Siman 291

There are four types of guardians who guard the property of others, and how their acquisition is effected will be explained before us. These are they: the guardian who agreed to guard for free; and the guardian for hire where they agreed between them that he will give him such and such for his guarding; and the renter from his fellow of an object or a vessel or an animal to perform work with them and he gives payment to the owners as they agreed between them, and consequently he is obligated in their guarding; and the borrower of a thing from his fellow to perform work with it and he does not pay him a fee. Their laws are divided into three categories because a guardian for hire and a renter have one law. The reason is because with a guardian for free, all the benefit is for the owners and not for the guardian; and with a borrower, all the benefit is for the borrower and not for the owners; and with a guardian for hire and a renter, both of them have benefit, for with a guardian the owners have benefit in that he guards their object and the guardian has benefit in that he takes a fee, and with a renter it is the opposite, for the owners have benefit in that they take a fee and the renter has benefit in that he uses it [Yerushalmi Shevuot chapter 8].

Therefore, a shomer chinam is only obligated to pay when he was negligent in guarding the object, by not guarding it properly, and through this the object was damaged, or stolen, or lost through his negligence; for this is akin to one who causes damage with his hands, since he accepted upon himself to guard and the owners relied upon him. And the shomer sachar and the renter are liable even if they guarded properly and it was stolen or lost, for one who has benefit in exchange for the guarding is obligated to guard also from theft and loss, as it is written: "In the day the drought consumed me, and the frost by night; and my sleep fled from mine eyes," and like the guards of the city whose primary guarding is against theft. But if it was lost through an ones, such as if an armed bandit came upon him or a lion fell upon it or any other ones, he is exempt, for what could he have done? And the shoel, since all the benefit is his, is liable even for onesim, for it is like his own object, such that he bears even the onesim of the object; and he is only exempt when it died or was damaged due to the work that he performed with it and he did not deviate at all, having performed this work for which he borrowed it—in this he is certainly exempt, for the mash'il understood and accepted that he would perform such work with it.

In all matters where the guardians are exempt, they are only exempt through a Torah oath, and even this is only in a place where people are not present; however, in a place where people are present, he is not exempt through an oath, but rather he must bring kosher witnesses that the event occurred as such, and it will be explained in siman 294. In all four guardians the law is so, and the details of the oaths will be explained before us with the help of Heaven.

Just as a thief must pay double, so too a shomer chinam who claims that the object was stolen from him and witnesses came and testified that he stole it, is liable to pay double. However, if he claims that the object was lost from him and witnesses came and testified that he stole it, he is exempt from double and pays only the principal [Bava Kamma 63b]. This matter is a decree of the Torah and will be explained in siman 352 with the help of Heaven. But regarding a shomer sachar and a renter, and certainly regarding a borrower, you do not find a liability for double, because the payment of double is only for theft, and these, when they claim a claim of theft, are already liable to pay the principal as has been explained. Therefore, this law applies only to a shomer chinam because he exempts himself with a claim of theft. And know that a shomer chinam who is exempt in cases of theft and loss when he guarded appropriately—even though theft is close to an unavoidable accident and loss is close to negligence [Bava Metzia 94b]—nevertheless, it is a decree of the Torah that he is exempt even in a case of loss, as will be explained.

A shomer chinam and a shomer sachar who committed shelichut yad with the deposit, the object stands in their domain and they are liable even for accidents. What constitutes shelichut yad will be explained in siman 292. And not only are they liable for accidents, but even if it died due to work, for which even a shoel is exempt, they are liable; for since they committed shelichut yad, they are like gazlanim and must pay according to the time of the theft. Also regarding a price increase or decrease, their law is like a gazlan, for if the object decreased in value after they committed shelichut yad, they must pay according to the time of the high price, as written in siman 362. However, regarding a shoel and a socher, shelichut yad is not applicable, for they use the object with the consent of the owners. And if their intention was to steal it entirely, this is not shelichut yad but rather an actual gazlan. And if they deviated in their work, it will be explained in siman 308 and 309. [And regarding what is written in Bava Metzia 41a: Do not say shelichut yad etc. and let it be derived from a shoel, see there in the commentary of Rashi and examine carefully].

It is a decree of the Torah regarding all shomrim that when the owner of the object was engaged in the work of the shomer, in whatever work it may be, at the time he accepted the guardianship, or at the time he borrowed the object or rented it, the shomer is exempt from everything that may occur to the object. Even if he was negligent with the object and it was lost or damaged through his negligence, he is exempt. And even if he was not engaged in the work of the shomer at the time of the negligence, since he was with him in his work at the time of the commencement of the guardianship, the borrowing, or the renting, he is exempt from everything except for actually damaging it with his own hands. And although we are not to provide reasons for why the Torah decreed thus, nevertheless, there are those who said a reason for this: that presumably, since the borrower and the shomer had such a closeness of mind, he certainly gives it to him with the understanding that he will return it to him only when the object is extant; and since he did not explicitly stipulate with him that he should be liable according to the laws of guardianship, he is exempt even from negligence [Sforno]. All the matters we have explained are explicit in the Torah according to the explanation of the words of our sages, of blessed memory.

It is written in Parashat Mishpatim: "If a man gives his fellow money or vessels to guard and it is stolen from the man's house, if the thief is found, he shall pay double. If the thief is not found, the master of the house shall be brought near to the judges, to see whether he has not put his hand to his fellow's property." And afterwards it is written: "If a man gives his fellow a donkey, or an ox, or a sheep, or any animal to guard, and it dies, or is broken, or is taken captive, with no one seeing, an oath of Hashem shall be between them both, that he has not put his hand to his fellow's property, etc. And if it be stolen from him, he shall pay its owner, etc." And afterwards it is written: "And if a man borrows from his fellow and it is broken or dies, its owner not being with it, he shall surely pay. If its owner is with it, he shall not pay; if it is a hired thing, it came for its hire."

Our sages, of blessed memory, expounded [ibid.] that the first passage was stated regarding a shomer chinam and the second passage regarding a shomer sachar, for in the first passage it is stated: "If a man gives money or vessels to guard," and in the second passage it is written: "If a man gives a donkey, or an ox, or a sheep, or any animal to guard." And the standard matter is that in guarding money and vessels there is no exertion, and it is common to guard them for free, but with animals there is exertion in their guarding, and it is not common to guard them for free but only for pay [Tosafot ibid. 41b]. And the verse spoke of the common occurrence according to the custom of the world, and there is no distinction in this, for if one guards an animal for free, he has the law of a shomer chinam, and if he guarded money and vessels for pay, he has the law of a shomer sachar. And in the first passage it is explained that he is exempt for theft, as it is written: "If the thief is not found, then the master of the house shall be brought to the judges, to see whether he has put his hand..." and this bringing is an oath, as is proven in the second passage where it is written: "The oath of the Lord shall be between them both, that he has not put his hand." Behold, he only needs to swear that he did not put his hand to it, but for theft he is exempt. And in the second passage it is written: "And if it be stolen from him, he shall make restitution to the owner thereof." Behold, explicitly a shomer sachar is liable for theft, and all the more so for a loss, which is close to negligence as I have written. And for accidents he is exempt, for behold, death, injury, and capture are accidents, and it is written that he swears regarding this that he did not put his hand to it, but for the accidents he is exempt. And regarding a shoel it is written that even for injury and death he is liable; learn from this that a shoel is liable even for accidents. And for death resulting from work he is exempt, for it is logical, as he intended and accepted that he would perform work with it. And a proof for this is that if the intention of the Torah was to make him liable even for death resulting from work, it should have only written "died" alone; and why do I need it to write "or injured"? And behold, it did not write all the accidents, just as it did not write "captured." Rather, "injury" comes to reveal regarding "death": just as there is no way it would be injured because of the work, so too regarding "death," specifically that it died because of some other cause, but for death resulting from work he is exempt [it appears to me].

And there is a question here: From where do we know that a shomer chinam is exempt regarding an avedah? Perhaps the Torah only exempted him from theft, but from an avedah, which is close to negligence, it did not exempt him. And there are some of our sages, of blessed memory, who derived the liability for avedah in a shomer sachar from that which is written, "if it be stolen from him" (im ganev yiganev), to include avedah [ibid. 94b]; consequently, we learn from this that in a shomer chinam he is exempt, for if not so, why would he need to include it in a shomer sachar? Behold, it would be a kal vachomer from a shomer chinam. However, there are some of our sages, of blessed memory, who hold that the doubling of the language "ganev yiganev" is because the Torah spoke in the language of men, and the liability for avedah in a shomer sachar is derived via a kal vachomer from theft; if so, from where do we know that a shomer chinam is exempt from it? And it appears to me that behold, our sages, of blessed memory, derived [Bava Kamma 63b] that one who claims a claim of theft in a shomer chinam, when witnesses came that he himself stole it, is liable for double payment (kefel) from that which is written, "if the thief be not found," meaning, if he is not found as he said, that it was stolen, but rather he himself stole it and swore falsely, "he shall pay double to his neighbor." For if it were regarding the thief himself, it was already stated previously, "he shall pay double." And in one who claims a claim of loss (avedah) and it is found that he himself stole it, he does not pay kefel, since it is written "the thief" (ha-ganav) with a superfluous letter Heh, which comes to exclude a claim of loss. If so, from this itself we hear that a shomer chinam is exempt from avedah, for if not so, what relevance is there to exclude him from kefel? Behold, with this claim he would be liable for the principal (keren). Rather, we learn from this that he is exempt in a claim of loss, and the verse comes to exclude that if he claimed it was lost and it was found that he himself stole it, he is exempt from kefel and is only liable for the keren.

