Question: I put down my shopping bags outside the supermarket and promised a boy $5 to watch them while I got my car. One of the bags was stolen. Is he responsible for the theft?
Answer: If the boy did not touch the bags, there is a dispute on this issue. The Gemara (B.M. 99a) teaches that just as a purchase requires a kinyan (act of acquisition) to confirm the transaction, a guardian also requires a kinyan to assume legal responsibility for the item.
The Rambam (Hil. Sechirus 2:8) accepts this ruling literally. Tosfos and the Rosh maintain, however, that once the owner relies on the guardian and leaves the area, the guardian becomes obligated, even if he did not make a kinyan. The Shulchan Aruch is inconclusive on this matter (C.M. 291:5, 303:1, 307:2, 340:4), but the achronim lean towards the opinion that a kinyan is required (Shach 291:13; Aruch Hashulchan 291:14).
Therefore, if the boy did not make an appropriate kinyan on the bags, he does not become legally responsible for them. This is true even for a shomer sachar, although he forfeits his payment if he did not watch properly (see 301:1). To assume legal responsibility, the boy would have to pick up or move the bags, have them placed in his property, do a kinyan sudar, or give a handshake (if that is the common practice). However, he does bear a moral responsibility to pay if the theft was caused by careless negligence (see Aruch Hashulchan 291:15; Imrei Bina, Hil. Pesach
Authored by Rabbi Meir Orlian
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