Is a Shomer Liable if He Forgets Where He Hid an Item For Safekeeping?

Rav Chaim Weg

Question: My neighbor went away for the summer and before he left, he told me that he has a valuable silver leichter that he is afraid to leave at home. He asked if I could watch it for him until he gets back. I agreed and then hid it in a safe place. I hid it so well that I forgot where I put it. When he asked for it back, I couldn’t find it. He is demanding that I either give him back his leichter or pay him the value. I told him that I need two weeks to look for it. Can I have that time to look?  

Answer: You are a Shomer Chinam on the leichter and are liable for negligence. 

The Gemara and Shulchan Aruch clearly say that a Shomer who doesn’t know where he put the item that he is entrusted to watch is liable to pay; however, there is a machlokes Acharonim why he is liable. Some say that he is chayav because he is considered negligent. The Nesivos, however, says that he is liable because he is a mazik. When someone physically breaks an item, he is called a mazik because he made it inaccessible to it’s owner. So too, if someone can’t find an item he was entrusted with, he is a mazik because he caused it to be unusable for the owner. According to the Nesivos, even in a case where a Shomer would be patur (such as baalav imo), this man would be chayav because he is a mazik. 

Having said this, you would be liable to pay immediately and you are not given two weeks to find the leichter. If it does turn up after you pay, that would lead to another discussion about what to do then.