And from where do we know that the law of a renter is like a shomer sachar? For perhaps since it is written after the borrower, his law is like a borrower. However, since it is written, "if it is a hired thing, it came for its hire," meaning, if it is a hired thing, you have no reason to obligate him for accidents like a borrower, for behold, it came for its hire that he pays to the owners, and not all the benefit is his as it is with a borrower. Rather, he is only obligated like a shomer sachar, for there too there is benefit for both of them. Therefore, it is written "if it is a hired thing" and not "and if it is a hired thing," to separate it from the law of the borrower. And the reason the Torah did not place the renter adjacent to the shomer sachar is because regarding the matter of misappropriation, a renter is similar to a borrower and not to a shomer sachar, as we explained in section 5.

The exemption of "he was with him in his work" is written regarding a borrower, and since regarding a shomer sachar it is written "if [a man] gives" etc. and it is not written "and if [a man] gives," while regarding a borrower it is written "and if [a man] borrows," we learn from this that the exemption of borrowing in the presence of the owners also applies to what was mentioned above. And thus our sages, of blessed memory, said: the letter vav adds to the first matter. Furthermore, it is a kal vachomer: if a borrower, for whom all the benefit is his, is exempt if the owners are with him in his work, all the more so a shomer chinam, a shomer sachar, and a renter.

And that which we said, that in a place where people are present one is not exempted by an oath but rather by witnesses, it is written regarding a shomer sachar: "and it dies, or is broken, or is captured, no one seeing it; the oath of Hashem shall be between them etc." and it implies explicitly that when there is one who sees, he is not exempted by an oath. And why is this written regarding a shomer sachar and not regarding a shomer chinam? Because in the guarding of money and vessels hidden in a house, witnesses are not commonly present, but in the guarding of animals, witnesses are commonly present. Therefore, the Torah wrote this in the second passage which deals with animals, but for the halacha there is no difference in this regarding all four shomrim, and there is also no logical reason to differentiate in this.

And by what means is the acquisition of the guardians? Our sages, of blessed memory, said [Bava Kamma 79a]: Just as they instituted meshikhah for purchasers, so they instituted meshikhah for guardians. Rashi explained that the guardian does not become obligated in his guardianship until he performs meshikhah. According to this, an unpaid guardian is not liable for negligence, nor a paid guardian or a renter for theft and loss, nor a borrower for accidents, prior to meshikhah or some other acquisition as in a sale. Consequently, one who borrows or rents a cow from his fellow is not liable for its sustenance prior to meshikhah. And so our sages, of blessed memory, said [Bava Metzia 91a]: From the moment of meshikhah he becomes liable for its sustenance. And that which our sages, of blessed memory, said, that when a guardian says "place it before me" he becomes a guardian, as will be explained, this is in a place where the location effects acquisition, such as four cubits in an alleyway [the Maggid Mishneh, chapter 2 of Hilkhot Sekhirut] or in the guardian's own domain, and more will be explained regarding this. This is the opinion of the Rambam in chapter 1 of Hilkhot She'elah, who wrote that from the moment of meshikhah he becomes liable for its sustenance, and he wrote similarly in chapter 2 of Hilkhot Sekhirut: Just as they instituted meshikhah for purchasers, so they instituted it for guardians. This also appears to be the opinion of the Rif at the end of the seventh chapter of Bava Kamma. There is one who says that even though we require meshikhah, it is not similar to the meshikhah of a purchaser, which requires that he pull it into his own domain or into an alleyway; rather, the guardian is liable even with meshikhah in a public domain, for since he removed it from the domain of the owner of the object, he is liable [Nimukei Yosef ibid.]. There are those who disagree with this [Tosafot, Bava Kamma 79a]. [And in Bava Metzia 99a, starting with the words "Since," in the second resolution, they also wrote like the Nimukei Yosef, and therefore this opinion appears primary].

But there are some of our teachers who hold that a guardian does not require a kinyan at all, and immediately when he says, "Place this object before me," or when he accepted upon himself to guard and the owners withdrew from its guarding, he is liable in all the laws of guarding. And similarly, the borrower and the renter of an animal are liable from then for its sustenance; and that which the Sages, of blessed memory, said, that the liability for its sustenance is from the time of the meshikhah, it is not a literal meshikhah as in the case of a purchaser, for this is its meshikhah when he says, "Place it before me," and the owners withdrew from their guarding, for this is not a kinyan to acquire it. And so too the renter and the borrower, immediately when he requested that he lend to him or rent to him, and he said to him, "I will lend to you" or "I will rent to you," and he said to him, "Place it before me," and the owners withdrew from their guarding, they are liable for theft and loss, and the borrower for accidents. And that which the Sages, of blessed memory, said, that they instituted meshikhah for guardians as they did for purchasers, this is so that they can retract until the meshikhah; but to become liable in guarding, the guardian is liable even before the meshikhah. And our teacher, the Beit Yosef, wrote in section 5 the two opinions and did not decide. And the great Acharonim [the Shach and the Gra] agreed with the first opinion. And in the Yerushalmi, Shevuot chapter 8, it is also implied like this opinion [the latter opinion is that of the Tosafot in Bava Metzia 99a and the Rosh there; and in chapter 6, siman 16, and in Bava Kamma 79a, the Tosafot and the Rosh wrote like the first opinion; see there in the Shiltei HaGibborim and in the Tumat Yesharim and in the Pnei Yehoshua].

It would appear from the perspective of logical reasoning that regarding the matter of negligence, even the first opinion admits that when he said "Place it before me" and was negligent with it, he is liable to pay based on the laws of garmi. It is no worse than a laborer where, if he hired him with mere words and then reneged, and the laborer suffered a loss elsewhere because of this, he is liable to pay him based on the law of garmi, as is written in siman 333. This is certainly true when he told him to rely upon him. And even if we say that this is not garmi and is similar to gerama in damages, for which one is exempt, nevertheless, there are those among the Rishonim who hold that even in gerama, if he promised to guard against the gerama and did not guard it, he is liable to pay. According to this, that which they instituted meshikhah for shomrim does not apply to a shomer chinam, whose entire liability is for negligence. This is also implied by the wording of the Rambam, who wrote there: Just as they instituted meshikhah for purchasers, so they instituted for shomrim; one who says to his fellow, "Guard this vessel for me," and he says to him, "Place it before me," he is a shomer chinam. Thus far his words. It follows that for a shomer chinam, he is liable with "Place it before me." [The commentators were pressed in his words to explain that this is in a place where the location effects acquisition, as is written in section 13, and in Bava Kamma there it is considered that even for a shomer chinam it is difficult, for this is not an acquisition through which he would become liable, and his liability is only from garmi; however, from the Rashba and the Maggid Mishneh it does not appear so, for if it were not so, it would not be difficult at all, and examine this carefully].

But from the words of our teacher, the Beit Yosef, in section 5, it does not appear so, for he wrote that there is one who says that this guardian, immediately when he accepted upon himself to guard or said "place it before me" and the owners withdrew from guarding, is liable for it if he was negligent even though he did not perform meshikhah, and there is one who says that he is not liable until he performs meshikhah and in a place where meshikhah effects acquisition. Thus far his words. Behold, he wrote that even regarding negligence they disagreed. And know that all the laws of guardians apply only to movables and livestock, and not to lands, slaves, or documents, nor to that which belongs to hekdesh or the poor, and it will be explained in siman 301, section 4.

Regarding damages, it is written: "the best of his field and the best of his vineyard he shall pay," and we hold that if he wishes to pay with movable property, he may pay with whatever he wishes, for with movable property, everything is considered "best," as if he does not sell them here, he will sell them elsewhere. And even if he has money, he may pay with the equivalent of money according to the assessment of the beit din; only if he pays with land must he pay with the highest quality land, as will be explained in siman 419. Our sages, of blessed memory, learned that the four guardians, when they must pay, also have this law [Bava Kamma 5a]. And some say that when he has land or money, he cannot pay with movable property [the Rosh in the name of Rabbeinu Tam there]. And regarding all guardians, when one guarded or borrowed or hired a vessel and it broke, or an animal and it died, in a manner where they must pay, they assess the shards and the carcass and the owners take them, and the guardian completes the remainder for them, as I wrote in siman 344. But regarding a thief or a robber, it is not so, as I wrote in siman 354 and 362. And regarding damages, they assess. And regarding an iska, which is half loan and half deposit, when he must pay, he pays the half of the deposit from the highest quality land and the half of the loan from medium quality land, according to the law of a creditor [Shach]. And see what I wrote in siman 419 [and what the Rosh wrote there in the name of Rabbeinu Tam is not aligned with the words of the Tosafot at the beginning of the sixth chapter of Bava Batra, but in Bava Kamma 9a, s.v. Rav Huna, they wrote like the Rosh, and it requires further study].

