Hakoness - Shiur #05: The Law Governing A Shomer Who Handed Over An Animal That Had Been Entrusted To Him To Another Shomer With Respect To Damage Bava Kama 56b

  • Rav Shmuel Shimoni

            In the previous shiur we laid the foundations, examining the law governing a shomer with respect to damage. Today we shall deal with the second level – shomer she-masar le-shomer (the law governing a shomer who hands an animal that has been entrusted to him to another shomer). This is a complicated issue in the context of the laws of shomerim in Bava Metzia, i.e., guarding the animal so that it not suffer damage, which is discussed primarily in Bava Metzia 36a-36b. We shall try to focus now on the issue of guarding the animal so that it not cause any damage to others as it pertains to our passage. For this, however, we must first familiarize ourselves with some of the laws of shomerim in Bava Metzia.

 

            I wish to repeat here what I noted at the beginning of the previous shiur, that with respect to damage, as opposed to shomerim, even the initial transfer of the animal from the owner to the first shomer is already on some level an instance of shomer she-masar le-shomer, for every person is obligated to watch over his own animal so that it not cause damage. Accordingly, much of what was said in the previous shiur is relevant here as well, and the present shiur should be seen as a continuation of the previous one.

 

I. Shomer she-masar le-shomer in Bava Metzia

 

            The Amoraim in Bava Metzia 36a disagree about the law of shomer she-masar le-shomer: According to Rav, the first shomer is exempt, whereas according to Rabbi Yochanan, he is liable. The Gemara explains the position of Rav, who exempts, as follows: "Because he entrusted it to a ben da’at (person with understanding)."

 

As for the viewpoint of Rabbi Yochanan, the Gemara offers two explanations: Abaye argues that the owner can say: "It is not my desire that my article should be in the charge of another person." Rava explains that the owner can say to the first shomer: "You I believe on oath: the other I do not." The Gemara adds that the one who exempts the shomer exempts him even when he weakens the article's care (i.e., a shomer sakhar who entrusts the article to a shomer chinam), and the one who finds him liable imposes liability even when he strengthens the article's care (i.e., a shomer chinam who entrusts the article to a shomer sakhar).

 

As for the final law, most Rishonim rule in accordance with Rabbi Yochanan that the first shomer is liable, except for cases where the owner could have understood from the outset that the article would reach the hands of the second shomer.

 

            In explanation of the position of Rabbi Yochanan, Rashi writes that according to the one who says that the shomer is liable, he is liable even if the animal dies of ones (unavoidable accident) while in the charge of the second shomer. Why is this so? If the reason is lack of trust in the second shomer's oath, it stands to reason that this suffices to allow the owner to claim that when the first shomer entrusts the animal to another person he is thereby acting negligently or “stealing” it, and so the shomer is not exempt even if he entrusts the animal to a responsible second shomer. If the reason is that the owner does not want his article to be in the charge of another person, it is possible that the shomer is considered a robber, for he transferred another person's property contrary to his wishes, and if he is a robber, he is obligated to return the article and there is no exemption of ones.[1]

 

            Regarding the position of Rav, that a shomer she-masar le-shomer is exempt, the Rishonim suggest several explanations. According to an exceptional opinion recorded by several Rishonim,[2] the fact that the shomer hands over the article to a ben da’at suffices to exempt him. This is true even if a shomer sakhar entrusts the article to a shomer chinam and the article is then lost or stolen (a shomer sakhar is liable for loss and theft, whereas a shomer chinam is exempt). This position is exceedingly difficult, for it allows a shomer sakhar to release himself from all responsibility without providing the owner with a parallel level of care.

 

            The Ramban adopts a more moderate position. He agrees that in general the owner cannot make a claim against the first shomer if he provides a fitting substitute (as the Ramban words it, "a man in my stead"). Accordingly, even if the second shomer flees the country or goes bankrupt, a claim cannot be brought against the first shomer. In the case of a shomer sakhar who entrusts the article to a shomer chinam, however, the Ramban maintains that if the article is lost or stolen, the first shomer is still liable, as he has not exempted himself from theft or loss.

