Rabbi Meir Orlean
One of Benjy’s computers stopped working. He took it to Shlomi’s computer shop to be fixed.
Shlomi examined the computer quickly. “The electric supply and CPU have to be replaced,” he said.
“How much will that cost?” asked Benjy.
“The parts costs $150 and the labor another $150.”
“Wow! That’s a significant amount,” said Benjy. “Maybe I should just upgrade and buy a new one.”
“That’s up to you,” replied Shlomi. “Think about it. If you want, I’ll repair it; if not, you can get a new one.”
“Hold off, then,” said Shlomi. “Meanwhile, can I leave the computer here?”
“Certainly,” said Shlomi. “I’ll keep it in the back with the other computers waiting for repair. When you decide, let me know and I’ll fix it if you want.”
Benjy returned home. He priced other models and consulted about the possibility of upgrading, but after a week decided to repair the computer.
Benjy called Shlomi. “I’d like the computer repaired,” he said.
“I’m sorry to report that last night my shop was robbed,” said Shlomi. “Your computer was stolen!”
“In that case you owe me for it,” said Benjy. “You took responsibility for it! Although it needs repair, it’s still worth a few hundred dollars.”
“First of all, I took the computer to fix, not to watch as a guardian,” replied Shlomi. “Second, even if I took responsibility, I was not paid to watch it. At most I would be a shomer chinam (unpaid guardian), who is exempt for theft!”
“You took the computer because you hoped to earn money,” countered Benjy, “so you should be a shomer sachar (paid guardian), who is liable for theft!”
“I propose that we take up the issue with Rabbi Dayan,” suggested Shlomi.
“Agreed!” said Benjy.
The two approached Rabbi Dayan. “Is Shlomi liable for the computer?”
“The Mishnah (B.M. 80b) teaches that a craftsman who receives an item to fix is considered a shomer sachar,” replied Rabbi Dayan. “Although the craftsman is not paid to watch, he benefits in that he was chosen to do the repair and earn the wages. Furthermore, he holds the item as collateral to ensure his wages” (C.M., Sma, Shach and Pischei Teshuvah 306:1).
“Despite this,” continued Rabbi Dayan, “in our case, it is doubtful whether Shlomi can be held liable.”
“Why is that?” asked Benjy.
“Kesef Hakodashim (306:1) addresses the case of a tailor who took leather home from a client in a distant city to sew it into a garment,” replied Rabbi Dayan. “He questions whether the tailor is considered a shomer sachar on the way, since he cannot work en route and the client can still retract.
“Pischei Choshen (Pikadon 1:) notes that according to many authorities, once the tailor took the hides, the client cannot retract,” continued Rabbi Dayan. “He maintains that the tailor is considered a shomer sachar. This case is not comparable to a craftsman who notified the owner that he can pick up the repaired item and pay later, who ceases to be a shomer sachar, since the owner can take the item back at will and the craftsman no longer benefits, but when the tailor took the leather to work on it, he benefits also while on the way home.”
“What about in our case?” asked Shlomi.
“Pischei Choshen might also agree that Shlomi could be exempt, since Benjy did not make a final decision to fix the computer,” replied Rabbi Dayan. “Although potential gain often suffices to render someone a shomer sachar, here there is no commitment yet. As it stands, there is no indication that Shlomi will earn anything. The second reason, that of holding the computer as collateral, certainly does not apply.”
“Thus, in light of the doubt raised by Kesef Hakodashim,” concluded Rabbi Dayan, “Shlomi cannot be held liable, as the burden of proof is on the plaintiff (hamotzi meichaveiro alav hare’ayah).”