Q: What are the basic rules of entrusted items?

A: There are four types of shomrim (guardians) for entrusted items: shomer chinam, shomer sachar, socher, and shoel (B.M. 93a).

A shomer chinam is a guardian who does not receive any payment or benefit for his service. He is responsible only for negligence (p’shia), but not for theft or natural loss (C.M. 291:1).

A shomer sachar is a guardian who receives payment or benefit for his service. He is responsible for negligence, theft and natural loss (geneivah va’aveidah), but not for uncontrollable circumstances (303:2-3).

A socher is a guardian who rents an item. He is as responsible for the item as a shomer sachar, i.e. for negligence, theft and natural loss, but not for uncontrollable circumstances (307:1).

Q: A neighbor asked to leave a small desk in my driveway for the day. It suddenly began raining, and the desk got ruined in the rain. Am I responsible for the desk?
A: A guardian only becomes responsible for an item if he accepts responsibility for it. This does not require any formal declaration, though, and it suffices to say, "Leave it with me," or "I'll take care of it." However, simply saying, "Put it down," is not necessarily understood as accepting responsibility, unless circumstances clearly indicate so, e.g. if the owner is going far away (C.M. 291:2; SM"A 291:5).
Similarly, allowing a neighbor to place an item in your yard or driveway does not indicate acceptance of responsibility for it, unless your language indicates so. Some say, however, that giving permission to leave something in your house is considered as accepting responsibility for it (291:3; Shach 291:8-9).
Therefore, if you allowed the neighbor to leave the desk in the driveway, but did not indicate that you accept responsibility for it, you are not responsible. [You should have made an effort to protect the desk from the rain, however, as a form of hashavas aveidah (259:9).]

Q: I placed my shopping bags outside the supermarket and promised a boy $5 to watch them while I got my car. One bag was stolen. Is he responsible for the theft?

A: If the boy did not touch the bags, there is a dispute on this issue. The Gemara (B.M. 99a) teaches that just as a purchase requires a kinyan (act of acquisition) to confirm the transaction, a guardian also requires a kinyan to assume legal responsibility for the item.

The Rambam (Hil. Sechirus 2:8) accepts this ruling literally. Tosfos and the Rosh maintain, however, that once the owner relies on the guardian and leaves the area, the guardian becomes obligated, even without a kinyan.

The Shulchan Aruch is inconclusive on this matter (C.M.  291:5, 303:1, 307:2, 340:4), but the achronim lean towards the opinion that a kinyan is required (Shach 291:13; Aruch Hashulchan 291:14). Therefore, if the boy did not make an appropriate kinyan on the bags, he does not become legally responsible for them. This is true even for a shomer sachar, although he forfeits his payment if he did not watch properly (see 301:1). To assume legal responsibility, the boy would have to pick up or move the bags, have them placed in his property, do a kinyan sudar, or give a handshake. However, he does bear a moral responsibility to pay if the theft was caused by careless negligence (Aruch Hashulchan 291:15; Imrei Bina, Hil. Pesach #5).

Q: Someone allowed me to use his vacation home for the winter. During this time, a flood caused significant damage to the house. Do I carry liability for the damage?

A: A borrower is responsible even for damage beyond his control. However, the Gemara (B.M. 56a) derives from verses that a guardian is responsible only if he was entrusted with moveable items of inherent worth, but not if entrusted with real estate or documents, which have no inherent worth (C.M.  301:1).

For this reason, if you borrowed a house and it was damaged by flood or fire, you are not responsible according to most authorities, since a building is built into the ground (Rama 301:1; 95:1; Shach 95:1). [However, you would be responsible for the moveable furniture, at least that which you used (see Nesivos 340:8; 95:1 (end); Shach 202:3).]

Despite this exemption, the Rambam rules that the guardian is responsible if he was negligent, since this is considered damaging (Shach 301:3). However, most authorities rule that a guardian of real estate is legally exempt even from negligence, unless he actively damaged (SM”A 301:3; Pischei Teshuva 301:4). Even so, the guardian has a moral responsibility to pay (chiyuv b’dinei shamayim) if he was negligent (Pischei Choshen, Pikadon, 1:ftnt. 51). Furthermore, a paid guardian for real estate or documents forfeits his salary if he did not guard properly (C.M. 301:1).