 

However, in those areas where he provides a man in his stead it is against that person that the claim must be brought. The man in his stead can be a lower level shomer, but only with respect to those circumstances that the first shomer and second shomer would both be liable or both be exempt. We are not particular about the level of seriousness of the second shomer – the fact that he is a ben da’at suffices, even if he is known to be irresponsible. We also do not consider his ability to offer compensation – presumably the first shomer can hand over the article even to a poor shomer.[3] The only limitation is that the first shomer cannot release himself from responsibility without providing an adequate substitute.

 

            Rashi takes a different approach. Rashi writes that "he is exempt in any case where he would have been exempt had he himself watched over the article." This implies that the main difference between the position of Rav and that of Rabbi Yochanan is in the case of ones. If, for example, a shomer sakhar handed over the article to another shomer sakhar, and the article suffered an avoidable accident, Rav maintains that liability cannot be imposed upon the first shomer. But if the article was lost or stolen, the owner can make a claim against the first shomer, even according to Rav, and the first shomer can presumably make a claim against the second shomer. That is to say, even Rav agrees that the shomer cannot appoint a substitute in his stead vis-à-vis the owner. He merely says that the watching supplied by the second shomer counts for the first shomer as well.

 

            Halakhically speaking, what happens when one shomer hands over an article that had been entrusted to him to another shomer? The possibilities here are similar to those that we saw in the previous shiur regarding shemira with respect to damage. Logically one might argue that handing the article over to another shomer is a legitimate way for the first shomer to fulfill his obligation to watch over the article – entrusting it to a responsible person.

 

However, as with shemira with respect to damage, here too there is a certain difficulty with this understanding, for we do not find a distinction between entrusting the article to a more meticulous shomer and a less meticulous one (or with respect to his ability to make compensation – between a wealthy shomer and a poor one).

 

It seems, therefore, that we should adopt a different approach. According to Rashi – the relative minimalist – the significance of the transfer is only that the second shomer's shemira counts for the first shomer, and that we don't expand the scope of his liability to include ones. It seems then that Rashi maintains that a shomer cannot nullify his obligation to the owner, but he can make use of another shomer to be his shomer.[4]

 

According to the Ramban, the first shomer can in fact provide a substitute in those areas where the halakhic standing of the first shomer is the same as that of the second shomer, that is, where they are both liable (in which case the second shomer is liable, and he is not) or they are both exempt (in which case they are indeed both exempt).

 

            Here is the place to examine an interesting argument developed by Rav Chayyim with respect to this issue. His analysis is found in his work on the Rambam, Hilkhot Nizkei Mamon 4:11, parts of which we already saw in the previous shiur. He raises the following question regarding the opinion that a shomer she-masar le-shomer is exempt:

 

A doubt arises according to the one who says that a shomer she-masar le-shomer is exempt because he entrusted it to a ben da’at. Does this mean that accordingly he can thereby release himself from his fundamental obligation to watch over the article and his standing as a shomer is entirely cancelled? Or do we say that without a doubt once he enters into shemira he cannot release himself from it, and it is only because he supplied a man in his stead that he is therefore exempt, but his fundamental standing as a shomer was not cancelled.

 

            The expression that he uses, "a man in his stead," which the Ramban also used, allows him to say that the first shomer remains a shomer, only that he has provided a substitute in the form of the other shomer. This does not mean that this is based on the idea that the second shomer executes the shemira – an understanding that we rejected above. This also does not mean that the owner can make a claim against the first shomer – it is possible that the capability to provide a substitute vis-à-vis the owner means that a claim can only be brought against the substitute.

 

Rav Chayyim's second understanding says that conceptually the first shomer is still in the picture and that he is exempt because of the substitute. This is in contrast to the first understanding that says that a shomer can unilaterally release himself from the obligation to watch over the object by handing it over to another shomer, and thus remove himself entirely from the picture (something that is connected to the broader issue relating to the ways of terminating a shemira obligation).

