“I’m going to a cousin’s wedding,” Moshe said to his classmate, Yossi. “Could you take my backpack home with you? I’ve got a new laptop in it.”

“No problem,” said Yossi, taking the backpack. He met up with a group of friends and headed home.

On the way, Yossi’s father called. He was stuck with the car away from the house and needed help.

Yossi turned to Nachman, who lived near him. “Someone asked me to watch his backpack, with a laptop inside,” he said. “Can you please take it home? I’ll pick it up in the evening.”

“Sure,” said Nachman.

While the group was walking, someone came from behind Nachman, grabbed the backpack and sped off on a bicycle.

In the evening, Yossi came to collect the backpack.

“I’m sorry, but a thief came and stole it,” Nachman related. “You can ask the rest of the group; they all witnessed it.”

“You’re kidding!” exclaimed Yossi. “What am I going to tell Moshe?”

“You were an unpaid guardian (shomer chinam), and so was I,” replied Nachman. “Just say that an unpaid guardian is exempt from theft (C.M. 291:1).”

Yossi called Moshe. “Sorry about the backpack,” he apologized. “My father needed help, so I entrusted the backpack to one of my friends, Nachman, and it got stolen.”

“You shouldn’t have given him the backpack,” Moshe said. “You were negligent! You’ll have to pay for the laptop.”

“How was I negligent?” replied Yossi. “Nachman’s a reliable fellow.”

“Why should I trust Nachman?” asked Moshe. “I barely know him.”

“But there were witnesses there,” said Yossi. “They’ll tell you that it was stolen!”

“It’s still your fault,” argued Moshe. “Had you kept the backpack, it wouldn’t have been stolen.”

“That doesn’t make me negligent,” insisted Yossi. “I entrusted the backpack to someone competent.”

“Let’s take it up with Rabbi Dayan,” Moshe suggested.

“I entrusted my backpack to Yossi,” Moshe claimed. “He handed it over to his neighbor, Nachman, and it was stolen. Is Yossi liable for the backpack?”

“If there is no evidence to the theft, Yossi is liable,” answered Rabbi Dayan. “However, if there are witnesses, Yossi is exempt.”

“The Gemara (B.M. 36a-b) discusses the case of a guardian who handed the entrusted item over to another guardian (shomer shemasar l’shomer),” explained Rabbi Dayan. “If the item is stolen, Rav exempts the initial guardian, because he gave it to a competent person. However, the ruling is like Rav Yochanan, who obligates the initial guardian.”

“So why isn’t Yossi liable when there is evidence?” asked Moshe. “What is Rav Yochanan’s rationale?”

“This is a dispute between Abaye and Rava,” answered Rabbi Dayan. “Abaye explains that a person does not want his item entrusted with a third party. Thus, the initial guardian was inherently negligent in handing it to another person.

“Rava, however, maintains that although it was wrong to hand the item over to another person, this does not constitute negligence. Rather, the first guardian is liable because the owner can refuse to believe the oath of the second guardian that the item was stolen; the concern of real negligence remains.”

“What is the difference between these two reasons?” asked Nachman.

“There are three differences, situations in which the reliability of the second person is not an issue,” replied Rabbi Dayan. “First, if the owner commonly entrusts the second guardian with comparable items; he cannot say that he does not trust him and would have to accept his oath.

“Second, when the initial guardian was also present at the time of the theft, he can swear about the theft to exempt himself.

“Third is our case, when there are witnesses to the event; there is no need for an oath by the second guardian.”

“The halacha is in accordance with Rava’s rationale,” concluded Rabbi Dayan. “Thus, Yossi is exempt from liability on the basis of the witnesses, despite the fact that he handed the backpack over to another person (C.M. 291:26; Shach 291:47).”