Daf 94a - 95a The Four Shomrim - An Overview

  • Rav Yair Kahn
 
 
 
 
            The four different types of shomrim is usually accepted as a given.  However, a glance at the pesukim which deal with shomrim (Shemot 22:6-14) will reveal the breakthrough of Torah she-ba'al peh regarding these laws.  Although the Torah explicitly refers to sho'el, there is no clear-cut reference to shomer chinam or shomer sakhar.  Furthermore, with reference to the sokher, which IS mentioned, we are told only that he does NOT have the same status as a sho'el, leaving us to ponder the extent of his liability.
 
            Our gemara deals with the derivation of the categories of the shomrim and their laws directly from their biblical source.  This shiur will reflect the basic thrust of the gemara, but will not be a literal commentary on the pesukim.
 
            The pesukim do in fact relate to four different cases.  However, the distinction between the first and second case seems to be based on a technicality and does not represent a separate category of shomrim.  While the first case (Shemot 22:6-8) deals with a shomer of inanimate objects - silver (coins) or utensils, the second relates to one who is entrusted to watch over animals.  Although we are apparently dealing with ONE type of shomer, their laws, nevertheless, vary.  The Rashbam, in his commentary on the Torah, in a legitimate attempt to treat the pesukim at face value, tries to explain why the identity of the pikadon (animate or inanimate) would lead to variant laws.
 
            Chazal, on the other hand, realized that hidden within this brief section, lies the key to unlock and reveal the secrets of the entire halakhic approach to shomrim.  These few verses contain the code to a legal system.  Therefore, our Rabbis took these pesukim which discuss cases, and by dealing with each case as representative of an halakhic category, they succeeded in reconstructing the biblical legal system of shomrim.  We will analyze the gemara which describes this transformation.
 
            Based on this appreciation, Chazal understood that the first two cases deal with the two independent categories.  They immediately identified these cases with the two archetypal shomrim - shomer chinam and shomer sakhar.  The only question which remained was to determine which category was being referred to by each case.
 
            It is obvious that the responsibilities of a shomer sakhar, who receives payment, exceed those of a shomer chinam, who guards for free.  Therefore, we must simply ascertain which of the first two sections contains the more stringent laws and apply it to a shomer sakhar.  While in the SECOND section the shomer is obligated to reimburse the mafkid (depositor or owner of the object) in the event of theft or loss, the shomer of the FIRST section can excuse himself from payment under these circumstances by taking an oath (shevu'a).  This is a clear indication that the first section is more lenient, and therefore refers to a shomer chinam.
 
            The gemara, however, questions this conclusion, since there is a stringency in the first section which is inapplicable to the second: If a shomer stakes a false claim that an object was stolen, and takes an oath to that effect, he is obligated to pay back double when his deceit is discovered (similar to a thief).  This halakha applies only to the shomer mentioned in the first section, who is excused from reimbursement upon claiming theft.  Therefore, perhaps the first section deals with shomer sakhar, while the second section with shomer chinam.
 
            The gemara responds: "The base amount without an oath, is better (more significant) than paying double via an oath."  The meaning of this answer is obvious.  Whether or not the shomer is responsible for theft (the base amount), is a clear indicator of the relative stringency of the shemira.  Paying double, on the other hand, is a mere outgrowth of certain circumstances, but is not indicative of the level of shemira.  Since the shomer of the first section is not responsible for theft, technically, only he is capable of staking the false claim that the object was stolen.  Consequently, the gemara concludes that the first section describes a relatively lenient form of shemira and refers to a shomer chinam.  The second section which depicts a stringent type, relates to a shomer sakhar.
 
            Once we have established these two basic categories, we must ascertain the laws that apply to each.  Again the Torah delineates only select cases and examples.  The shomer sakhar is excused if the animal dies or is captured, but is obligated to reimburse the owner in the case of theft.  Torah she-ba'al peh treats these examples as representative of particular categories and, thus, differentiates between distinct levels of responsibility: Death and captivity are events which are practically or totally unavoidable and thus, a shomer sakhar is not liable to make restitution to the owner.  On the other hand, by carefully guarding the object, one can prevent theft.  Therefore, the Rabbis concluded that a shomer sakhar is not responsible in the entire category termed "oness" (unavoidable damage) but he is liable in the event of theft.
 
            A shomer chinam on the other hand, is exempt even from theft or loss. He is liable only if he failed to prevent commonplace (ruach metzuya) damages.  Failing to take such precautions is considered "peshiya" (negligence), and obligates reimbursement.
 
            Although the Torah explicitly exempts a shomer chinam in the event of aveida (loss), the law regarding a shomer sakhar is not explicitly addressed.  However, since we treat the cases of the Torah as levels of responsibility, the issue of aveida vis-a-vis a shomer sakhar is reduced to defining its degree of negligence relative to peshiya and theft.  Since a shomer chinam is responsible for peshiya yet exempt from aveida, it is obvious that one who loses an object is considered less negligent than the standard case of peshiya.  Nevertheless, it is rather obvious that the negligence involved in aveida exceeds that of theft.  Therefore, since a shomer sakhar is liable for theft, he is clearly responsible for aveida as well.
 
            Thus, Chazal codified the cases and examples of the Torah, and defined the respective levels of responsibility of a shomer chinam and shomer sakhar.  A shomer sakhar is liable for loss or theft; however, he is exempt in cases considered as "oness."  A shomer chinam is exempt even in the event of loss or theft, but is liable for peshiya.
 