 

            The argument that Rav Chayyim develops here is that the one who says that a shomer she-masar le-shomer is exempt adopts the approach of release – as long as the shomer entrusts the article to a ben da’at he can release himself thereby from his obligation to watch over the article. For this reason, argues Rav Chayyim, we can understand that this works even when he weakens the care, for – so assumes Rav Chayyim – one cannot provide a substitute in the person of a lower level shomer. Only according to the one who understands that a shomer can release himself, can the shomer do this by handing the article over to any ben da’at.

 

Rav Chayyim adds that according to this approach, the approach of release, the owner's desires and reservations are irrelevant – the shomer is not subjugated forever, and he can terminate his shemira at any time, provided that he hands over the article that had been entrusted to him to a ben da’at. Hence there is no room to consider arguments like "You I believe on oath: the other I do not," or "It is not my desire that my article should be in the charge of another person," for the owner's desire is not the decisive factor. In contrast, argues Rav Chayyim, the one who says that a shomer she-masar le-shomer is liable adopts the approach of "a man in his stead" – a substitute. Accordingly, this cannot work in a case where he weakens the care, and even where he strengthens the care it does not work, because we need to consider the owner's desire to choose a legitimate substitute, and so the aforementioned arguments are accepted.

 

            Let me clarify a possible source of confusion: The Gemara records a disagreement as to whether a shomer she-masar le-shomer is liable or exempt, and Rav Chayyim argues that in essence we are dealing with a dispute as to the nature of the exemption in that case. Rav understands that a shomer can release himself from his obligation to watch over the entrusted article by handing it over to another shomer, and therefore he has no problem saying that a shomer who hands over the article to another shomer is exempt. Rabbi Yochanan maintains that a shomer cannot release himself from his obligation, but he says that in principle he can substitute another person in his stead. This being the rationale, it is subject to such considerations as "It is not my desire that my article should be in the charge of another person" and the like, and this in effect cancels the exemption granted to the shomer who hands over the article to another shomer, barring those situations in which those considerations are not valid.

 

            Objections can, however, be raised against Rav Chayyim's understanding, both based on logic and based on the words of the Rishonim. First, Rav Chayyim's approach certainly does not accord with Rashi, that even according to Rav, if the second shomer acts with negligence a claim can be brought against the first shomer.

 

Second, what is the significance of the shomer releasing himself from responsibility by handing over the article to a ben da’at in the case where the shomer weakens the care? Does Rav Chayyim mean to adopt the exceptional position found in the Rishonim, which, according to Rav, exempts the first shomer even in the case of a shomer sakhar who handed over the article to a shomer chinam, and the article was lost or stolen? On the assumption that this is not the case, then if the article is lost or stolen, the first shomer is liable to pay, and thus it is difficult to say that he is considered as one who returned the article to its owner and is now removed from the picture. On the other hand, in the framework of the rationale of "a man in his stead," Rav Chayyim maintains that it is obvious that a shomer chinam cannot replace a shomer sakhar.

 

However, the Ramban, in the aforementioned passage – even without focusing on the words "a man in his stead" – maintains that if a shomer sakhar handed over the article to a shomer chinam, a claim can be brought against the first shomer in the case of loss or theft, but a claim cannot be brought against him in the case where the second shomer was negligent. This implies that the rationale of "a man in his stead" works even in a case where he weakens the care, with respect to that which he provides a substitute. Logically, as well, it is difficult to understand Rav's position according to Rav Chayyim, as it implies that it is easier for a shomer to release himself from responsibility than to provide a substitute, and that such release is not subject to the owner's protests.

 

            However, within the framework of the rationale of a substitute that we saw in the Ramban, there is room to distinguish between two possible understandings. One understanding is that the first shomer is still obligated toward the owner and he provides for him a substitute against whom a claim may be brought.

