The Playgroup and the Missing Shoe: A Halachic Analysis

(By Rabbi Yair Hoffman for 5tjt.com)

It happens a lot more often than we think.

A young child was dropped off at a playgroup. The child was dropped off in the morning with two socks and two shoes. Upon pickup, however, the child is wearing the two socks, but is only wearing one shoe. The shoes are relatively expensive ($60). Who is responsible for the shoe? Is the playgroup owner considered a shomer [a watchman] for the clothing of each child? If so, what type of shomer? Also, does the age of the child matter?

What happens when it was not a playgroup, but a divorced parent’s overnight visitation? The mother dropped off the child with two shoes at the father’s house. The child returned with one shoe missing. Must the father compensate the mother for the shoe?

FOUR TYPES OF GUARDIANS

There are four types of guardians of an item that are discussed in the Torah (Shmos 22:6-14). Each one of them possesses a varying degree of halachic responsibility as explained in the Gemorah Bava Metziah 94a-95b:

A) the unpaid guardian (shomer chinam),
B) the paid guardian (shomer sachar),
C) the borrower (sho’el), and
D) the renter (socher).

The Gemorah discusses five types of cases: 1] Negligence (Pshiyah) 2] Lost 3] Stolen 4] Broke or Died 5] Taken captive. There are thus a total of twenty cases that the Gemorah discusses all in all. In cases of negligence – all four guardians must pay. In every other case (2-5) the unpaid guardian is exempt. Paid guardians and borrowers in all cases of lost or stolen are responsible.

THE PLAYGROUP

So is the playgroup owner considered a paid guardian or an unpaid guardian regarding the child’s shoes? If she is an unpaid guardian, then she would be exempt from paying the cost of the shoe. If she is a paid guardian – then she would be obligated in compensating the parents for the cost of the shoes. How does halacha view her?

RAV NISSIM KARELITZ’S VIEW

In a Sefer entitled B’zos Yavoh Aharon (by Rabbi Aharon Yehoshua Pessin p. 504) Rav Nissim Kareliz is cited as ruling that for a playgroup with older children, it would not make sense to hold the playgroup owner responsible for the child’s clothing. Apparently, in Rav Karelitz’s view, she is being paid to watch over the children and not their clothing per se. For younger children, however, Rav Karelitz shlita ruled that the playgroup owner is responsible. The case in question was where the child was 18 months old. In that case, the playgroup owner would be responsible.

AT WHAT AGE WOULD THE PLAYGROUP OWNER BE EXEMPT?

What would be the age where the playgroup owner would be exempt? There is no further information given regarding this issue. This author would attempt to guess that the cutoff should be at four years of age. But, we should defer to the experts in this area.

HOW MUCH SHOULD BE PAID?

Rav Karelitz ruled that, notwithstanding the fact that the shoes were used, the playgroup owner should pay the cost of a new pair of shoes. Indeed, in this particular case, the shoes were purchased at a thirty percent off sale that was no longer in effect. Rav Karelitz is cited as having ruled that there should be a compromise worked out and that the playgroup owner should actually pay fifteen percent more than the parent had actually paid at the 30 percent off sale!

This ruling is interesting, because it seems to go against the standard procedure that Batei Dinim usually apply in such cases.

Generally speaking, damage is evaluated at the value that existed at the time that the damage happened (See Bava Kamma 11a and SA CM 403:1). At the time, the shoes were a used pair. It is also in accordance with the damaged at that time. The damages are arrived at by subtracting the value of the item before it was damaged with the value of the item after it was damaged. The broken item is given to the victim and the damager pays him the cost of the damage (See CM 387:1). Some are of the opinion that the damager is obligated to pay for the repair of the item, if the victim so desires (See Shach CM 95:18).

If so, why did Rav Karelitz rule (if we accept the account of the ruling in the sefer as accurate) that the playgroup owner should pay more than the original cost of the shoe?

OTHER POSSIBILITY

There is another halachic debate, that in this author’s view, could weigh in significantly on our issue. It is a debate between the Nesivos and the Chazon Ish regarding whether one is responsible for damages to something that only has personal value. The Chazon holds that one must pay such damages and that may explain Rav Karelitz’s view of paying the original cost of the shoes.

