Hakoness – Shiur #04 A Shomer's Liability For The Damage Caused By The Animal Entrusted To Him – Bava Kama 56b

  • Rav Shmuel Shimoni

 

"If he handed it over to the care of a shepherd, the shepherd would enter into all the responsibilities instead of him." I would here ask: Instead of whom? If you say, instead of the owner of the animal, have we not already learned elsewhere: "If an owner hands over his animal to a shomer chinam or to a sho'el, to a shomer sakhar or to a sokher, each of them would enter into the responsibilities of the owner?" It must therefore mean [that he enters] instead of the shomer, and the first shomer would be exempt altogether. Shall we say this is a refutation of Rava? For Rava said: One shomer handing over his charge to another shomer remains liable." Rava can say to you: What is meant by "he handed it over to the care of a shepherd" [in our mishna]? [The shepherd handed it over] to his apprentice, as it is indeed the custom of the shepherd to hand over his sheep to [the care of] his apprentice. Some have an alternate version: since the text says, "He handed it over to the care of a shepherd," and it does not say, "He handed them over to another person," it may be inferred that the meaning of "He handed it over to the care of a shepherd" is that the shepherd handed it over to his apprentice, as it is indeed the custom of the shepherd to hand over [various things] to [the care of] his apprentice, whereas if [he handed it over] to another person this would not be so. Shall we say that this supports the view of Rava? For Raba said: One shomer handing over his charge to another shomer remains liable. It may however be said that there is no support [for Rava’s view from this statement of our mishna], for the text perhaps merely mentioned the usual case, though the same ruling would apply [to a case where it was handed over] to another person altogether.

 

            The Gemara in its first version explains that we already know the law governing a shomer with respect to damage from the mishna on p. 44b, and so we must say that our mishna comes to teach the law governing a shomer who handed over the animal to another shomer with respect to damage. Our first task will be to understand the law of a shomer with respect to damage, and in the next shiur we will try to understand the law governing a shomer who handed over the animal to another shomer.

 

Before we start, attention should be paid to the fact that when the anima’s owner hands it over to a shomer, within the context of the laws of Bava Kama, this may already be seen as an instance of "a shomer who handed an animal over to another shomer." For every person is responsible to watch over his animal that it not cause damage, and thus in some regards the owner is a "shomer," and he hands over this responsibility to a second shomer. This stands in contrast to the laws of a shomer in Bava Metzia, where the phenomenon of "a shomer who handed an animal over to another shomer" begins when the entrusted article is transferred a second time. As stated, our concern today is with the initial transfer.

 

            It should also be noted that if a shomer, as the Gemara formulates it, "enters into all the responsibilities instead of the owner," and the plain meaning of this is that he, and not the owner, is now liable for the damage caused by the animal, this raises two questions. First, what is the foundation of the shomer's liability? And second, how does the owner become exonerated from his responsibility? The two questions might very well have the same answer, but nevertheless they should be considered separately.

 

I. What Emerges from the Previous Shiur

 

            In the previous shiur we dealt with a robber's liability for damage, and we examined at length the words of the Tosafot, s.v. peshita. We noted that from the two different approaches found in Tosafot arise two different approaches regarding a shomer's liability for damage. According to the initial words of the Tosafot and their second answer, a shomer's liability differs from that of the owner, and is based on the obligation falling upon the shomer to watch over the object – the shomer undertook to watch over the object as part of his agreement with the owner. His primary obligation is to guard the object for the object's benefit that it not suffer damage, but it includes the obligation to watch over the object so that it not cause damage.

 

            In contrast, the Tosafot write in their first answer that "regarding damage, anyone in whose hand it is to watch over it is called the owner." They say this to explain the law that a robber bears liability just like the owner, but it would seem that if this principle is correct, it can be applied to a shomer as well.

 

According to this, there is no distinction between a shomer and the owner. Regarding damage, ownership is defined in accordance with the party who is obligated to watch over the animal. When the animal is in its owner's charge, the obligation to watch over it falls upon the owner, and when it is in the possession of the shomer, the obligation falls upon him. If so, the basis for his liability for damage is not the agreement into which he entered with the owner, but rather it is the Torah that casts responsibility unto him, just like any other person who has an animal in his charge.

