Question: A shomer chinam (unpaid guardian) is not liable for theft and loss. Does that mean that if I misplaced an entrusted item, I am exempt? What is meant by “loss”?
Answer: If the guardian does not know where he left the entrusted item, this is considered p’shia (negligence), not aveida (loss). Even a shomer chinam is liable; he must pay immediately and cannot demand time to search for the item (291:7; Nesivos 291:14). The same is true if he put the item in a pocket that had a hole or in a shirt pocket, where it can easily fall out (Pischei Teshuva 291:5,8; Chasam Sofer C.M. #97).
Examples of “loss” for which a shomer chinam is exempt and a shomer sachar is liable include: items lost in regular mail, items tied properly to the roof of a car that fell off, or items blown away by a strong gust of wind; an animal that wandered out of an enclosure and got lost (RA”E 303:2, based on 396:1,8) or that went up a cliff and fell off (291:11).
If the loss was through uncontrollable circumstances – e.g. fire, hurricane, sudden flooding, etc. – this is considered oness, for which even a shomer sachar is exempt and only a shoel is liable (303:3; 340:1).
Authored by Rabbi Meir Orlian
These articles are for learning purposes only and cannot be used for final halachic decision.
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