Q: I collected $500 for tzedakah and the money got lost. Must I pay this from my own pocket?

A: The Gemara (B.M. 56a) derives that a guardian is not responsible for property consecrated to the Temple (hekdesh). But donations to a shul, Torah institution or other charity organization are not included in this exemption; a guardian of money earmarked for these causes carries responsibility like any other guardian (C.M. 95:1; 301:1; Nesivos 301:6).

Therefore, if the money was lost through negligence, you are responsible. If you received payment for your efforts, such as a paid gabbai tzedakah or fundraiser, you could be responsible even for theft or loss in the mail (see Noda BiYehudah C.M. II:54; Ketzos 72:5).

However, if the money was not designated for a specific institution or organization, but was generic “tzedakah,” it is considered as money that has no claimant. Therefore, you cannot be made to pay. However, you still have a personal, moral responsibility to pay if you were negligent and are in a financial position to cover the loss (301:6; Pischei Teshuvah 301:6; Tzedakah U’mishpat 10:[20]).

Q: A boy entrusted his card collection to a friend. If one of them is not yet bar mitzvah, is there liability of guardianship?

A: A minor under the age of bar mitzvah is not considered of legal mind (bar da’as) to be liable for guardianship. A person who entrusts an item to his care is aveidah mida’as, a willing loss (see C.M. 291:21; 188:2).

Therefore, if the cards were entrusted to a minor child, he is not liable for them, even if lost through negligence (p’shiah). Even when the boy grows older, he has no moral obligation to pay, unlike a child who damages (Pischei Choshen, Pikadon 1:17). [Parents should consider, nonetheless, their broad chinuch goal to train financial responsibility.]

When a minor entrusted his cards to a friend who is already bar mitzvah, the Shulchan Aruch rules that the guardian carries full responsibility towards the minor, including the Torah-imposed oath. The Rema, however, rules that the Torah oath does not apply to property entrusted by a minor (302:2; 96:1).

Some maintain that even according to the Rema there is a rabbinic responsibility of guardianship towards the minor (GR”A 96:8, but see P.C., Pikadon 1:[35] citing Imrei Yosher). The Shach (96:2) maintains that the guardian is liable, even according to the Rema, if he was negligent with the minor’s property.

Q: A friend asked me to watch his bicycle, rollerblades, and basketball for the day. Must I keep them in the house, or can I leave them in the backyard or unlocked garage?

A: Each item must be watched in the customary manner for that item. Some items are typically left in an open yard, some in an enclosed area, some in the house, some in a locked cabinet, and some in a safe. Some food items need to be refrigerated and some do not (C.M. 291:13, 15).

The customary manner varies with place and time (291:18). Thus, in one community it might suffice to leave the items in the backyard or unlocked garage, whereas in another it would be required to bring them into the house. Similarly, there can be a difference between daytime and nighttime.

If the guardian did not watch the item in the customary manner and it was stolen, it is considered as p’shiah (negligence) and he is liable even if he was a shomer chinam (unpaid guardian).

Even if he tends to be lax about his own possessions, this does not relieve him of guarding the entrusted item in the customary manner, unless he so stipulated (291:14, 17).

Q: Is the required manner of guarding the same for all shomrim?

A: A shomer sachar (paid guardian) has greater liability than a shomer chinam (unpaid guardian) in cases of theft or natural loss. According to many authorities, he also has a higher level of responsibility in the manner of watching. A shomer chinam is expected to guard the item under routine conditions, whereas a shomer sachar is paid to protect it well, even from unusual circumstances (C.M. 303:11; Pischei Choshen, Pikadon 2:2[5]). For example, a shomer chinam can suffice with a door that can withstand normal wind, whereas a shomer sachar must have a door that withstands even unusual wind (Rabi Akiva Eiger, C.M. 303:2, based on 396:1, 8). A shomer chinam can leave the item unattended for short, customary (e.g. coffee) breaks, whereas a shomer sachar is expected to actively tend to the item continuously (291:12; 303:10). A shomer sachar is required to lay out needed money (for which he is entitled to reimbursement), to protect the entrusted item, whereas a shomer chinam is not (303:8).