 

A second understanding is that in that area for which he provides a substitute (and if the second shomer is not inferior to the first, we are dealing with the entire shemira), he is removed from the picture and the second shomer is the owner's shomer. While it is true that in any event, according to the Ramban, the owner brings his claim against the second shomer, there is still a practical difference between these two possibilities. If the first shomer leaves the picture with respect to the area under discussion, then even in a case where the first shomer knows that the second shomer is not providing adequate shemira, he is not obligated to watch over the object.

 

In contrast, if he is still the shomer connected to the owner, only that he provided a substitute against whom the owner can file a claim, there is room to say that when he knows that his replacement is not providing adequate care, he is still liable to the owner and therefore it falls upon him to watch over the object himself (even though we have explained that handing over the object to a second shomer does not work as a legitimate way to watch over the object).

 

            The Halakha is that a shomer she-masar le-shomer is liable, barring the exceptional cases where the owner could have understood from the outset that the article would reach the hands of the second shomer. On the face of it, the various explanations of Rav's exemption in the case of shomer she-masar le-shomer are valid for Rabbi Yochanan in these cases. In practice, it is possible that a distinction should be made between different situations. For example, it is possible that in certain situations the owner is viewed as having deposited the article from the very outset in the hands of the second shomer, the first shomer serving merely as an agent, whereas other situations are seen as cases of shomer she-masar le-shomer where the first shomer is exempt.[5]

 

II. Shomer she-masar le-shomer in Bava Kama

 

"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, 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 becomes liable." Rava can say to you: What is meant by "he handed it over to a shepherd?" [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 say that since the text says: "He handed it over to the care of a shepherd," and 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 Rava said: shomer she-masar le-shomer is liable. It may however be said that this is not a support. 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.

 

As the Ra'avad notes in his Hasagot (Hilkhot Nizkei Mamon 4:11), it is difficult to understand the relevance of the Amoraic dispute in Bava Metzia regarding shomer she-masar le-shomer to the realm of Bava Kama, where the arguments of "You I believe on oath: the other I do not" and "It is not my desire that my article should be in the charge of another person" do not apply, for a party who suffers damage does not choose the party responsible for the damage caused to him.

 

The Position of Rashi

 

Rashi explains our passage as follows:

 

It must therefore mean, instead of the shomer ­– And it means: "If a shomer handed it over to the care of a shepherd, the shepherd would enter into all the responsibilities instead of him, and the owner goes and sues the second shomer and the first shomer is released.

 

One shomer who hands over his charge to another shomer becomes liable – even for unavoidable accident, as the owner can say to him: You I believe on oath that it suffered due to ones: the other I do not, in chapter Ha-Mafkid (Bava Metzia 36).

 

            Rashi writes that the question of shomer she-masar le-shomer decides the issue against whom the animal's owner – and not the party who suffered the damage – can make a claim. What is more, he mentions the argument of trust in an oath. On the plain level, it would seem that according to Rashi our passage has abandoned the laws of Bava Kama, and learned from our mishna a law of shomerim of Bava Metzia – deciding the Amoraic dispute regarding shomer she-masar le-shomer. This is a little forced in the wording of the mishna, but nevertheless this is what is learned from the redundancy in the mishna's ruling.[6]

 

            The author of Torat Chayyim[7] similarly explains our passage (without relying on Rashi):

 

Regarding the Gemara's answer, "It must therefore mean, instead of the shomer," you are forced to say that our mishna comes to teach us that the shepherd enters into all the responsibilities instead of him, even regarding a case where [the animal] gets lost or suffers damage, that the owner goes and sues the shepherd and the first shomer is released. For if not so, the objection returns to its place: "Have we not already learned elsewhere: "If an owner hands over his animal, etc." For since the reason that a shomer enters into the responsibilities of the owner is that since the ox is found in his charge, the responsibility is cast upon him to watch over it – if so, what is the difference between the first shomer and the second or third shomer? It is obvious that that last one is always liable, for whoever has charge of the ox is responsible to watch over it. For this reason [the Gemara] is precise when it says that the first shomer is exempt altogether, rather than saying more concisely that the first shomer is exempt, as this implies that he is altogether exempt, even if the animal was lost, for the owner goes and sues the shepherd.

