Responsibilities of a Shomer Sakhar
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.
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.