All guardians who became liable to pay, pay according to the time of the negligence, the theft, or the accident, each according to his liability. If the object increased in price at the time of the damage, he pays according to the high price, and if it decreased in price, he pays according to the low price. And even though regarding a robber, when the object broke on its own or was lost and it increased in price, he only pays according to the time of the robbery, as I wrote in siman 362, why then should the guardian be more stringent than a robber? However, there is a great reason to differentiate in this: for the robber, from the moment he robbed, the object left the possession of the owners and they cannot consecrate it or sell it, and therefore his primary liability is for the time of the robbery. But the guardian, the borrower, and the renter, even though they became liable for guardianship from the time of borrowing and from the time of guardianship, nevertheless the essence of the object belongs to the owner and he can sell it and consecrate it, and his primary liability is for the time of the damage; therefore he must pay according to that time even if it increased in price. Furthermore, the robber is not a guardian and it is impossible to charge him for the time of the accident, and his liability is for the time of the robbery, whereas the guardian's primary liability is for the time of the damage; therefore he must pay according to this time [Netivot HaMishpat].

If the shomer can remove himself from his guarding prior to the time he established with him, some say that he can retract like a poel, for since he established a time, he is no less than a poel [Rashba, Kiddushin 13]. And some say that he cannot retract [Maggid Mishneh, chapter 7 of She'elah], and it is not similar to a poel, as the shomer does not perform an action and the status of "slave" does not apply to this, which is the reason a poel can retract. Our teachers, the authors of the Shulchan Aruch, ruled accordingly in siman 293. There is one who wishes to distinguish between a shomer chinam and a shomer sachar, for a shomer sachar, since he must guard day and night as written in siman 303, is similar to a poel, whereas a shomer chinam is not [Machaneh Ephraim]. But this does not seem correct, for if so, we should also distinguish between guarding movables which he locks in his house and guarding an animal in the field; rather, certainly there is no distinction in this. And the owners certainly can retract, and even with a shomer sachar if he pays him his wage until the time he established, and the shomer cannot compel him to guard specifically, for the time is for the benefit of the owner, as written in siman 74 regarding a loan, that the time is for the benefit of the borrower. And regarding a sho'el and a soker for a set time, the mash'il and the maskir cannot retract within the time, as written in siman 341, but the sho'el can retract within the time, and likewise the soker if he pays him his wage, for the time was made for his benefit. Nevertheless, regarding the borrowing and renting of a house, it is possible that they cannot retract if there is no one to dwell in the house and the owners are particular about this because "a house is better when inhabited," and likewise anything similar to this. And if they did not establish a time, each one can retract whenever he wishes, as written there. [And know that according to the first opinion, that which our sages, of blessed memory, said that they instituted meshikhah for shomrim according to the opinion in section 14—that it is regarding retraction—it does not apply at all to a shomer chinam, and study it well].

The watchmen for whom a time was set, once the time has concluded, the obligations of watching according to each one's specific law no longer apply to them. Nevertheless, the sages, of blessed memory, said that a borrower, after the time has concluded, still has the status of a shomer sachar; since he benefited from it all the days of the borrowing, he must provide benefit to the owner after this by having the status of a shomer sachar, as written in siman 340. From this, our teacher, the Beit Yosef, learned in siman 343 that a shomer sachar after the time has concluded is only like a shomer chinam. And even though there is no proof from a borrower that his status should even be like a shomer chinam—since the borrower receives all the benefit—nevertheless, it was obvious to him from the perspective of logic that since he did not return it to its owners, there is no logic at all that he should be exempt from negligence. According to this, the law is the same for a shomer chinam, and certainly for a renter. And so wrote one of the great Rishonim [Ritva, chapter 6 of Bava Metzia]. There is one who says that even a shomer sachar after the time does not have the status of a shomer chinam, but this is not clear [and so it appears from Ran, Nedarim 37a, starting with the words "Therefore"; and regarding what the Machaneh Ephraim wrote from Tosafot, Bava Metzia 57b, starting with the words "Shomer chinam," who wrote that even a shomer sachar does not pay for negligence, and if we say like the Beit Yosef, why is he exempt on Shabbat? I am wondered, for he hired him by the day according to Rashi's explanation, and he knew beforehand that it does not pertain to Shabbat at all, and he should have watched it himself on Shabbat, for he cannot return it to him as he must watch it after Shabbat].

A shomer chinam is one with whom another deposited money, or vessels, or an animal, or any movable object to guard. That is, the owner requested that he guard this thing for him and he accepted upon himself to guard it, such as by saying, "I will guard." And even if he did not accept explicitly, but rather said to him, "Place it before me," he is a shomer chinam, for "place it before me" implies "place it and I will guard it." But if the owner of the object did not explicitly say, "Guard for me," even if he said to him, "Keep your eye on it," it is nothing [Mekhilta], as it is written: "When a man gives to his fellow money or vessels to guard etc." (Exodus 22:6)—that he must say to him to guard, and not that he says to him, "Keep your eye on it" [ibid.]. And all the more so if he placed it before him without specification, that the law of a shomer does not apply to him at all, even if he said to him, "Place it before me" [it appears to me]. However, if he explicitly accepted upon himself to guard, even if the owner of the object said nothing to him, behold, he is a full shomer.

And even if one requested of his fellow that he give him permission to bring his animal or his produce into his courtyard, and he gave him permission but did not specify anything regarding their guarding, he is not liable for their guarding at all, even for damage that occurs to it from the animal of the owner of the courtyard; since he did not take it upon himself to guard, and this is what he said to him: "Bring in your animal or your produce and you guard them." And our teacher, the Rema, in siman 395, brought the opinion of some who say that when he gave him permission to bring his ox into his courtyard, the owner of the courtyard is liable for damages that come to it from his courtyard, for when he said to him "Bring in," his intention was "that I shall guard it from the damages of my courtyard," and likewise regarding produce, as written in siman 393. And it appears to me, from the fact that our teacher, the Rema, did not provide a gloss in this siman, section 2, on these words of our teacher, the Beit Yosef, it proves that he holds that this is not a matter of the laws of shomrim. And the proof is that regarding damage that comes to it from the world, the owner of the courtyard is exempt, as written there; and if you were to think that the law of a shomer applies to him, why should he not be liable? Rather, for anything that is common to occur—that damage should happen to this one who brought in his animal or his produce from the animal of the owner of the courtyard, that it should gore it or eat the produce—the owner of the courtyard took upon himself the guarding against this damage. But for what might occur of damage or negligence or theft from the side, he is not liable until he explicitly accepts upon himself to guard. [And the difficulty of the Shach, subsection 9, is settled; and that which the Gemara compares them to one another in Bava Metzia 81b will be explained in section 26].

And some say that this applies specifically to a courtyard, but if one gave permission to another to bring his objects into his house, even if the homeowner did not explicitly accept upon himself to guard them, the homeowner is liable for their guarding [Shach in the name of the Hagahot Ashri]. And such is the primary view, for so it is implied in the Yerushalmi [chapter 5 of Bava Kamma]. And the reason is that specifically in a courtyard it is possible that his intention was: "I am giving you permission and you shall guard them," for in a courtyard everyone enters and exits and you are able to guard; but in a house, it is not the way to linger there without permission from the homeowner, and if the homeowner will not guard it, who is it that will guard? But if he said to him, "Behold, the house is before you," it is worse than giving permission and he is not liable for any guarding [ibid.], for this language implies: "If you wish, place them, and if you do not wish, do not place them, and I have no involvement in this." And likewise, if he designated a place for him in the house, such as if he said to him, "Place them in this room" or "in this corner," he is not liable for any guarding, for this is also explicitly that he does not accept guarding [Ran, first chapter of Pesachim], but rather: "In this room or in this corner I give you permission to place them," and it is like yours regarding your objects [Netivot HaMishpat].

And with that which was explained in section 21, that when he requested of him that he guard it and he said to him, "Place it before me," he is a shomer chinam—this is specifically when he said to him, "Place it before me." But if he said to him, "Place it before you," or "Place it" without specification, or if he said to him, "Behold, the place is before you," and in a courtyard or a house he said to him, "Behold, the courtyard and the house are before you," he is not even a shomer chinam and is not liable for an oath at all, for he has not entered the category of guardians. And only this can he impose: a general acceptance upon anyone who took his deposit and does not return it to him. And in all this, there is no difference between a shomer chinam and a shomer sachar [Shach]. And even if there is, he does not become liable for guarding until he accepts upon himself to guard or says, "Place it before me." But without this, he does not become liable for guarding. And there is one who says that even if he said to him, "I will give you such and such as payment for guarding," and he replied, "Behold, the house is before you," he does not become liable for guarding, and the payment must be given to him for the house. And it does not appear so, for certainly in such a case, either he shall not take payment or he shall be liable for its guarding. And only if he agreed with him for such and such rent for the place, and he said to him, "Guard for me," and he said to him, "Behold, the place is before you," he does not become liable for guarding, and the payment is for the place that he agreed upon with him [as such is the intention of the Ritva brought by the Shach, subsection 6, see there].

