Shabbat Parashat Yitro| 5767
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Question: I had friends over; I didn’t notice that one of them brought a music CD, which she left in my CD player. A week later she inquired about its whereabouts. We found it outside its case, among an assortment of family CDs. I might have taken her CD out, thinking it was one of the kids’; perhaps my kids (under bar mitzva) did so. My friend later told me that it was scratched and ruined. She did not ask me to pay her, but should I offer?
Answer: As we always preface such monetary questions, we cannot tell you for sure that you are exempt without formally hearing your friend’s version of the story. We will give our thoughts according to your perspective. This is sufficient since your friend has not demanded payment, and you want to know if you should volunteer it.
There are two issues to consider. One is whether you are obligated to pay for failing to watch the CD properly. The other is whether you are obligated as one who might have damaged it.
In general, a person is not obligated to watch something and pay for damages stemming from negligence unless she consented on some level to accept that responsibility (see Bava Kamma 47b). Since you were unaware that your friend’s CD was in your possession, that certainly did not happen.
This case, though, is more complicated because this may be a case where the laws of hashavat aveida (returning a lost object) apply. It is unclear from your description whether your friend realized quickly that the CD was by you (and thus it was not lost) orwhether she wasn’t sure where it was, and it was an aveida. Let us assume the latter. The Torah obligates one who finds an aveida in the laws of a watchman even if he did not intend to become responsible (Shulchan Aruch, Choshen Mishpat 267:16). The question of whether he is like a paid or a volunteer watchman (ibid.) is irrelevant here because either way it is negligent not to put a CD in its case, and all watchmen are obligated to pay for negligence.
One usually becomes obligated in the laws of hashavat aveida, including the obligation of a watchman, at the time he lifts up the object (see Bava Metzia 26b; Pitchei Choshen, Metzia 4:(2)). What happens, though, if one picks up an object without realizing that it is an aveida? There are related discussions on whether one who physically had control of an aveida without fully understanding the scope of his obligation becomes a full-fledged watchman. The Ketzot Hachoshen (291:4) was unsure whether one who found something he thought was cheap is obligated in its full value when it turned out to be more expensive. The implication is that if he had not even realized that the object was a lost one, he would not have been obligated. Similarly, the Machane Ephrayim (Chatzer 5) proves from the Rambam that one who unknowingly has an aveida on his property is not yet considered one who found an aveida. Therefore, in your case, you did not have a watchman’s obligation.
However, even without a watchman’s responsibility, you may be obligated for scratching the CD. In general, one who physically damages an object, even with little personal blame, must pay the damages (Bava Kamma 26a). However, we do not know for sure that you scratched the CD. Something could have fallen on it when it was exposed. Your friend could have scratched it, if not before someone in your house moved it, then perhaps after she took it home. Your kids could have done it, and minors and their parents are exempt from paying for the minors’ damages (Shulchan Aruch, ibid. 424:8). Therefore, a beit din could apparently not obligate you to pay because there is a doubt if you damaged the CD. Poskim discuss whether children who damage should pay when they grow up (see Pitchei Choshen, Nezikin 10:(115)), and parents often pay for their children’s damages. However, a CD’s scratching is common; even proper care does not always prevent it. Therefore, you do not even seem to have a strong moral obligation. On the other hand, it is likely of value to offer your friend at least partial payment and see what she says.
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