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.