Rabbi Meir Orlian
Writer for the Business Halacha Institute
Q: My friend called me and asked if I had an extra cellphone he could borrow for his brother, who was visiting Eretz Yisrael (where I live) for a few days. I told him that I actually do have an expensive cellphone, with an active account, that is not in use. I was in a rush to leave the house to attend a wedding, so we agreed that I would leave the phone and charger in a bag on the outside handle of the front door to my apartment. His brother would pick it up from there. I asked him if he agreed to this plan, and he affirmed that he did.
When I returned from the wedding late that night, the bag was gone.
A week later, I called my friend to as when he was planning to return the phone, because he had told me that his brother was visiting for only “a few days.” He told me that he never took the phone, because they arranged for a different phone for his brother. He also said that he tried to call the same night we had originally spoken, to inform me of the change in plan, but I apparently had no cellphone reception at the wedding. He then forgot to update me. Is my friend obligated to replace the stolen phone?
A: There are two sets of halachos relevant to this question: those of shomrim (guardians), which include a sho’el (borrower); and those of areivim (guarantors).
The Rishonim debate whether a sho’el (borrower) of an object becomes liable for it if he never made a kinyan (acquisitional act) on it, but the owner released control of it at the sho’el’s behest. The Rosh (cited in Shulchan Aruch C. M. 340:4) says he does become liable, and the Rambam (cited in ibid.) says that he does not.
The Poskim discuss whether this dispute applies to a case in which a borrower asked the owner of the cow he was borrowing to send it to him by hitting it with a stick so that it would start to walk on its own. The Shach (ibid. 340:10) says that the same dispute applies, but the Nesivos (ibid. 340:12; cf. Nesiv Binah 3) writes that in such a case, even the Rosh would agree that the sho’el is not liable for the cow if it never reached him. He explains that the Rosh holds the borrower liable when the owner relinquishes possession of it only if the sho’el can guard it immediately. If the sho’el is not present when the owner relinquishes possession, however, even the Rosh would agree that he does not become liable.
Accordingly, your friend is not liable for the phone as a shomer, because he can rely on the Rambam and the Nesivos to absolve himself of payment, because he never made a kinyan on the phone.
The remaining question is whether your friend became an areiv (guarantor) on the phone. A prototype areiv instructs a lender to lend money to a third party and to rely on him to repay it if the borrower cannot do so. The same applies to any situation where someone releases money at another person’s behest and that person guarantees that it will be returned to him. Accordingly, by instructing you to put the phone in a place where it could easily be stolen, your friend became an areiv.
It is possible, however, that because the phone never really left your possession — it was still on your property; you simply placed it in a spot where it wasn’t guarded properly — it is not subject to the halachos of areiv (see Bava Metzia 99a with Ritva regarding sending an object to a borrower with an eved Canaani).
Ultimately, he is not liable as an areiv. The Rishonim discuss a case in which Reuven instructed Shimon to throw money into the sea, and he would repay him. The Ramban (Kiddushin 8a, cited in Rema 380:1) says that Reuven must repay Shimon, because Shimon did release money at Reuven’s behest, making Reuven an areiv. The Rashba (Kiddushin 8b, also cited in Rema ibid.) argues that a person becomes an areiv only if the money he instructed the other person to relinquish brings some benefit to another person.
According to the Rashba, in the case of your phone, because the sho’el did not derive any benefit from the object he wanted to borrow, the person who instructed him to relinquish control of it is not an areiv (Nesivos 340:12; see however Avnei Choshen ibid.).