 

This can be compared to what the Rambam writes at the beginning of Hilkhot Nizkei Mamon: "Whenever a living animal that is in a person's charge causes damages, the owner is required to pay, for the damage was caused by his property." The terms "the owner" and "his property" notwithstanding, the operative principle seems to be "a living animal that is in a person's charge."

 

This, however, is not stated explicitly either by the Rambam or by the Tosafot. The Tosafot speak about a robber, and there is room to understand that what they say does not apply to a shomer; the owner can watch over his animal and it was his decision to hand it over to the shomer, and therefore the shomer is not considered the owner with respect to the laws of Bava Kama.

 

            Already now I wish to note that even though two great Halakhic authorities – R. Chayyim Brisker[1] and the Chazon Ish[2] - adopted the latter understanding, and even supported it with the words of the Tosafot, "regarding damage anyone in whose hand it is to watch over it is called the owner," and even though this understanding is very reasonable in itself – in my opinion the relevant talmudic passages and statements of the Rishonim fit better with the first understanding, as we shall see below.

 

            All of this relates to a shomer's liability for the damage caused by the animal entrusted to him. As for the owner's exemption, according to the second approach, that ownership is defined according to the ability (and as we explained in the previous shiur – the obligation) to watch over the animal; the shomer's liability expresses the fact that he has replaced the owner, and this also explains the latter's exemption. If we are dealing with an agreement between the shomer and the owner - and as stated this is my own personal inclination – the question of the owner's standing remains open and dependent upon the meaning of the shomer's acceptance of the obligation to watch over the animal.

 

            I wish to clarify these questions and the various understandings that we have seen in the framework of an examination of the talmudic passages and the words of the Rishonim.

 

II. Acceptance of Liability for Damage

 

            In several places in our tractate (13b-14a, 45b, and elsewhere) it says that a shomer's liability for the damage caused by the animal entrusted to him depends on his agreement with the owner – if they agreed that he would be responsible for damage, he is liable, and if they agreed that he would not be responsible, he is exempt. This seems to prove that the shomer's liability stems from his agreement with the owner and his undertaking to watch over the animal.

 

This is certainly true according to the position of the Ra'avad in his comments on Hilkhot Nizkei Mamon 4:10, that unless this is explicitly specified, a shomer does not accept responsibility for damage, and a shomer must explicitly accept upon himself such responsibility.

 

However, even according to those who disagree and say that the default is that the shomer accepts upon himself such responsibility (see Rambam, there, and Rashba 45b, s.v. amri), it would seem that this means that presumably the shomer accepts responsibility, but it still stems from the shomer's undertaking of responsibility.[3]

 

III. The Liability of a Shomer Chinam Who Exercised Inferior Precaution for the Damage of Keren Caused by a Tam Animal

 

            The Gemara on p. 45a says regarding the case of an ox that had been entrusted to a shomer and killed, that if we accept the view of Rabbi Meir that the level of precaution that is required in the case of the keren damage caused by a mu'ad (an animal with an established propensity to gore) animal is shemira me’ula (superior precaution), and the shomer exercised shemira pechuta (inferior precaution), the shomer is liable to pay the kofer (for the damage the animal caused) and he is also liable to pay the owner the value of the animal. This is "with the exception of a shomer chinam," because "in the case of a shomer chinam, his obligation to watch over the animal was thereby fulfilled" – the level of precaution required of a shomer chinam is shemira pechuta, and therefore that suffices for him.

 

What is the meaning of the words "with the exception of a shomer chinam?" Rashi and the Rashba disagree on this point. It would appear from Rashi that a shomer chinam is exempt from compensating the owner, but he is liable for the kofer like the other shomerim. Whereas the Rashba writes that a shomer chinam is exempt from all liability, implying that he is exempt both from the kofer and from payment for the damage.

 

            It stands to reason that it was clear to the Rashba that a shomer chinam commits himself only to shemira pechuta and cannot be liable for damage that was caused despite his having taking the precautions demanded of him. This is also the position of the Rambam in Hilkhot Nizkei Mamon 4:4, according to the text that was emended by the Rambam himself in a responsum cited by the Kesef Mishneh, ad loc.[4] The Rambam adds that regarding damage for which there is liability in a case where only shemira pechuta was taken (e.g., half-damages in the case of keren with a tam animal), a shomer chinam is exempt, and it is the owner who is liable.[5]

 

            According to Rashi, on the other hand, the situation is much less clear. It might be understood[6] that he agrees with the Rashba with respect to payment for the damage, and that he disagrees only about the kofer, the essence of which is atonement (Rashi writes: "With respect to the owner, he is exempt from paying the value of the ox, for shemira pechuta suffices for him, and he requires atonement"). However, it might also be understood that he disagrees about payment for the damage as well, and that he maintains that the exemption granted to the shomer chinam applies exclusively to the shomer's liability toward the animal's owner, but his liability for damage toward the rest of the world is similar to that of the other shomerim.

