Siman 301

It is written, "If a man gives to his fellow silver or vessels to safeguard," and we derive from this through the method of a general category, a specific instance, and a general category, that we require something similar to the specific instance: that it must be movable property and its essence must be monetary value. This excludes lands, and slaves who are compared to lands, and documents because their essence is not monetary value. And from that which is written "his fellow," we exclude consecrated property and that of a gentile. And from that which is written "to safeguard," we exclude that of the poor and other charities, for "to safeguard" means that he gives it to him to safeguard for a short time and he shall return it to him; but that of the poor and of charities is not returned to the depositor, but rather to the poor and to the charity. Furthermore, regarding the poor, it is not applicable that it be returned to them, for he can give it to whichever poor people he desires, and it is property that has no claimants; and more will be explained regarding this. And all of these were excluded from the laws of shomrim.

Therefore, the three laws mentioned in the Torah regarding the four guardians do not apply to all of these. If one handed over for guarding land, slaves, documents, property of an Egyptian, or consecrated property—whether of the Altar or of the Temple repair, to the exclusion of consecrations in this time, whose law is like that of common property as written in siman 95—or if one lent them or rented them: an unpaid guardian does not swear regarding negligence, and a paid guardian and a renter do not swear regarding theft or loss, and a borrower does not swear regarding an accident. For even if they were negligent, or they were stolen or lost, or an accident occurred, they are exempt from paying, for all of these are not like damagers; rather, it is a decree of the Torah regarding guardians, and the Torah excluded all of these from the laws of guardians. Nevertheless, a paid guardian loses his wages until he swears that he guarded it properly, for how can he claim wages for guarding when he did not guard it properly? The opinion of the Rambam, of blessed memory, in the second chapter of Laws of Hiring, is that for negligence they are liable to pay, for it is like a damager, and the verse only excluded them from the obligation of the oath regarding negligence—that he was not negligent—and not from the obligation of payment if he was negligent, even in the case of an unpaid guardian. Many disagree with him and hold that the Torah excluded them all from everything, for negligence is not like a damager; for behold, negligence in the presence of the owners is exempt, whereas regarding a damager he is certainly liable. Our teacher, the Rema, ruled according to this opinion. There are some among the later authorities who ruled according to the opinion of the Rambam [Shach siman 66, subsection 126, and see there in Urim VeTummim].

All of these are exempt even from the oath that it is not in his possession, and all the more so are they exempt from the oath "that I was not negligent" and "that it was not stolen" in the case of a shomer sachar, for even if it was stolen or he was negligent, according to those who disagree with the Rambam, they are exempt. And likewise from the oath "that I did not lay a hand upon it," for it is only a decree of the Torah regarding shomerim, and from where do we know to say that he laid a hand upon the deposit? And since they are exempt from the oath "that it is not in my possession," all the more so from these oaths. Except regarding hekdeshot, the sages enacted that one must swear the oath of the shomerim so that they should not treat hekdeshot lightly. And it appears to me that they only swear that it was stolen from him, and not all the oaths of shomerim [and so it appears from Rashi, Bava Metzia 58a, s.v. "nishba'in"]. And in all of these, if the shomer became liable to him for an oath from another source, one may roll over these as well, for the rolling over of an oath is from the Torah, and behold, one may roll over even by means of a heset oath, as written in siman 94. And some say that by means of rolling over, he only swears that it is not in his possession [Netivot HaMishpat]. And according to the Rambam, one can roll over even the oath "that I was not negligent with it."

Even though one does not swear regarding these, these words apply according to the Torah, as with all oaths of guardians where one swears even on a claim of doubt by the claimant. However, on a certain claim, one swears on them a heset oath as with all claims, for they enacted a heset oath on a certain claim. Regarding consecrated property, one swears even on a claim of doubt due to the enactment so that they should not treat it lightly, as has been written. [And regarding what the Tur wrote in siman 95 in the name of the Gaon, that regarding consecrated property one does not swear even a heset oath, our teacher, the Beit Yosef, already wondered there; on the contrary, regarding consecrated property it is like a Torah oath, as the Rambam wrote. However, his intention is only that for a mere suspicion one does not administer an oath, see there and examine carefully].

