yisrael, only his outer garment, presumably a type of coat), the Ish Har Habayit eliminated the distraction that prevented the guard from properly executing his responsibilities. Similarly, one could argue that an educator is permitted to take away the item that distracts the student from executing his responsibilities. However, Rav Henkin responds that specific permission needs to be granted by beit din for such actions; no blanket permission is given to those in a position of authority to take the property of those in their charge.
ח׳
8Educators’ Permission to Hit Children
ט׳
9The Gemara (Makkot 8b) teaches that a teacher, as well as a parent, has the right to hit a child to discipline him. The Gemara states that there is a mitzvah to hit even a good student to further discipline him. Rav Henkin infers that Chazal permit only hitting a student, but not taking away his property. Rav Asher Bush, Rav Uri Dasberg and Rav Yehuda Shaviv note that it is implausible to distinguish between hitting a student and confiscating his property. These authorities believe that if Chazal permit hitting a child, then they permit confiscating a child’s property as well.
י׳
10While it seems to be forbidden for an educator to strike a child nowadays due to, among other possible factors, civil laws prohibiting such behavior (and the fact that in the current environment it is, as noted by Rav Henkin, counterproductive to do so), temporarily taking away distracting items from students nonetheless remains permissible. Rav Bush explains that the absence of a statement by Chazal or later poskim permitting confiscating items is either due to its obvious inference from the permission to hit a child or because, in previous generations, people generally owned a tiny fraction of what people own today. Although many students today bring their basketballs, sports cards, cell phones, iPods and DS’s to school, students of previous generations owned none of these items. Chazal may not have spoken about confiscating distracing items simply because no such items existed!
י״א
11Rav Dasberg marshals a proof to his assertion from the Ramban’s statement (cited by Ritva to Ketubot 86a and Ketzot 39:1) that if Halachah authorizes coercing an individual by harming his body, then beit din may coerce him by taking his property. Rav Henkin, in his response to Rav Dasberg (Techumin 8:201), argues that Rav Dasberg takes this statement out of context, and it is not relevant to the question of confiscating items from students.
י״ב
12Group Sanctions
י״ג
13The Shulchan Aruch (C.M. 231:28 based on Bava Batra 9a) presents a
י״ד
14 fundamentally important rule which has a wide variety of applications: “Members of a trade union are permitted to make rules regarding their work, such as an agreement that each worker does not sell his wares on the day his colleague is selling those wares, and they may impose sanctions on any member who fails to abide by these rules.” Thus, one can argue that confiscation should be allowed as a sanction upon the students for not following classroom or school rules.
ט״ו
15Rama clarifies, however, that this Halachah applies only if all the members of the group agree to these rules. Rav Henkin rejects applying this rule to our question because he argues that imposing sanctions would require the agreement of both parents and students. However, if the school has a rulebook which states that teachers and administration may confiscate items, and all students sign this rulebook at the beginning of the school year, then there is no question that items may be taken in accordance with the student’s agreement. Although parental consent is necessary to allow confiscation from students who are minors, if the school rulebook sets forth the policies for taking items, parents send their children to the school with the understanding that the rules will be enforced and thus have consented to the rule permitting confiscation when appropriate.
ט״ז
16Moreover, even if this rule is not set forth explicitly in a rulebook, the Halachah defers to the common practices of a locale (Shulchan Aruch C.M. 215:8 and 331:1-2). Thus, Rav Ben Yaakov notes, since the common practice in elementary and high schools is to confiscate items, consent to attend a school constitutes an implicit agreement to allow educators to take away items that disturb a constructive learning environment. It seems that if students and/or parents object to this practice, they must specify this objection in advance in order for their opinions to have halachic significance. Otherwise, the rules follow the common practice.146In some cases, common practice may be different at different types of yeshivot. For example, a radio may be perfectly acceptable to bring to occasionally use in a dormitory of a certain type of yeshiva yet it is totally unacceptable in a different type of yeshiva.
י״ז
17Rav Ben Yaakov adds that the items that youngsters bring to school may actually belong to their parents, who have allowed their children to make use of their property. Rav Ben Yaakov argues,
י״ח
18Since parents send their children to school in order to learn and become educated, it is obvious that the parents’ intention is that if their children will use those items in a manner that will disturb their study, the educator is permitted to take the items and return them at a later date.
י״ט
19Rav Ben Yaakov makes this assumption even in the absence of a school rulebook which sets forth a rule regarding confiscation. One might respond that in today’s age, when some parents overindulge their children, this assumption is not necessarily valid. Thus, it is preferable for a school to clarify this issue in advance with explicit written guidelines as to the consequences of using items that disrupt the educational environment.
כ׳
20Conclusion
כ״א
21Mainstream halachic opinion, which is reflected in practice in most Orthodox Jewish educational settings both in Israel and North America (as noted by Rav Ben Yaakov and Rav Bush), permits confiscating items from students if the educator believes that it distracts the students from learning. However, all committed Jews aspire to creating communities where teachers and students are fully invested in their partnership of learning. In such an environment, the question of confiscating items that detract from learning becomes a moot issue, since everyone is learning to the best of their ability, as prophesied by Yeshayahu (54:13): “And all of your children will be students of Hashem, and your children will have much peace.” We pray to speedily attain that situation.