 

            The Torat Chayyim emphasizes that regarding damage it is obvious that a shomer she-masar le-shomer is exempt, for the rule regarding damage is that "whoever has charge of the ox is responsible to watch over it." In the previous shiur we saw that several Acharonim are inclined to this position and that they base it on what the Tosafot say about a robber, and I pointed out several difficulties with this approach. In any event, his position is clear, and in the context under discussion certainly possible.

 

            Now let us examine the positions of the Rambam and the Ra'avad on the matter.

 

Suggested understanding of the Rambam – Bava Metzia influences Bava Kama

 

            As opposed to Rashi, the Rambam implies that he understands our passage in its plain sense and that he applies the dispute in Bava Metzia to the matter of precaution taken against damage:

 

In a case of shomer she-masar le-shomer [and the animal causes damage] the first shomer is liable to pay the person whose property was damaged, as [this fits with the general rule that] a shomer she-masar le-shomer is liable. For the person whose property was damaged will tell him: "Why didn't you watch it yourself instead of delegating it to someone else? Pay me yourself, and [if you wish you may] sue the shomer to whom you delegated it." (Hilkhot Nizkei Mamon 4:11)

 

            The source of the ruling that a shomer she-masar le-shomer is liable is actually learned from the laws of shomerim. However, the law that is learned from there is relevant also to damages – because of that rule, the first shomer cannot escape the claim of the party who suffered damage. Of course, there is a difficulty here – what is the connection between the rationales of "It is not my desire that my article should be in the charge of another person" and "You I believe on oath: the other I do not" to the matter of damages?

 

            In the previous shiur – based on the words of the Rishonim including the Rambam – I tried to lay the foundation for a different understanding than that of the Torat Chayyim and other Acharonim regarding the liability of a shomer for damage. According to that alternative understanding, a shomer's liability for damage is not based on his being like the owner, but on his agreement to serve as a shomer. So too regarding the exemption of the owner – as part of the institution of shemira that the Torah created in the passage dealing with shomerim, the essence of which is guarding the article so that it not suffer damage, but which includes also guarding the article so that it not cause damage, the Torah enabled the owner to present the world with the shomer in his stead.

 

According to this understanding, there is room to suggest that the owner's exemption is based on the fact that the Torah allows him to entrust his property to the shomer, and that this handing over of his property is a recognized and legitimate halakhic event. If the person entrusting the property to another person is himself a shomer, and the Torah does not recognize his right to entrust the property to another shomer, there is room to say that his entrusting of the property does not exempt him from responsibility for the potential damage. That is to say, even though the reason that this entrusting of the property is illegitimate is based on his obligation toward the owner, it has ramifications regarding those who might suffer damage, because the mechanism that allows the owner to exempt himself from liability for damage does not exist here. According to this it is possible to understand our passage that hangs the law of shomer she-masar le-shomer regarding damage on the Amoraic dispute in Bava Metzia.[8]

 

            We must be careful not to confuse matters. According to the laws of shomerim of Bava Metzia (at least according to Rashi's explanation of the passage), the significance of the position that a shomer she-masar le-shomer is liable is that the first shomer is liable even if the second shomer watched over the property and it suffered damage as a result of ones. In Bava Kama this is certainly not the law. If the second shomer watched over the animal and the damage that occurred falls into the category of ones, there is no reason that the party who suffered the damage should gain and be granted the power to make a claim against the first shomer. Here the position is more modest – the first shomer is not relieved of his responsibility (but the guarding provided by the second shomer certainly works for him).

 

The position of the Ra'avad

 

The Ra'avad critiques the Rambam's ruling as follows:

 

All this is incorrect. Rather the person who suffered the damage collects from the second shomer, or from whomever he wishes. And just as he can say to the shomer, he can say to the owner: Why did you not watch over your ox? I swear by my life that whatever he wrote here is unnecessary, for you cannot say here "It is not my desire that my article should be in the charge of another person," as the owner has lost nothing.