According to some authorities, this applies only to an actual shomer sachar, who is paid to watch the item. However, other people who have the liability of a shomer sachar because of benefit they receive (e.g., a sales agent, employee, partner, renter, etc.) are not required to guard beyond the usual manner (Pischei Teshuvah 303:1; P.C., ibid).

Q: What oath is required of a shomer (guardian) who does not return the entrusted item?

A: If the guardian claims exemption — e.g. he claims the entrusted item was burned in a fire — he is required to include in his oath three elements (B.M. 6a; C.M. 295:2; Taz):

1) He was not negligent, but guarded the item properly.

2) The item was lost in the stated manner and is no longer in his possession.

3) He did not misappropriate the item for his personal use beforehand. [If the guardian misappropriated the item, he remains liable until he returns it.]

If the guardian will pay for the item — e.g. he admits it was lost through his negligence — he is still required to swear that it is no longer in his possession, unless the item is a standard one readily available on the market. [Otherwise, we are concerned that he is scheming to “acquire” the item by admitting guilt and paying for it.] If the owner disputes the stated value, the guardian must also include the item’s value in his oath (C. M. 295:1).

Nowadays, beis din discourages swearing and usually advocates a compromise in lieu of the oath (Pischei Teshuvah 87:19, 22).

Q: What payment is required to render a guardian a shomer sachar (paid guardian)?

A: Any monetary benefit the guardian receives in return for guarding an item renders him a shomer sachar. Therefore, if he received even as little as a prutah (a few cents), he is considered a shomer sachar (Shach 303:1).

Furthermore, even if the guardian received no actual payment but will be repaid in kind - e.g. “You watch for me today and I’ll watch for you tomorrow” - he is considered a shomer sachar. Therefore, a group of friends or mothers who take turns watching for each other are all considered shomrei sachar (C.M. 305:6).

Similarly, any favor that is agreed upon in return for watching - even lending the guardian an item or picking up something for him - is considered payment that renders him a shomer sachar (Aruch Hashulchan 303:3).

If a person was paid to watch for a certain number of days, but the item remained with him afterward, he is considered a shomer sachar for the days for which he was paid and a shomer chinam for the days afterward (304:6).

Q: Is a car mechanic who gets paid for his labor considered a shomer chinam or shomer sachar on the car that he fixes?

A: A person who receives monetary benefit from an item entrusted to him is considered a shomer sachar, even if he is not paid directly for watching.

Thus, a car mechanic is a shomer sachar on the car he fixes and a dry cleaner is a shomer sachar on the clothing he cleans. However, once the shomer finishes working and allows the owner to take his item, even before paying or if the owner had already paid, the workman is considered only a shomer chinam (306:1; Pischei Teshuvah 306:1).

Similarly, business partners are generally considered shomrei sachar (176:8); a salesperson is a shomer sachar on the merchandise he sells (185:7); a delivery service is a shomer sachar on the packages he delivers (187:1). There is a dispute whether a person who finds an object is considered a shomer sachar (267:16).

Nonetheless, according to some authorities, while these people are obligated in theft and loss as shomrei sachar, they are not obligated to watch to the same careful degree as a guardian who gets paid for watching but only in the routine manner. (See Pischei Teshuvah 303:1; Pischei Choshen, Pikadon 2:2[5].)

Q: What are the responsibilities of a guardian for chametz on Pesach?

A: The owner of the chametz violates the prohibition of possessing chametz, even if it is entrusted to another. In addition, the guardian also violates the prohibition of possessing chametz if he accepted responsibility for it, even if it belongs to a gentile (O.C. 440:1; Mishnah Berurah 443:14).

If neither the owner nor the guardian sold the chametz, it becomes prohibited and has to be destroyed. Therefore, if the owner hasn’t sold the chametz, the guardian should sell it in time, both to avoid the prohibition and to prevent the loss (C.M. 292:17-18; O.C. 443:2).

There is a dispute whether the guardian carries legal liability if he neglected to sell the chametz. Some say that the guardian is considered negligent, so even a shomer chinam is liable; some say that only a shomer sachar is liable, since he has a greater responsibility to protect the item. Many maintain that the guardian is not liable, because he accepted responsibility only to guard the chametz, not to sell it. [It is questionable whether this logic would apply nowadays, when it is customary to sell the chametz before Pesach and buy it back afterwards.]

(See Mishnah Berurah 443:12; Pischei Choshen, Pikadon 2:[103].)

