School was coming to an end; camp was beginning. The park was filled with people who were out running, biking, and playing ball.
Yitzi and Baruch went to the park together. Yitzi brought his basketball and played several games. Baruch preferred tennis, and won a set of tennis matches.
The two sat down to have lunch. After eating, they decided to spend another hour in the park.
“I’ve played enough basketball,” Yitzi said. “I wouldn’t mind some tennis. Can I borrow your balls and racquet?”
“I was thinking the same,” replied Baruch. “I wouldn’t mind shooting some hoops. Can I borrow your basketball in return?”
“Sure,” answered Yitzi with a grin.
The two boys swapped their balls. Yitzi headed off to the tennis courts, and Baruch to the baskets.
After a half-hour of tennis, Yitzi decided to take a break. He sat down on the sidelines, with the balls next to him.
Suddenly, a ferocious-looking dog ran towards him, barking menacingly. Yitzi dodged as the dog grabbed one of the balls and ran off.
Yitzi played another game with the remaining balls and then went back to the basketball court to meet Baruch.
“I’m sorry,” he apologized to Baruch, “but a dog charged me and ran off with one of the balls! There was nothing I could do!”
“Wow! But that makes no difference,” said Baruch. “You borrowed the balls, so you are liable as a sho’el – borrower, even for uncontrollable circumstances.”
“But I wasn’t the only one who borrowed,” replied Yitzi. “We swapped balls!”
“So what?!” asked Baruch.
On the way home, the two met Rabbi Dayan and asked:
“Is Yitzi liable for the tennis ball?”
“The Gemara (B.M. 81a) teaches that two parties who agree to lend to each other are considered shomrei sachar – paid guardians, or, more accurately, sochrim – renters,” replied Rabbi Dayan. “Although neither party pays, the use of his property that each party grants the other is considered ‘payment’ for use of the other’s property” (C.M. 305:6).
“Similarly, two parties who agree to guard each other’s property are considered shomrei sachar, since the commitment of each party to guard the other’s property is considered ‘payment’ for having his own property guarded.
“Thus, Yitzi is a renter, not a borrower. He is liable for theft, even if he guarded the property in the usual manner and was not negligent, but exempt from circumstances beyond control – oness, as in this case” (C.M. 303:2-3; 307:1).
“Moreover, the Gemara teaches that if both parties began guarding simultaneously, it is considered mutual shemirah b’baalim – guarding while the owner of the item is in the service of the shomer. The shomer is then exempt even if there is an element of negligence. Only when the parties commit to guard at separate times – ‘Guard for me today, and I will guard for you tomorrow’ – are the two parties liable as shomrei sachar.” [If one began guarding before the other, but continues when the second begins, the one who began second has the exemption of shemirah b’baalim, since the first was already in his service.] (C.M. 291:28; 346:1)
“There is a dispute between the Rishonim whether simultaneous lending is also considered shemirah b’baalim. Rambam and Ramah, followed by the Shulchan Aruch, maintain that it is shemirah b’baalim, since each party becomes responsible for the other’s property. However, Rashi, followed by the Rema, maintains that it is not, since mutual borrowers are not serving each other but rather hold each other’s property for their own benefit” (Rema 305:6-7; Nesivos 305:2; Pischei Choshen, Pikadon 6:17[45]).
“Thus,” concluded Rabbi Dayan, “according to the Mechaber, even had there been an element of negligence Yitzi would be exempt based on shemirah b’baalim, but not according to the Rema.”
Verdict: People who mutually agree to lend to each other are considered sochrim – renters, and exempt from oness. If they lend to each other simultaneously, there is a dispute between the Shulchan Aruch and Rema whether to also apply the exemption of shemirah b’baalim.
