Mr. Miller had been unemployed for a while, but was expecting to start a new job shortly. “We need to borrow $5,000 to carry us through next month until the first pay check comes,” he said to his wife.
“Whom can we borrow from?” Mrs. Miller asked.
“I’ll ask Jack Braun,” Mr. Miller replied. “He’s been helpful in the past.”
“I can lend you $5,000 for a month or two,” Mr. Braun said, “but I can’t afford to risk losing the money. Can you give something as collateral until the loan is repaid?”
“I’m not sure what we have worth that amount,” said Mr. Miller. “Let me check with my wife.”
“There is a diamond necklace that I wear on special occasions,” Mrs. Miller said to her husband. “It was recently appraised at $6,000. We can give that as collateral.”
Mr. Miller brought the necklace over to Mr. Braun. “I’ll put it away safely in my wife’s jewelry box,” Mr. Braun said. He wrote out a check for $5,000.
A week later, the Brauns returned home from a simchah and saw one of the windows ajar. Things were strewn around the floor, drawers were open, and the breakfront was bare of its silver items. “We’ve been burglarized!” Mr. Braun cried out.
Mr. Braun ran upstairs to the bedroom. His wife’s jewelry box had been emptied. Missing also was Mrs. Miller’s diamond necklace!
Mr. Braun notified Mr. Miller of the unfortunate incident. “I’m very sorry to hear,” Mr. Miller said sympathetically. “However, you are responsible for the necklace. We should not have to repay the loan, since the necklace was stolen. If anything, you should pay us the $1,000 difference!”
“I disagree; the two issues are unrelated,” objected Mr. Braun. “You have to repay the loan, regardless. On the other hand, since I received nothing for watching the necklace, I am an unpaid guardian (shomer chinam) and not liable for its theft” (C.M. 291:1).
“Let’s ask Rabbi Dayan,” they agreed. The two approached Rabbi Dayan and asked: “Who owes whom?”
“No one,” ruled Rabbi Dayan. “Mr. Braun loses the right to collect the $5,000 loan, but is not liable for the excess $1,000.”
“Why is that?” asked Mr. Miller.
“The Mishnah (B.M. 80b) teaches that one who lent with collateral is considered a shomer sachar (paid guardian), who is liable for its theft,” replied Rabbi Dayan. “However, the Gemara (82a) subsequently links this issue to a dispute regarding someone who is holding a lost item until its owner comes. Rav Yosef considers him a shomer sachar on account of the benefit of the mitzvah, whereas Rabbah considers him a shomer chinam” (C.M. 267:16).
“What is the ruling?” asked Mr. Braun.
“The Shulchan Aruch rules like Rav Yosef, that the lender is a shomer sachar and liable for the stolen collateral,” answered Rabbi Dayan. “He must pay its value in excess of the loan. However, the Rema rules like Rabbah, that the lender is a shomer chinam and not liable. He concludes that on account of the doubt we do not extract payment. This is also the conclusion of later authorities. Thus, Mr. Braun does not have to pay the excess $1,000” (C.M. 72:2; Shach 72:22).
“But if I am a shomer chinam and not liable for the necklace,” asked Mr. Braun, “why shouldn’t I be able to collect the full $5,000 of the loan?”
“Tosafos (s.v. Neima, Lo) explains, based on Shmuel’s opinion in the Gemara (op. cit.), that there is an unstated understanding that if the collateral is lost or stolen, the borrower will not repay the loan,” replied Rabbi Dayan. “This is also the intention of the Mishnah that the lender is like a shomer sachar. When the collateral is equivalent to the loan, it cancels out; when it is worth more, the borrower is exempt from paying the loan — but the lender does not have to pay the excess amount” (Sma 72:15; Shach 72:20; Pischei Choshen, Halvaah 8:[24]).