Q: 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”?

A: 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).

Q: A shomer sachar (paid guardian) is liable for theft, but not for oness (circumstances beyond his control). What happens if theft occurred in a manner of oness, e.g. armed robbery or a guardian’s sudden illness?

A: A shomer sachar is liable for theft, but he is exempt if it is armed robbery. Even if the guardian is also armed, the robber is more willing to risk his life. This circumstance is not called theft, but rather nishbah (taken captive) (C.M. 303:3).

If a different uncontrollable theft occurred (e.g. from a secure vault), there is a dispute whether he is liable. Shulchan Aruch (303:2) cites an opinion that he is liable, since every theft has some element of oness unless the guardian was present and unable to prevent it. The Shach (303:4), however, sides with the opinion that the guardian is exempt if the theft was beyond his control. Others say that if the object was stolen from a secure vault, the guardian is liable, but if an oness (e.g. sudden illness) prevented him from guarding, he is exempt (see RA”E 303:2). Aruch Hashulchan (303:7) rules that, out of doubt, the guardian is exempt. Furthermore, if the guardian acted in the customary manner or the owner knew that the guardian would not be present, even the first opinion would exempt him if stolen through oness, because the item was entrusted with this understanding.

Q: Someone entrusted me with a crate of books for a week. If he did not pick it up at the end of the week, do I remain responsible for it?

A: A guardian remains responsible for the entrusted item until it is returned safely to the owner (see C.M. 293:4; Pischei Choshen, Pikadon 7:2). However, if he explicitly told the owner that he does not want to watch anymore, he is no longer liable, even for negligence (Rema 74:3; Sm”a 120:11).

Machaneh Ephraim argues, though, that if he accepted responsibility for a set time, he is not liable after that time (see, however, Aruch Hashulchan 291:20). A shomer sachar, after the designated time, reverts to a shomer chinam (304:6; 343:2).

A bookbinder is considered a shomer sachar on the books he is binding, but when he finishes his work, he reverts to a shomer chinam - unless he insists on payment before returning the books. If he explicitly tells the owner to pick up the books and that he does not want to be the shomer after the set time, he is not responsible according to most authorities (306:1; P.C., Pikadon 7:9).

A shoel (borrower) who borrowed books reverts to a shomer sachar after the set time (343:1).

Q: I lent someone a car, a dress, or a tool, but now need it. Can I demand that the borrower return it immediately?

A: If no time was specified at the time of the loan, the lender can demand the item back at any time (unlike a monetary loan, which is generally granted for 30 days).

Conversely, until the lender asks for the item, the borrower can use it for as long as he wants; but he remains fully responsible during this time (C.M. 341:1; Nesivos 341:1).

If a time was specified, once the borrower took possession of the item in a manner of kinyan or began using it, the lender cannot demand it back until the agreed time is up. On the other hand, the borrower can return it earlier if he no longer wants it (RA”E 341:1).

If the item was lent for a specific purpose — a car to go on a trip, a dress to wear to a wedding, or a tool for a certain job — the lender cannot demand it back until the borrower completes the specified task (341:5). According to some authorities, this is true even if the borrower delayed a reasonable amount of time before using it (Aruch Hashulchan 341:7; Pischei Choshen, Pikadon 4:[13-14]).

Q: I borrowed a drill to bore holes into wooden beams. The bit broke on a hidden piece of metal embedded in the wood. Am I liable for the bit?

A: A person who borrows an item is liable for it even if it was damaged through uncontrollable circumstances.

Nonetheless, if it was damaged through routine use, the borrower is exempt. This is called “meisah machmas melachah” — died on account of use. The rationale is that the item was not borrowed to sit idle; it was borrowed to be used (B.M. 96b; C.M. 340:1).

Some extend this exemption to include any uncontrollable damage that occurred during the course of routine use (C.M. 340:3; Sm”a 340:8). Others, however, limit it to cases where the item malfunctioned, in which case the lender is considered partly at fault for lending an item unfit for the task (Shach 340:5-6).

Thus, you are legally exempt for the bit, based on the first opinion. [If you gave a deposit, though, you would not be entitled to a refund, based on the second opinion.]

Of course, this exemption applies only if you used the drill as planned, but not if you misused it to drill into metal or concrete.

