The class was returning from an overnight trip. The hold of the tour bus was loaded with knapsacks and equipment.
“I’m not returning to the school,” Shimon told his friend Avi. “I’m getting off at a town along the way.”
Before Shimon got off, he removed some knapsacks to get to his, which was deep in the hold. He returned them and the bus continued on.
When the bus returned to the school, Avi couldn’t find his bag. The following day, he asked Shimon about it: “Did you see my bag?”
“I remember removing it to get to my knapsack,” Shimon replied. “When I returned the bags, I must have missed it and left it out. Did you have your name on the bag?”
“Yes,” said Avi. “It had a tag with my name and phone number on it.”
“Maybe someone will find it and call you,” said Shimon.
“Hopefully,” replied Avi.
A week went by, but nobody reported the missing bag.
“I feel really bad,” said Shimon. “It was my fault for leaving the bag out. I’ll have to pay you for it.”
“I don’t know about that,” replied Avi. “You were trying to get your bag out. It was an honest mistake.”
“Still, it was my negligence,” said Shimon. “Doesn’t that make me liable?”
“You didn’t exactly lose the bag, though,” said Avi. “You left it at the bus stop and it had a name on it.”
“Why don’t we ask Rabbi Dayan?” suggested Shimon. Avi agreed.
They approached Rabbi Dayan and related what happened. “Am I liable?” asked Shimon.
“What a fascinating shailah!” exclaimed Rabbi Dayan. “The Gemara [B.M. 35a)] teaches that a guardian who does not remember where he placed an entrusted item is liable. It is considered negligence on his part.” (C.M. 291:7)
“Nesivos Hamisphat [291:14] writes that it is worse than regular negligence,” continued Rabbi Dayan. “He considers it direct damage and writes that even a guardian who is exempt from negligence [e.g., be’alav imo] or even a person who is not a guardian, is liable in such a case. Even a person who hid his friend’s item to protect it and forgot where, is liable, since he acted upon his friend’s property and through his actions the item was lost by being placed where it couldn’t be found.”
“It seems, then, that I’m liable,” said Shimon.
“According to the Nesivos, probably,” replied Rabbi Dayan. “However, Imrei Shefer [Klatzkin, #24-26] partially disputes the position of the Nesivos. Although a person who had no right to take his friend’s item is considered as damaging if he misplaced it, for a guardian – who is supposed to place the item away – it is not considered direct damage. It is still considered negligence, though, since a guardian is responsible to know where the entrusted item is, even though forgetting is not necessarily considered negligence in other contexts.” (Pischei Choshen, Pikadon 3:[4])
“How would this apply here?” asked Avi.
“When Shimon removed the other knapsacks to get his, he did not intend to steal your knapsack nor to accept responsibility for it as a guardian,” replied Rabbi Dayan. “I suggest that he also is not comparable to one who took his friend’s item without permission, since it is common to rearrange the contents of the hold and to reload the knapsacks as needed. Therefore, it is neither damage nor negligence of a guardian, but rather forgetting in another context, for which Shimon is not liable.”
“There is another lenient factor, possibly even according to the Nesivos,” concluded Rabbi Dayan. “The bag had identification; someone could have returned it. Shimon’s actions could be considered grama (indirect damage), for which there is no enforceable liability. In a case where there was no intent to damage, there is not even a chiyuv b’dinei shamayim.” (Shach 32:2; Pischei Choshen, Nezikin 3:39)