All of these, if they performed a kinyan from their hand to become liable for their responsibility like all shomrim, are liable for payments and for an oath like all shomrim. However, with mere speech it is not effective. And even though a shomer chinam may stipulate to be like a shoel with speech alone, as was written in siman 296, this is because there is already an obligation of guarding upon him, so his statement is effective to increase his obligation. But in all of these where there is no obligation of guarding at all, it is not effective without a kinyan. Furthermore, there he stipulates to be like a shoel, but here even a shoel is exempt [Shach]. And it appears to me that even though in the Gemara [ibid.] it is only explained that a kinyan is effective regarding the obligation of payments [and so it appears from the Nimukei Yosef], nevertheless, he is automatically liable also for all oaths of shomrim, even though he did not specify in his kinyan that he would also be liable for the oath of shomrim. For if not so, you would not find a kinyan for a shomer chinam according to the opinion of the Rambam, of blessed memory, that would be equal to other shomrim, and it explicitly implies that there is no distinction among them.

Our teacher, the Rema, wrote: A guardian who handed over to a guardian regarding these matters is liable, for it is worse than pshia, and there are those who disagree. Thus far his words. And they disagreed with him because certainly there is no opinion that there would even be pshia in a guardian who handed over to a guardian, as was written in siman 291. And that which the Rosh wrote in a responsum, that a guardian who handed over to a guardian regarding these matters is as if he threw it into a river, refers to where he gave it over entirely and not by way of guarding [Shach and the Gra]. But it seems to me like the words of our teacher, the Rema, for if he gave it over entirely it is obvious, and what relevance is there to guarding or pshia? Behold, he is a complete gazlan. Rather, it certainly refers to guarding, and the matter is as follows: regarding matters that have the law of guarding concerning payments and an oath, there is no pshia in this, rather the second is not trusted to him with his oath, and therefore when there are witnesses or the first can swear, he is exempt, as was written there. But regarding these matters that do not have the law of guarding, and one is exempt even from an oath, and even from pshia one is exempt according to most poskim, it follows that when he gave it to the first and he committed pshia he is exempt by the decree of the Torah, and [the owner] understood and accepted this when he made him a guardian. But the first who handed over to the second is like one who destroys with his own hands, for since according to the law of the Torah the second does not have the law of guarding upon him, who gave him permission to give it to him? And even if there are witnesses that the second did not commit pshia, nevertheless the beginning of his giving it over is like one who destroys with his own hands. And there is one who says that when it is known by witnesses that he did not commit pshia he is exempt even according to this opinion, but it is not clear; for if the second committed pshia, certainly even according to the "there are those who disagree" he is liable, for granted that the Torah exempted from pshia, this is only for the one whom the owners handed over into his hand, and perhaps they relied on his integrity that he would guard properly, but who gave this one permission to make the second a guardian regarding these matters that do not have the law of guarding? However, the first opinion holds that as soon as he handed it over to the second it is like one who causes damage, and even if the owners were accustomed to depositing in the hand of the second, nevertheless regarding matters that do not have the law of guarding upon them, he does not want to give it to him now. And it is possible that if the first handed over to the second with a kinyan so that he would become liable for guarding, and there are witnesses that he guarded properly, he is exempt even according to the first opinion.

One who hands over to his fellow to guard something attached to the ground, its law is like the ground, and even grain that is ready to be harvested. The same applies to borrowing and renting. Therefore, our teacher, the Rema, wrote that one who borrows a house and it burned down is exempt from paying; and even if the accident occurred because of him, he is exempt [Sma], and even in a case of negligence according to the opinion of most poskim. Certainly, the one in possession can say "I stand by this opinion," especially since the opinion of most Rishonim is so. All the more so regarding one who rents a house and it burned down, that the renter is exempt from paying. It has already been explained in siman 95 that even according to the one who holds that what was detached and subsequently attached is like detached, nevertheless, regarding houses everyone agrees that their law is like the ground; see there. Furthermore, it was explained there that government bonds are like actual money; see there.

One with whom money for the poor or for the redemption of captives was deposited, and the guardian is the one who distributes [Netivot HaMishpat], and he was negligent with them and they were stolen, he is exempt, as it is said, "to guard" and not to distribute to the poor. Furthermore, it is money that has no claimants, since he can give to whichever poor people he desires. In what case does this apply? When this money is not deposited for the poor of this city or for specific captives. But if they were deposited for these poor people and these captives, and this money is fixed for them, then this money has claimants, and he must pay if he was negligent or swear that he was not negligent, according to the way of all guardians. And specifically that the portion of each one must be known [Maggid Mishneh, chapter 2 of Sekhirut], for if not so, there are still no claimants for this, as he can say to each one, "I will give you only a perutah." And even though all of them together can claim from him, nevertheless, since he can rebuff each one individually, it is not called money that has claimants. And that they should all write a power of attorney to one another is also not applicable here, for a power of attorney is only applicable to a thing that was already his [this is according to what the Maggid Mishneh wrote, and so it appears from Rashi at the end of the chapter "HaChovel," but from the wording of the Rambam it appears to me that his intention is that it was fixed for them in total]. And when it was fixed for each one such that the guardian is liable, he is also liable for theft and loss according to the one who holds that a guardian of a lost object is a paid guardian because he is engaged in a mitzvah [Shitah Mekubetzet ibid. in the name of the Ramah].

