Uri was shopping on Erev Shabbos when he met his friend Netanel. “Are you heading back to yeshiva after Shabbos?” Uri asked. “My brother, Eli, asked to send him some clothing.”
“I’m going back Sunday morning,” replied Netanel. “I’m happy to take the clothing for your brother.”
After Shabbos, Uri brought over two bags. “This one has a pair of sneakers in it,” he said. “This one has some clothing.”
Netanel took the bag of clothing and packed it together with his. He tied the bag with the sneakers to his knapsack.
In the morning, Netanel headed to yeshiva. He got off the bus a few blocks away from the yeshiva to buy something and walked the rest of the way. When he got to the yeshiva, he realized the bag with the sneakers had fallen off his knapsack. He retraced his steps, but could not find it.
Netanel gave the clothing to Eli. “There was also a bag with sneakers,” he said. “They were tied to the knapsack, but fell off.”
“That’s really a shame,” said Eli. “They were good sneakers. How did they fall off?”
“I’m puzzled,” said Netanel. “I’m sure I tied them on securely.”
“I think you owe me for the sneakers,” said Eli. “You lost them.”
“I’m sorry about it,” replied Netanel, “but I was doing you a favor.”
“I appreciate the effort,” said Eli, “but if you lost the sneakers, you’re liable.”
“I don’t agree,” replied Netanel. “Since I’m a shomer chinam, an unpaid guardian, I’m not liable for loss.”
“I don’t think that applies to loss like this,” argued Eli. “I’m going to discuss this with Uri.”
The three decided to consult Rabbi Dayan.
“I gave Netanel a bag with sneakers for my brother,” said Uri. “He claims he tied it securely to his knapsack, but it fell off and got lost. Is he liable?”
“The term, ‘lost’ takes on different meanings, depending on the degree of responsibility,” answered Rabbi Dayan. “As you know, a shomer chinam is liable only for negligence, but not for loss and theft. A shomer sachar, a paid guardian, is liable also for loss and theft, but not for oness – circumstances beyond control.”
“How is ‘loss’ defined regarding a shomer chinam?” asked Netanel.
“The Gemara [B.M. 35a, 42a] teaches that if the guardian misplaced the entrusted item and does not know where it is, this is not considered ‘loss’ but rather negligence and he is liable,” replied Rabbi Dayan. “Loss in the context of guardians means he placed it in a known place, but it is nonetheless missing. The liability depends on whether the place and manner of placement was sufficiently secure. For a shomer chinam a simple degree of security suffices, whereas a shomer sachar requires a greater degree of security.” [C.M. 291:7; 396:8]
“What does this mean in our case?” asked Uri.
“Since Netanel was a shomer chinam, if he tied the bag on with a reasonably secure knot, in a manner that is considered acceptable, he is exempt,” answered Rabbi Dayan. “This is included in aveidah, loss, for which a shomer chinam is exempt. If Uri does not trust that he tied it securely, Netanel would require an oath. However, if he tied the bag loosely, it is considered negligence and he is liable. A shomer sachar would require a very secure fixing.”
“Does it make any difference what was in the bag?” asked Eli.
“The required degree of security also depends on the item,” replied Rabbi Dayan. “For example, the Mishnah [B.M. 42a] teaches that a bag with money must be kept tied in front of the person so that he can see it, not slung behind him. Similarly, if the item was one that should not be tied outside a bag, but rather kept only inside, it would be considered negligence.” (C.M. 291:13,20)
