A week before Pesach, flyers were placed on all the cars on the block: “We clean your car for Pesach,” with a phone number below.
“With erev Pesach on Shabbos, we can certainly use some help!” Mrs. Schwalb said to her husband. “Please see who placed the flyers.”
Mr. Schwalb called the number. “Dani speaking,” came the answer. “We clean your car.”
“Who are you?” asked Mr. Schwalb.
“We are two yeshivah bachurim who clean cars for Pesach,” Dani replied. “We have three years of experience and decided to go big this year... ”
“Can you clean our car tomorrow afternoon?” Mr. Schwalb asked. “At 5 p.m.”
“Sure,” replied Dani. “I’ll come with my vacuum and pail. Just give me your address and phone number.”
Dani came over at 5 p.m. with his pail and rags. “No vacuum?” Mr. Schwalb asked. “How can you clean the car without a vacuum?! Do you want ours?”
“No, my partner will bring the vacuum shortly,” Dani said. “I’ll start meanwhile with a general cleaning.”
Five minutes later, Dani knocked on the door. “My partner just notified me that he’s delayed,” he said. “Can I use your vacuum?”
“Sure,” said Mr. Schwalb. He gave Dani his vacuum. Dani vacuumed the seats and floor of the car. He then began washing the floor mats, before vacuuming the trunk.
While Dani was washing the floor mats, a branch fell from a tree and hit the vacuum cleaner, cracking it!
Dani apologetically brought the vacuum to Mr. Schwalb. “A branch fell and cracked the vacuum cleaner,” he said. “I’ll have to pay for the repair or replacement.”
“It’s not your fault,” Mr. Schwalb soothed him. “It was oness, uncontrollable circumstances, so you’re not liable.”
“But I borrowed your vacuum, so I am liable also for oness,” Dani replied.
Mr. Schwalb furrowed his brow. “I’m not really sure that you borrowed our vacuum,” he said. “You were cleaning our car.”
Dani and Mr. Schwalb called Rabbi Dayan and asked: “Is Dani liable for the vacuum cleaner?”
“The Gemara (B.M. 80b) teaches that a craftsman who works on an item is considered a shomer sachar on it,” replied Rabbi Dayan. “The classic case is that the craftsman works in his own premises (e.g., cleaners or mechanic).”
“When the craftsman works in the owner’s premises, e.g., an appliance technician, Shach (306:1) considers him also a shomer sachar on the appliance, whereas Sma (306:1) considers him only a shomer chinam. According to the Bach and Machane Ephraim (Shomrim #41), he is not even a shomer chinam if the owner is present, since the owner continues to guard his appliance.
“This dispute would apply had damage or theft occurred to the car that Dani was cleaning.
“In our case, though, where Dani used a vacuum belonging to the owner and it was damaged, Pischei Choshen (Pikadon 1:3[6]) writes that if the initial agreement was that the worker use his own tools but the owner lent him his tools, instead, the worker is considered a borrower.
“However, if the initial agreement was that the worker use the owner’s tools, the worker is not considered a borrower. Nonetheless, he is presumably considered a shomer sachar, since he works and earns his wages through these tools (see end of Pischei Teshuvah 306:1).
“Thus, since Dani initially stipulated to use his own vacuum, he is considered a borrower and liable. However, had Dani stipulated initially to use the Schwalb’s vacuum, he would be only a shomer sachar and exempt from oness but would be liable for theft. Seemingly, even according to the Machaneh Ephraim, Dani would be a shomer, since he worked outside and Mr. Schwalb was not readily available to guard the vacuum.
“Had Dani asked Mr. Schwalb to use his vacuum when he first came before he began working, it is questionable whether to consider him a shoel or shomer sachar,” concluded Rabbi Dayan. “Although the initial arrangement on phone was that Dani would use his own vacuum, a worker’s verbal commitment is not binding until he begins working, and at that point he already arranged to use the Schwalb’s vacuum.”
Verdict: If initially arranged that the worker use his own tools, but he used the owner’s tools, instead, he is considered a borrower and liable even for oness; if initially agreed that he use the owner’s tools, he is a shomer sachar.
Based on writings of Harav Chaim Kohn, shlita