THE VIEW OF THE NESIVOS

The Nesivos (CM 148 Biurim #1) writes regarding someone who was damaged in something that has no general market value but has a high value to the person that was damaged – the person who did the damage does not have to pay that value. In other words, the Nesivos is of the opinion that damages do not have to be paid for something that only has personal value to the victim but not a general market value.

TWO PROOFS OF THE NESIVOS

The Nesivos cites two proofs to his view. One proof is from the Gemorah in Bava Kamma 89a. The Gemorah there discusses aidim zomemim – false “conspiring witnesses” who tried to deprive a woman of her Kesuvah by testifying that her husband has divorced her and paid her Kesuvah. It is later found that she is still happily married to him. How much do the conspiring witnesses have to pay? It is not the full amount of the Kesuvah but rather the far less amount called tovas hana’ah. This is the estimated value of what a person would pay to purchase her possible future kesuvah in the event that she becomes widowed or divorced. If she predeceases her husband then the purchaser loses out. Abaye concludes that the Tovas Hana’ah value belongs to the wife – not the husband. Because if it belonged to the husband, the conspiring witnesses could say, “What loss have we caused you? Either way, you would not have received the money – it would go to your husband!” Now if something that had no value to that person was still considered “money” – then she could still say – “So what, it has value elsewhere!” The Nesivos concludes that one does not have to pay when there is no specific value connected to the item.

The second proof that the Nesivos cites is from Kesuvos 30b regarding a non-Kohen who swallowed Trumah. He is exempt from paying damages because of the concept of kim lay bederaba minay – since he receives the punishment of a heavenly death penalty – he is exempt from punishment of payment for the benefit he had in the mouth and in the stomach. Tosfos conclude that it refers to a case where it had no value to others at the point when it was swallowed but had value to him. The Nesivos concludes that this is not considered “money” that one would have to pay damages for.

The Chazon Ish (Bava Kamma 6:3), on the other hand, is of the opinion that something that is only of personal value to the person that was damaged is considered to be damaging something of value (mammon) and would be obligated to pay. He cites a proof from the Gemorah in Gittin 53a, where Kohanim who had incorrect thoughts of Pigul for a non-obligatory offering still have to pay the owner. Even though the animal would have no value to anyone else – it did have value to him because he wanted to offer it.

The debate between the Nesivos and the Chazon Ish is cited by Rav Ben Tzion Abba Shaul zt”l in his Ohr L’Tzion (Vol. I CM Siman 4). Rav Ben Tzion Abba Shaul is of the opinion that the Chazon Ish is correct. Rav Shlomo Zalman Auerbach zt”l (Minchas Shlomo Vol. III #106) also rules like the Chazon Ish.

The view of Rav Kareliz fits in with the aforementioned Chazon Ish – that the playgroup owner should pay the replacement value of the shoes.

HAS THE NESIVOS’S VIEW BEEN REJECTED BY NORMATIVE HALACHA?

Has the view of the Nesivos been entirely rejected from normative halacha? Can the concept of Kim li kehani Poskim [I know that the halacha is like these Poskim] be used by the playgroup owner to exempt herself from paying the damages?

It is this author’s understanding that contemporary Batei Dinim might combine the Nesivos’s view into a mix if there was another factor benefiting that side’s claim exists. Otherwise, they generally follow what the Pischei Choshain zatzal writes that the custom is to follow the Chazon Ish’s view.

Regarding the actual damages, it would seem to this author that most Batei Dinim would negotiate a settlement between the current used value of such shoes and what the replacement value would be. Generally speaking, since evaluations are very different, the Mishpat HaMazik (32:3) rules that the owner and the damager should always try to negotiate settlements.

CONCLUSION

Although there is halachic significance to all cases, the people themselves should not be so demanding and rigid. Kids tend to be kids, and we should not hold people responsible for payments of these things – even if halacha would require them to pay. The jobs of playgroup heads are hard enough – let’s cut them a little slack.

The author can be reached at [email protected]