 

            On the face of it, these possibilities depend on the two understandings that we saw regarding the foundation of a shomer's liability for damage. If it is based on the shomer's undertaking to watch over the property, there is room to accept the approach of the Rambam and Rashba, that a shomer chinam only commits himself to shemira pechuta, and he cannot be held responsible for more than that. If, however, the shomer is seen for this purpose as the owner upon whom the Torah casts liability for damage, there is no room to distinguish between a shomer chinam and the rest of the shomerim, and there is no room to say that a shomer chinam replaces the owner only to a certain extent. If the animal is in his charge and he is responsible for it, the Torah applies to him all the laws of Bava Kama.[7]

 

            As was noted above, it is evident that between the two possibilities that we have seen thus far regarding the basis of a shomer's liability, the more well-founded possibility is that which bases his liability upon the shomer's commitment to watch over the animal entrusted to him. This is what emerges from the both the beginning and the end of the Tosafot on p. 56b, whereas the other understanding is not clearly stated there in the middle portion. This also follows from the talmudic passages that we saw regarding acceptance to watch over an animal with respect to damage; and this also follows from the Rashba and the Rambam's ruling that a shomer chinam is exempt from shemira me’ula; and as stated it is possible that even Rashi agrees with respect to payment for the damage.

 

It may be added that even one who maintains that a shomer chinam is liable for the keren damage caused by a tam animal even when he watched over the animal as required, might understand that this is based on the shomer's undertaking to watch over the animal, only that this undertaking has a different scope with respect to the laws of Bava Kama and the laws of Bava Metzia. It is possible that this is what the Ra'avad is saying in his comment on the aforementioned Rambam:

 

A shomer is always liable if he did not properly watch over the animal. And if he properly watched over it, but it [nonetheless] got out and caused damage, the shomer returns to his liability when he has had time to learn [that the animal escaped], and the owner is exempt. Only that we can say that the owner is never exempt vis-à-vis the party who suffered the damage, and he must litigate with the shomer. And if there is time left to his watching, the owner can sue the shomer, and if his watch was completed, he is exempt and the owner is liable.

 

            It is not absolutely clear which reading of the Rambam the Ra'avad is addressing, but it is certainly possible to understand from the first sentence that even a shomer chinam is liable if he did not watch over the animal in a manner that suffices for that category of damage. Nevertheless, we saw above that the Ra'avad maintains that a shomer must explicitly accept upon himself responsibility for the damage caused by the animal entrusted to him. And furthermore, in the continuation of his remark, the Ra'avad writes that the party who suffered the damage must sue the animal's owner, and the owner can then sue the shomer. Despite his aforementioned position regarding a shomer chinam, the Ra'avad clearly accepts the approach that bases the shomer's liability upon the responsibility that he accepted upon himself toward the owner. However, this position of the Ra'avad brings us to the second level of the law governing a shomer with respect to damage, namely, the standing of the owner.

 

IV. The Law governing the owner who entrusted an animal to a shomer

 

            On the assumption that the shomer is not viewed as the new owner with respect to the laws of Bava Kama, but rather that part of his agreement with the owner includes liability for damage, what is the total picture that is created, and how is the owner integrated into it?

 

            According to the simple understanding of the talmudic passages and the prevalent approach found in the Rishonim, when the shomer fails to watch over the animal as required, he becomes liable for the damage it causes, and the owner is exempt. How does the owner become exonerated from responsibility for the damage caused by his own animal?[8]

 

            One possibility is that the very transfer of the animal into the hands of a competent shomer is considered an act of precaution on the part of the owner, similar to a proper fencing in of the animal. From this perspective, the fact that the shomer acted with negligence and failed to watch the animal in a proper manner may be likened to a ruach she-aina metzuya (an unusually strong wind).

