Written by Rav Moshe Taragin and Rav Yair Kahn.
The mishna (Bava Metzia 94a) discusses the din of she'ila be-ba'alim: If one BORROWS a cow and contracts its owner (ba'al) to work for him, he is NOT liable for damages, should anything happen to the animal. However, there is one proviso: The ba'al must enter the employ of the sho'el either BEFORE the loan takes place or at the SAME time. If he enters the employ of the sho'el only AFTERWARDS, the sho'el assumes full liability.
After establishing the 'comprehensive' scope of the 'petur' of 'ba'alav imo,' (it exempts a sho'el, sokher and shomer sakhar from 'all' liability) the gemara addresses one area in which this halakha might not apply. The gemara (95a) cites a machloket between Rav Acha and Ravina as to whether ba'alav imo entails a petur in a case of peshi'a (gross negligence on the part of the shomer); the gemara does not assign either position to a specific Amora but is aware that these two Amora'im disputed this specific halakha. Subsequently, the gemara presents a textual basis for this machloket: The halakha of ba'alav imo appears only in the third shomer section in parashat Mishpatim. This third section is two parshiyot removed from the shomer chinam section - which would seem the logical address for the laws of peshi'a (being that this is the only circumstance which obligates the shomer chinam to pay). This textual detachment - the separation between the laws of shomer chinam (of which peshi'a is a central feature) and the halakha of ba'alav imo, might indicate that the laws of ba'alav imo do not apply to a case of peshi'a. Interestingly enough, the Rishonim by and large do not elaborate on this discussion; evidently, they did not notice (or did not comment upon) a more fundamental basis to this machloket. However, by delimiting the scope of ba'alav imo the gemara might be demonstrating the structural basis for this halakha; indeed many Acharonim see this machloket as a fundamental statement about the halakha of ba'alav imo and possibly an examination of the obligation of peshi'a.
At first glance, we might side with the position which claims that the scope of ba'alav imo is indeed unlimited and that this exception applies even in cases of gross negligence. Why should we differentiate between different categories of a shomer's obligation to compensate for the loss of a deposited item? By taking this intuitive step we are faced with the following question: How might we explain the position which limits the halakha of ba'alav imo and obligates a shomer to pay for peshi'a even if the owner is present?
Perhaps the simplest solution would be to invoke the famous principle of the Rambam which perceives the obligation of peshi'a as inherently dissimilar from the standard obligations of shomrim. When a shomer pays for theft or for an accident, he clearly does not carry any obligation to pay independent of his status of a shomer. His entire responsibility stems from his having accepted the role of shomer and the various responsibilities and payments which stem from this status. Ba'alav imo determines that if the ba'al is present, the shomer is automatically excused from all shomer-related payments. Peshi'a, however, might represent a completely different form of payment. A shomer who agrees to watch an item and then carelessly exposes it to danger might be directly facilitating the damage and might be considered a type of mazik. Certainly, if he allows the animal to stray into a crowded street, he might be viewed as the direct cause of the damage similar to one who directly inflicted the damage. Even if he is excused from the laws of shomrim (because of the presence of the ba'al) we might still obligate him to pay for peshi'a since his carelessness can be taken as a form of hezek which generates an obligation to pay independent of the laws of shomrim.
This principle is generally attributed to the Rambam (though it appears in earlier sources for example the Ri Migash in his commentary to Shevu'ot). In Hilkhot Sekhirut (2:3) the Rambam introduces the concept while discussing the laws of one who agrees to watch land, contracts or hekdesh. Though these items are excluded from the formal laws of shomrim (see Bava Metzia 56), according to the Rambam one would still pay for gross negligence. In the Rambam's words 'whoever is negligent to such a degree is considered a mazik.' If someone were to outright damage a tract of land he would certainly have to pay for it; similarly, if this watchman carelessly exposes it to damage he pays despite the fact that he is not a formal 'shomer;' though he may not be a SHOMER he is certainly a MAZIK. Might the Rambam's principle be at work in our sugya as well? Indeed, the presence of the owner cancels the PAYMENT schedule of any and every shomer. However, a shomer who is careless pays as a MAZIK and not as a shomer and the presence of the ba'al in no way mitigates his responsibility to make such mazik-payments!!