And that which we wrote, that when he says to him "place it" without specification he is not even a shomer chinam, this is specifically in the marketplace or in a courtyard, where it can be said that he meant to say to him: "place it and watch it." But on the road and the like, he certainly accepted upon himself guardianship, since he is traveling on the road and the owner of the object remains here—who will guard it if not him? Therefore, even in a courtyard and in the marketplace, when he says to him "guard it for me and I will go from here" and he says to him "place it," he has accepted upon himself guardianship. And even according to the opinion in section 13, meshikhah is not required in such a case [Netivot HaMishpat]. And it happened that one was traveling on the road with his donkey, and one said to him, "take these shoes with you," and he said to him, "place them here on the donkey." And he did so, and the owner of the donkey did not receive them in his hand, but rather, just as this one placed the shoes on the donkey, so he transported them and did not tie them. And the owner of the donkey went to the side to relieve himself and left the donkey on the main road, and the shoes were lost. The Rosh, of blessed memory, ruled that he is a shomer chinam and he is negligent for having gone away from the donkey, and he is liable to pay; for on the road, when he handed them to him, it is as if he said to him "guard it for me," and when he said to him "place them on the donkey," it is as if he said "I will guard them." However, this is when the owner of the shoes was not traveling with him, but if he was traveling with him, he is not liable, for he should have guarded them himself [Acharonim]. And our teacher, the Rema, wrote that there are those who disagree and hold that even in a place that is not secure, he is not a shomer chinam until he says "place it before me." Thus far his words. But the Acharonim decided that in such a case where the owner of the objects was not near his objects, no one disagrees. And so too in any place where it appears according to the matter that he accepted the guardianship upon himself, for it is impossible for it to be guarded unless he accepts the guardianship upon himself, he is liable for guardianship even with "place it" without specification. But if he said to him, "behold the donkey or the wagon is before you," even in such a case he is not liable for their guardianship, for this is like saying to him "I do not accept guardianship" [it appears to me].

There are those who wrote that this which has been explained—that when he said to him "place it" without specification he did not accept upon himself the safeguarding—this is only in a courtyard. However, in a public domain or in an alleyway, there is a reason to say that even with "place it" without specification he becomes a shomer. For it is understandable that in a courtyard one must give permission to place his objects there, but in a public domain, why would he need to seek his permission? Consequently, when he said to him "place it," his intention was to safeguard it, for if not so, for what did he give him permission to place it? And similarly, there is a reason to the contrary: that even according to the opinion in siman 393 that when one gave him permission to bring his produce into his courtyard he is liable for their safeguarding from the damages of his courtyard, nevertheless, in a public domain and an alleyway, it can be said that with "place it" without specification he is not liable for safeguarding. Specifically in a courtyard, which is a place where it is common for things to be safeguarded there, in this case he accepted upon himself safeguarding even without specification; but a public domain, which is not a place of safeguarding, he did not accept safeguarding without specification. And it appears to me that even though these reasons are in the Shas [Bava Metzia 81b], nevertheless, since our teachers the Rishonim omitted this, it appears that the essence of the matter is thus: that the Shas says that from the safeguarding against damages in a courtyard one cannot learn to general safeguardings which are even in the streets and marketplaces, because one can reverse the reasons this way and that way. But for the law regarding general safeguardings, we should not obligate him in safeguarding when he said "place it" without specification, as I wrote in section 22. And a proof for this is that regarding safeguarding against damages in a courtyard, there is a reason that he is liable with the giving of permission without specification, even though the owner of the produce did not ask him to safeguard but only asked him to give him permission to bring them into his courtyard. Whereas in general safeguardings, when the owner of the object did not ask him to safeguard, it is obvious that he is not liable for their safeguarding even when he said to him "place it before me." Rather, it is certainly so that they have no relation to one another at all.

If one purchased an object from his fellow via kinyan sudar, and the object is still with the seller and the money is with the buyer, the seller becomes a shomer sachar over the object. However, if he received the money, or if he is not fastidious about receiving the money and it was his will to deliver the object to him prior to receiving the money, he is not even a shomer chinam. And if Reuven transferred ownership of an object to Shimon through Levi, if Shimon was in the city and was able to receive the object from Levi's hand, Levi does not have the status of a shomer. But if Shimon is not here, Levi becomes a shomer chinam over the object and is liable for negligence. And if Shimon is a minor, Levi always becomes a shomer chinam [Netivot HaMishpat]. And if Levi does not desire to accept the guardianship upon himself, he must say explicitly: "I do not accept any guardianship over this," and Reuven must see to the object for the benefit of Shimon so that the object will be guarded [it appears to me]. And a great principle must be known: that in a place where the law of a shomer does not apply to him, he is also not obligated to swear, for the oath of the guardians only applies to a shomer, unless he claimed that he himself stole the object or damaged it with his hands, for this is like other claims between a man and his fellow. And also when he misappropriated the object, he is not liable by the law of misappropriation of a shomer, but rather as an ordinary gazlan. And there are several distinctions in laws between the misappropriation of a shomer and a gazlan, such as becoming liable through an agent, and regarding the matter of paying according to the value at the time of the theft, and the like [Ketzot HaChoshen].

Even when he accepted the guarding upon himself, he is only liable according to the value of the object he accepted upon himself to guard. If the owner of the object did not reveal to him its entire value, he is only liable to pay what was revealed to him. For example, if he gave him a gold dinar to guard, and it was placed in a pouch, and he said to him, "Be careful with it, it is of silver," and he was negligent with it and it was lost, he is only liable for one of silver, because he says to him: "I only accepted upon myself the guarding of a silver dinar." And so too in any similar case. However, if he damaged it with his own hands, he must pay for all of it, for why should he have damaged it with his own hands? And this is specifically when he clarifies that it was of gold, but he does not take it through an oath. And also regarding a borrower the law is so [Shach], because he can say: "Had I known it was of gold, I would not have borrowed it, and I did not want to enter into the responsibility for gold." Therefore, even if it became known to him that it was of gold, he is only liable for one of silver, and all the more so regarding a guard [Netivot HaMishpat]. And so too, any acceptance of guarding in error, the guard is not liable. As in an incident that occurred where Shimon received books from Reuven to transport them to another place, and he had to pass through a place of robbers who seize through pretexts, and everyone who passes through there hides his merchandise. Shimon was a shomer sachar, and Reuven claims that Shimon was negligent in that he was not careful with them in the manner of other merchandise. Shimon claims: "You were negligent in that you told me that they do not cast an eye upon books, and therefore I did not guard myself; and had you not told me that they require great guarding from the robbers, I would not have accepted it upon myself." And they ruled that the law is with Shimon. And so too in any similar case, for behold, an acquisition in error is retracted, and all the more so guarding in error. And any place where he told him that the guarding is light and it was found to be heavy, he is not liable for its guarding. Nevertheless, it appears to me that if it is in his power to inform the owners that he does not accept such guarding and he did not inform them, he is considered negligent, for perhaps the owners truly did not know that the guarding was heavy.

What is the manner of the guards? Everything is according to the deposit. There are deposits that it is the way to place them in a gatehouse, such as beams and stones, which because of their weight are placed near the public domain. And there is a deposit whose manner of guarding is to place it in a courtyard or in the buildings within a courtyard, such as large bundles of flax and the like. And there are those whose manner of guarding is to place them in a house, such as garments. And there are those whose manner is to place them in a chest or a box and lock it, such as silk garments and garments made of silver and gold threads and the like from among precious items.

There are those who wrote that garments should not be hidden in a chest, for ordinary chests are prone to being breached by mice and they will ruin the garments; rather, one must place them on a board or the like, to hang them on the wall in a place where mice are not common. And there are those who wrote that this is specifically when there is food in the chests, for if not so, mice do not enter the chest. And when there is water near the chest, it is permitted to leave them even in the chest, for mice only eat garments when they are thirsty for water; therefore, when there is water near it, they will not eat the garments [Shach]. And garments sewn with skins of foxes and other animals, one must be even more careful in their guarding, for the hairs are ruined if the place is not cool and if there is no moisture from the wall. And there is no fixed measure or limit in these matters; however, there is a general rule in this: that if he placed the deposit in a place where its guarding is not good, even though he placed it with his own objects, nevertheless he is liable, for with his own he may do as he wishes, but not with the property of others.

