Responsibilities of a Shomer Sakhar
TALMUDIC METHODOLOGY
By Rav Moshe
Taragin
Shiur #03: Responsibilities of a Shomer
Sakhar
In the previous
shiur, we described two different models of a shomer sakhar. Must he actually receive a formal salary
for watching an item or is it sufficient for him to receive BENEFIT, even if no
formal payment is rendered? The
question arises primarily from a position among the Tannaim which views a
sokher as a shomer sakhar even though he isnt salaried. The debate also surrounds money
changers, craftsman and finders of lost items - all of whom are designated by
the gemara as shomer sakhar even though they dont receive
any formal salary.
Questioning the
CRITERIA for becoming a shomer sakhar may reflect a broader question
the nature of his expanded obligations.
A shomer sakhar lies on the spectrum between two very different
models of shomrim. A
shomer chinam is not obligated to pay for external damage to, or
loss of, the deposited item. He
must, however, provide basic protection, failure to do so renders him a
posheia - grossly negligent - which is almost equivalent to damaging the
item itself. In fact, many
Rishonim - the Rambam in particular - refer to him as a mazik for
his gross negligence and irresponsibility in exposing the item to harm. Primarily, however, a shomer
chinam does not provide INSURANCE of the item against
loss.
On the other end of
the spectrum lies a shoel, who pays for all loss despite the absence of
negligence. He may be viewed as
providing insurance coverage - offering insurance against all forms of loss in
exchange for the free utility he receives.
Consequently, he pays for any and every loss, even if unpreventable.
Between these two
poles lies the category of shomer sakhar (and possibly sokher, who
is similar to a shomer sakhar).
He pays for gross negligence AS
Should we view a
shomer sakhar as a mini-shoel? Like a sho'el, he pays even when
there is no negligence, as evidenced by his liability for theft and loss. On the other hand, unlike a
shoel, he pays only for minor accidents, not major ones. Perhaps a shomer sakhar is
actually an expanded shomer chinam.
A shomer chinam must provide BASIC protection, rendering him
negligent and therefore liable in limited cases of gross neglect, and a
shomer sakhar must provide comprehensive protection of the item, even
against theft and loss. If these
events occur, he is considered as negligent as the shomer chinam, since
his watchman responsibilities require him to prevent these events. Should we
view his expansive halakhot as expanded requirements TO WATCH the item or
expanded tables OF PAYMENT?
It appears that this
is the basis of a debate between Rashi and the Rambam. The gemara in Bava Kama
(45a) catalogues the shomrim and asserts that a shomer
chinam must provide basic protection (shemira pechuta) while a
shomer sakhar must provide supreme protection (shemirah
meula). Most Rishonim
associate this difference between the shomrim with a peripheral
shomer issue and do not assume that this phraseology describes the
ESSENTIAL differences between shomer sakhar and shomer
chinam. Rashi, however,
believes that this discrepancy between basic shemira and comprehensive
shemira captures the differences between the two shomrim: The
shomer sakhar must reinforce his watching [and the absence of that
protection and resulting theft/loss] renders the shomer a
posheia. It appears that
Rashi viewed the shomer sakhar as possessing a greater responsibility to
actually WATCH the item and not just expanded payment tables.
By contrast, the
Rambams syntax suggests that a shomer sakhar is not more RESPONSIBLE
than a shomer chinam but must accept greater PAYMENT coverage. In listing the various shomrim
(Sechirut 1:2), the Rambam claims that a shomer sakhar pays for
theft and loss, but if a GREATER ACCIDENT (ones) occurs he is
exonerated. The phrase implies that
theft and loss are considered minor accidents and the shomer sakhar must
still pay. Rashi probably would not
refer to theft as a minor ones but rather as mini-negligence.
This issue surfaces
in a powerful manner surrounding a gemara in Bava Metzia
(42a). The gemara asserts
that deposited moneys should be buried in the ground to prevent fire. Only by doing so may the shomer
chinam be acquitted of his obligation.
The Rishonim debate whether a shomer sakhar who buried the
money must pay if it is subsequently stolen. Logically, he should be exempt since he
provided maximum protection. Short
of holding the money on his body, he did everything possible to protect it. In fact, many Tosafists adopted this logical position. Conceptually, this opinion would
parallel the position of the Rambam.
A shomer sakhar does not absorb addition obligations -he
just covers minor accidents (typical theft and loss). The theft of buried funds would
presumably be considered highly unlikely and unpredictable and would be
considered an ones gadol, for which a shomer sakhar is
exempt.
Most
Rishonim, however, rejected the notion that a shomer sakhar would
be excused if he buried the money.
