Before leaving for an extended vacation, you entrust your gold-colored convertible Porsche to your best friend, a car enthusiast like yourself, to take care of it until your return. To ensure the engine is in working order when you get back, you instruct your friend, whom we’ll call Shlomo One, to take the car out for a run each day but you do not pay him for his trouble.
Two weeks later, while you are sunbathing at Club Med, he decides to go on vacation himself for two days. So he drives your Porsche to Shlomo Two, who owns a parking garage, and pays him $50. While pulling her car out of Shlomo Two’s parking lot, Jane, a customer of Shlomo Two, hits your Porsche, causing it extensive damage.
When you get back from your vacation, Shlomo One returns your car damaged, and though he’s embarrassed, he feels no obligation to pay for the damage. “After all,” he explains, “I did not abandon your car. I handed it over to Shlomo Two, a professional parking garage owner, and I even paid him. I am afraid you will have to take it up with the garage owner.”
When you confront Shlomo Two, he maintains the damage was an accident beyond his control because Jane had no right to drive the car in the parking garage and should have waited for Shlomo Two to drive it out for her. So you take Shlomo One to bet din and ask the dayan, the judge, to figure it out.
Shlomo One has the Status of a shomer chinam, an unpaid bailee who has agreed to guard a deposited item free of charge. As such, he is not legally responsible for accidental damage caused without any negligence on his part. Shlomo Two has the status of a shomer sachar, a paid bailee who receives compensation for guarding the item. As such, he has a greater duty of care to look after the deposited item because he is being paid for his trouble. Accordingly, he is responsible for accidental damage caused even if he was not guilty of negligence.
“But what do you want from me?” argues Shlomo One. “I acted responsibly. I gave the Porsche to a shomer sachar who has an even greater duty of care toward you than I do.”
In this situation, the dayan will rule against Shlomo One. This is because, unless you explicitly permitted Shlomo One to entrust the car to Shlomo Two or unless such permission can be implied from your past behavior, Shlomo One has no right to do what he did.
You can say, “Ein retzoni she’yeheh pikdoni beyad acher – I placed my trust in Shlomo One because I know him but I do not know Shlomo Two.” One cannot be required, after the fact, to trust somebody one does not know, even if that person has a higher standard of care with respect to the deposited item. If Shlomo One wants to be made whole after paying you for the damage, he will have to sue Shlomo Two. Depending on the circumstances of the case, Shlomo Two may be held liable if the court finds he did not guard the vehicle in keeping with the higher standard of care of a shomer sachar, or he may be exonerated if the court finds he did discharge his standard of care and the damage was caused by an accident beyond his control.
There are, however, two qualifications to the rule of ein retzoni she’yeheh pikdoni beyad acher. If in the past you entrusted your car to Shlomo Two, then Shlomo One has the right to do so too. This is the case even if you did not explicitly authorize Shlomo One to do so. Shlomo One may infer this permission from your own past conduct.
The same is true if Shlomo One entrusted the car to an adult member of his family. When you entrust your car to your friend, there is an implied understanding that your friend may delegate the responsibility to adult members of his family.
What if the damage was not accidental but was caused by the negligence of Shlomo Two or Shlomo One’s adult family member? They rammed their car into yours at 70 miles per hour. All bailees, even a shomer chinam with the lowest standard of care, are responsible for damage caused by negligence. Does Shlomo One remain on the hook for the negligence of Shlomo Two or for the negligence of his adult family member as if he were negligent himself? Or can he claim that by handing over the deposited item to a person the owner trusts, he is not responsible for that person’s negligence?
According to the Rosh, Shlomo One always remains liable to the owner for the negligence of Shlomo Two or for the negligence of Shlomo One’s adult family members. According to the Rambam, Shlomo One remains liable to the owner for the negligence of Shlomo Two, but not for the negligence of his adult family members.
As explained by the Lechem Mishnah, this is because it is natural for a person to rely on the help of his adult family members and the owner is deemed to impliedly consent to the transfer of all responsibility to Shlomo One’s family member. It is not that natural, however, for Shlomo One to entrust the deposit to Shlomo Two, even when the owner, in the past, did so himself. Accordingly, Shlomo One will always remain on the hook for the negligence of Shlomo Two.