Q. Two bachurim, Moshe and Chaim, decided to collect tzedakah together on Purim. Moshe had two scooters, and he lent one of them to Chaim to facilitate their efforts.
On Purim afternoon, after a few cups of wine, Chaim fell off the scooter and got hurt. Rather than step back onto the scooter, he limped home to tend to his wounds. Moshe went along, dragging that scooter to Chaim’s house and waited for him to come back out and continue collecting. When twenty minutes had elapsed and Chaim did not emerge, Moshe left the scooter outside Chaim’s house and continued collecting by himself.
At some point, the scooter was stolen.
Chaim claims that when he fell and Moshe took possession of the scooter, he effectively returned it to Moshe and was no longer a sho’el (borrower).
Moshe argues that his taking possession of the scooter did not qualify as Chaim’s having returned it, and although he concedes that he left the scooter unguarded, he says he had no other recourse because he had no way of securing the second scooter at that point.
Who is correct?
A. If Moshe’s taking possession of the scooter does qualify as Chaim’s returning it, it is obvious that Chaim is absolved from payment, because he was no longer a sho’el and was not responsible for its safety. It is questionable, however, whether a borrowed item may be returned on the street, far from the lender’s home (see Shulchan Aruch Choshen Mishpat 293:1-2).
In this case, though, Chaim never returned the scooter, because he planned to use it to continue collecting after recovering from his fall, but due to his inebriation and injury, he simply forgot to do so. Chaim was therefore still responsible for the scooter.
Nevertheless, it is possible that Moshe became a shomer chinam (unpaid guardian) for the scooter when he began to navigate it back to Chaim’s house while Chaim limped along. Whether he became a shomer chinam depends on the respective mindsets of the two parties. We would need to determine whether Chaim tacitly asked Moshe to guard the scooter, and whether Moshe accepted upon himself the responsibility to guard it (see ibid. 291:2 with Nesivos 2, and BHI issue 447).
If Chaim did indeed request that Moshe guard the scooter, and Moshe agreed, then Moshe was obligated to guard it, which would absolve Chaim from his responsibility. The poskim rule that if a shomer sachar (paid guardian) or a sho’el (borrower) asks the owner of the item to safeguard it, and he accepts it, he becomes a shomer chinam for it. But the shomer sachar would still be liable if the item is stolen or lost, and the sho’el would still be liable for onsim (circumstances beyond his control) as well (ibid. 72:3).
If Moshe did become a shomer chinam, he was negligent in his obligation to guard the scooter when he left it on the street instead of bringing it into Chaim’s house, and Chaim would therefore not be liable for it.
But it is possible that Moshe is exempt despite his negligence due to the halachah of b’alav imo, in which case Chaim is obligated to pay.
The Torah states that if a mafkid (person giving an item to another person to safeguard) has some sort of obligation toward the shomer, then the shomer is not liable if something happens to the object (ibid. 346:1; see BHI issue 437 regarding whether there is an obligation to pay latzeis yedei Shamayim).
In your case, even if Moshe agreed to guard the scooter, Chaim had an obligation toward him, because he was required to pay for onsim. It would seem, therefore, that Moshe’s negligence should not exempt Chaim from payment (Taz, Choshen Mishpat 291:28).
But some poskim explain that Chaim’s responsibility for onsim alone does not qualify to make it a case of b’alav imo. Only if he had a responsibility to guard the item or to do a service for Moshe would he be exempt because of b’alav imo, but responsibility for loss and onsim alone does not suffice. In our case, Chaim is not required to guard the scooter while Moshe accepted that responsibility (Nesivos 305:3; see there for an additional reason why this is not a case of b’alav imo, and see Nachal Yitzchak 72:4).
In addition, this might not be a case of b’alav imo if the scooter does not belong to Moshe himself, but to one of his family members, in which case Chaim’s obligation as a shomer was toward the actual owner, and Moshe’s obligation to Chaim was a separate requirement (see Choshen Mishpat 346:17).
If there is indeed no exemption due to b’alav imo, then Moshe was obligated to guard the scooter, and Chaim is therefore not obligated to pay him for it.