 

            On what basis can the party who suffered the damage make a claim against the shomer? It may be argued that part of the shomer's commitment to the owner involves accepting responsibility for damage, which includes an obligation to watch over the animal and an obligation to compensate the party suffering damage in the event that he did not adequately watch over the animal. It stands to reason that this is also part of the exemption of the owner – not only did he take precautions with regard to the animal, but he also established a reasonable substitute who would make compensation should the law demand compensation. [It may also be argued that were it not for the fact that the shomer will be forced to pay if he fails to take proper precautions, his watching over the animal would be less effective, for the obligation to make compensation is part of what drives the shomer to watch over the animal in a proper manner.] Therefore there is room for the Chazon Ish's ruling in sec. 7, end of no. 17: "It seems that if he handed the ox over to a slave or to a woman, both of whom are not obligated to pay for damage, all agree that compensation may be collected from the owner, for he has no right to hand it over to someone who won't have to pay and thereby become exempt."[9]

 

            However, this understanding – that the owner is exempt from watching over the animal – is not free from uncertainties. Does the owner's exemption depend upon the seriousness of the shomer? What is the law of someone who handed over his animal to a person who is known to be irresponsible (even though he is legally competent)? As for reserves for compensation – what is the law if the owner handed over the animal to a poor person, who is not like a woman or a slave who legally do not have money of their own, but is likely to lack the means from which to make payment? Or to a person who is known to be a hooligan who finds a way to evade the grip of the law, or who employs a particularly crafty lawyer? And as far as the liability that is cast upon the shomer, which we have defined as a commitment to pay the party who suffered damage in a situation in which the precautions that he took were inadequate, can we see this as a claim stemming from the laws of damage in Parashat Mishpatim, which the Gemara in Arakhin (6b) defines as "a loan that is written in the Torah," or is it perhaps an obligation willingly accepted by the shomer? It stands to reason that the answer to all these questions must be clear: The owner's exemption is not conditioned on an assessment of the shomer's seriousness or his ability to make payment (provided that he is halakhically competent and capable of making payment), and the shomer's obligation to make payment stems from the Torah's passage regarding damages.

 

            It therefore stands to reason that the system must be defined in a slightly different manner. As part of the institution of shemira that the Torah created in the passage dealing with the shomerim, the essence of which involves watching over the object that it not suffer damage but also includes watching over the object that it not cause damage, the Torah allows the owner to present the world with a shomer who stands in his place, provided that he is legally competent and capable of making payment.[10] This is not defined as actual watching on the part of the owner (for a shomer – as opposed to a fence – has a will of his own), but as the establishment of a substitute. A claim will be made against the shomer based on the laws of damage, even though he is not defined as the owner with respect to damage, and this stems from the obligation that he undertook to watch over the object.

 

            Within this definition, there is still room to consider two different understandings. This analysis was presented by Rav Chayyim in his work on the Rambam. Even though this analysis, as stated at the beginning of this shiur, is based on an understanding that I am not inclined to accept, there is room to consider the matter even in the framework of the understanding that I have adopted. This is the way that Rav Chayyim formulates the matter:

 

As for the law that the owner becomes exempt when he hands over the animal to a shomer, based on the law governing a shomer that he enters instead of the owner, we can understand this in two ways: We can either say that the shomer enters instead of the owner with respect to the fundamental liability for damage (chovat nezikin). The animal now stands in his charge with respect to damage, and the owner is removed and no longer responsible in any way for the damage caused by the animal, and the animal is no longer in his charge with respect to damage. Or else we can say that even after he hands the animal over to the shomer, the owner is not removed from the fundamental liability for damage. He too is governed by the law of a mazik for the damage that he caused, and the obligation of a mazik should actually fall upon him. But the essence of this law is that the shomer enters instead of the owner with respect to the obligation to pay (chovat tashlumin), and this is what exempts the owner from paying the party who suffered the damage, because the shomer entered into his place regarding the obligation to pay. But in fact there is no removal of the law of a mazik from the owner when he hands the animal over to the shomer. [Emphasis added.]

 

            According to the first understanding, the owner established a substitute for himself with respect to damage, and even though this works by way of the shomer's undertaking to watch the animal, and the shomer is not defined as the owner, the owner no longer plays a role in the matter – the entire responsibility has shifted to the shomer's shoulders. But according to the second understanding, the shomer accepted upon himself the obligation to offer compensation (and he certainly must be someone who is fit to make compensation), but on the fundamental level the owner remains responsible for the damage.