Q: My neighbor went away and asked me to watch his expensive lawn mower, which I put in the garage. I took the liberty of using it without permission for my own lawn. Am I liable if it was subsequently stolen?

A: One of the guardian’s oaths is that he did not misappropriate the entrusted item. If he took it with intention to steal it (shelichus yad), he becomes fully liable - even for loss through uncontrollable circumstances (oness) - until he informs the owner that he took the item and returned it (C.M. 353:3).

The same is true if the guardian took the item with the intention to use it in a manner that causes wear on it or detracts from its value (292:1). If the guardian took the item to use in a manner that does not detract from its value, he is called sho’el shelo midaas (borrower without permission), which is also considered a form of theft. He becomes liable from the time he actually uses it.

The Rema exempts him after he returns the item to its place, but many later authorities dispute this ruling or limit it to situations where the owner would have allowed usage (292:1; Sm”a 292:4; Shach 292:1).

Iy”H, next week we will discuss circumstances in which usage might be permitted.

Q: I was entrusted with a sum of money. May I use it temporarily and return other money?

A: We learned that a guardian may not misappropriate an entrusted item for his own use (C.M. 292:1). However, since it is expected that money is spent and replaced, sometimes the guardian is allowed to use it. For example, a banker or moneychanger who was entrusted with money is permitted to use it unless there is a contraindication (e.g. the money was entrusted in a sealed envelope). On account of this privilege, even an unpaid guardian has the heightened status of a shomer sachar; if he uses the money, he becomes a sho’el (292:7).

Some authorities write that since money is continuously needed by everybody nowadays, the rule of a banker pertains to all (Sm”a 292:18; however, see Pischei Choshen, Pikadon 5:53).

If the person was entrusted to deliver money or to buy something with it, many authorities do not allow him to use it meanwhile, since the money was not entrusted for any length of time (Pischei Teshuvah 292:2). If he does, some consider him sholei’ach yad (embezzling). Even when the guardian may not use the money, many authorities permit him to do so if he designates other money immediately in its place (Pischei Choshen, Pikadon 5:20-21).

Q: I was entrusted with an item. May I hand it over to someone else to watch?

A: A guardian may not hand over an entrusted item to another guardian (see Aruch Hashulchan, C.M. 291:45-46). He is allowed to leave it in the care of his wife and mature children or other household members, since this is expected. However, he may not leave it in the care of his young children or other relatives who are not members of his immediate household (C.M. 291:21).

If the guardian is known not to guard by himself, but to entrust what he receives to subcontractors, this is comparable to handing over to household members and is to be expected (291:22).

If the guardian transferred the entrusted item to someone he was not supposed to give it to, it is considered negligence. He remains liable unless there is evidence that the second guardian watched properly. An oath by the second guardian does not suffice, since the owner can claim that he does not trust him. However, if the owner is accustomed to entrust items to the second person, his oath is acceptable. Similarly, if the original guardian has firsthand knowledge of what happened, he can swear (291:26).

Q: I accepted guardianship of an entrusted item together with someone else. How is the liability shared?

A: Two people who borrowed together are jointly responsible and mutual guarantors for each other. The same is true for two people who accepted guardianship together (C.M. 77:1).

Therefore, if the guardians are liable, each should pay half. If one is unable to pay his share, the other guardian remains liable as a guarantor for the full amount. He is entitled to collect half from the first guardian later, when the latter is able to pay.

[However, some authorities dispute this and maintain that guardians are not guarantors for each other; see Machaneh Ephraim, Shomrim #27; Pischei Choshen, Pikadon 1:16 (33).]

If only one party was negligent, he is liable for the full amount. If he is unable to pay, the second guardian still remains liable as a guarantor but is entitled to full reimbursement from the negligent party when he is able to pay (see Shach 77:1).

If one of the guardians transferred full responsibility to the other party, some maintain that the remaining guardian is liable alone (see Nesivos 77:1; P.C., ibid.).

Q: I agreed to keep a neighbor’s valuable diamond necklace in my safe, but I would now like to return it. The owner, however, refuses to accept it back until it can be moved to another safe somewhere else. Do I remain liable for the necklace?

A: If the necklace was entrusted for a set time, you cannot return it prematurely without consent of the owner. Even if you return the necklace to the owner’s property against his or her will, many authorities maintain that you remain liable (C.M. 293:1; Ketzos 293:2; Pischei Choshen, Pikadon 7:1).

