Rabbi Dayan received a response to his Chanukah article, which related that Yehuda brought his penny collection to use in class for playing dreidel but had asked for an extra jelly doughnut, and the pennies were robbed by an armed thug. The ruling was that the Rebbi and class were exempt, since they had the status of socher, renter, who is exempt from oness.
The reader asked: “Even if the Rebbi were considered a sho’el, borrower, who is liable for oness, wouldn’t he still be exempt because of b’alav imo, since Yehuda, their owner, was in the room with him during the theft?”
“That’s an interesting point,” Rabbi Dayan mused. “I didn’t consider that angle.”
“In truth, b’alav imo does not apply here,” Rabbi Dayan replied, “but this is a good opportunity to explain the halachic understanding of this exemption.”
“Under what circumstances does the Torah exempt guardians or a borrower when b’alav imo?”
“In Parshas Mishpatim, the Torah delineates four kinds of guardians, each with its own rules of liability: shomer chinam (unpaid guardian), shomer sachar (paid guardian), socher (renter), and sho’el (borrower).
“The borrower carries the greatest liability, even if the borrowed item died or broke due to uncontrollable circumstances, oness. The rationale is that he is granted use of the item gratis and receives all the benefit (C.M. 340:1).
“Nonetheless, the Torah states that the sho’el is liable only when “the owner is not with him.” However, when “the owner is with him” – b’alav imo – the sho’el is exempt (Shemos 22:14).
“The Gemara (B.M. 94a ff.) discusses the parameters of this exemption. It explains that the Torah’s intent is not according to the simple meaning that the owner was present with the borrower when the incident occurred. The meaning, rather, is that the owner was in the service of the borrower – imo b’melachto – with him in his work. So if the lender was working for the borrower, the borrower is exempt (Rashi, B.M. 94a).
“Thus, for example, if someone borrowed an animal or tool, whether for pay or gratis, and the owner was working with him, the borrower is exempt if the item was ruined (C.M. 346:1).
“The Gemara further explains that it does not make a difference whether the owner was working with him on something connected to the borrowed item or in other work. “It also concludes that the critical time is when the borrower’s responsibility is established, i.e., when he borrowed the item. If the lender was in his service at that time, the borrower is exempt, even if the lender no longer served him at the time of the incident. Conversely, if the lender was not serving the borrower when he borrowed the item, even if he served him later at the time of the incident, the borrower is liable (C.M. 346:1-4).
“The Gemara derives further that this exemption applies to all four guardians, and not only to oness, but even to cases of theft, loss, and – according to the accepted opinion – even to negligence (C.M. 295:28; see Aruch HaShulchan 291:6).
“Thus, the fact that the owner of the pennies, Yehuda, was present when they were robbed does not invoke the exemption of b’alav imo, since Yehuda was not in the service of the teacher or class who borrowed them.
“The exemption of b’alav imo could be applied, though, if the Rebbi asked Yehuda to bring him a cup of water to drink when he accepted the pennies. In this case, Yehuda would be in his service, albeit for gratis, when the teacher borrowed them (C.M. 346:1).
“Alternatively, it could apply in the opposite case, had the Rebbi lent the pennies to the students. Here, he was in their service, since he was hired to teach them, and was working for them when they borrowed the pennies from him” (C.M. 346:13; Nesivos 346:4).
Verdict: The exemption of b’alav imo applies when the owner of the item is in the service of the borrower at the time that he borrows the item.