At the conclusion of a morning class, Moshe turned to his classmate Yossi.
“I’m heading to a cousin’s bris and then going shopping,” he said. “Could you take my backpack home with you? I’ve got a new laptop in it. ”
“No problem,” said Yossi, taking the backpack.
During lunch break, Yossi met with some friends in the park. While they were eating, his father called, saying he was stuck with the car and needed help.
“I’ve got to run,” Yossi said to his friends. He turned to Nachman, who lived a few doors away from him. “Someone asked me to watch his backpack, with a laptop inside,” he said. “Can you please take it home? I’ll pick it up in the evening.”
“Sure,” said Nachman. “Give it to me.”
Yossi handed the backpack to Nachman, who put it down next to him.
While the group was sitting there, someone came from behind Nachman. He grabbed the backpack and fled. They jumped up and began to chase him, but the thief hopped on a bicycle and got away.
In the evening, Yossi came to collect the backpack. “I’m sorry, but a thief came and stole it,” Nachman related. “You can ask the rest of the group; they witnessed it with their own eyes.”
“You’re kidding!” exclaimed Yossi. “What am I going to tell Moshe?”
“You were an unpaid guardian [shomer chinam] and so was I,” replied Nachman. “Just say that an unpaid guardian is exempt from theft [C.M. 291:1]. Sorry about the loss, but there’s nothing to do.”
Yossi called Moshe. “Real sorry about the backpack,” he apologized. “I was at the park with some friends. My father needed help with his car, so I entrusted the backpack with one of my friends, Nachman, and it got stolen in broad daylight.”
“It was wrong of you to have given the backpack to Nachman,” Moshe said. “You were negligent. You’ll have to pay for the laptop.”
“How was I negligent?” replied Yossi. “Nachman’s a reliable fellow.”
“Why should I trust Nachman?” asked Moshe. “I barely know him.”
“But there were witnesses there,” said Yossi. “They’ll tell you it was stolen!”
“It’s still your fault,” argued Moshe. “Had you kept the backpack with you, it wouldn’t have been stolen.”
“That doesn’t make me negligent,” replied Yossi. “I entrusted the backpack to someone competent.”
“Well, let’s take it up with Rabbi Dayan,” Moshe said. Yossi agreed.
“I entrusted my backpack with Yossi,” Moshe told rabbi Dayan. “He handed it over to his neighbor Nachman, and it was stolen. Is Yossi liable for the backpack?”
“If there is no evidence to the theft, Yossi is liable,” answered Rabbi Dayan. “However, if there are witnesses to the theft, Yossi is exempt.”
“There is evidence of witnesses here,” said Yossi. “But why couldn’t Nachman swear the backpack was stolen, like other guardians?”
“The Gemara [B.M. 36a-b] discusses the case of a guardian who handed the entrusted item over to another guardian [shomer shemasar l'shomer],” explained Rabbi Dayan. “Rav exempts the initial guardian if the item was stolen, because he gave it to a competent person. However, the ruling is like Rav Yochanan, who obligates the initial guardian.”
“Why is he liable?” asked Moshe. “What is Rav Yochanan’s rationale?”
“This is a dispute between Abaye and Rava,” answered Rabbi Dayan. “Abaye explains that a person does not want his item entrusted with a third party. Thus, the initial guardian was inherently negligent in handing it over to another person. Rava, however, explains that although it was wrong to hand the item over to another person, this does not constitute negligence and does not make him liable. Rather, the first guardian is liable because the owner can refuse to believe the oath of the second guardian that the item was stolen, so the concern of actual negligence remains.”
“What is the difference between these two reasons?” asked Nachman.
“There are three differences, situations in which the reliability of the second person is not an issue,” replied Rabbi Dayan. “For example, if the owner commonly entrusts the second guardian with comparable items, he cannot say that he does not trust him; he would have to accept his oath. A second difference is when the initial guardian was also present at the time of the theft; he can swear about the theft to exempt himself. A third difference is our case, where there are witnesses to the event; there is no need here for an oath by the second guardian.”
“The halacha is in accordance with Rava’s rationale,” concluded Rabbi Dayan. “Thus, Yossi is exempt from the theft, as any other unpaid guardian [shomer chinam]. despite the fact that he handed the item over to another person.” (C.M. 291:26; Shach 291:47)
About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to email@example.com. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail firstname.lastname@example.org.
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