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).