גריי מאטר ד, בית דין, החרמת חפצים מתלמידים ב׳Gray Matter IV, Beit Din, Confiscating Items from Students 2
א׳
1In 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.
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2Words of Caution
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3Rav 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:
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4However, 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.
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5If the School Loses the Item
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6As 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.
ז׳
7Rav 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.
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8Since 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.
ט׳
9A 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.
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10
י״א
11Ba’alav Imo
י״ב
12The 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:
י״ג
13If 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.
י״ד
14Rav Ben Yaakov argues,
ט״ו
15It 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).
ט״ז
16This 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.
י״ז
17Guarding an Item on Behalf of a Minor
י״ח
18In 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.
י״ט
19Lifnim Mishurat Hadin – Acting Beyond the Letter of the Law
כ׳
20Finally, 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:
כ״א
21The 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.
כ״ב
22The 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:
כ״ג
23 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.”
כ״ד
24Educators 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.
כ״ה
25Conclusion
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26Educators 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).