The gemara in Bava Kama (57a) searches in vain for a case
of theft in which a shomer sakhar would be exempt from payment. If burying the money excuses a shomer
sakhar from payment, the search for such a case in Bava Kama should
not have been so complicated. Based
on this, these Rishonim rule that a shomer sakhar IS NOT excused
from payment by simply burying the money.
As the Ramban articulates, he must carry the money on his body
yoshev u-meshamer. It seems that a shomer sakhar DOES
receive additional obligations to watch the item in a unique manner. He does not simply accept an expanded
level of insurance coverage; he also agrees to PERSONALLY guard the item rather
than just assure its safety. The
Rambans view parallels that of Rashi in Bava Kama, although it presents
a more radical logic. Rashi extends
the shomer sakhars responsibility to cover theft and loss. The Ramban actually requires him to
PERSONALLY attend to the items safety.
The debate between
Rashi and the Rambam and the related discussion between the Ramban and the
Baalei Ha-Tosafot about a shomer sakhar personally
watching the item may relate to a debate among the Amoraim themselves. Can a shomer sakhar watch an item
in the same manner as normal owners do?
When he crosses a bridge, must he transport the animals one by one to
prevent accidental pushing or may he move the overall herd as normal
owners/shepherds would? Similarly,
may he take the normal breaks that every person is allowed to enjoy or must he
provide air tight and unremitting coverage? In Bava Metzia (93b), Rabba
claims that a shomer sakhar may follow normal procedure (taking breaks
and transporting animals in herds).
In response, Rabba bar R. Huna and R. Chisda claim that a shomer
sakhar must surpass normal standards.
The owner can claim, I am paying you a salary so that you will provide
greater SERVICE.
This debate between
the Amoraim may relate to the question about the nature of a shomer
sakhar. According to Rabba, a
shomer sakhar merely accepts expanded payment tables - he pays for
negligence and limited accidents.
There is no reason or basis to demand watching the animal beyond normal
standards. R. Chisda and Rabba bar
R. Huna claim that a shomer sakhar is a paid watchman who must provide
safety for the item, as well as SERVICE to the owner, by watching the item 24/7
in a superior manner; the shomer sakhar indeed accepts greater
responsibilities to watch the item.
In fact, several
commentaries actually classify the shomer sakhar as a poel, a
worker (see the Ran to Bava Metzia 97a and the Machane Efrayim),
dramatically altering his identity.
A typical shomer chinam does not perform a SERVICE for the
owner. He receives the item and,
within the dynamic of his possessing the item, watches it and pays for its
damages. A poel is a
service provider who labors for his employer independent of any relationships to
items. A shomer must receive
an item into his possession, whereas a poel is merely a day
laborer. Referring to a shomer
sakhar as a poel accentuates his status as someone who provides
greater (and different) service, and not just an expanded form of insurance (as
the Rambams language suggested).
Returning to our
original point of inquiry, this broad question does a shomer sakhar PAY
MORE or WATCH more may be linked to the question as to whether a shomer
sakhar must receive salary or merely benefit. If the shomer sakhar
merely pays for broader scenarios, any BENEFIT would be sufficient to upgrade
his status. Unlike a shomer
chinam, who receives NO BENEFIT and provides NO COVERAGE, the shomer
sakhar receives BENEFIT (even if not SALARY) and, in exchange offers limited
liability. However, if we deem the
shomer sakhar a poel, someone who does not only watch an item but
provides SERVICE for the owner, he would most probably require an ACTUAL SALARY
to be classified as such. By
burying the money in the ground, he has safeguarded the item, but since he is
salaried, he must actually hold the money on his person. Similarly, by taking normal breaks and
crossing bridges in the acceptable fashion, he watched the item. Since he is salaried, however, he must
provide service, not just safety.
In fact, Rabba bar R. Huna and R. Chisda, in their rejection of Ravas
lenient position allowing conventional breaks and typical bridge crossing,
objected: The owner can indict the shomer by claiming, I PAID you a
SALARY and expect you to cross the bridge in superior fashion! They sensed that an actual SALARY may be
responsible for classifying the shomer sakhar as a unique category.
AFTERWORD
This shiur
aligned several different opinions among the Rishonim and Amoraim
regarding the nature of a shomer sakhar. Although the issues discussed were
different, a common logic may unite them.
For example, the Rambans demand of yoshev u-meshamer may
highlight the personal service provision of the shomer sakhar in
the same manner that R. Chisdas demand against breaks may. Does this mean that the Ramban would be
forced to embrace R. Chisdas extreme demands? Or can he demand that the
shomer watch the money on his body but still allow the shomer to
take breaks or cross the entire herd over the bridge? The Rishonim attempt to compare
the radical demand of the Ramban with the debate among the Amoraim, but that
discussion lies outside the parameters of this shiur.