Boruch was visiting Israel and got together with some of his friends. They decided to take advantage of the separate beach in Ashdod, and planned to meet there one Friday afternoon.
“What should we do with all our stuff?” Boruch asked. “We have our phones and I’m not happy leaving mine unattended.”
“The truth is,” said Ezra, “I’m not planning to go into the water. I can watch your stuff.”
“Why not?” Boruch encouraged him. “We can take turns. You don’t have to lose out!”
“Thanks for considering me!” laughed Ezra. “But sea water burns my eyes, and I don’t want to enter Shabbos with my eyes burning. You can enjoy yourselves in the water; I’ll occupy myself meanwhile on the beach.”
The boys gave Ezra their phones and other stuff and headed towards the water.
Meanwhile, Ezra found himself a spot about 50 feet from the water’s edge, leaving some distance from where the waves reached. He wrapped all the items in a towel and started making a sandcastle. He was enjoying himself making moats, turrets, and “bridges” out of twigs that had washed up.
The wind began picking up a little. The waves moved slightly up the beach, but still not near where Ezra was.
Suddenly, Ezra heard a lot of shouting from the water. He turned around and saw a huge wave heading quickly towards him. Before he knew it, the wave hit the beach and crashed against the shore, spreading up the sand sixty feet. It saturated the towel and unfurled it, sopping the phones with seawater. One was even washed back into the sea.
When his friends returned from the water, Ezra didn’t know what to say.
“Why were you so close to the water’s edge?!” said the one whose phone was washed away.
“I was far enough from regular waves,” replied Ezra.
After Shabbos, the boys met Rabbi Dayan and asked:
“Is Ezra liable for the phones?”
“The primary difference between a shomer chinam and a shomer sachar – is explicit in the pesukim,” replied Rabbi Dayan, “is liability for theft.
“The Gemara (B.M. 93b) introduces another difference, relating to the degree of guarding. A shomer chinam suffices with guarding in a manner sufficient under routine conditions, whereas a shomer sachar (paid guardian) is expected to guard in a heightened and active manner, considering even non-routine circumstances that are not yet oness” (Nesivos 291:24,30; Pischei Choshen, Pikadon 2:2[5]).
“Thus, if a shomer chinam left an animal in a barn with a door that can withstand normal wind, but not unusual wind, and a storm wind opened the door and the animal went out and damaged – he is exempt, whereas a shomer sachar is liable” (C.M. 396:8; Rabi Akiva Eiger, C.M. 303:2).
“Similarly, if a shomer chinam left a flock unattended for a short time, as is customary for shepherds to leave, e.g., for a lunch break – he is exempt, whereas a shomer sachar is liable” (C.M. 291:12; 303:10).
“Similarly, if a shomer chinam crossed animals over a bridge and one knocked another off – he is exempt, whereas a shomer sachar is liable, since he could have crossed them one by one” (C.M. 303:11).
“In our case as well,” concluded Rabbi Dayan, “since Ezra placed the phones at a distance sufficient for routine conditions, he is exempt, since he is a shomer chinam.
“With this, we would like to return to the article, ‘Confiscated Calculator’ from two months ago, about a teacher who left a confiscated calculator in the trunk of his car overnight. We ruled that he is liable, since leaving items in a trunk overnight is not a normal manner of guarding. However, perhaps this suffices for a shomer chinam, since, under routine circumstances, it is rare to have a trunk broken into.”
Verdict: A shomer chinam is exempt if he left the item in a manner secure under routine conditions, whereas a shomer sachar is required to guard in a heightened and active manner, and consider even unusual circumstances.