Though this approach seems reasonable enough, we might then question what the opposing position would maintain. If, indeed, one who is careless is akin to a mazik why should the presence of the ba'al absolve him of mazik-payments? One option might be to reject this concept of posheiya ke-mazik entirely. The alternate position in our sugya (which absolves payment for peshi'a in the presence of the ba'al) might maintain that a negligent person can never be considered a mazik (for he took no ACTIVE part in the damage) and can only be charged to pay as a shomer. As a shomer, no payments are made in the presence of the ba'al. In other words, this position might reject the Rambam's principle outright.
This option is insufficient for one reason: The Rambam himself, though posing the theory of poshei'a ke-mazik still sides with the opinion that a poshei'a is patur in cases of ba'alav imo!! If indeed a poshei'a is a mazik and is responsible independent of his status as a shomer why is he not liable to pay when the ba'al is present?
This issue is solved by the Shakh in Choshen Mishpat (66:126) who claims that ba'alav imo is not merely an exception which excludes a shomer from 'shomer-payments.' If the ba'al is present the shomer is not halakhically considered a shomer at all!! Since he is not considered a shomer he has no obligation to watch the item. In the absence of an obligation to watch the item he cannot be considered a mazik. He is only defined as a mazik if he betrayed his accepted obligation to watch. Carelessness in this context is deemed a form of hezek/mazik - semi-direct damage. If he never agreed to watch the item in the first place - or even if he agreed but the presence of the owner inhibits him from achieving a status of shomer - he cannot be considered a mazik. According to the Shakh, ba'alav imo doesn't merely excuse the shomer from shomer-related payments; it also removes the label of shomer from the watchman. (This concept - that the presence of the ba'al prevents the shomer from ever achieving a formal status of shomer - is also attributed to Rav Chayim.)
We might find echoes of this concept in other areas. We might corroborate the Shakh's statement by proving that a shomer who watched in the presence of an owner is not merely excused from payments but is not halakhically considered a shomer. The Yerushalmi in Shevu'ot (8:1) cites an opinion that if the ba'al is present the shomer is also excused from taking a shevu'at ha-shomrim (the standard oath of a shomer). This might also indicate that he is no longer considered a shomer and cannot be forced to pay OR participate in any of the shomer-related activities. In a parallel vein, Tosafot in Bava Kama (57b) raise the possibility that in the ba'al's presence, a shomer who embezzles the deposit and deceives the owner by lodging a false claim of theft would be excused from the liability unique to a shomer. This exception might also indicate that in the owner's presence the watchman does not succeed in securing the legal status of 'shomer' at all. If he were a shomer but merely being excused from shomer payments he might be obligated to make payments for embezzlement. His being excused from these payments might indicate a lack of shomer status.
We have suggested a basic model for analyzing the machloket about peshi'a be-be'alim - gross negligence on the part of a shomer who watches in the presence of the owner. Those who obligate the shomer to pay would maintain 'posheiya ke-mazik' and even though the owner's presence exonerates the shomer from his payments he still is responsible as a mazik. Those who disagree might base their comments on one of two positions:
a) Peshi'a, being totally passive cannot be considered mazik but instead, is part of the shomer payment schedule. If the ba'al is present, he is excused from peshi'a payments along with all other shomer payments.
b) If the ba'al is present the watchman never assumes the halakhic status of a shomer and never realizes even a basic responsibility to watch an item. In the absence of this responsibility we cannot view him as a mazik - he hasn't betrayed anything.
