The Exemption of Ba’alav Imo
One of the most intriguing payment exemptions is the rule of “ba'alav imo.” If the owner of a deposited item HIMSELF services the shomer (watchman) of the item, the latter is excused from all payments in cases of loss. This de-oraita petur is a sweeping exemption that applies to all shomrim, and potentially even to cases of gross negligence (see the two opinions cited by the gemara in Bava Metzia 95a).
The gemara dictates certain parameters to this rule, but never articulates the logic of it. In fact, its basis is so elusive that Tosafot (Bava Metzia 97a) claim that it is a non-logical gezeirat ha-katuv (which therefore cannot be independently applied to broader contexts). A previous shiur probed whether the work of the owner for the potential shomer merely exonerates the shomer from payment or entirely hampers his status as shomer. However, the gemara and Rishonim do not directly address the logic of this halacha.
Nevertheless, the dual restrictions imposed on this exemption by one Amora do, in fact, yield an obvious logic. R. Hamnuna (Bava Metzia 95b) claims that the exemption only applies if the owner serves the shomer in the same activity that the item typically performs AND if the owner is present during the entire term of the deposit – from the point of transfer until the damage occurs. By requiring the continued presence of the owner as well as his labor in the same activity for which the sho'el (borrower) utilizes the borrowed item, R. Hamnuna is probably shifting the BLAME for the damage to the owner. Since he was present during the entire period, he should have personally safeguarded the item, and the shomer is therefore not culpable. The Sefer Ha-Chinukh, Vilna Gaon, and Meshekh Chokhma all suggest this logic for the ba'alav imo rule according to R. Hamnuna's strict limitations.
Of course, the gemara rules against R. Hamnuna and extends the exemption even to situations in which the owner is only present at the point of transfer and even if he is serving the potential watchmen in some other area - unrelated to the deposited object (pikadon). How can the rule of ba'alav imo be explained given this very broad application?
One approach (suggested by the Bechor Shor in his commentary to Shemot and alluded to by the Torah Temima) asserts that any items owned by a manual laborer are earmarked for use by the employer of the workman. In fact, it is unclear that the gemara rejects R. Hamnuna second stipulation that the owner work in the same labor as his deposited item. Rav Hamnuna had imposed two strict conditions for ba'alav imo to apply:
- The owner must work for the nifkad throughout the entire term of the deposit
- The owner must work for the nifkad in the exact service which the animal works in (for example, the owner must plow with his cow or work alongside his donkey)
Rabbenu Yehonatan (cited by the Shitta Mekubezet Bava Metzia 97a) claims that ba'alav imo only applies if there is an overlap between the manual labor and the item that was deposited. This may indicate that even if we do not accept R. Hamnuna's full list of limitations, we do require the overlap. Accordingly, according to the Bechor Shor’s reasoning, the deposited item is not a separate and autonomous shomer arrangement, but rather an extension of the labor agreement. When a person agrees to work for someone, all his items are indebted to that work as part of the labor agreement. The deposit of the items to the recipient of the labor cannot be defined as a separate shomer arrangement.
Even if we reject R. Hamnuna's second clause and allow ba'alav imo to exonerate even if there is no OVERLAP between the labor deal and the deposited item, this logic may still obtain. Perhaps ANY labor agreement is so central that all other transactions are subsumed within it. In other words, if a person agrees to work for another person, all the worker's items are included – even those not directly related to the actual labor performed. Hence, no separate deposit occurs, since all objects of the owner are already committed to the recipient of the labor agreement.
An interesting consequence of this logic would result in a situation in which the utility of the item CANNOT be subsumed under the original labor agreement. Perhaps in this instance the exemption of ba'alav imo would not apply. The gemara (at least according to the Rambam's minority view) questions situations in which the animal was borrowed for non-conventional purposes (for sexual purposes, to appear to be wealthy). Would these instances still be covered by the ba'alav imo exemption? At first glance, this question is troubling; why should these unique cases NOT be covered by the exemption? In fact, most Rishonim felt that this option was so farfetched that they reinterpreted the gemara as referring to a completely different question. However, the Rambam maintained that these non-standard forms of borrowing may not be covered by the ba'alav imo exemption.
Perhaps the gemara was probing the aforementioned logic. Even if the owner is not working in an overlapping fashion with this item, all items and their utility can be subsumed under the original labor agreement, and hence no new deposit has occurred. However, STRANGE and unorthodox forms of utility are not part of any labor agreement and cannot be subsumed. As such, they represent a completely new arrangement and the exemption of payment does not apply.
A third option toward understanding the ba'alav imo exemption stems from the language of one of the beraitot cited to refute R. Hamnuna, who required presence and labor of the owner throughout the entire loan. The first source cited to reject R. Hamnuna merely states that the presence of the owner during the inception of the loan is sufficient to exempt the nifkad from subsequent payments. The second beraita is more specific in allowing only INITIAL presence to exempt the shomer. Once the item exits the reshut (property) of the owner while he is working for the shomer, the petur of ba’alav imo obtains and covers damages that occur subsequently, even when the owner is no longer laboring for the shomer. This beraita emphasizes the DEPARTURE POINT of the item from the zone of the owner as the critical point.
Perhaps this provides a logic toward explaining the rationale of ba'alav imo. Every shomer agreement entails a partial displacement of the original owner by the watchman. The shomer does not merely serve the owner; he also becomes the custodian of the item. This is most powerfully sensed in the shomer’s responsibilities to cover damages that the item causes to third party victims. He never agreed to serve or repatriate those third parties in the manner that he agreed to serve the original owner. His payment can only be understood in light of the fact that he stands in lieu of the original owner and must repatriate victims of the item's damage in the same manner that an owner must. As the gemara in Bava Kama (44b) expresses it, he is nichnas tachat ha-ba'alim – he replaces the original owner. Furthermore, the execution of a ma'aseh kinyan to launch the shemira proves that a shomer is actually supplanting the owner and achieving partial “owner” status upon the item he is watching. Perhaps the presence of the owner at the point of transfer or kinyan impedes the transfer. As the second beraita stresses, once the owner is present at the point of kinyan, the transfer can no longer occur and the shemira never materializes.
Interestingly, R. Ashi (Bava Metzia 96a) offers an alternate source for the ba’alav imo exemption that may reflect this logic. The petur itself is explicit in the pasuk and the suggestion of an alternate is therefore surprising. Rashi (96a, s.v. Rav Ashi) notes that R. Ashi is not asserting a new source; he is merely suggesting a verse to reinforce the rejection of R. Hamnuna’s view and explain that presence of the point of transfer is sufficient to activate the exemption. The pasuk describes the genesis of a she'eila (loan agreement) through the words "ve-chi yishal me'im rei'ehu" – “If a person borrows from his colleague.” R. Ashi translates this phrase to refer to distinguish the borrower from one who borrows an item ALONG WITH his colleague (the owner) – ve-lo rei'ehu imo. Perhaps this explains the mechanism of ba'alav imo. If the owner accompanies the item (by working with the recipient during the point of transfer), the item is not transferred from one reshut to another and the shemira cannot be initiated.