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The case of the missing basket | The Jewish Press – | Rabbi Meir Orlian | 14 Iyyar 5782 – 15 May 2022

Photo credit: Jewish Press

One morning, Mr. Fisher came home from the shul and saw a shopping cart sitting on his sidewalk. “This shouldn’t be sitting here!” he exclaimed. “It’s an obstacle!”

He moved the cart to the sidewalk.

When Mr. Fisher came home from work, he noticed that the shopping cart had disappeared. “Does anyone know what happened to the basket?” he asked his family.

“The sanitation service has passed,” said his wife. “They took it with the trash.”

“Oh, I forgot today is pick up day for metal recycling,” Mr. Fisher said. “The cart wasn’t in great shape, so I guess they thought it was a trash can, too.”

Mr. Fisher tried to find out who the shopping cart belonged to. He found that it belonged to a local grocery store.

“We have to talk to them,” said his wife. “You may have to pay them for the basket.”

“I didn’t want him to get caught,” Mr. Fisher said. “I was just getting rid of it.”

“Nevertheless, you should have put it aside in a safe place,” replied his wife, “not on the sidewalk on pick-up day.”

“What is the difference?” said Mr. Fisher. “Anyway, someone has already removed the cart from the store.”

“So maybe you should have taken it back to the store!” said his wife.

“If they don’t pay attention to their own objects, why should I? Mr. Fisher argued.

“Even so,” his wife argued, “moving the cart close to the sidewalk was not a wise thing to do.”

Mr. Fisher decided to call Rabbi Dayan and asked:

“Am I indebted to the store for the basket?”

“Whoever sees a lost object but ignores it, and then got lost, is not responsible unless he picked it up and became responsible for it. Some suggest, however, that he might have a moral obligation” (Gra CM 348:23; Mishna Berurah 443:12; Rama CM 263:3; Pishei Choshen, avidah 1:3[8]).

“However, as soon as a person takes in hand an object for which he has an obligation to hashavas aveidahwith the intention of returning it, he is responsible for it as guardian. [Shulchan Aruch writes that he becomes a shomer sachar; Rama maintains a shomer chinam.] If he has subsequently been negligent towards the object and left it in an unsafe place, he is responsible for it (CM 267:16).

In this case, although moving the basket is an appropriate act of kinyan for such an item (mechicha), you had no intention of giving it back or taking it, just putting it aside. Thus, you did not become responsible for it (CM 198:1; Ketzos 259:1).

Additionally, there may be no obligation to hashavas aveidah, even in a place where most passersby are Jewish and the grocery store is owned by Jews. Indeed, some grocery stores allow their customers to take carts outside to load their car, etc. If the store itself isn’t paying attention to their carts, you don’t have to return the one that gets lost. It’s called aveidah mida’as. In some cases, Rama considers aveidah mida’as as hefkerbut probably he would agree here with the Mechaber that you couldn’t take it for yourself (see CM 261:4; Nesivos 261:1).

“Nevertheless, you have moved the basket to a place where it is likely to get lost, which could be considered garni (loss caused directly). However, you forgot it was recycling day and had no intention of causing damage. According to many authorities, garmi b’shogeg (involuntary garni) is exempt (Shach 386:6; Pishei Choshen, Nezikin 3:37; 5:[78]).

“So,” Rabbi Dayan concluded, “moving the shopping cart to the sidewalk does not make you liable as a guardian, nor did you intend for it to be taken by the service department. sanitation, so you are exempt”.

Verdict: Since you moved the shopping cart aside with no intention of taking responsibility, nor with the intention of causing damage, so it’s only garmi b’shogeg – you are not required to pay for it.