We might turn our attention back to the original position - that a shomer who is poshei'a in the presence of the ba'al IS obligated to pay. If the Shakh is correct and such an individual is not legally considered a shomer how can he be considered a mazik? He is not formally obligated to watch the item?
In this context as well we might offer several options. Most obviously this position (which obligates a shomer to pay for peshi'a even in the presence of the ba'al) might argue with the Shakh's position. He might claim that ba'alav imo is not a global subversion of the status of shomer. Instead, it is merely a relaxing of payments. Since the poshei'a is indeed a mazik he still must pay. The Netivot (Choshen Mishpat 291:34 and 301:1) adopts this position.
The Netivot proves his position from a sugya in the third perek (41b), which indicates that even in a case of ba'alav imo a shomer is liable for "shelichut yad." Shelichut yad refers to a shomer who illegitimately uses the item under his care, and like a thief is liable for oness (unavoidable damage). Shelichut yad, however, is relevant only regarding shomrim. If an object is placed in a person's domain without his consent, shelichut yad does not apply. Hence, concludes the Netivot, ba'alav imo, though exempt from payment, is nonetheless considered a shomer, contrary to the position of the Shakh and R. Chaim.
Perhaps we can defend the opinion of the Shakh and R. Chaim by distinguishing between two different aspects of shmira. Usually shmira means that an item is placed under my care. However, there is an additional idea of "pikadon" in which an object enters my "reshut" domain. This situation is unique to shmira, and does not exist when an object merely lies in my house, without having accepted upon myself shmira. For instance, if a shomer tried to steal the item given to his care, he would find it technically impossible. Since the article is already in his reshut, his act of theft would be meaningless. It would be analogous to the insignificant act of taking the object from one hand and placing it in the other. However, if the item was not a pikadon, but was merely placed in my house, lifting the article would be halakhically significant in terms of bringing the item into my reshut, and would therefore constitute theft.
Based on this distinction, we can solve the problem we raised in the Rambam. In our case, since the original owner accompanies the object at the point of transfer (when the shmira is halakhically established), it never enters the care of the shomer. Therefore, all liability associated with the context of shmira, including peshiya, do not apply. Nevertheless, it is considered a pikadon, insofar as it was placed in the domain of the shomer with full consent of both parties. Furthermore, we may claim that shelichut yad applies to all cases of pikadon, where the normal parameters of theft are irrelevant. Perhaps the establishment of shelichut yad is to create an institution parallel to theft, which is applicable to the unique situation of pikadon. Hence, shelichut yad would apply to since it is a pikadon, though not under the care of the shomer.
In summary, we have presented two contrasting opinions regarding the nature of the exemption of ba'alav imo. According to one, the framework is one of shmira, in the full sense, however there is suspension of the obligation of the shomer to reimburse the owner in the event of damage. The second maintains that the framework of shmira itself is compromised in the presence of the owner. These two understandings may be reflected in the controversy recorded in our sugya. (Previously we explained that this debate revolved around the understanding of peshiya. However we were forced to abandon that approach according to the Rambam.) If the framework of shmira remains, then ba'alav imo can only effect those obligations which are unique to shomrim, and peshiya would be excluded. However, if the shmira itself is not intact, and the object is not placed under the care of the shomer, then he wouldn't even be accountable for peshiya.
The shiur next week will deal with the exemption of be-ba'alim on the theoretical level. Admittedly, this exemption is odd, nevertheless, the gemara doesn't directly deal with the "why." The biblical commentators did relate to this issue. Therefore, I would suggest studying those sources. Aside from the classical commentaries, you should also look at the Sforno, the Ralbag, the Meshekh Chokhma, and the Netziv. See also the Chinukh [mitzva 60].
Also study the gemara in Bava Metzia 95b "Amar Rav Hamnuna ...teyuvta." Although Rav Hamnuna is ultimately rejected, according to him how could the halakha of be-ba'alim be explained. Is it possible that this understanding is not rejected, although Rav Hamnuna is?