If no time was set, or the agreed time was reached, the owner is required to accept the necklace back (293:1). If the owner refuses to take it and you return it against his will, leave it in front of him, or return it to your house and say, “Come take it whenever you want,” you are no longer liable, even for negligence (see 120:2; Shach 120:4; P.C., Pikadon 7:5).

Similarly, if you inform the owner that you refuse to watch it any longer, you are no longer liable - even for negligence - even if the item remains in your house (Sma 120:11).

Q: I selected an esrog from a seller, but took it to a Rav to check before confirming the purchase. If the esrog gets lost or ruined along the way, am I liable for it?

A: If you take merchandise from a seller with the intention of buying it if it proves acceptable, you carry full liability for the item on the way to check it - provided that the price was set - even if it was lost through uncontrollable circumstances (oness). Some explain that you are considered a purchaser meanwhile, and others explain that you are considered a sho’el (C.M. 186:1, 200:11).

If you decide that you do not want the esrog, there is a dispute whether you are considered a shomer chinam, a shomer sachar, or a sho’el on the way back (200:11; Sma 200:31).

If you took a number of esrogim with the intention of choosing only one or two, on the way to the Rav you are liable for all the esrogim, at least as a shomer sachar (and possibly fully liable).

On the way back, you are fully liable for those you chose, and the aforementioned three-way dispute applies to the remainder that you return (Pischei Choshen, Pikadon, 1:[73]).

Q: I rented a car from a Jewish-owned company. The rental contract specifies terms of liability that do not conform to the rules of shomrim. Are these terms halachically binding?

A: The rules of shomer chinam, shomer sachar, socher, and sho’el are default rules. However, the owner and guardian can stipulate whatever terms of liability they wish, whether more stringent or more lenient than those prescribed by the Torah. This is based on the rule of “kol tenai she’b’mamon kayam” (any stipulation in monetary matters is binding). Thus, the terms explicit in the contract are halachically binding (C.M. 296:5).

When the liability terms are stipulated from the beginning, there is no need for a kinyan. However, once the rental begins, an agreed change in the liability terms requires a kinyan, unless the owner explicitly exempted the guardian from his responsibility, which is a form of mechilah (forgoing) (Rama 344:1; Pischei Choshen, Pikadon 2:16; 10:7).

Additionally, for items that are completely excluded from liability of shomrim (e.g. real estate and documents, or cases of be’alav imo - when the owner is in the service of the guardian) a stipulation to obligate the guardian requires a kinyan (301:4; P.C., 2:17).

Q: A blind neighbor has a seeing-eye dog. He went away for a week and asked me to look after his dog. If the dog damages, who is responsible for the damage?

A: A person who takes responsibility for an entrusted item also takes responsibility that it should not damage, unless stipulated otherwise. Therefore, if you were negligent in watching the animal and it caused damage, you are responsible for the damage (C.M. 396:8). Conversely, if the animal damaged your own property, the owner is not liable (347:1).

If you watched the animal properly, but it caused damage nonetheless, neither you nor the owner is liable. [If the guardian watched the animal minimally, a shomer chinam (unpaid guardian) is not liable, but the owner remains liable for certain kinds of damage (keren tam); whereas a shomer sachar (paid guardian) or sho’el (borrower) is liable (see Sma 396:18; Gra 396:18).]

However, if the animal was entrusted to a minor, the owner remains liable for damage done by the animal (396:6). Similarly, if the animal has a history of damaging, but the owner did not disclose this to the guardian, the owner remains liable (Pischei Choshen, Pikadon, 2:[70]).

Q: My roommate went away for a week and asked me to keep an eye on his belongings. What should I do with perishable items with approaching expiration dates?

A: If the item will still be edible when the owner returns, albeit not fresh, you should leave it for him. This is especially true of homemade food, since a person prefers his own food to that of others (Pischei Choshen, Pikadon 2:[90]).

If the food will spoil, you should notify the owner. If you are unable to contact him, you should try to sell the food, if you are able to, as a form of hashavas aveidah (C.M. 292:15).

If you made no attempt to salvage the food and it spoiled, there is a dispute whether this is considered negligence (see Mishnah Berurah 443:12).

