Detailed Explanation
To answer this dilemma, we must address six issues.
1. May a paid trustee [see Issue 80 for T.L.C. (Trustee Liability Chart)] stipulate from the onset that he/she assumes no liability for resultant damages or losses?
2. Assuming a paid trustee may stipulate a "release of liability clause" what is necessary to legally bind such a stipulation?
3. Assuming a paid trustee may stipulate from "release of liability clause" may the paid trustee be negligent with the entrusted article?
4. Assuming a "release of liability clause" includes damages due to negligence, may the trustee damage the article or actively place it in a precarious locale?
5. What defines placing it in a precarious locale?
- Is a paid trustee entitled to receive his/her wages in case of a loss due to negligence, when a "release of liability clause" was set in motion?
♦
1. A trustee may verbally stipulate prior to the commencement of his/her custody to be absolved from liabilities[Choshen Mishpat 296: 5] .
2. It is unnecessary to employ a specific "legal procedure of acquisition" when the two parties agree to ease the defendant's scale of liability at the commencement of the engagement [Choshen Mishpat 296: 5].
3. A stipulation to absolve a trustee from custodial liabilities does not entitle the trustee to damage the article [Tumim 72:23, Glosses of Rabbi Akiva Eiger Choshen Mishpat 305].
4. A well founded Halachic discussion exists as to the nature of negligence in the framework of custodial liabilities...
Do we view negligence as a basic custodial liability or similar to actively damaging the trust?
The overwhelming school of thought views negligence as a basic custodial liability [Choshen Mishpat 305: 4].
As such, an initial stipulation to absolve the trustee from custodial liabilities will include liabilities due to negligence.
5. Placing an article in a locale where there is reasonable probability that it will be lost or destroyed is worse than negligence. Instead it is viewed as damaging the article [Choshen Mishpat 386].
6. A paid trustee who is negligent or fails to protect the trust from theft does not deserve to be paid for his/her security services even if a "release of liability" was set in motion[Mahari Sasoon in Shach Choshen Mishpat : 2 Ketzos HaChoshen Choshen Mishpat 305:2, Nesivos 305:1]
7. However, there exists a valid dissenting view which would award payment to the paid trustee under such circumstances, if there is valid reason to assume that the depositor agreed to pay the trustee simply for bothering to deal with the article notwithstanding the "release of liability clause." [Machane Efraim Shomrim 22, as in Pischei Teshuva].
Application
Sara became a paid trustee. Yet, Sara and Sandy's verbally agreed on a "release of liability clause" which includes being absolved from damages and losses due to negligence.
Nevertheless, the clause does not permit her to actively damage the valise or put it in a position of almost certain loss.
As such, Sara is not liable for the cleaning costs of Sandy's blouse as a result of her neglecting to store the valise away from the mischievous children.
Similarly, as long as leaving the valise in Entrecote does not entail a probable risk that someone will dispose of it or steal it, she may leave it there for Sandy to pick it up.
Nevertheless, Sara now encounters the mitzvah of Hashavat Aveidah, to protect Sandy from suffering a financial loss. As such, she must inform Sandy of the issue. If Sandy can make arrangements to pick up the valise, Sara can go on her way and leave it in the restaurant for Sandy.
If Sandy is not in a position to arrange to retrieve her valise and there is a possibility that the valise will get lost, Sara must take it with her to the Hermon.
In terms of Sara's payment: Her negligence gives reason to argue that she should forfeit her pay. Nevertheless, since there is a valid premise to assume that she was paid for the bother of bringing the valise to the restaurant, of which she carried out, she would be entitled to keep the money Sandy gave her at the onset.
