Mr. Miller had been unemployed for a while but was expecting to start a new job shortly. “I don’t know how we’ll manage next month,” he said to his wife. “We need to borrow $5,000 to carry us until the first paycheck comes through.”
“Whom can we borrow from?” Mrs. Miller asked.
“I’ll ask Jack Braun,” said Mr. Miller. “He’s been helpful in the past.”
Mr. Miller shared his predicament with Mr. Braun “I can lend you $5,000 for a month or two,” Mr. Braun replied, “but I can’t afford to risk losing the money. I hope your new position works out, but I’ll need some security to cover myself.”
“What kind of security would you like?” asked Mr. Miller.
“You tell me,” said Mr. Braun. “Can you give something as collateral until the loan is repaid?”
“I’m not sure what we have worth that amount,” said Mr. Miller. “Let me check with my wife.”
“There is a diamond necklace that I wear on special occasions,” Mrs. Miller told her husband. “It was recently appraised at $6,000. If need be, we can give that as collateral.”
Mr. Miller brought the necklace to Mr. Braun. “I’ll put it away safely at the bottom of my wife’s jewelry box,” Mr. Braun said. He wrote out a check for $5,000.
A week later, the Brauns returned home from a simcha and saw one of the windows ajar. “That’s strange,” Mr. Braun said. “I’m sure it was closed when we left.”
When Mr. Braun entered the house, he saw things strewn around the floor. Drawers were open and the breakfront was bare of its silver contents. “We’ve been burglarized!” he cried out.
Mr. Braun ran upstairs to the bedroom. He saw that his wife’s jewelry box had been emptied. Missing, also, was Mrs. Miller diamond necklace.
Most of the valuables were covered by the Brauns’ homeowners insurance, but the company refused to cover Mrs. Miller’s necklace.
Mr. Braun discussed the unfortunate incident and the loan with Mr. Miller. “I’m very sorry to hear,” Mr. Miller said sympathetically. “However, you took responsibility for the necklace. We should not have to repay the loan, since the necklace was stolen. If anything, you should pay us the $1,000 differential!”
“I disagree; the two issues are unrelated,” objected Mr. Braun. “You still owe me repayment of the loan. On the other hand, since I received nothing for watching the necklace, I am an unpaid guardian (shomer chinam) and not liable for its theft.” (C.M. 291:1)
“Let’s ask Rabbi Dayan,” said Mr. Miller. The two approached Rabbi Dayan and asked: “Who owes whom?”
“No one,” ruled Rabbi Dayan. “Mr. Braun loses the right to collect the $5,000 loan, but is not liable for the excess $1,000.”
“Why is that?” asked Mr. Miller.
“The Mishnah [B.M. 80b] teaches that one who lent with collateral is considered a shomer sachar, a paid guardian, who is liable for its theft,” replied Rabbi Dayan. “However, the Gemara [82a] subsequently links this issue to a dispute regarding someone who found a lost item and is holding it until the owner comes. Rav Yosef considers him a shomer sachar on account of the benefit of the mitzvah, whereas Rabbah considers him a shomer chinam.” (C.M. 267:16)
“What is the ruling?” asked Mr. Braun.
“The Shulchan Aruch rules like Rav Yosef, that the lender is liable for the value of the collateral in excess of the loan,” answered Rabbi Dayan. “However, the Rama rules like Rabbah, that he is not liable. He concludes that on account of the doubt we do not extract payment. This is also the conclusion of later authorities. Thus, Mr. Braun does not have to pay the excess $1,000.” (C.M. 72:2; Shach 72:22)