You are allowed to use the proceeds of the sale meanwhile, and therefore are responsible for the money as a shomer sachar. If you use the money, you are fully liable as a borrower (292:19).

Even if the food already spoiled, if the container or pot is one that might get permanently ruined, you should empty the food from it (292:16).

Q: I borrowed my neighbor’s handcart for a week to move across the hall. I also hired him for two days to help in the move. If the handcart is stolen or ruined, am I liable?

A: Regarding one who borrows an item, the Torah states: “If the owner is with him, he shall not pay (Shemos 22:14).”

The Gemara (B.M. 94a) explains that if the owner of the item is in the employ or service of the borrower, the borrower is not liable for the item. This exemption is called “shemirah biv’alim.”

The owner must be in the service of the borrower when the item is initially borrowed, since at that point the borrower assumes liability.

Even if the owner is no longer in his employ when the item is lost, the borrower remains exempt (C.M. 346:1).

This exemption applies also to other shomrim. There is a dispute in the Gemara (95a) whether it extends even to negligence; the halachic ruling is that the borrower or guardian remains exempt (291:28; Pischei Choshen, Pikadon 6:[1]). However, if he actively damaged the item, he is liable for it, like any other person who damages (Pischei Teshuvah 176:13).

Q: A person who was entrusted with an item, or a person who lent an item to someone, died. What are the liabilities and privileges of his inheritors in regard to the item?

A: If an item was entrusted and its guardian died, the inheritors are not liable for anything beyond negligence — even when they know that the item was entrusted to their father — unless they also continue to receive some benefit from it (see C.M. 72:6; Pischei Choshen, Pikadon 1:14).

If the borrower of an item died during the time of the loan, his inheritors are entitled to use the item for the duration of the loan. But they are only liable as a shomer sachar, a paid guardian, since they did not accept responsibility personally. However, the lender may insist that they either return the item or accept liability as a sho’el, a borrower (C.M. 341:3).

If the heirs are unaware that this item was borrowed or entrusted, there is a dispute whether they are liable, even for negligence (Nesivos 341:5; P.C. 9:[34]).

In the opposite case also, should the lender die, the borrower may continue using the item for the duration of the loan (see Aruch Hashulchan 341:1; P.C. 9:12).

Q: I borrowed my neighbor’s car to go shopping. Although I locked the car, it was stolen from the store’s parking lot. If his insurance will cover the loss, do I owe him anything?

A: A sho’el (borrower) is certainly responsible for such theft. Many classical authorities hold you liable even if the insurance company will compensate the owner for the loss. They view the insurance contract as a separate, actuarial business deal, which pays the car’s value in return for premiums paid during the coverage (Pischei Choshen, Pikadon 8:18).

However, insurance policies will usually not compensate if the loss is covered by a third party. Thus, if the owner collects payment from you, he will not be able to claim the loss from the company.

Therefore, some contemporary authorities maintain that, in the absence of negligence, the claim should be to the insurance company. This is especially true if there is a clear, common practice to collect from the insurance company and not from the borrower. Nonetheless, if claiming from the insurance will result in increased premiums or losing a “no-claims” discount for the owner, you are required to compensate him for this (see Minchas Yitzchak 2:88; 3:126).

Q: Is a paid babysitter or housekeeper considered a shomer chinam or shomer sachar on household items?

A: There is a dispute whether a person who is paid for his or her service or labor becomes a shomer sachar for household items on account of this. Some differentiate between a person who is paid to perform a specific service and one who is paid to perform all kinds of services. Regardless, a babysitter or housekeeper is not even considered a shomer chinam on items that are not in his or her jurisdiction (Pischei Choshen, Pikadon 1:[16,17]; Aruch Hashulchan 303:4).

Thus, a babysitter would not be a shomer sachar on household items, except for those related to the children’s care. A housekeeper would be considered a shomer sachar on most household items. Nonetheless, the practice is not to be particular over small losses, unless the babysitter or housekeeper was grossly negligent (Pischei Teshuvah, C.M. 331:1; Aruch Hashulchan 331:7).

The babysitter is responsible, however, for the welfare of the children entrusted to her care. She is also responsible to ensure that the children do not cause damage or loss to others (see Nesivos 95:6; C.M. 390:12; P.C., Pikadon 1:[49]).