Simon Jackson
Legal Advisor to Torah Mitzion
This week begins a new series into the world of Shomrim (guardians, trustees), and the intriguing questions of responsibility raised thereby.
One common example would be the following: I ask my neighbor to keep watch over my car and to look after my prize racehorse while I am away on vacation, and I return home to find my car stolen and my horse 10 pounds underweight.
Who is responsible for making good the damage? Would the situation be any different if I paid my neighbor to safeguard my property in the above cases?
The Gemara in Masechet Shevu’ot (49b) teaches as follows:
“There are four kinds of guardian: an unpaid guardian (Shomer Chinam), a borrower (Shoel), a paid guardian (Shomer Sachar) and a hirer (Socher).
The Shomer Chinam takes an oaath in all cases; the Shoel pays in all cases; the Shomer Sachar and the Socher take an oath in the case of injury, capture or death, but pay for loss or theft.”
The Biblical source for the laws governing these different types of guardian is our Parsha, Parshat Mishpatim (Shemot 22: 614).
Unpaid Guardians
“If a man delivers money or vessels to his fellow to safeguard, and it is stolen from the house of the man, if the thief is found he shall pay double. But if the thief is not found, then the trustee shall approach the court and swear that he has not laid his hand on his fellow’s property” (Shemot 22:67).
In other words, the trustee must solemnly swear before the court that he has not embezzled the item that had been entrusted to him, after which he is then free from all obligation.
The rationale for this law is self-evident. In the words of the Rambam (in More Nevuchim III, 42):
“The fairness of the law is evident. If one keeps the property of his neighbor for nothing, without deriving therefrom any benefit for himself, and is only doing his neighbor a favor, he is free from all responsibility and if any injury is done to the property, the owner alone must bear the loss.”
So where a person (as in the scenario described on p.1) asks his neighbor to take charge of his valuables as a favor to him while he is on vacation, the neighbor will be absolved of all liability provided he takes an oath that any mishap caused to the money or goods entrusted to him was not caused by his neglect.
Paid Guardians and Hirers
“If a man delivers to his fellow a donkey or an ass or a sheep or any animal to safeguard, and it died or was broken or was looted, without any eyewitnesses; the oath of Hashem shall be between them both, to ascertain that he did not lay his hand on the property of his fellow; and the owner thereof shall accept it and be exempt from making restitution. If it shall be stolen from him, he shall pay to its owners…” (Shemot 22:9-12).
In the case of the paid guardian (and the hirer), the guardian receives wages for keeping the property (or pays for using it), so that both the guardian and the owner profit thereby. Here, therefore (in the clear language of the Rambam ad loc):
“the losses must be divided between them. It is done in this manner: the Shomer pays for any loss caused through want
of care, namely, when the property is stolen or lost; for this happens only when the guardian does not take sufficient precaution. The owner, on the other hand, bears such losses as cannot be prevented, if by accident the animal falls and breaks its limits or is carried away by armed men as booty, or if it dies.”
As distinct from the case where an animal is carried off by a band of marauders against whom the trustee is powerless, it is assumed (unless the trustee can disprove this) that the trustee, who was paid to take care of the animal, has not done so sufficiently where the animal is lost (or the car stolen).
Borrowers
“If a person borrows anything of his neighbor and it breaks or dies – provided its owner is not with him – he shall surely make restitution. If the owner is with him he shall not make it good” (Shemot 22:13-14).
Again, in the words of the Rambam: “A person who borrows an item keeps it only for his own advantage, while the owner lends it to him purely for his benefit. He is therefore responsible for everything; any loss in the property must be borne by the borrower [save for the case when the owner is with the borrower at the time of the mishap in which case it is then the owner’s duty to take care of his animal, “for since he is there, let him watch his own property – see Sefer HaChinnuch, Commandment 60]”.
Chok HaShomrim (Bailees Law), 5727-1967
The Israeli Chok HaShomrim (Bailees Law), 5727-1967, incorporates many of the fundamentals of the laws governing guardians in Jewish law. In the explanatory notes to the original Bailees Law bill, we read: “With regard to the liability resulting from the different types of bailment (Shemira), the law proposed herein follows the principles of Jewish law (Mishnah Shevu’ot 8:1 – ‘There are four bailees…’)”.
Chok HaShomrim adopts not only the terminology employed by the Mishnah, but also the substantive law which governs the liability of trustees in Jewish law. For example, the Halakhic concept exempting a trustee for ‘fair wear and tear’ (meita machamat melacha) is given expression under section 4 of the Law: “Restriction on Liability: A Shomer is not liable for loss or damage to the property caused by the ordinary use thereof in accordance with the conditions of the bailment, or by natural deterioration…” Examples of this would be where the animal died in the course of working for the Shomer, where the animal lost weight as a result of the work (or normal use, as in the scenario on p.1) or where a borrowed axe or pail broke as a result of their normal use (see Bava Metzia 96b).
In our next column, we will cite a judicial decision of the Israeli Supreme Court in which the principles of Halakha were held to apply to the interpretation and application of the Bailees Law, 1967: for “Since Jewish law was considered by the draftsmen of the law, we may be assisted by Jewish law in understanding the concepts employed by the statute…”