כ״ב
22In our last essay, we concluded that mainstream halachic opinion, which is reflected in practice in most Orthodox Jewish educational settings both in Israel and North America, permits confiscating items from students if the educator believes that the items distract students from learning. We shall now discuss the responsibilities of educators to properly guard the confiscated items and the ramifications if the items are lost.
כ״ג
23Words of Caution
כ״ד
24Rav Yehuda Henkin writes (in his argument to forbid educators to confiscate items, Techumin 8:186-199 and Teshuvot Bnei Banim 2:47) that the confiscated items are often not returned to the students, and thus the Rambam and Shulchan Aruch’s concern (cited in the last chapter), that one will become habituated to theft, is fulfilled. Although this is presumably insufficient reason to ban confiscation altogether, Poskim who permit confiscation would agree that teachers should not abuse this permission. Indeed, Rav Asher Bush (Teshuvot Shoel Bishlomo number 57) cautions:
כ״ה
25However, these justifications (to allow confiscation) do not apply to teachers who continually neglect to return confiscated items. It does not matter whether the items are lost through negligence or indolence (e.g., by placing all confiscated items in an unorganized pile and forgetting which item belongs to which child). The educational loss exceeds the educational gain, since the students are thereby taught poor character traits instead of ethics. Even worse is the practice of some teachers to give the items to their children or to other students. In such a case, they certainly violate the prohibition to steal, even if they have good intentions.
כ״ו
26If the School Loses the Item
כ״ז
27As Rav Bush indicates, educators bear the responsibility to watch the items they confiscate. In fact, if they fail to watch them properly, they can be held liable under the laws of shomrim (guardians). The extent of the liability is disputed by Rav Uri Dasberg and Rav Zvi Yehudah Ben Yaakov (Techumin 19:53-54).147It appears that the dispute between Rav Ben Yaakov and Rav Dasberg is actually a dispute between the Machane Ephraim (Hilchot Shomerim no. 31) and the Ketzot Hachoshen (291:6) that is cited in the Pitchei Teshuvah (C.M. 303:1). Rav Dasberg believes that watching confiscated items is part of a teacher’s job, so he/she is considered a shomer sachar (paid watchman), whose liability applies even to a case of theft or acccidental loss. The teacher’s salary, argues Rav Dasberg, includes payment to watch the items confiscated in order to facilitate learning. He argues that the educator’s situation is similar to a worker who is hired (using the terminology of Bava Metzia 10a) “to work for me today” as opposed to one who is hired to perform a specific task.
כ״ח
28Rav Ben Yaakov believes that the teacher, by watching the item, is performing his/her duty, but not one of his/her responsibilities as a teacher. The teacher, he argues, is paid only to teach. Thus, when watching confiscated items, the teacher is regarded only as a shomer chinam, who pays if the item is lost or damaged due to negligence but not if it is lost is due to theft or accidental loss. As evidence to his assertion, Rav Ben Yaakov cites Teshuvot Divrei Malkiel (3:172), who discusses whether a synagogue attendant has the status of a shomer chinam or shomer sachar. He cites the Radbaz, who rules that since he receives a salary for his work and not for guarding lost items, he is classified as a shomer chinam. Rav Ben Yaakov argues that the same should apply to a teacher.
כ״ט
29Since this issue remains a matter of dispute, it is resolved in favor of the Muchzak (the one in possession of the money). Thus, in practice, an educator is held liable only to the extent that he acted negligently.
ל׳
30A shomer is expected to guard an item in the normal manner of watching that type of item (Shulchan Aruch C.M. 291:13, based on Bava Metzia 42a). Thus, if an educator does not label which item belongs to which particular student and thus is unable to return the confiscated items to the appropriate owners, he is held liable for losing the item.
ל״א
31
ל״ב
32Ba’alav Imo
ל״ג
33The Torah (Shemot 22:13-14) sets forth the rule of ba’alav imo, that a watchman or borrower is exempt from payment for loss of an item if he employs the owner of that item (see the Torah Temimah ad. loc. for explanations of this rule; one thought is that one cannot simultaneously be obligated to a person and have that person be obligated to him/her). The Shulchan Aruch (C.M. 346:13, based on Bava Metzia 97a) sets forth the rules regarding teachers and students in relation to the rule of ba’alav imo:
ל״ד
34If a teacher’s students must study any Talmudic tractate he chooses, and even if they started one tractate, he may change it to another, the students are ‘lent to him’. Therefore, if the teacher borrowed from one of the students, [the teacher is excused from indemnification in case of loss, since] it is a case of Ba’alav Imo. However, if the teacher must study whatever the students wish to study then ‘he is lent to them.’ … If the decision must be made by both teacher and students…neither are considered to be lent to each other.
