BS”D
Question
I recently traveled from Cleveland to New York by bus. My friend in Cleveland asked me to take an item for him to New York. I put the item along with my suitcase in the luggage compartment under the bus. I specifically did not place my friend’s item in my suitcase so that it should not get bent. When I disembarked in New York, I forgot that I had also put my friend’s item under the bus. Am I liable for the loss of his item?
Answer
We must first analyze your question in halachic terms.
Since you were not paid for taking the bag you have the status of a shomeir chinom. Even though you weren’t asked to watch the bag, it is obvious that you were being relied upon to do so which the Shulchan Aruch (291, 2) rules gives you the halachic status of a shomeir chinom. The Torah writes that a shomeir chinom is liable only if he was negligent. Thus, your question boils down to whether your forgetting to take the bag off the bus constitutes negligence or not.
This exact case is not discussed by the Gemara but a similar case is discussed. The Gemara (Bava Metsiyo 35A) discusses someone who was asked to watch jewelry for free and when the owner came to ask for its return the watchman said he couldn’t find it. The Gemara rules that the watchman is liable and gives as the reason, “Whenever one says he doesn’t know it is considered negligence.” The generality of this expression indicates that whenever one forgets something it is considered negligence. This would seem to indicate that your forgetting is viewed as negligence and if so you are liable.
However, the poskim question the general applicability of this statement because there are other situations where the halacha does not view forgetting as negligence.
One situation is where a person forgot to make an eiruv tavshilin. The Gemara (Beitso 16B) discusses a person who forgot to make an eiruv and Shmuel told him that he may rely on his (Shmuel’s) eiruv since he (Shmuel) has in mind to make an eiruv also on behalf of those who did not make their own eiruv. However, when the scenario repeated itself the next year Shmuel told him that he cannot rely on his eiruv because he (Shmuel) does not have in mind to make an eiruv on behalf of those who are negligent. Thus, we see that only one who habitually forgets is viewed as being negligent, but forgetting one time is not negligence.
A second proof the poskim bring is from one who put a stone in his garment and later it fell from his garment and damaged another person because he forgot that he had placed it in his garment. The Gemara (Bava Kama 26B) rules that he has only partial liability because forgetting does not constitute negligence.
The Shevus Yacov (2, 148) says that the reason the watchman of the jewelry who could not find the jewelry was liable is that the watchman acted improperly. The reason is that one who is entrusted with another person’s object must place the object in a manner that will ensure that he won’t eventually forget where he put the object. He mentions, for example, that a watchman should record where he placed the entrusted object. Thus, it is not that forgetting constitutes negligence but rather that when one cannot locate the object it indicates that he didn’t care for the entrusted object properly. This is similar to the Meiri’s explanation of the Gemoro, except that the Meiri says the negligence is because an entrusted object requires constant attention even if it was placed in a secure location. If the watchman had given the entrusted object the attention it deserved he would have never forgotten where it was. Again, we see that forgetting per se does not constitute negligence. It is just that proper care by a watchman precludes not knowing where the entrusted object is. It is the failure to give proper care which constitutes negligence.
Rabbi Akiva Eiger (Vezos Leyehuda page 67) also is not decided if the negligence of the watchman lies in his placement of the object in a place which he could forget.
If one follows these explanations it would seem that you are not considered negligent since you were expected to place the object where you did and there was nothing you had to do to look after the object while you were in transit. One could argue that you should have written a sign on your suitcase to remind you to take your friend’s item. However, this seems unreasonable since people do not normally do so and a shomeir chinom is only expected to do what is normal.
The Mekor Baruch (siman 52) also understands that there is no proof from the Gemoro that forgetting constitutes negligence. He understands that the reason the person who forgot where he placed the jewelry is liable is because he can’t swear that he wasn’t negligent and the Torah says that a shomeir chinom must swear to that effect.
There are others though who differentiate between a watchman and others. While it is natural that people do forget on occasion, one who is a watchman must not forget. Thus, the Ulam Hamishpot (291, 7) suggests that one who is entrusted with someone else’s object must make certain that he does not forget it. Similarly, the Chessed Le’avrohom (Tinyono, end of response 36) considered one who forgot the owner’s instructions as being negligent. Also the Ohr Someach (2, 15) understood that the watchman’s forgetting constitutes negligence.
The Nechba Bakesef (CM 23) was asked a somewhat similar question to yours and we can derive two important points from his response. He was asked concerning someone who was traveling by donkey from Yerushalayim to Tzefat and was asked by a friend to do him a favor and take a garment for him to Tzefat. He placed the garment under himself on the donkey. In the middle of the night, at a place where the terrain was difficult, he was thrown from the donkey together with the garment. When he got back on the donkey he forgot to take the garment. The Nechba Bakesef ruled that for two reasons he is not liable for the garment. First, he says that since the poskim dispute whether a watchman is liable for forgetting, one cannot force someone to pay. Second, in this case there were extenuating circumstances since he was thrown from the donkey and anyone in that situation could forget about the garment due to the circumstances. Therefore, he says that even those who normally would rule that one who forgets is liable would agree that here the traveler is not liable.
The Magen Avrohom (527, 6) when discussing the case of eiruv and comparing it with other rulings in other situations, cites and agrees with the Maharshal who writes that the key factor is why one forgets. Forgetting itself does not constitute negligence but if the reason one forgot is because of laziness then it is classified as negligence.
In conclusion, there is a major dispute among the poskim whether you are liable. In any case beis din would not force you to pay since there are many opinions who would rule that you are not liable unless you acted negligently. If there was a special reason why you forgot e.g. you were very exhausted after traveling so many hours, there would be even more reason to be lenient. This is also the ruling of the Mishpat Shlomo (4, page 148). However, he points out that if your friend wishes he can ask beis din for you to swear that you did not act negligently and since nowadays beis din dos not allow people to swear, beis din would make a compromise. Therefore, it would be proper for you to agree with your friend to absorb part of the loss.
