On the bimah of the beis midrash stood a maos chittim “pushka” (collection box) on behalf of “Matzos Chesed Organization.” The gabbai (person who assists in the running of a synagogue) emptied the box every few days, finding $200 to $500 on an average week.

One morning, the gabbai came to empty the collection box and found the lock broken and the money gone! He approached Mr. Taub, who was in charge of maintenance, and related what had happened.

“We recently installed surveillance cameras,” said Mr. Taub, “so I might be able to identify the thief.”

Mr. Taub viewed a playback of the previous night’s recording, which showed that towards 3 a.m. a figure had entered the building. Mr. Taub slowed the playback and followed the man over to the pushka and watched him open it. He zoomed in and identified the thief as a member of the community who had declined morally and recently fallen on hard times.

Mr. Taub decided to confront the thief.

“I have a surveillance video recording of you stealing from the Matzos Chesed pushka,” he said to the thief. “Return $400 now or we’re going to prosecute.”

“It wasn’t that much,” said the thief. He pulled out $250 and gave it to Mr. Taub. “That’s all there was.”

“I don’t trust you,” said Mr. Taub menacingly. “I’m giving you two days to bring the remaining $150, or else…”

Mr. Taub returned to the gabbai. “I was able to recover the money!” he exclaimed happily and handed him the money.

“How much was there?” asked the gabbai.

“The thief gave me $250,” replied Mr. Taub. “I threatened that if he doesn’t give another $150 in the next two days, we would prosecute.”

“But if he didn’t take $400, is it fair to make him pay that much?” asked the gabbai.

“How do I know how much he took?” answered Mr. Taub. “For all I know, he took even more!”

“Or, he could have taken less,” said the gabbai.

“Don’t you think we should penalize him anyway?” said Mr. Taub. “Let it be a donation to tzedakah!”

“I don’t think it’s called a donation if you force him to give more than he owes,” said the gabbai. “I’m not sure that what you’re doing is correct.”

“If you want, I’ll discuss the issue with Rabbi Dayan,” said Mr. Taub. He called Rabbi Dayan and asked: “Can I demand that the thief pay me the amount that I estimate?”

Rabbi Dayan answered, “If you cannot clearly state the amount the thief stole, it is not possible to obligate him in more than he admits.”

Rabbi Dayan then explained, “In most charges, if there isn’t clear evidence and the defendant denies the charge, he can swear that he does not owe the amount in dispute and is exempt. However, when there is evidence that someone stole, but the witnesses do not know the amount of the theft, Chazal instituted that the victim can swear how much the thief stole and collect that amount from him. This is known as shevuas hanigzal, the oath of a robbery victim (C.M. 90:1).”

“However,” continued Rabbi Dayan, “if the victim cannot definitively claim how much was stolen, he is not able to swear. Nor can we impose an oath upon the thief, since he is suspected of swearing falsely. Even if the thief admits to having stolen a certain amount, he has to pay only what he admits; it is not possible to obligate him in any greater amount because there is no definitive claim (90:5).”

“What if a suspected thief refuses to admit or admits to an amount that seems unreasonably low?” asked Mr. Taub. “What can be done?”

“Unfortunately, there is not much that can be done nowadays,” said Rabbi Dayan. “Beis din’s only legal recourse is to impose a cherem, or curse, upon one who stole and does not admit (90:5). In previous generations, when beis din had more power, if there was strong basis to believe that a person stole but he denied it, the beis din could consider using certain coercive measures to ascertain the truth (see Pischei Choshen, Geneivah 1:[13]).”

Reuven sent his son to the shoe store right before Pesach to pick up shoes, providing him with clear instructions for the size. He also instructed him to have a shoe repair shop place taps on them. When Reuven tried on the shoes, he realized that the shoe store had given his son the wrong size. The owner admits the mistake but refuses to take back shoes with taps on them.

Q: Does the owner need to accept the return for a full refund?

A: The relevant issue is whether there is liability for damaging purchased merchandise that is, in retrospect, the seller’s object, before realizing that it was defective, in our case the wrong size. Shulchan Aruch (C.M. 232:13) differentiates in such a case between two categories of damage: one resulting from ordinary use of the object, and the other resulting from an unusual use of the object. If the customer used it in an accustomed manner, not realizing that it was defective, he is exempt. If he used the object in an unusual manner, he must pay for the damage.

The Nesivos (ibid 5) hinges the matter on whether the customer should have exercised more caution. Halachah differentiates between circumstances where one should have exercised greater caution - oness k’ein aveidah - and circumstances where there was no reason to have exercised greater caution - oness k’ein geneivah. When handling a newly purchased object, one must consider that the object may be defective and therefore use it in an accustomed manner; otherwise, he will be liable for the damage.

Another rationale why the customer is liable for damages resulting from unusual usage is the ruling that the customer is retroactively an unpaid custodian for damaged merchandise that he will return to the seller. As such, he is liable for acting negligently with the object but is exempt if he used it in an ordinary manner (Divrei Mishpat, ibid).

It would appear, therefore, that Reuven is exempt from paying damages on the returned shoes, since putting taps on shoes is considered ordinary usage. Further consideration, however, indicates otherwise. It is not uncommon for one who orders merchandise to receive the wrong item (e.g. wrong color, size, etc.); therefore, one should not physically change that item until he confirms that it meets his specifications. In particular, when purchasing merchandise in the busy erev Yom Tov season, one should realize that people are prone to making mistakes when filling an order.

Accordingly, the storeowner must take back the shoes since he gave the wrong size, but the customer must reimburse him for putting taps on the shoes if it reduced the value of the shoes. If the owner would be able to sell them for a higher sum to someone who appreciates having taps already on the shoes, the original customer would receive that profit (C.M. 323:14).

Q: A boy entrusted his card collection to a friend. If one of them is not yet bar mitzvah, is there liability of guardianship?

A: A minor under the age of bar mitzvah is not considered of legal mind (bar da’as) to be liable for guardianship. A person who entrusts an item to his care is aveidah mida’as, a willing loss (see C.M. 291:21; 188:2).

Therefore, if the cards were entrusted to a minor child, he is not liable for them, even if lost through negligence (p’shiah). Even when the boy grows older, he has no moral obligation to pay, unlike a child who damages (Pischei Choshen, Pikadon 1:17). [Parents should consider, nonetheless, their broad chinuch goal to train financial responsibility.]

When a minor entrusted his cards to a friend who is already bar mitzvah, the Shulchan Aruch rules that the guardian carries full responsibility towards the minor, including the Torah-imposed oath. The Rema, however, rules that the Torah oath does not apply to property entrusted by a minor (302:2; 96:1).

Some maintain that even according to the Rema there is a rabbinic responsibility of guardianship towards the minor (GR”A 96:8, but see P.C., Pikadon 1:[35] citing Imrei Yosher). The Shach (96:2) maintains that the guardian is liable, even according to the Rema, if he was negligent with the minor’s property.