Question

There were two celebrations in town on Shabbos.
Avrohom made an "aufruf"
(the bridegroom being called to the reading of the Torah before his marriage)
for his oldest son and Boruch’s youngest son became bar mitzvah. Many guests
came to participate in the festivities, occupying apartments which were
vacant on this day. Unfortunately, one of Avrohom’s guests failed to lock the
door when he went to shul in the morning. He returned to find that all the
silver in the house had been stolen. Boruch’s guests were more responsible.
Yet, in spite of locking the door when they left, they discovered that the
beds had been stolen while they were out (don’t ask me how!). Do either of
the guests have to compensate their hosts for their loss? Do Avrohom and/or
Boruch bear any responsibility?

Answer

Whenever a person uses the property of another, he
assumes certain responsibilities for that item. He becomes a
shomer – a
watchman – over it. If he does not have to pay for the use of the item, he is
even responsible for accidental damage or loss to the item (sho’el).
How does he take on such responsibility? This is a subject of dispute.
According to Tosafos
(Bovo Metzia
99a) and the Rosh
(Ibid. 8:15), the mere fact of accepting the deposited item creates
liability. However, the
Rambam (Laws of Hiring 2:8) is of the opinion that a formal act of
acquisition (kinyan)
is required for such liability to take effect. Following in their footsteps,
the Shulchan Oruch
(Choshen Mishpot
303:1, see also 291:4) rules that responsibility only comes into
effect once a kinyan
has been made (like the
Rambam), whereas the
Remo (Ibid.)
holds that no kinyan
is required (like the
Rosh). Did the guests
perform an act of acquisition on the use of the apartment? It would
seem that they did. They opened and closed the entrance door to the
apartment, in the same way as the owner, this being considered a
kinyan chazokoh
(showing ownership). All would therefore agree that the guests have assumed
responsibility for the apartments they are using, including liability for
accidents (sho’el
– use without payment). However, logically we have to limit their liability.
They have not been given use of all the contents of the apartment. They are
permitted to sleep in the beds and sit on the chairs, but not to empty the
fridge. Usage of the silver is also not what the owner had in mind. Thus, the
guests are only considered liable borrowers of the items actually lent to
them. They would therefore be exempt from payment for accidental damage to
the silver. Nevertheless, we can safely assume that the owner of the
apartment is only prepared to host guests who act in a responsible manner.
Obviously, the door must be locked when the guests leave. Failure to do so
constitutes negligence, for which even an unpaid watchman is liable. These
guests have the status of an unpaid watchman as regards those contents of the
apartment which are not loaned to them.

We can therefore conclude that both Avrohom’s guests and
Boruch’s guests are liable for the loss their hosts sustained, but for
different reasons. Leaving the house without locking the door is plain
negligence. Although Avrohom’s guests were not given use of the silver, they
are still liable to reinstate the loss, since they failed to fulfil their
duty as unpaid watchmen on all the contents of the house. Boruch’s guests did
act responsibly, locking the door when they went out. However, the items
stolen were those beds which had been lent to them. Even if we were to
classify the break-in as an accident, they would still be liable as a
sho’el. As regards Avrohom and
Boruch’s responsibility, we can assume that the apartment owners were only
prepared to make their premises available if they ultimately guaranteed to
reinstate any loss.