ד׳ בסיון ה׳תשע״ו (June 10, 2016)

Bava Kamma 11a-b: Responsible for an Item’s Safekeeping

When someone gives an object to his friend to watch for him, there are two different types of shemirah (guarding) with different levels of responsibility.:

  • A shomer hinam agrees to watch the object with receiving any payment. Although he is responsible for the object and will have to pay for it if he does not take care of it properly, if it is lost or stolen he can simply take an oath that he watched the object in a reasonable fashion and he is free of any further obligation.
  • A shomer sakhar gets paid for his efforts. If the object is lost or stolen he will have to pay for it, although if an ones – something beyond his control – takes place, he will not be held responsible.

Can someone charged with watching an object pass it on to a third party who agrees to watch it?

According to Ulla in the name of Rabbi Elazar, shomer she-masar le-shomer – when one person who was watching an object passes it on to another person – he will not be responsible for anything beyond his original obligation. Since he gave it to another responsible individual, he has not done anything wrong. According to this opinion, this is true not only in a case where a shomer hinam raised the level of shemirah by giving it to a shomer shakhar, but also if a shomer shakhar lowered the level of shemirah by transferring it to a shomer hinam.

Rava disagrees, ruling that a shomer she-masar le-shomer will be responsible for everything that takes place – even if a shomer hinam raised the level of the shemirah by transferring it to a shomer shakhar. This is because the owner can say to the guard – “I trust you when you take an oath; I do not trust the man who you gave it to.”

Tosafot point out that when this discussion appears in Massekhet Bava Metzia (36b), an additional reason is offered for Rava’s ruling. There the Gemara says that the owner can simply say “I didn’t want my object in someone else’s hands.” These two reasons can lead to different conclusions in certain cases – e.g. if the second man is known to be more reliable than the first or if there are witnesses who tell us what happened, so there is no need for anyone to take an oath.

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