 

            The Ra'avad's position is complex. On the one hand, he does not accept the connection between Bava Metzia and Bava Kama: "For you cannot say here 'It is not my desire that my article should be in the charge of another person,' as the owner has lost nothing."[9] On the other hand, he maintains that a shomer she-masar le-shomer does not exempt himself thereby from liability for damage, and that a claim can be brought against him as well. The Ra'avad emphasizes that a claim can also be brought against the owner, and the implication is that if there was a chain of ten shomerim who handed over the animal from one to the next, the damaged party can make his claim against the owner or any one of the ten shomerim for damage. It would appear that each of the shomerim can then collect from those who followed him on that chain based on their obligation to him, but this does exempt each individual shomer from the claim brought by the party who suffered the damage. What is the basis for this position?

 

            The words of the Ra'avad can be understood based on the end of his comment in halakha 4 regarding the law of a shomer with respect to damage:

 

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.

 

            The Ra'avad maintains that the fundamental liability vis-à-vis the party who suffered the damage falls on the animal's owner, and the party who suffered the damage can sue him directly, and the owner will then be forced to run after the shomer and sue him. In the previous shiur I explained this position as a strong expression of the view that focuses the liability for damage caused by a person's property on the plaintiff's ownership of the animal that caused the damage, which imposes obligations upon him and dictates that the primary address of the party who suffered the damage is the animal's owner.

 

Now, however, in light of what the Ra'avad says about a shomer she-masar le-shomer I suggest that this can be understood differently. This is not a special law applying to the owner, that he cannot relieve himself of responsibility by handing over the animal to another person. This is a law that applies to anyone who bears responsibility that he cannot release himself from that responsibility by setting up someone in his place. The second shomer's watching can work for him, based on the law that a person's agent is like the person himself. But when the animal is not watched as is required, a claim can still be made against the first shomer. Whoever is obligated to watch the animal is accountable if the animal is not properly watched, only that if he agreed with someone that the latter would watch it for him, the former can go and sue him for not living up to his commitment.

 

            Thus far we have seen three approaches to the relationship between the law governing a shomer she-masar le-shomer in Bava Metzia and its parallel in Bava Kama. Rashi and the Ra'avad maintain that there is no connection between them, only that according to Rashi, or at least according to the Torat Chayyim, it is obvious that a shomer she-masar le-shomer is exempt from liability for damage, for there is nothing preventing him from handing over the responsibility, whereas according to the Ra'avad, he cannot transfer the responsibility to another person. According to the Rambam, on the other hand, the law in Bava Kama depends on the law in Bava Metzia, and we suggested an explanation as to why this is so.

 

Rav Chayyim's proposed understanding of the Ra'avad's Position

 

            It is interesting to see Rav Chayyim's proposed understanding of the Ra'avad's position (in the passage that has already been mentioned in this and the previous shiur). Rav Chayyim builds on some of his principles that we have already mentioned and develops them in order to explain our passage according to the Ra'avad, in a way that will explain even according to the Ra'avad why the law governing a shomer she-masar le-shomer in Bava Kama depends on the Amoraic disagreement in Bava Metzia.

 

            As may be recalled from the previous shiur, Rav Chayyim's position – based on what the Tosafot say regarding a robber – is that a shomer is liable for damage like an owner, and not based on the law of a shomer. Rav Chayyim does not see a contradiction between this and the Ra'avad's position that the party who suffered the damage can sue the owner and the owner can then demand compensation from the shomer (even if I have difficulty with this, Rav Chayyim does not!). Therefore, Rav Chayyim explains that if the owner cannot relieve himself of liability by handing over the animal to a shomer (if he did not guard the animal as is required), it is obvious that the shomer can also not relieve himself of such liability, and for that reason a shomer she-masar le-shomer is liable for damage.