            We are now ready to introduce the third category of shomrim.  As opposed to the previous two shomrim, in this case the Torah explicitly refers to a sho'el.  As to his level of responsibility, the Torah once again offers examples rather than guidelines.  The pesukim explicitly mention a sho'el's liability in the event of death.  However, they do not address the case of theft.  Again, this issue is resolved based on the codification of the various levels of liability.  If a sho'el, as opposed to a shomer sakhar, is responsible for death, his level of liability clearly exceeds that of a shomer sakhar.  Hence, a sho'el would undoubtedly be liable for theft as well.  Thus, the gemara concludes that a sho'el has almost absolute responsibility, and is obligated to pay even in cases of "oness."
 
            At this juncture, we will deal briefly with the most enigmatic of the four shomrim - the sokher.  Although mentioned explicitly, he is treated only in the negative, as not identical to sho'el.  There is no hint as to his level of responsibility.  Our sugya quotes a beraita which compares a sokher to shomer sakhar.  However, there is an additional opinion which considers him analogous to a shomer chinam.  (See 80b and 93a.)
 
            From the perspective of an accountant, the comparison to a shomer chinam seems reasonable.  The sokher pays only for the use of the object, but receives nothing in exchange for guarding it.
 
            One possible way of explaining the alternate opinion, is by shifting the economic balance so that it tilts towards the sokher.  For instance, perhaps the sokher receives additional usage in order to upgrade his level of shemira to that of a shomer sakhar.  (This possibility is raised implicitly in the sugya of "umman" - craftsmen - 80b.)
 
            However, another suggestion can be forwarded: Perhaps the accountant perspective is misleading.  After all, from that viewpoint, one could categorize a sho'el as a sokher, since he receives use of the object in return for guarding it.  One fallacy in this analogy, is that the entire nature and dynamic of she'eila is incommensurate with that of shemira.  In the case of shemira, the initiative is that of the owner, and the purpose is protecting the object.  The question of salary merely determines the type of shemira.  In contrast, she'eila is initiated by the sho'el, and is entirely to enable his benefit ("kol hana'a shelo").  Therefore, even if we assessed the use of the object as identical to the salary paid a shomer sakhar, the two are incomparable.  Hence, the liability of a sho'el exceeds that of a shomer sakhar.
 
            Similarly, one can view a sokher as a lower form of sho'el.  Again, the major purpose in this case is use of the object, not protection.  However, since the sokher pays for the use, and the owner benefits as well, the almost absolute liability of a sho'el is inappropriate.  The opposite end of the spectrum, with the far-reaching leniencies awarded a shomer chinam is likewise unsuitable, due to the aforementioned discrepancy between shemira and usage.  Therefore, the level of liability of a sokher is reduced from that of a sho'el, to a shomer sakhar (see Rashi 80b s.v Rebi Yehuda).
 
            This approach will help explain why sokher is mentioned in the negative within the context of sho'el, and not in the positive in either shomer sakhar or shomer chinam.  If we accept the division separating shomrim from users, then of the three other shomrim, sokher is most similar to sho'el.  This of course with the additional note that the strict laws of sho'el are inappropriate for sokher.
 
            It is noteworthy that the Rambam in his commentary on the mishna,  views sokher as included within the section of shomer sakhar and not sho'el.  This is more suitable to the first suggestion which percieves sokher as an actual shomer sakhar.  Similarly,  the Rambam (Sefer Ha'mitzvot) divides Shomrim into only three mitzvot;  shomer chinam,  shomer sakhar and sho'el,  and includes sokher within the mitzva of shomer sakhar.  Rabbeinu Saadia Gaon,  on the other hand,  considers sokher as an independent mitzva.  His opinion reflects the second suggestion,  which essentially distinguishes between sokher and shomer sakhar despite the similarity in law.
 
Summary
 
            In conclusion, we discussed the pesukim which relate to hilkhot shomrim, based on the interpretation of Chazal as expressed in our sugya.  While Torah she-bikhtav discusses various cases and examples, Torah she-ba'al peh analyses and defines, categorizes and codifies.  The result is a comprehensive legal system which relates to concepts not cases, ideas not events.
 
            In this introductory shiur, we tried to show how Chazal defined and differentiated between the four prototypical shomrim.  We suggested that these four categories could perhaps be grouped into two distinct sets.  In future shiurim, we will discuss the specifics of each shomer in greater detail, and hopefully appreciate the underlying concepts in a more profound manner.
 
 
Sources:
1.  94b "Ve-hasho'el meshalem et ha-kol ... teshuva."
2.  96b "De-hahu gavra ... demei mana,"  Bava Kama 11a "Amar Shmuel ... ve-Rav Asi,"  Tosafot s.v. Ein.
3.  Ketubot 34b "Hayta para ... ve-hainu de-Rav Papa."
 
Questions:
1.  The gemara initially assumes that a sho'el is liable for death which is categorized as an oness but not for looting.  What does this indicate regarding the nature of the liability of a sho'el?
2.  When the gemara rejects this assumption, does it necessarily retract this initial understanding of the liability of a sho'el?
3.  What is the pivotal issue around which the question of "shamin le-sho'el" revolves?
4.  Why might a sho'el be liable from the point of meshikha?  Is this specific to sho'el or equally applicable to all shomrim?