Our sages, of blessed memory, said that money, dinars, bars of gold and silver, and precious stones and pearls have no proper guarding except in the ground, and he should place a handbreadth of earth over them. In a place where deceivers who are experts at searching in the ground are common, he should hide them in a wall in the handbreadth adjacent to the ground or in the handbreadth adjacent to the beam, and the deeper he places them in the thickness of the wall, the better. Post facto, even if he did not place them in the middle of the thickness of the wall, as long as he inserted them a handbreadth into its thickness, it is sufficient. However, he should not hide them in the middle of the height of the wall, lest thieves dig and steal them. Even if he placed them in a chest and locked it properly, or hid them in a place that no person recognizes or notices, nevertheless, he is a negligent party and is liable to pay. Except for one who deposits money with his fellow on Erev Shabbat close to twilight; and some say that even after midday on Erev Shabbat he is not obligated to exert himself and bury them until the conclusion of Shabbat. And if he delayed after the conclusion of Shabbat long enough to bury them and did not bury them, and they were stolen or lost to an accident, he is liable, for its beginning was with negligence. And if the depositor is a talmid chacham, he is not liable until he lingers after he recites havdalah long enough to bury them, for perhaps he needs money for wine for havdalah, as a talmid chacham does not rely on hearing havdalah from others [Sma]. And some say that the same applies if the bailee is a talmid chacham, because a talmid chacham does not perform weekday activities before havdalah over a cup, even though according to the law it is permitted to perform labor after the havdalah of the prayer, as written in Orach Chaim siman 299. And regarding that which we wrote, that a talmid chacham does not rely on hearing havdalah from others, there are those who question this, for why should he not rely on it unless he has members of his household whom he must fulfill the obligation for [Magen Avraham siman 296, subsection 10]. And according to this, even regarding one who is not a talmid chacham the law is so. And all this is according to the law of the Gemara:

The Tur wrote, and this is his wording: The Rav, Rabbi Yitzchak of Barcelona, wrote that certainly the halacha is such that silver has no protection except in the ground; however, we have received this from our teachers, that this was only said in a place where thieves are common and deceitful people who search for them, but in a place where all these are not present, one does not need to cover it in the ground, but rather places them in the place where he places his own money, and it is no better than his own. And our predecessors relied upon this. And my father, our teacher, the Rosh, of blessed memory, wrote that it is proper to rely on his tradition, for behold it is stated in the Yerushalmi: If he placed it in a place where it is proper to place his own, he is exempt. Thus far his words. And one must place them in a protected place according to the custom of the place and according to the time that he deposits. And so too others of our teachers wrote, that it was specifically in their time when they had dilapidated houses, but nowadays protection in the ground is not required [Sma].

And even in the time of the Gemara, they only said that money has no guarding except in the ground regarding one who deposits without specification with his fellow to guard them. However, one who deposits money with his fellow in order to do business with them and to profit, it is simple that it is as if he said to him explicitly that he does not require him to bury them in the ground. And in all deposits, if the bailee stipulated on the condition that I shall not hide them in the ground, and likewise anything that he stipulated with him, such as that he shall place the deposit with his own or any other condition, everything is according to his condition; for in anything that they stipulate regarding a monetary matter, his condition is valid. And there is no difference in all of this between a shomer chinam and a shomer sachar.

One who deposits funds with his fellow for the purpose of bringing them to his home, or one who sent money with him from place to place, they must be bound and placed in his hand if the place is near, as it is said, "And you shall bind the money in your hand"—even though they are bound, they must be in your hand. Or, if the place is far, they must be tied properly upon his belly opposite his face until he reaches his home and buries them properly according to the time of the Gemara, or hides them in a good place according to the custom of our times. And if he did not tie them in this manner, even if they were lost through an unavoidable accident, he is liable to pay, for behold, its beginning was with negligence. And there is one who wrote that even in this case, if he placed them in the same place where he placed his own money, he is exempt [Shach].

When one carries money on a journey and needs to sleep, they have no guarding except that he shall sew them into his garment that is upon the chest and sleep in the garment. But in trousers, even if he sewed the opening of the pocket, this is not guarding, for a thief can easily cut it and take the money. And similarly with the outer garment, even in a pocket that is near the chest and he sleeps in it, this is not guarding, for since the garment is not attached to the body, a thief can cut the opening of the pocket and take the money. And all the more so, placing them under his head is not guarding at all. And to place them in a garment that is placed beside his belly, it is possible that it is guarding. And similarly, when he walks on a journey, he must hang them in a pocket under his clothes in front of him and not behind him. And similarly, if they are sewn into the trousers while he is awake, it is excellent guarding, but when they are not sewn, this is not guarding. And similarly with other objects, they require excellent guarding, for it is impossible to guard them like money, and everything is according to the matter. And if he acted improperly, even if he also did so with his own, he is liable to pay. And that which we wrote, that if he guarded them like his own it is guarding and he is exempt, this is when there was at least excellent guarding in the manner of people. And there is no difference in all this between a shomer chinam and a shomer sachar.

One who deposits with his fellow either vessels or money, and said, "Give me my deposit," and the guardian said to him, "I do not know where I placed it" or "in which place I buried the money, wait for me until I search for them and find them and return them to you," behold, this one is negligent and is obligated to pay immediately when he was negligent. The depositor does not need to wait for him until he finds it, for any "I do not know" is negligence, and it is like one who causes damage and he is obligated even when there was "guarding with the owners" [Netivot HaMishpat]. And a guardian who does not know if it was stolen through negligence or through an accident must pay, for behold, he is obligated to swear the oath of the guardians, and he cannot swear since he does not know for certain that it was stolen through an accident, and since he cannot swear he must pay, as was written in siman 75 [Sma]. And specifically when he knows that the deposit was stolen, but if he does not know at all that it was stolen, he is exempt, as was written in siman 298. And likewise, when he claims that he did not understand the words that were in the document or in the letter, and he thought that his intention was such and such and therefore he did what he did, if the language of the writing does not bear his interpretation according to the view of those who understand, he is negligent and obligated, for any "I do not know" is negligence [Shach].

If thieves came upon him and stole the deposit, and if he had cried out people would have come to save it from their hands as they left with the theft, he is liable, for he was negligent in this by not crying out. And even if armed bandits came upon him, he is obligated to cry out so that people will come to his aid to stand against them. And if it was possible for him to do so and he did not do so, he is liable, unless there was danger to him in crying out, lest they kill him or strike him. And specifically if he could find people who would aid him for free, a shomer chinam is obligated to do so; but if he could not find anyone to aid him except for a fee, he is exempt, for a shomer chinam is not obligated to hire people. However, a shomer sachar is obligated even to hire people, and it will be explained in siman 303. And the same applies to a renter. And a shomer chinam who hired people to save it and saved it, it is obvious that the owners must pay his expenses up to the value of the object [Maharik 155]:

We establish that if its beginning was through negligence and its end was through an accident, he is liable. This is specifically when there is a reason to say that had he not been negligent with it, it would have been possible that the accident also would not have occurred. For example, if he placed the object in a place that is guarded against theft but is not guarded against fire because fire is constantly common there, and he was negligent regarding burning, and in the end it was stolen—as in the incident that occurred with one who deposited money with his fellow, and he placed them in a partition of reeds, which is excellent guarding regarding theft, but fire is common there, and they were stolen from there. And the sages said: even though this is guarding regarding the matter of theft, it is not proper guarding for fire, and he is negligent in its beginning. Therefore, even though its end was through an accident regarding the matter of theft, nevertheless he is liable, for it could be that if he had hidden them in another place, such as in the ground, the accident would also not have come, as they would not have been stolen from there. And so too anything similar to this, that if he was negligent with it and did not guard it properly regarding one matter, even though in the end it was lost through an accident in another matter, he is considered negligent and is liable to pay, if only we can say that without the negligence it would have been possible that the accident also would not have occurred. And so too when bandits took it by force in a place that is not guarded from theft, and it could be that if he had deposited them in a place guarded from theft the bandits would not have come to that place, it is a beginning through negligence and he is liable.

And so too, when he guarded an animal in a place where thieves are common and wolves are not common—where regarding wolves it is excellent guarding—and eventually wolves happened there and ate it, he is liable; for perhaps if he had guarded it in a place guarded from thieves, the wolves would not have come there. And so too the reverse: if he guarded it in a place where wolves are common and thieves are not common, and eventually it was stolen, he is also liable, as it was a beginning with negligence regarding wolves, and perhaps if he had guarded it in a place guarded from wolves, the thieves would not have come there. But regarding a matter where it is certain that this unavoidable accident that occurred would have occurred even in another place, even if he was negligent with it and did not guard it at all—for example, if it went out to a marsh in a place where thieves and wolves are common, and it died there naturally—he is exempt. Even though its beginning was with complete negligence, nevertheless he is exempt, for behold, the unavoidable accident of death that occurred there would have occurred in any place, for what does the Angel of Death care for this place or another place? And we do not say that the air of the marsh was difficult for it [Bava Metzia 36b], unless it is known that the air of that place is harmful to animals, where it is obvious that he is liable.