 

            One simple practical ramification relates to the situation in which the owner sees that the animal is not being properly watched by the shomer and it is in his hand to watch over it. If the shomer is now the sole responsible party, there is room to think that there is no obligation upon the owner to watch over the animal, and that no claim could be brought against him, but only against the shomer. But if the owner is still responsible, only that the shomer has undertaken to watch over the animal and to make compensation, there is room to say that if the owner sees that the shomer is not living up to his commitment, it falls upon him to watch over the animal, and if he fails to do so, he himself is seen as negligent and a claim can be brought against him. The Ra'avad at the beginning of his stricture on the Rambam clearly maintains that even if the owner knows that that the animal has become free, it remains the responsibility of the shomer, and the Ra'avad understands that the Rambam disagrees on this point.

 

            It should be noted that Rav Chayyim cites a ruling that implies that the second understanding is correct. The Gemara on p. 40a states that if the shomer received an ox that is known to be a gorer, but he did not know that the animal was a mu'ad, and the shomer was negligent and did not watch over the animal, the shomer must pay half-damage, as is the law governing a tam animal, and the owner must fill in the second half. It is difficult to understand how such a split is possible,[11] unless we say that the owner is fundamentally responsible for the damage and the shomer undertakes to participate in the compensation, and in this case his commitment is to make compensation for a tam animal.[12] It stands to reason that the Ra'avad would say that even though the owner is in the picture and the shomer undertook to bear the responsibility, nevertheless, in those cases where the shomer undertook responsibility, his responsibility is absolute and valid even if the owner knows that the animal has become free.

 

V. The Viewpoint of the Ra'avad at the End of His Sstricture

 

            Let us now return to the novel point in the Ra'avad's position:

 

A shomer is always liable if he did not properly watch over the animal. And if he properly watched over it, but it got out and caused damage, the shomer returns to his liability when he has had time to learn [that the animal escaped], and the owner is exempt. Only that we can say that the owner is never exempt vis-à-vis the party who suffered the damage, and he must litigate with the shomer. And if there is time left to his watching, the owner can sue the shomer, and if his watch was completed, he is exempt and the owner is liable.

 

            As stated above, the plain understanding of the Ra'avad is a rejection of the widespread assumption that the shomer becomes responsible toward the party who suffered the damage. It is the owner who is responsible toward the party who suffered the damage, and he is judged in light of the precautions taken or not taken by the shomer, as the shomer is seen as his arm or worker. The halakhic novelty in the law governing a shomer, beyond the fact that his watching over the animal works for the owner, is that the shomer must compensate the owner for his failure to take adequate precautions. In practice – so understood several Acharonim – the party who suffered the damage can make a claim against the shomer based on the principle of "shi'buda de-Rabbi Natan" (the general right to recover a claim from a third party indebted to the debtor; a rule that is not so simple in itself), but essentially it is the owner who is liable toward the party who suffered the damage, and the shomer is liable toward the owner.

 

The Chazon Ish (sec. 7, nos. 6, 10) had difficulty understanding this obligation of the shomer to the owner, as it relates not to physical damage caused to the article entrusted to him, but to economic damage caused to the owner. But it stands to reason that according to the Ra'avad this is what we learn from the passage dealing with shomerim.

 

Above, in the framework of the simple understanding and not according to the Ra'avad, I explained that from the passage dealing with shomerim – which deals with the deposit of an article in the hands of the shomer primarily so that it not suffer damage, but also that it not cause damage – we also learn the obligations of a shomer regarding damage. And according to the viewpoint of the Rambam we can say that this is part of his undertaking toward the owner – it falls upon the shomer to compensate the owner for obligations stemming from the damage caused by his animal (in contrast to other economic damage caused to him, for which the shomer is not liable, as noted by the Chazon Ish).[13]

 

