Yossi Gelber was a plumber. He was replacing a sink that had cracked in an apartment rented by Mr. Schwartz.
While Yossi was working, the landlord called Mr. Schwartz about the repair. “My landlord wants to speak with you,” Mr. Schwartz said, handing Yossi the phone.
As Yossi was talking to the landlord, the phone slipped out of his hand and fell to the ground. He picked it up, but saw that the screen was badly cracked and one of the camera lenses was damaged.
“How did that happen?!” exclaimed Mr. Schwartz. “That phone cost $1,000!”
“I’m really sorry,” apologized Yossi. “I don’t know how, but somehow it slipped out of my hand. I was holding it normally.”
“Whatever it costs to repair, you’re going to have to pay,” said Mr. Schwartz. “You dropped the phone, so you are liable for it!”
“I’m willing to consider paying, but calm down,” replied Yossi. “I’m not convinced that I am liable for the phone. I never accepted responsibility for it, and I held it in the regular manner. On what basis am I liable?”
“It’s obvious to me!” retorted Mr. Schwartz. “First, you were using the phone, so you’re a borrower. Second, you were holding the phone, so you are at least a guardian. Third, you dropped the phone, so that you damaged it.”
“That doesn’t impress me,” responded Yossi. “I wasn’t using the phone for my purposes, so I’m not a borrower; although I held the phone, I never accepted responsibility as a guardian; the phone slipped from my hand unintentionally – I didn’t damage it.”
“We’re going to have to take this up with a halachic authority,” Mr. Schwartz said. The two came before Rabbi Dayan and asked:
“Is Yossi liable for the phone? Why or why not?”
“The Mishna (B.M. 80b) teaches that a guardian must accept responsibility for an item to be liable, such as by saying, ‘Leave it before me,’” replied Rabbi Dayan. “However, if he merely told the owner, ‘Put the item down,’ he is not liable, unless circumstances clearly indicate acceptance of responsibility.” (C.M. 291:2; Sma 291:5).
“Mabit (1:291) suggests that when the owner places the item in someone’s hand, perhaps he becomes a guardian even without a statement of accepting responsibility. However, many poskim maintain that even when the item is placed in a person’s hand, he does not become a guardian unless he was asked to guard the item or, at least, circumstances indicate that the intention was to guard the item (Nesivos 291:2; Machaneh Ephraim, HIl. Shomrim #1; Pischei Choshen, Pikadon 3:20[49]).
“In our case, there was no statement or indication that Yossi was expected to accept responsibility for the phone as a guardian, especially since Mr. Schwartz remained present nearby. Nor did Yossi use the phone for his own needs, which would have rendered him a borrower.
“Even so, if Yossi would intentionally or carelessly drop the phone, and it would break or get lost, he would be liable as one who causes damage. (Mabit, ibid.).
“However, when the phone slipped out of his hands accidentally, Yossi is not liable as one who damages, unless he held it carelessly, such as in the crook of his neck. Although one who damages even unintentionally is liable, this applies when he had no right to handle the item – but when the owner handed him the phone to use, he is not liable for accidental damage when not liable as a guardian (see Machaneh Ephraim, Hil. Shomrim #39).
“Thus, Yossi did not become a guardian for the phone to hold him liable for it as a guardian,” concluded Rabbi Dayan. “If he held the phone normally, he would also not be liable as one who damaged.”
Verdict: A person must accept responsibility for an item to be liable as a guardian or, at least, circumstances must indicate that he accepted responsibility. According to many authorities, this is true even if the owner placed the item in the person’s hands. However, if he was careless with the item, he would still be liable as one who damages.
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This article is intended for learning purposes and cannot be used for final halachic decision. There are also issues of dina d’malchusa to consider in actual cases.
