ל׳ בתשרי ה׳תשע״ז (November 1, 2016)

Bava Metzia 36a-b: A Guard Passing to a Guard

As we have learned, when someone gives an object to his friend to watch for him, there are two different types of shemira (guarding) with different levels of responsibility.

  • A shomer hinam agrees to watch the object without 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 Rav, 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. Abaye explains that according to this opinion, this is true not only in a case where a shomer hinam raised the level of shemira by giving it to a shomer shakhar, but also if a shomer shakhar lowered the level of shemira by transferring it to a shomer hinam, since he gave it to a responsible person.

Rabbi Yohanan 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 shemira by transferring it to a shomer shakhar. This is because the owner can say to the guard “I didn’t want my object in someone else’s hands.”

Some rishonim understand Rabbi Yohanan’s reasoning based on the fact that a shomer who does not follow the instructions of the owner is considered a gazlan – a thief. Tosafot explain that when the owner gives an object to a shomer, he is implicitly stating that the shomer will be responsible in all cases. According to the Ra’avad, since we know that some people are simply unlucky and they suffer accidents more often than others, it is reasonable to assume that the owner wants his object in the hands of the person who he chooses.

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