And so too, if one guarded an animal in a field and brought it up to the top of a mountain and it fell and died: if there was better pasture on the mountain than in the valley, this is not negligence at all, for he acted properly, and regarding the fall he is a victim of an unavoidable accident. But if there was not better pasture there, he is negligent in that he brought it up. Therefore, even if regarding the fall he was a victim of an unavoidable accident in that he was unable to overpower it so that it would not fall, he is liable because of "its beginning was with negligence" [ibid. in Tosafot]. And certainly if he was not a victim of an unavoidable accident regarding the fall as well, in that it was in his power to overpower it so that it would not fall, he is liable even with good pasture, for this itself constitutes being negligent. And if it died there in its normal way, he is exempt in any case, for the unavoidable accident did not come about on account of the negligence. And if it went up to the top of the mountain on its own: if the guard overpowered it and did not let it go up, but it overpowered him and went up and fell, it is a complete unavoidable accident, and even if he were a shomer sachar he is exempt. And if it went up on its own and the guard did not protest against it and it was in his power to overpower it so that it would not go up: if he is a shomer sachar he is liable, and a shomer chinam is exempt; for even though this is not an unavoidable accident, nevertheless it is also not negligence since he did not bring it up himself, and this is like theft or loss. And so too with anything similar to this.

And so too a shomer chinam who left the animal in the field and entered the city, and a lion came and trampled it or wolves tore it—if he entered at a time when it is the way of people who guard to enter the city, he is exempt in any case, even if he could have saved it from them had he been there, for he guarded in the manner of animal guards. And if he entered at a time when it is not the way to enter, we see: if he could have saved it when he was there, he is liable, and if not, he is exempt, for the ones resulted not from the negligence, as even if he had not been negligent and had not entered the city, he would not have saved it from them. And we do not say that had he been there a miracle would have been performed for him, as David said, "Your servant struck both the lion and the bear," for we have no basis to obligate him for this reason. And there are those who disagree and hold that since its beginning was with negligence, we cast upon the ones everything that is possible to attribute to it, even a remote possibility; and only regarding death in section 39 is there nothing to attribute, for to the Angel of Death there is no difference between place and place, but in this case we do attribute it. And so wrote the Tur in the name of the Ra'avad. And our teacher, the Beit Yosef, ruled according to the first opinion, for in any case, if we attribute it to a remote possibility, we should also attribute the death to the air, for even though we do not see a change, nevertheless it is possible there is a change from air to air, and it is not impossible that from place to place there is no slight difference between air and air. And nevertheless, it seems to me that the opinion of our teacher, the Rema, is to rule regarding a shomer chinam like the first opinion and regarding a shomer sachar like the latter opinion, and therefore he wrote this opinion in siman 303 and not in this siman.

And that which was explained in section 39, that when he was negligent with it and it went out to the marsh and was stolen from there he is liable, and if it died he is exempt—nevertheless, if the thief stole it from there and it died naturally in the possession of the thief, he is liable. And we do not say: "Behold, even if it had not been stolen it would have died," for since it was stolen, it is lost in the hand of the thief even if it had not died, and he is liable for the moment of the theft. And so too in any similar case, when its beginning was with negligence and its end was with an accident, and the negligence occurred and afterwards the accident also came into being, he is liable even if the accident is not a result of the negligence; for since the negligence occurred, he is liable for the moment of the negligence, as from the moment of negligence it is as if lost. And also in the case of a shomer chinam the law is so. And know that there is one who wishes to say that regarding an accident that is not common at all, we do not say "its beginning was with negligence and its end was with an accident, he is liable," even regarding an accident that is a result of the negligence; but it is not so [Shach].

A guardian who guarded in a proper place and an unavoidable accident occurred, it is obvious that he is exempt, even a shomer sachar. Nevertheless, it appears to me that if the guardian had a place more secure than this place—such as the wealthy who have iron chests that fire does not affect, and he hid them in another place that is also guarded from thieves, and a fire broke out—even though fire is considered an unavoidable accident, nevertheless, if he is a shomer sachar he is liable, for the shomer sachar must guard with the most superior guarding. However, a shomer chinam is exempt, since he guarded them in a proper place; and so too in any similar case.

We hold that a shomer who entrusted to a shomer is liable. And it is not only necessary to state this regarding a shomer sachar who entrusted to a shomer chinam, for he diminished its safeguarding, but even a shomer chinam who entrusted to a shomer sachar is liable. And in the Gemara [ibid.] there are two reasons for this: Abaye holds it is because the depositor can say, "It is not my will that my deposit be in the hand of another." And Rava holds it is because he can say to him, "You are trusted by me with an oath, but he is not trusted by me." And according to this reason, if the first was himself present at the time of the ones, or in the case of a shomer chinam at the time of the theft, such that he can swear, or if there are witnesses to the theft and the ones and we do not require the trustworthiness of the second, the first is exempt [Tosafot ibid.], and such is the halacha [ibid.]. But according to the first reason, he was negligent in this, that he entrusted it into the hand of another, and he is liable in every case because its beginning was with negligence and its end was with ones, and perhaps with the first this ones would not have occurred. But according to the second reason, this is not negligence at all [the Rosh]. And even though the reason that "it is not my will that my deposit be in the hand of another" appears in the Mishnah (Gittin 29a) and in the Gemara [ibid. 14], it is certainly so that this is the case, but it is all because of the lack of his trust in the second; and this is the explanation: "It is not my will that my deposit be in the hand of another because I do not trust him." But in a place where his trustworthiness is not needed, this is nothing. And a shomer who lent or rented to another is liable in every case, for this is shlichut yad, and it will be explained in siman 307, section 6 [and what Tosafot wrote in Bava Metzia 36a that it is forbidden to deposit in the hand of another, this is according to Abaye, see there and examine carefully].

From these matters that we have prefaced, it appears to me that a shomer who desires to accept responsibility upon himself if the second person loses it through an ones and he will not have witnesses, and he also will not be able to swear, is permitted to hand over the deposit to another. And that which was explained in the Rambam and Shulchan Aruch section 21, that he is a poshea, the intention is that he himself committed a peshiah in that he will be required to pay when he does not see it himself and there are no witnesses. And from the words of our teacher, the Rema, in siman 342 there is a proof for this, as I wrote there. And there is a further proof for this, for if it were not so, but rather that this is called peshiah, if so, how do we exempt him when he can swear or when there are witnesses? Let us say "its beginning was with peshiah and its end was with ones" he is liable, when it is possible to attribute that the ones would not have occurred in the first house. And furthermore, for the sages, of blessed memory, said [Gittin ibid.] a borrower is not permitted to lend and a renter is not permitted to rent; let it teach us a greater novelty, that even a shomer is not permitted to hand over to another. Rather, it is certainly so that this is only regarding a borrower and a renter who use the object, for he does not desire that another man use it; but regarding guarding, it makes no difference to him if he will not need the trustworthiness of the second person [and R. Yochanan who said there in Gittin "here Rabbi taught," he meant not to compare it completely, and R. Yitzchak answers him that the difference is for the get, and at the end of the first chapter it is obvious that the depositary can receive it back; and even though from the Rif in Bava Metzia there it implies that ab initio he is not permitted to hand over to another and he made a kind of compromise that even Rava admits ab initio, however from the Tosafot and the Rosh it does not imply so, and also according to the Rif this is not a peshiah ex post facto].

And even though it appears so to me, nevertheless, in practice I do not say this matter because the language of our teachers, the authors of the Shulchan Aruch, does not indicate so, and ab initio it is forbidden for a guard to hand over to another. And so it is implied from the Rambam, chapter 1 of Shekhirut [and the words of our teacher, the Rema, in siman 301 were explained there with the help of Heaven]. And this is because we do not consider it as "its beginning was with negligence" because this is not absolute negligence; and it requires further study.

A shomer who entrusted to a shomer is liable, even a shomer chinam who entrusted to a shomer sachar, because he says to him: "You are trusted to me with an oath, but this one is not trusted to me with an oath." And even if it is known that the second is better and more upright than the first, for every person has the right to entrust his property to whomever he desires. Nevertheless, if the second was negligent, if he wishes, he collects from the first, and if he wishes, he collects from the first, and if he wishes, he collects from the second, and he cannot say "You are not my litigant" [Shach], as in the case of one who hires a cow from his fellow and lends it to another, which will be explained in siman 307. And his liability is due to the rule of Rabbi Nathan, as written in siman 86, for the second is a shomer of the first [Netivot HaMishpat]. Therefore, if the first was a shomer chinam and the second a shomer sachar, and there are witnesses that it was stolen, the second pays, even though the first is exempt from theft; nevertheless, since the second is liable to pay the first, the payments automatically go to the owner, for one may not do business with his fellow's cow, as is the case there regarding an ones [it appears to me]. However, a shomer who entrusted to a shomer in the presence of the depositor and he did not protest is exempt, and his legal standing is only with the second. And if he entrusted not in the presence of the depositor, but only afterward informed the depositor of this, his silence is not like an admission and the first is liable, and the reason he was silent was because it was after the fact, unless he explicitly agreed [Sma siman 176, subsection 94].

Since the obligation is only due to trustworthiness, therefore, if it is the way of the owner to deposit with the second person an item that is worth as much as this deposit, the first shomer is exempt from paying. However, for more than the amount he is accustomed to deposit with him, he can say, "Regarding such a sum, it is not my will to grant him trustworthiness." And so too, if it is known that this bailee is not accustomed to guard by himself but rather hands over his deposits to others, the law of the depositor is with the second. And when the first handed over to the second, and the first, his guarding was "with the owners" such that he is exempt from everything, and the second was "not with the owners," the second is liable since he does not have this exemption, and the payments are perforce to the owners [Shach]. And that which we said, that when the owners are accustomed to deposit with the second the first is exempt, this is specifically when the presumption of the second's trustworthiness was not weakened in the interim [Beit Yosef].