Our teacher, the Rema, wrote: And likewise, if the gabbai said to the guardian, "guard for me," he is liable like any other guardian. Thus far his words. And this is specifically when he said, "return to me" and not to the poor, for then it constitutes money that has claimants, as the gabbai claims it from him. But if the gabbai gave him permission to distribute them, he is exempt if there is no fixed amount for each individual, as has been written. [And it must be said that R. Isaac at the end of the chapter HaChovel gave him permission to distribute, for if not so, why is the reason of a fixed amount necessary? Behold, R. Isaac was a gabbai, as Rashi explained.] And if one gave a pledge to a gabbai for tzedakah money, and the gabbai delivered it to a guardian: if he said to him, "guard for me," he is liable to pay the gabbai; and if not, the guardian is exempt, and the gabbai is also exempt regarding the portion of the tzedakah. However, for the amount the pledge is worth beyond the debt, the gabbai is liable to pay the borrower [Shach]. And there is one who says that regarding tzedakah, in any case where he is exempt, even if he caused damage with his own hands he is exempt, as it constitutes money that has no claimants [Netivot HaMishpat]. However, by the laws of Heaven, he is certainly liable even when he was negligent with them, for negligence is also like damaging somewhat. But in cases of theft or loss that were not through negligence, he is exempt even by the laws of Heaven [it appears to me].

A community that gives money to gabbaim, and they give to every poor person according to their estimation, and if the poor increase, the community adds, and if they decrease, they take the money for other needs—certainly the gabbaim are liable if they were negligent with them, for the community are the claimants. And so too other money for a mitzvah belonging to the community, such as money they prepared for the repair of the beit midrash, or for the cemetery, or for the bathhouse, or for other community needs, it is considered money that has claimants, and the bailee is liable to pay if he was negligent with them [Netivot HaMishpat]. And one with whom money for the redemption of captives was deposited, and thieves came upon him and he went ahead and saved himself with this money—whether he is exempt was explained in siman 292, section 25.

One who has in his hand the money of minor orphans, its law is like the law of the money of any other person, and this is not like property that has no claimants, for behold, when they grow up they will claim it, and it is property that has claimants [Sma]. And see what I wrote in siman 302. And it is forbidden to use them, as I wrote in siman 267; therefore, their law is not like a shoel and also not like a shomer sachar, but rather like a shomer chinam [ibid].

A non-Jew who deposited and afterwards converted [in ancient times] does not have any of the laws of guardians until his beginning and his end are as an Israelite, as it is said, "If a man shall give to his fellow," and it is written, "he shall pay double to his fellow," for even at the time of payment he must be "his fellow." And likewise the bailee must be an Israelite at his beginning and his end [Sma]. And if their beginning and their end were as Israelites, but in the middle they were corrupted, the law of guardians applies to them [it appears to me]. And likewise with mundane items and afterwards he consecrated them while in the hand of the guardian, the law of guardianship does not apply to this. And likewise if he deposited that which belongs to the hekdesh, and while it was in the hand of the guardian he redeemed it from the hekdesh, the law of guardianship does not apply to this for the reason that has been explained [ibid.]. And if he deposited mundane items, and while it was in the hand of the guardian he consecrated it and redeemed it, the law of guardianship applies to this [it appears to me].

A shomer is not liable unless it was given to him for the purpose of safeguarding, but if it was given to him to destroy the object, he is exempt, for we derive: "to safeguard" and not to destroy and not to tear. This is so even if he did not say to him, "destroy it on the condition of being exempt," and even if he said to him afterward, "safeguard it for me," since initially it did not come into his hand for the purpose of safeguarding, he is exempt [ibid.]. And these words apply when it initially came into his hand for the purpose of tearing or destruction, but if initially he delivered it into his hand for the purpose of safeguarding and afterward said to him, "tear" or "destroy," he is liable unless he said to him, "on the condition of being exempt," for we say that he was mocking him in that which he permitted him to tear and destroy, since he had given it to him for the purpose of safeguarding [ibid.]. And likewise, a shomer does not become liable when it was given to him so that he should give it as a gift to whomever he wishes, as it is written: "to safeguard" and not to give as a gift [Yerushalmi Shevuot ch. 8], for it is money that has no claimants. And even though the depositor can claim against him, "for you did not fulfill that which I deposited with you," nevertheless, the Torah excluded it from the law of a shomer, and consequently he cannot claim against him [this is its explanation, and examine it].