            What is the law of a shomer with regard to damage according to the position of the Ra'avad? Why does the Torah create this strange situation, that the claim of the party who suffered the damage is directed at the owner, while the claim of the owner is directed at the shomer? This seems to be a strong expression of the idea that focuses the source of liability for damage caused by one's property on the defendant's ownership of the animal that caused the damage. This ownership created responsibility, and as a rule ownership is essential. If the owner, or somebody serving as his agent, watched over the animal, we are dealing with unavoidable accident in which case the Torah grants exemption. But if the animal was not properly guarded, it is the owner who is responsible toward the party who suffered the damage, and he cannot establish the shomer as his substitute vis-à-vis the party who suffered the damage. The shomer's liability is toward the owner, and the Torah established that in contrast to the general rule, the shomer is liable to make compensation, despite the fact that we seem to be dealing exclusively with indirect and economic damage. In actual practice, as I have mentioned, the party who has suffered the damage can make a claim against the shomer, but on the primary level his addressee is the animal's owner.

 

            In the next shiur I will try to build the second story and understand the law governing a shomer who hands over the animal that had been entrusted to him to another shomer with respect to damages. For this, as we shall see, we will have to reformulate our understanding of the Ra'avad's position.

 

 

(Translated by David Strauss)

 

*********************************************

 

Sources – Shiur 5

 

In next week's shiur, we shall examine the continuation of our passage that deals with law governing a shomer who hands over the animal that had been entrusted to him to another shomer, with respect to damages (until 56b "ve-hu ha-din le-acher"). As background, see also the passage dealing with a shomer who handed over the article entrusted to him to another shomer, with respect to the responsibilities of shomerimBava Metzia 36a, "itmar shomer she-masar le-shomer… de-amar lei ein retzoni she-yehe pikdoni be-yad acher"; ibid. 36b: "amar Rava hilkheta… at mehemnat li bi-shevu'a, ha'eikh lo meheman li bi-shevu'a"; Ramban, s.v. shomer she-masar le-shomer. In our passage, see Rashi; Rambam and Ra'avad, Hilkhot Nizkei Mamon 4:11. If possible, see again Hiddushei Rabbeinu Chayyim ha-Levi, ad loc., part of which we saw in today's shiur.

 

 


[1] In his work on the Rambam (Hilkhot Nizkei Mamon 4:11): "As for the fact that a shomer is liable for damage, the Tosafot (Bava Kama 56b) explain that this is based on his standing as an owner, and not on his standing as a shomer. This is necessary, for the liability of a shomer relates only to the monetary value of the object itself, and not to the damage it causes."

[2] I will address his position in the notes below.

[3] The Chazon Ish (Bava Kama sec. 7, no. 6) had a different understanding. In his view, the guiding principle is "that regarding damage anyone in whose hand it is to watch over it is called the owner," and the shomer becomes liable as an owner; but nevertheless, when the shomer stipulates that he does not accept responsibility for damage, the owner retains his standing as the party in whose hand it is to watch over the animal. In the previous shiur we explained that it does not suffice that "it is in his hand to watch over the animal," in the plain sense, but rather we require that "it falls upon him to watch over the animal." This is a reasonable argument. But in my opinion, it does not accord with the viewpoint of the Ra'avad, and below we shall see that even the Rambam and the Rashba maintain that a shomer is liable because of his undertaking to watch over the animal.

[4] According to the printed reading, the Rambam writes:

 

When a person entrusts his animal to a shomer chinam, a shomer sakhar, a sokher or a sho'el, these individuals assume the owner's responsibilities. If [the animal] causes damages, the shomer is held liable. When does the above apply? When he did not guard the animal at all. If, however, he guarded the animal with shemira me’ula, as he should, and it got loose and caused damage, the shomer is not liable, and the owners are liable, even if the animal kills a human being. If the shomer guarded the animal with shemira pechuta, he is not held liable if he is a shomer chinam, but if he is a shomer sakhar, a sokher or a sho'el, he is held liable.