 

However, this is all true according to the understanding of shomer she-masar le-shomer as one who sets up a substitute in his place, which, according to the Ra'avad, does not work with respect to damage. If, however, a shomer she-masar le-shomer releases himself thereby from his shemira, this should work also for damage. As may be recalled from this shiur, Rav Chayyim's position is that the Amoraic dispute regarding shomer she-masar le-shomer is in fact a disagreement regarding the definition of the idea, whether we are dealing with a substitute that the shomer sets up in his stead or with release. Therefore, argues Rav Chayyim, even though the rationales of "It is not my desire…" and "You I believe…" do not apply to damage, they are not the root of the disagreement. The root of the disagreement relates to the question whether we are dealing with release or a substitute, and regarding damage, according to the Ra'avad, only release can help the shomer, for setting up a substitute does not exempt the shomer, just as it does not exempt the owner.

 

            Once again this brilliant suggestion befits the genius who proposed it, but since the foundations upon which this tower is built – both regarding the understanding of the Amoraic dispute about shomer she-masar le-shomer and regarding the nature of the shomer's liability for damage and the owner's exemption – are, in my humble opinion, problematic. Therefore, I preferred to offer other explanations of the views of the Rishonim on this topic.

 

Sources for the Next Shiur (no. 6)

 

            In the next shiur we will examine the passage dealing with a person who is minding a lost article that he found, beginning with: "Itmar shomer aveida" (56b) until the end of the discussion at the end of 57b: "be-to'en ta'anat listim mezuyin ve-nimtza listim she-eino mezuyin." The shiur will deal exclusively with the beginning of the passage, the dispute between Rabba and Rav Yosef regarding the law governing a person who is minding a lost article. Try to understand the disagreement and the very assumption that someone who is minding a lost article is obligated as a shomer, albeit only as a shomer chinam, even though he never entered into an agreement with the owner or accepted any kind of responsibility. See also Tosafot, s.v. behahi, until "asur la-mudar aval lo hava shomer sakhar."
 

(Translated by David Strauss)

 


[1] This is what the Rashba writes (p. 36b): "According to my understanding that the reason there is that 'it is not my desire that my article should be in the charge of another person,' it is clear negligence, and since he removed it from his charge and handed it over to another shomer, he is like a robber or a thief, and the animal is considered to be wholly in his possession, even for accidental death."

[2] Tosafot Rabbeinu Peretz, Bava Metzia 36a, in the name of "there are those who say"; Ritva, there, in the name of "there is one who explained"; Me'iri, Bava Kama 11b in the name of "some commentators."

[3] Though like we said in the previous shiur in the wake of the Chazon Ish, it stands to reason that we require that he not be a person who by his very essence cannot pay, e.g., a slave. Regarding the ability of the second shomer to pay, see also Tosafot, Bava Metzia 42b, s.v. kol.

[4] According to this approach, why can the animal's owner relieve himself of responsibility toward others by handing over the animal to a shomer (on the assumption that the owner is indeed exempt, in contrast to the view of the Ra'avad in Hilkhot Nizkei Mamon 4:4)? On this matter, see the interesting comments of the Kehilat Ya'akov on our tractate, no. 32.

[5] See among others, Tosafot, Bava Metzia 42b, s.v. kol ha-mafkid; Rosh, Bava Metzia 3:23, and Hagahot Oshri, ad loc.; Or Zaru'a, Gittin, no. 707.

[6] For another understanding of Rashi, see Penei Yehoshua, ad loc.

[7] According to the biography found in the Bar Ilan Responsa project: R. Avraham Chayyim b. R. Naftali Tzvi Hirsch Shor, who died in 1632, served as rabbi in the cities of Stenov and Belz in Galicia, and was considered one of the leading authorities of his generation. His book, Torat Chayyim, is comprised of halakhic and aggadic novellae to several tractates. The author also wrote the important book, Tzon Kodshim, on the order of Kodshim, which contains many important textual comments and emendations.

[8] Compare with Rav Chayyim's second suggestion regarding the position of the Rambam beginning with the words, "Ode yesh lomar be-da'at ha-Rambam" until the end.

[9] It is difficult to know how the Ra'avad explained our passage (in his novellae to our tractate, he is silent on this passage). It is possible that he understood it as did Rashi, but the matter requires further examination.