And that which we said, that regarding one who is accustomed to depositing with him, his legal recourse is only with the second—this is when the first did not diminish the level of safeguarding. But when he diminished it, such as if he was a shomer sachar and the second is a shomer chinam, or if the first is a shoel and the second is a shomer sachar or a socheir, his law is like one who is not accustomed to depositing with him. For the owner can say: "Since this time I desired to be stringent regarding the safeguarding, you were negligent in that you diminished the safeguarding, and in such a case, it is not my will now even with the second, even though I am accustomed to depositing with him." And if there are no witnesses to the ones, or in the case of a shoel where it died due to work, the first must pay. And even if the first's safeguarding was "safeguarding with the owners," nevertheless the first is liable, for this exemption does not serve to exempt the ones that occurred with the second [the Maggid Mishneh]. But if there are witnesses that the second safeguarded properly, the first shomer is exempt, for in the essence of the matter, this is not actual negligence, as I wrote in section 45. And even if there were no witnesses there, if the first shomer saw and is able to swear, he swears and is exempt, as I wrote there. And there is one who says that when he diminished his safeguarding, he is a complete negligent actor and the first is liable in all cases; but it is not so [Shach], for this is not a negligent actor, but only that he has no credibility regarding the second, as I wrote. And on the contrary, there are some of the poskim who hold that regarding one who is accustomed to depositing with him, even when he diminished his safeguarding, the first is exempt through the oath of the second. And the primary view is like the first opinion [see what the Gra wrote in subsections 46 and 47, and it requires great study].

A guardian who handed over to another guardian with whom the owners are accustomed to deposit, even though we have said that his legal recourse is with the second, nevertheless, if the second was negligent and has nothing with which to pay, the first is obligated to pay. And even according to the opinion that will be explained, that regarding his wife and children when they have nothing with which to pay the owners are exempt, this is specifically because anyone who deposits does so with the understanding that he may deposit with his wife and children, as will be explained, and it is as if he explicitly said to him: "You may hand over to your wife and children." But in handing over to another guardian, although he is accustomed to deposit with him, nevertheless, he did not say to him that he may hand over to him; and why should the first be exempt when the second was negligent and has nothing to pay? For he is his guardian and not the second [Sma, siman 73, subsection 96]. And there are those who disagree and hold that this law is like the law of his wife and children, for this too is as if he authorized him to hand over to the second [Shach, ibid., subsection 134]. But in the case of a borrower who lent to another, even if the owners were accustomed to lend to him, and an unavoidable accident occurred and he has nothing with which to pay, for a borrower is not obligated due to the reason of guardianship, but rather because the unavoidable accidents of the object are upon him [Netivot HaMishpat]. And all the more so in the case of a paid guardian who handed over to an unpaid guardian with whom he is accustomed to deposit and it was stolen, that the first is obligated by the fundamental law and not the second. And a renter who rented to another with whom he is accustomed to rent, his law is like a borrower [it appears to me].

A guardian who handed over to a guardian with whom the owners are accustomed to deposit, whose law regarding the second is as has been written, and the second does not wish to swear or has gone to a distant land, and the first wishes to exempt himself with the claim that perhaps it was lost to the second through an accident or perhaps he was negligent with it and is liable to pay—this is not a correct claim. For it has already been explained in section 36 that a guardian, when he is unable to swear, pays; and the owners are certainly claiming from him the oath of guardians, and since he is unable to swear, he pays. And one cannot say that since he handed it over to one with whom he is accustomed to deposit, the claim of the first is like "I do not know if I became obligated to you," where he is exempt. For this is not so, because from the moment it was handed to him to guard, there is a claim against him, and when he responds to him "I do not know," it is like "I do not know if I repaid you," where he is liable to pay, as has been written in siman 75 [Shach]. And some say that this is only when the owners claim a certain claim, but with a doubtful claim, even in "I do not know if I repaid you," he is exempt. And there are those who disagree on this, because since he became a guardian, he is not exempt except through an oath or through payment, and every oath of guardians is amidst a doubtful claim [see there]. However, if he explicitly gave him permission to hand over to another, even if he claims with certainty and this one says "I do not know," he is exempt. For it has already been explained in siman 75 that the reason regarding "I do not know if I returned" that he is liable is because the claim of "I do not know if I returned" is a weak claim, and in a place where he truly should not have known, he is exempt. And so too here, when he gave him permission to hand over to another, his claim is good when he says "I do not know," for he indeed should not have known [Netivot HaMishpat], and the owner has nothing but to compel the second to swear or to pay.

Anyone who deposits with a homeowner without specification, he deposits with the understanding of his wife, his sons, his daughters, and the adult members of his household, whether he deposited vessels or money. For every person knows that the homeowner himself does not always guard alone, and he relies upon his wife, his offspring, and the members of his household; it is as if he said to him, "Hand over the guarding to these." There is no distinction in this between a shomer chinam and a shomer sachar [Shach siman 72, subsection 136]. And there are those who distinguish and hold that a shomer sachar must guard by himself [Bedek HaBayit]. If he handed it over to his minor sons or household members, or to his Canaanite slaves whether adult or minor, or to one of his relatives who are not with him in the house and are not supported at his table, and certainly if he handed it over to another, behold, he is a negligent party. We do not grant credibility to the second party so that he may be exempt based on the oath of the second party, and therefore he is liable to pay unless the second guardian brought witnesses that he was not negligent, and in the case of a shomer sachar that it was an ones, or if the first himself can swear as has been explained in section 44. Similarly, if it is known that even his own money he does not hand over to the members of his household, they too have the status of others. Likewise, if he allowed others to enter the place where the deposit is kept, even though they are not presumed to be thieves, nevertheless it is negligence and he is liable to pay if it was stolen. However, regarding one who is known with certainty that it is not his way to guard his deposits himself and he is accustomed to hand them over to another who does not dwell in his house and is not supported at his table, his law is like one who hands over to the members of his household, as I wrote in section 48.

And just as the depositor deposits with the knowledge of the bailee's wife and children, so too when the bailee returned the deposit to the depositor's wife, he is exempt, and it is as if he returned it to the depositor himself. And even though regarding a borrower we maintain that it is not effective if he returned it to the lender's wife, as written in siman 340, this is only regarding a borrower because all the benefit is his, they were stringent upon him, but not regarding other guardians. And some say that even regarding a deposit he has not fulfilled his obligation unless his wife conducts his business, but with ordinary wives, no [Shach there]. And it is like the repayment of a loan in siman 120. And according to this, when he returned the deposit to the sons and household members of the depositor, he certainly has not fulfilled his obligation. Returning is not similar to guarding, for in guarding the depositor knows that it is impossible for the bailee to guard by himself day and night, and of necessity he must rely on his household members; but regarding returning, which is but a moment, he is obligated to return to the depositor himself. And it is possible that even according to the first opinion, it is only effective in returning to his wife, for his wife is as his own body, but not to his sons and household members [and this settles the contradiction there in section 31]. And as for the fact that in the repayment of a debt it is not effective even to his wife when she does not conduct business, one can distinguish between a loan and a deposit according to the first opinion, and a loan is like a borrowing.

An incident occurred where someone deposited money with his fellow, and the shomer gave them to his mother, and she hid them but did not bury them in the ground, and they were stolen. He was a shomer chinam, and the sages said that the shomer is not liable to pay, for anyone who deposits, he deposits with the understanding of the members of the household, and he indeed handed them to his mother. And even though he did not tell her that they were deposit money so that she should be careful with them, this is not a pposhea, as he can say that he thought if he did not tell her they belonged to others, and she would think they were his, she would be even more careful. And specifically a shomer chinam is exempt, but if he were a shomer sachar, he would be liable even if they were taken from her by an ones, for regarding a shomer sachar it is peshiah in that he did not inform her that it is a deposit; and he takes a wage, and it is a case of "its beginning was with peshiah," and the ones might not have occurred if not for the peshiah [so it must be said in the intent of the Nimukei Yosef cited in the Shach, subsection 33]. And the sages said that his mother is also not liable to pay, for he did not tell her they were a deposit, and since she thought they belonged to her son, she is not a poshea in that she did not bury them in the ground, for she thought her son needed the money for business, as she knew he was accustomed to doing business, and therefore she hid them in her chest to be ready when he required them [Sma]. And the depositor cannot make her swear that the son did not tell her they were a deposit, for this is a claim of shema, as he does not know if the son told her or not, and she is not his shomeret such that she would be liable for an oath on a claim of shema. However, she is only exempt from this oath when there are witnesses to the theft, but if she must swear regarding the theft—where it is necessary to make her swear even on a shema according to the law of shomrim, since in any case she is the shomeret of the money—he can make her swear this oath as well by means of gilgul [Shach]. And even though for a claim of shema one does not administer an oath even through gilgul without a basis for the matter, as written in siman 94, nevertheless, regarding the oath of shomrim, where the essence of their oath is on a shema, one may apply gilgul even in such a case [Netivot HaMishpat]. And similarly, if the son claims with certainty that he told her it was a deposit, she must swear a shevat hesset against the claim of the son [Shach]. And the sages ruled that the shomer shall swear that those very coins he handed to his mother, and his mother shall swear that she hid them in a guarded place such as a chest and they were stolen; only if she had known it was a deposit would she have been obligated to bury them in the ground according to the time of the Gemara. And if she brings witnesses to the theft, she is exempt from the oath, and then both of them are exempt. And when she swears regarding the theft, she must also swear that she placed them in a guarded place, only that she did not bury them in the ground, for if not so, perhaps she did not guard them at all and would be liable to her son, and he would pay the depositor; and even if they were taken from her by an ones, she is liable when she did not guard them at all, for it is "its beginning was with peshiah." And know that according to our time, when one does not bury money in the ground, you do not find this law at all, for either way: if she guarded them in a place where they are accustomed to guard their money, she is exempt even as a deposit, and if not, she is liable even when she thinks they belong to her son. And even for the time of the Gemara, it is only regarding money or an object that is not distinct, but regarding a distinct object, his mother swears that "this object my son handed to me and I guarded it properly and it was stolen or taken by an ones," and then we do not require the oath of the first one [it appears to me].

