Rabbi Meir Orlian
“Look inside this sefer,” Yoel said to his friend Menashe. “It’s written by Rabbi Moshe Feinstein, zt”l.”
Menashe opened the sefer. Inside, he saw a signed inscription by HaRav Moshe.
“Wow! How did you get an inscribed copy?” he asked.
“I have a cousin who was very close with the Rav,” answered Yoel. “My cousin gave me this sefer as a bar mitzvah gift and arranged to have it inscribed.”
“That’s really exciting,” said Menashe.
“If you don’t mind, I have a favor to ask,” requested Yoel. “I have a few errands to do on the way home and don’t want to carry the sefer around. Do you mind taking it home? I’ll pick it up this evening.”
“That would be my great pleasure,” answered Menashe. He took the sefer and put it in his knapsack.
Later that evening, Yoel came to pick up his sefer.
“You’ll never believe what happened,” Menashe told Yoel. “I stopped to daven Mincha and Maariv on my way home. I left my knapsack next to the coat rack of the shul, and when I finished davening, the knapsack was gone!” exclaimed Menashe. “Some dishonest person must have entered the shul and stolen it!”
Yoel stared at him in horror.
“How do I know what you’re saying is true?” snapped Yoel. “Maybe you’re making up a story.”
“I have no proof, but that’s the truth,” insisted Yoel. “I’m a shomer chinam (unpaid guardian) on the sefer, so I am not liable for theft (C.M. 291:1).”
“That’s it?” retorted Yoel. “You just say that it was stolen and you’re off the hook?”
“What more do you want me to do?” said Menashe. “You want me to pay for the sefer? I’m not liable for it.”
“I’m not sure what to do,” said Yoel. “But I don’t think it’s so simple. Let’s ask Rabbi Dayan!”
Yoel and Menashe went to Rabbi Dayan.
“I entrusted a sefer especially inscribed by HaRav Moshe Feinstein, zt”l, with Menashe, and he claims it was stolen,” said Yoel. “I don’t accept that simply. What do we do?”
“This brings us to the third and final type of Torah oath,” answered Rabbi Dayan. “If a guardian claims exemption — e.g. a shomer chinam who claims that the entrusted item was stolen — he is required to swear.
“The Sages required the guardian to include three elements in his oath (B.M. 6a; C.M. 295:2; Taz): 1) that he was not negligent, but guarded the item properly; 2) that the item was lost in the stated manner and is no longer in his possession; and 3) that he did not misappropriate the item for his personal use beforehand. If the guardian misappropriated the item, he remains liable until he returns it.”
“What if I choose to pay for the item?” asked Menashe. “Certainly if I pay, there is no need for any oath!”
“Even if the guardian will pay for the item, i.e. if he admits that it was lost through negligence,” replied Rabbi Dayan, “he is not required to swear the regular Torah oath of a guardian, but is still required to swear that the item is no longer in his possession, unless the item is a standard one readily available on the market.”
“What difference does that make?” asked Yoel.
“If the item is not readily available,” answered Rabbi Dayan, “we are concerned that the guardian desires the item and is scheming to ‘acquire’ it by admitting guilt and paying for it. Therefore, the Sages imposed an oath that he is not holding the item. If the owner disputes the stated value, the guardian must also include the item’s value in his oath (C.M. 295:1).”
“If a guardian were to swear, does he need to bring any other proof?” asked Menashe.
“No, but a guardian is believed with an oath only if the event is not a well-known one,” answered Rabbi Dayan. “If the guardian claims that the item was stolen in broad daylight in a public place, though, we do not suffice with an oath; he must bring witnesses (C.M. 294:2-3).”