Salary for a Shomer Sakhar
By Rav Moshe Taragin
This lecture is dedicated in memory of Louis and Margaret Klein, zl
by Mr. and Mrs. William Klein
Lecture #02: Salary for a Shomer Sakhar
A previous lecture described the status of a sokher (renter). We discussed that the Tannaim dispute whether his payment responsibilities resemble those of a shomer chinam (unpaid watchman) or a shomer sakhar (salaried watchman). Even if a sokher's responsibilities are similar to those of a shomer sakhar, he may not actually be defined as a shomer sakhar because he does not receive an actual salary. A sokher may be considered a mini-shoel, whose payments top off at the level typical to a shomer sakhar.
Considering a sokher a variation of a shomer sakhar raises a fundamental question about a SHOMER SAKHAR. Must he actually receive an official salary (in which case it would be difficult to consider a sokher an ACTUAL shomer sakhar)? Or is it sufficient for a shomer sokher to merely receive some benefit - even indirect - from the item? If the latter approach is proven correct, we may also qualify a sokher as an ACTUAL shomer sakhar, since he receives the BENEFIT of utility. Several interesting test cases can help us probe the need for ACTUAL SALARY rather than mere benefit to be considered a shomer sakhar.
The gemara in Bava Kama (56b) questions the status of someone who finds a lost item and is obligated to watch the item until its owner claims it. According to Rabbah, the aveida-watcher attains the status of a shomer chinam and is thus responsible for gross negligence and little else. According to R. Yosef, a finder of an aveida is ascribed the status of a shomer sakhar, even though he does not receive any SALARY or any BENEFIT, for that matter from watching the item.
The gemara cites two opinions justifying the shomer sakhar status of an aveidah-watcher. According to the second opinion, since the Torah imposes the status of shomer upon him by dint of his finding and watching the item, he automatically receives a shomer sakhar status. This is quite a provocative view of shomer sakhar, independent of the particular question of SALARY which we are presently addressing. Evidently, whenever the Torah imposes a shomer status (as opposed to it being jointly applied by the two parties to the agreement), the shomer sakhar rules are applied. Although this may hint at a fundamental theory regarding shomerim, it does not necessarily represent the general paradigm of a VOLUNTARILY adopted status of shomer sakhar, and therefore may have little to contribute to our understanding of the role of SALARY for a CONVENTIONAL shomer sakhar.
The gemaras first option, however, may imply that a formal salary is unnecessary to attain shomer sakhar status. The gemara claims that the shomer aveida DOES receive SOME ancillary benefit - while watching the lost item (and performing a mitzva), he is excused from his tzedaka obligation, since he is involved in a prior mitzva (Ha-osek be-mitzva patur min ha-mitzva). Excusing him from tzedaka provides monetary benefit, which thus classifies him as a shomer sakhar. This approach implies that as long as a shomer receives BENEFIT even if NOT SALARY - he may be designated as a shomer sakhar.
A different gemara in Bava Metzia (81a) discusses a shoel who returned his borrowed item without fully restoring it to the actual physical possession of the owner. The gemara exonerates him from his shoel obligations, but cites Ameimar, who claims that although acquitted from his all-encompassing shoel obligations, the ex-shoel is still obligated like a shomer sakhar. Since he received the benefit of utility from this loan item - he must repay that BENEFIT by maintaining obligations as a shomer sakhar until he fully returns the items to the owners possession. The simple reading of Ameimars theory suggests that a watchman may be deemed a shomer sakhar through receipt of BENEFIT, even without receiving an actual SALARY.
This proof, however, is not iron-clad. First, this may only be the position of Ameimar and not a consensus opinion (although Ameimars position is quoted without dissent or dispute). Second, this scenario may not imply that a person can become a shomer sakhar purely through BENEFIT. Ameimar refers to an ex-shoel who has performed a basic restoration of the item by dispatching it with a messenger. Although no longer a shoel, he retains RESIDUAL elements of his shoel status until he actually performs a COMPLETE and THOROUGH return. The benefit he received in the past as a shoel may EXTEND certain LIMITED SHOEL obligations beyond his initial halakhic return of the item. We therefore cannot necessarily extrapolate that a person can become a shomer sakhar purely by receiving BENEFIT.
A third gemara that addresses our issue appears in Bava Metzia (43a) and concerns a money-changer who used monies deposited with him with tacit permission of the owner. R. Huna and R. Nachman debate whether he should be considered a shoel and thus be obligated to cover even accidental losses to the item. R. Nachman claims that the money-changer DOES NOT adopt a shoel status because he never agreed to that fate. Rava questions: Even though he does not achieve shoel status, perhaps he is obligated like a shomer sakhar? Rava replies that, indeed, the money-changer is responsible like a shomer sakhar because he received BENEFIT from the money. In this instance, it appears that a person who was not previously a shomer/shoel can be designated as a shomer sakhar simply because he receives BENEFIT!!
If we were to insist that SALARY is absolutely necessary to be considered a shomer sakhar, we may neutralize this money-changer proof in one of two manners:
1) The statement only reflects the logic of Rava and not necessarily that of R. Huna, who classified the money-changer as a full shoel, thereby bypassing the question as to whether he can be considered a shomer sakhar.
2) Perhaps money delivered to a money-changer with the implicit allowance of use may itself be considered SALARY and not mere BENEFIT. Unlike our previous examples, the money-changer is actually WORKING on behalf of the owner, or at least providing him a service. Any benefits packaged as part of the deal may legitimately be considered SALARIES.
A final example of a shomer sakhar who may not receive ACTUAL SALARY involves a craftsman, who is clearly labeled a shomer sakhar by the mishna in Bava Metzia (80b). The gemara debates the source of this status, especially if a sokher is not considered a shomer sakhar (as one position contends). The gemara tentatively considers several reasons for the shomer sakhar status of a craftsman all seemingly BENEFITS received without actual formal SALARY. It rejects all these explanations, since a sokher enjoys these same perks without necessarily being defined as shomer sakhar. Ultimately, the gemara concludes that the singular element which classifies the uman (craftsman) as a shomer sakhar is the ability to hold on to the repaired item as leverage to demand his payment. This unique benefit, obviously unshared by a sokher, accounts for the umans unique status as a shomer sakhar.
Again, the simple reading implies that an uman is considered a shomer sakhar even WITHOUT receiving ACTUAL SALARY. Alternatively, we may claim that holding on to the repaired item AS LEVERAGE TO COLLECT HIS SALARY is the equivalent of SALARY and sufficient to define him as a salaried shomer sakhar. Ultimately, the question of whether a shomer sakhar requires SALARY or MERELY BENEFIT may remain an unanswered one.
Structurally, the issue of SALARY and whether it is absolutely necessary for a shomer sakhar may provide the key to understanding the nature of a shomer sakhar and in what ways he differs from a shomer chinam.