From here you learn that a shomer who handed over the deposit to his wife and household members and informed them that it is a deposit, and they did not guard it properly, they are obligated to pay the owner of the deposit, and the master of the house is exempt because one deposits with the understanding of his household members. And if they do not have the means to pay, he is obligated to pay, for if not so, every deposit in a person's hand would be consumed by his children and household members, and most often they do not have that with which to pay; and if he too were to be exempt, you would not leave life to any creature. And when they know that he is obligated to pay, they will be careful with it. And even if he did not inform them that it is a deposit and they consumed it or lost it and they do not have the means to pay, the master of the house is obligated to pay [Shach]. And some say that when they do not have the means to pay, he is nevertheless exempt, for since one deposits with their understanding, it is as if he said to him: "Hand over the deposit to them." And see what I wrote in section 50 regarding a shomer who handed over to a shomer and the second was negligent and does not have that with which to pay, what the law of the first is. And it appears that the custom is simple like the first opinion, and so they judge in all beit dins.

An incident occurred where one person deposited hops with another, and the guardian also had his own hops. The guardian said to his servant, "Throw into the beer from these hops," which were his own, and the servant went and threw into the beer from the hops of the deposit, and the beer was ruined and became vinegar. The sages said that the servant is exempt, for he was not told, "Throw from this and do not throw from that," and he thought that when he was told "throw from this," it was not a matter of strictness but merely directing him, and that both belonged to him. The owner is certainly exempt, for he told him "throw from this," and since it became vinegar, he is exempt from paying. Even if it did not become vinegar, he pays only according to what he benefited—how much more the beer is worth because of the hops—but not what the hops are worth to sell. However, in any case, the guardian is obligated to swear the oath of guardians that such was the incident, or he must bring witnesses, and so too in any similar case. Some say that this is only regarding an unpaid guardian, but a paid guardian is liable, for he should have specified to the servant that he should not throw from these hops into the beer, as a paid guardian must be more careful, and for him, this is considered like negligence. If the hops of the deposit were in a place far from the place of casting the beer and his own were close, and his messenger was delayed in returning and the owner was there and said nothing to him, he is liable even as an unpaid guardian, for this is complete negligence, since he should have understood when he saw that the servant was delayed significantly that he certainly went to take the distant hops, as he did not explicitly tell him "do not take from these distant hops." Therefore, if he explicitly told him "do not take from this," the owner is exempt, for he did not have to think that he would take from it since he warned him [Sma], and the servant shall pay; and even regarding a paid guardian the law is so, for the owner is like one under duress [it appears to me]. Some say that the same applies if the hops of the deposit were closer than his own hops and he returned quickly, that the owner is liable, for he should have considered that his servant took that of the deposit [ibid.]. Some say that in such a case, the messenger of the owner is always negligent, for since he told him "throw from the distant ones," he should have understood that the close ones are not his, for if not so, why did he trouble him to the distance? And it is as if he said to him, "do not throw from this" [Shach]. However, as is known, many times a person does not concern himself with the exertion of the servant, and the servant would not have considered this; therefore, the matter depends on the context and according to the assessment of the beit din [it appears to me].

All the laws of shomrim apply only in an ordinary case, but when they stipulated any condition, such as where a shomer chinam stipulated to be liable for accidents or where a shoel stipulated that he would not be liable even for negligence, any condition regarding monetary matters is valid, and this is not like stipulating against what is written in the Torah, as has been written in Even HaEzer siman 38. And even with mere words without a kinyan the condition is upheld when they stipulated before the meshikha, for he descended at the time of the kinyan for this purpose, or according to the opinion in section 14, before he said "place it before me" [Hagahot Ashri, end of Perek HaPoalim]. But afterward, a statement without a kinyan is not effective. And even though in siman 301 it will be explained that regarding things to which the obligations of guarding do not apply and the shomer accepted upon himself the obligations of guarding, it is not effective without a kinyan, this is because they are not at all within the category of guarding; but here, where the category of guarding applies to him but he obligates himself for a greater level of guarding, he can obligate himself even without a kinyan [Nimukei Yosef ibid.]. And one should not say: ultimately, how can he obligate himself with mere words for that which the Torah exempted him? For through that benefit that a report goes out about him that he is a trustworthy person, he completely resolves and subordinates himself [Gemara ibid.], and it is like a subordination of the person. And all the more so to be exempted from his obligation, it is within his power to act so that he does not subordinate himself to this obligation. And all this is at the time of the obligation, as has been written, but after the obligation, it is not effective without a kinyan. Therefore, a shomer who in the middle of his guarding subordinated himself to be like a shoel, it is not effective without a kinyan, and likewise to reduce his guarding is not effective without a kinyan. And if one deposited with someone and he accepted responsibility in an ordinary sense, he is a shomer sakhar [Rashba], for ordinary responsibility is for theft and loss. And when the shomer becomes liable to pay, his properties are not subordinated from the time of meshikha but rather from the time of the accident [Sma]. And if a shomer chinam stipulated to be like a shomer sakhar and claims that it was taken by force, and the owner of the object demanded that he swear that it was taken by force, and the shomer claims that he only accepted upon himself to pay when witnesses come that it was stolen but not for an oath, and he wants to exempt himself with an oath that "I was not negligent" like a shomer chinam, there is reason to doubt this [Shach]. And it appears that he must swear like a shomer sakhar [in the Baraita there, a shomer sakhar stipulates to be like a shoel, and in the Rif the version is shomer chinam; and examine this].

The law of "safekeeping with the owners" has already been explained in section 6. Therefore, one who deposits with his fellow, whether for free or for payment, or lent it to him, or rented it to him—if the shomer borrowed the owners along with their object, or hired them, the shomer is exempt from everything. Even if he was negligent in what he guarded and it was lost due to the negligence, he is exempt, and this matter is a decree of the Scripture as written there. In what case does this apply? When he borrowed the owners or hired them at the beginning of the safekeeping, or if the owners were borrowed or hired to him prior to that; since they are in the work of the shomer at the time of the beginning of the safekeeping, even though they were not with him in his work at the time the object was lost, he is exempt. However, if he took the object first and became a shomer over it, and afterward borrowed the owners or hired them, even though the owners were with him in his work at the hour the object was lost, he is liable, for the verse "if its owner is with him" refers to the time of the beginning of the borrowing. And even though in a case of "with the owners" he does not have the status of a shomer, nevertheless, if he misappropriated it, his liability is like a shomer. And so too, he must swear the oath of the judges that it is not in his possession, only that he does not need to swear that he was not negligent, and in the case of a shomer sachar that it was not stolen, and in the case of a sho'el that it was not lost to an accident, for this is the primary oath of the shomrim [Netivot HaMishpat]. And there was an incident with Reuven who gave an object to Shimon so that he would sell it in his shop, and he fixed a wage for Shimon for this. Shimon left the shop and the object was lost. Shimon claimed: "At the hour I left the shop, I told you to guard my shop and you said 'yes,' and you yourself were negligent by not guarding." The owner of the object denies this, saying he did not accept the safekeeping, and claims the value of the object from Shimon. Shimon then said to Reuven: "Since according to your words you admit that you did not guard at all, and I say that you are my shomer chinam and were negligent, and since I am the possessor, I will swear regarding my claim and be exempt from you." And they ruled that nevertheless Shimon is liable to pay, for even according to his words that Reuven was his shomer, nevertheless, was Shimon not then in the work of Reuven? For he had accepted upon himself to sell his object, and it is "safekeeping with the owners" [Taz]. And the owner of the object is exempt even from negligence, for in any small task, when the owners were in the work of the shomer, the shomer is exempt even from negligence, and so too anything similar to this. And Shimon is liable, for he received the object with a fixed wage and is a shomer sachar, and is liable for theft and loss. And further details of the laws in this matter will be explained in siman 305, see there.