 

This reading has various difficulties, the most prominent one being the owner's liability even when the shomer guarded the animal with shemira me’ula. Various explanations have been suggested, but none are free of difficulty. The Maggid Mishneh, as we mentioned in the past, argues that the reference is to keren damage of a tam animal, regarding which – so he proposes – the Rambam rules there is absolute liability and no exemption even when shemira me’ula is exercised. This seems to contradict the passage that we saw in our first shiur on this chapter and the Rambam's ruling in its regard, and thus the Lechem Mishneh write a long rebuttal of the Maggid Mishneh. It has recently been suggested that these words of the Rambam should be seen as an expression of a broader approach that sees liability for damage as absolute and not dependent upon the party's guilt (Z. Wahrhaftig, Mechkarim be-Mishpat ha-Ivri (1985), pp. 218-219), but the difficulties with this only grow (for a critique of Wahrhaftig's position, see http://www.daat.ac.il/mishpat-ivri/havat/46-2.htm). It seems that there is no escape from saying that according to this problematic reading in the Rambam, the owner of the animal is liable for the damage it causes unless it falls in the category of ones (unavoidable accident), that is, where he did all that he could possibly do to prevent the damage, and in this context appointing a shomer does not suffice, as this does not define the situation as ones. Nevertheless, the difficulty remains, and it seems preferable to adopt the emended reading of the Rambam.

[5] From the Ra'avad in his notes on the Rambam (and it is not clear to which version of the Rambam’s text he relates), it seems that the owner is only liable if he knew that the animal became free. But this does not seem to be the case according to the emended reading – the owner handed the animal to a shomer who will only guard it with shemira pechuta, and therefore he remains liable for damage regarding which shemira pechuta does not suffice.

[6] This is the understanding of the Chazon Ish, sec. 6, no. 7.

[7] I noted above that the Chazon Ish maintains that a shomer's liability is based on the fact "that regarding damage anyone in whose hand it is to watch over it is called the owner." Regarding a shomer chinam he maintains that in principle limiting the necessary level of precaution expected of him to shemira pechuta does not apply with respect to damage, but "presumably a shomer chinam only accepts liability for damage in accordance with the level of precaution that he is obligated to exercise" (no. 7). I have difficulty understanding this – if the shomer accepted upon himself to watch over the animal regarding damage, he is now the party "in whose hand it is to watch over the animal," and he is considered the owner. It is a little strange to say that regarding damage caused despite the shemira pechuta that he exercised, he is not considered the owner. The Chazon Ish added further (no. 8) that since shemira me’ula is only expected in keren of a tam, which is collected from the value of the goring animal, there is room to say that a shomer chinam is indeed obligated to guard with shemira me’ula (as long as he is correct about the obligations of guarding against keren for a tam, as we discussed in our first shiur), but that the restitution is made from the value of the goring animal.  The obligation of a shomer to pay the owner in the case of a tam, in the view of the Chazon Ish, is based on the requirements of Bava Metzia, which claims that due to the negligence of the shomer there was damaged caused to the owner’s animal as it was needed to be used for payment (regarding the connection between shemira needed for Bava Kama and the shemira needed for Bava Metzia in the case of a shor tam, see the lengthy discussion of R’ Chayyim Brisker on the Rambam 4:4).  When it comes to the shemira of Bava Metzia, a shomer chinam is exempt as long as he did shemira pechuta. Thus the conclusion of the Rishonim that a shomer chinam who exercised shemira pechuta is exempted by it does not fundamentally limit the extent of his responsibility for damages that he accepted upon himself by agreeing to be a shomer.  The result of this, according to Rabbi Meir, is that even for a shor mu’ad (whose payment is not made based on its body) one is not exempt without a shemira me’ula, so too a shomer chinam would be obligated in keren of a mu’ad when he only performed a shemira pechuta, even according to the Rashba and Rambam.

[8] Had the shomer watched over the animal as required, it would have been possible to say that he watched over the animal in the owner's name and that his watching it was equivalent to the owner's watching it (similar to agency). We, however, are dealing with a case where the shomer did not watch over the animal as required.

[9] This does not seem to accord with the Tosefta 6:8. See also Or Same'ach, Hilkhot Nizkei Mamon 4:11 (end).

[10] In this context mention should also be made of the exposition found in the Mekhilta (Mishpatim, masekhta de-nezikin, no. 10) and cited by the Acharonim: "'Yet he has not watched it' – to include a shomer chinam." The Acharonim understood that there is a special Scriptural decree that imposes liability upon the shomer.

[11] See in this regard Chiddushei R. Shimon Shkop on our tractate, sec. 33, no. 2.

[12] It seems to me that this ruling serves as additional proof that a shomer is not treated as the owner with respect to damage, against Rav Chayyim and the Chazon Ish. Rav Chayyim deals with this proof, but I do not understand what he says.

[13] For a different understanding of the Ra'avad, see Chazon Ish, no. 10.