ל״ה
35Rav Ben Yaakov argues,
ל״ו
36It seems to me that in today’s schools, the administration is permitted to set the curriculum at all times without the consent of the students. Thus, it is considered as if the students are lent to the school, and it is classified [when an educator watches an item for a student] as Ba’alav Imo (thus, the educators are excused from payment if they lose the students’ items).
ל״ז
37This argument, in my opinion, is far too narrow and disregards the bigger picture. Schools today, at least within Modern Orthodox circles, are hardly the autocratic educational environments of yesteryear. Teachers and administrators cannot capriciously change the curriculum. Moreover, a school which seeks accreditation from national secular organizations (a widespread practice within the Modern Orthodox community in North America) must present a curriculum to the school’s parent body. Certainly, in Jewish schools in the United States, since the students pay to attend school, and there is an independent board of directors, the educational arrangement cannot be considered ba’alav imo. Thus, educators cannot excuse themselves from indemnification in case of loss with the claim of ba’alav imo.
ל״ח
38Guarding an Item on Behalf of a Minor
ל״ט
39In addition, even when the educator watches a minor’s item, he is not excused from paying based on Shulchan Aruch C.M. 96:1, which excuses a shomer from responsibility when watching an item for a minor. This is because the Shach (C.M. 96:2) rules that if the shomer is negligent, he pays even if the owner is a minor. Although the Ran (Shavu’ot 22b in the pages of the Rif, quoting the Rashba) excuses the shomer even in case of negligence, the Aruch Hashulchan (C.M. 96:2) rules in accordance with the Shach. In addition, Rav Yitzchak Elchanan Spektor (Teshuvot Nachal Yitzchak 96:2:2) presents an additional argument in favor of responsibility of one who guards an item on behalf of a female minor. Finally, if one assumes that the item is truly owned by the parents of the student (as Rav Ben Yaakov, quoted in the last chapter, argues), the educator is essentially guarding the item on behalf of an adult.
מ׳
40Lifnim Mishurat Hadin – Acting Beyond the Letter of the Law
מ״א
41Finally, an educator whose negligence caused the loss of a youngster’s confiscated item creates a very negative impression of Torah if he seeks to escape responsibility with “technical excuses” such as ba’alav imo or that one is not responsible to a minor. The Torah (Devarim 6:18) commands us, “v’asitah hayashar v’hatov b’einei Hashem,” “Do that which is just and good in the eyes of Hashem.” The Ramban (ad. loc.) explains:
מ״ב
42The intention of this verse is to teach that while we must keep God’s specific laws, we must also institute what is ‘the good and straight’ in those areas in which God did not issue any specific rules. This is a great matter because it is impossible for the Torah to regulate every area of human behavior on both an individual level and a communal level. After the Torah presents a number of general ethical commands, such as not to gossip and not to take revenge…it commands us to do good and right in all areas.
מ״ג
43The Gemara strongly encourages us to act lifnim mishurat hadin, beyond the strict letter of the law. In fact, the Gemara (Bava Metzia 30b) stresses the importance of a beit din’s ruling lifnim mishurat hadin, suggesting that Jerusalem was destroyed because its courts ruled according to only strict justice, not lifnim mishurat hadin. Elsewhere (Bava Metzia 83a), the Gemara records another application of lifnim mishurat hadin:
מ״ד
44 Some porters [negligently (see Rashi and Maharsha)] broke a barrel of wine belonging to Rabbah bar bar Channah. He seized their garments [as a form of payment], so they complained to Rav. Rav told [Rabbah bar bar Channah], ‘Return their garments.’ [Rabbah] asked, ‘Is that the law?’ Rav replied, ‘Yes, [as the Pasuk (Mishlei 2:20) states,] “You shall walk in the way of good people.” [Rabbah] returned their garments. They further claimed [to Rav], ‘We are poor men, have worked all day, and are hungry. Are we to get nothing?’ Rav ordered [Rabbah], ‘Pay them.’ He asked, ‘Is that the law?’ Rav replied, ‘Yes, [as the Pasuk continues,] “And you shall keep the ways of the righteous.”
מ״ה
45Educators who lose students’ property due to negligence should act lifnim mishurat hadin and not seek to excuse themselves from responsibility based on ba’alav imo or lack of responsibility toward a minor. Educators must exemplify the highest of ethical standards and might even be obligated to act lifnim mishurat hadin. Indeed, Rav Yitzchak Herzog (Teshuvot Heichal Yitzchak C.M. 101) writes, “The community must act Linim Mishurat Hadin.” Those representing a community organization such as a yeshiva clearly are included in this statement.
מ״ו
46Conclusion
מ״ז
47Educators who are negligent in their guarding of confiscated items must indemnify the students the value of the item that was lost. The value is calculated by the market value of the lost item; if there is no market for the item (certain used items have no market value), the educator must replace the lost item (see Rav Yonatan Blass’ discussion of this issue in Techumin 13:388-406).