Siman 303

A shomer sachar is one to whom an animal, money, vessels, or other movable property is given to guard for payment, even if the payment is only a perutah or the value of a perutah. However, less than this is not considered monetary value, and his law is like a shomer chinam regarding the fact that he does not become obligated in its guarding until he performs meshikhah in a place where it is appropriate to perform meshikhah according to the opinion of the Rambam. But according to the opinion of those who disagree with him, immediately when he accepts upon himself to guard and the owners have withdrawn from its guarding, he is liable even though he did not perform meshikhah; and meshikhah is only relevant to the matter of retracting, as has been written in siman 291, section 13 and 14, and in the Yerushalmi, Shevuot, chapter 8.

When he hired him by the day, such as if he said to him, "Your wage is a perutah per day," for the day that he pays him, he is a shomer sachar, and for the day that he does not pay him, he is not a shomer sachar. Therefore, on the Shabbat day, he is not a shomer sachar, for it is forbidden to take a wage for Shabbat. However, if he hired him for a week, or for a month, or for a year, he is a shomer sachar even on Shabbat, for through inclusion it is permitted to take a wage for Shabbat, as is written in Orach Chaim siman 306. And what the law of a shomer sachar is after the time of his guarding has ended was explained in siman 291, section 2, that his law is like a shomer chinam; but on Shabbat, when he does not take a wage for Shabbat, his law is not even like a shomer chinam, see there. And if he said to him, "Guard for me one day for a wage," he is a shomer sachar for twenty-four hours. And if he said to him, "Today," he only guards until the night. And if he hired him for one week, he is a shomer for seven days of twenty-four hours. And if he said to him, "This week," it is only until the completion of the week, and Shabbat is included in the past week. And so too regarding a month and a year: when he hired him for a month or for a year, it is from day to day. For example, if he hired him on the tenth of Nisan for the duration of a month, he is a shomer sachar until the tenth of Iyar. And when he hired him on the tenth of Iyar, he is a shomer sachar until the tenth of Sivan. And even though from the tenth of Nisan until the tenth of Iyar is one day more than from the tenth of Iyar until the tenth of Sivan—since Nisan is full and Iyar is deficient—nevertheless, in the language of people, a month is in this manner. And so too regarding a year, there is no difference between a leap year and a non-leap year, for a year is from day to day. And if he hired him for "this month," he is a shomer sachar until Rosh Chodesh, and Rosh Chodesh is not included. And even if Rosh Chodesh is two days, where the first day is the thirtieth of the past month, nevertheless, in the language of people, it belongs to the coming month. And if he hired him for "this year," he is a shomer sachar until Rosh Hashanah, and Rosh Hashanah is not included. And when he hired him "until Rosh Chodesh Adar" and did not specify if it is the first Adar or the second: according to some of our teachers, plain "Adar" is the first Adar; and there are those who hold that the two Adars are like one month, and therefore if he said "until Rosh Chodesh Adar" it is the first, and if he said "until the end of Adar" it is the second. And this is the opinion of the Rambam in the tenth chapter of Nedarim. And the Rosh and the Rambam distinguish between when he knew that the year was a leap year, for then plain "Adar" is the second, and when he did not know that it was a leap year, they are like one month. See Yoreh Deah siman 220.

Even if he did not hire him with money but rather in exchange for a favor that he did for him, such as if he says to him, "I will do such-and-such a thing for you and you shall be a guard for me," his law is like a shomer sachar, for this is like hiring him in exchange for this. And so too when he says to him, "In exchange for this such-and-such a thing that I did for you, guard this object for me," and he accepted it upon himself. And certainly if he said explicitly, "In exchange for the work I did with you," and he accepted it upon himself, he is like a shomer sachar. And so too if he hired him in exchange for a loan that is due to him from the guard, he is a shomer sachar; and even though one who betroths with a loan is not betrothed, and so too regarding a sale it is not effective, nevertheless it is at least considered wages. Furthermore, even if he said to him, "I will lend you money and in exchange for this you will be my guard," he is a shomer sachar; and even though he performs a prohibition and this is absolute ribbit, nevertheless he reached an agreement with him for this, and the prohibition that he did, he did. And certainly if he hired him by granting an extension of time for the loan or by the benefit of forgiving the loan, for even regarding kiddushin this is effective, as is written in Even HaEzer siman 28. And there is no difference whether he hired him in exchange for a monetary benefit that he does for him or another type of favor, such as a favor of honor and the like. For even a shomer chinam may condition to be like a shoel. And even if he did not explicitly say to him the language of hiring, but rather said to him, "Guard for me in exchange for this matter," he is a shomer sachar, for this thing is worth a perutah. And so too even if he did him a favor that he is obligated to do from the Torah, such as if he saved him from the river or from bandits and the like, and he said to him, "Guard for me in exchange for this favor," and he accepted it upon himself, his law is like a shomer sachar; for since he said to him "in exchange for this favor," it implies explicitly that he means as payment for this favor, and he accepted it upon himself [as appears to me regarding these laws].

Some say that even if he does not say to him "watch for me for payment," and even if prior to the watching he was like a shomer chinam and he gave him a gift—for example, a person who sent an object via his fellow to bring it to a certain place and in the meantime sent him a gift—he becomes like a shomer sachar, for we hang it on the premise that in exchange for his watching he gave him this gift. Our teacher, the Beit Yosef, expresses doubt regarding this, and for the law, we explained in siman 185, section 7; see there. And the sarsur, his law is like a shomer sachar, for he profits from this, and there it was explained. Our teacher, the Rema, wrote: Reuven who said to Shimon, "Do you have such-and-such an object to sell? I will serve you and sell it," and Shimon says, "Give it for such-and-such an amount and the remainder shall be yours," Reuven becomes a shomer sachar over it even though he remained silent when he received it. Thus far his words. For silence is like an admission, just as it is for a finder of a lost object according to the one who holds that he is like a shomer sachar even though he did not initially intend for payment. And even those who disagree, holding that his law is like a shomer chinam, this is because this is not considered payment; but the fact that he did not stipulate at the beginning does not prevent him from being a shomer sachar [the Gra]. And a shoel after the time of his borrowing has concluded, his law is like a shomer sachar, as written in siman 291, section 20. And one who takes vessels from the house of a craftsman to send them as a gift if they will accept them from him, and if not he will bring them back to him, his law during his return is like a shomer sachar, as written in siman 186. And so too partners, their law is like a shomer sachar, and it was explained in siman 176. And a male servant and female servant in the house of a homeowner, their law is like a shomer sachar, for presumably they are hired for everything that they are commanded to do and to watch, unless they explicitly stipulated that they were hired to do work and not for watching, for then their law is like a shomer chinam [and see Ketzot HaChoshen and Machaneh Ephraim, and they do not disagree on the law; and examine carefully].

Anyone hired by a homeowner, if he is hired for whatever he will command him, his status regarding guarding is like a shomer sachar. And if he is hired for a specific task and he gave him an object to guard, his status is only like a shomer chinam. And the shopkeepers who send money to the merchants who sit in the large places to send them merchandise and take a fixed amount for their trouble, their status is like a shomer sachar. And one who sends merchandise by way of a wagon driver to bring it to a certain place, and likewise one who sent merchandise on a ship, the wagon driver and the ship owner, their status is like a shomer sachar until they arrive at the place where they agreed they would deliver the merchandise to the one whom he commanded. And craftsmen and mill owners and butchers, their status is like a shomer sachar, and it will be explained in siman 306. And if he handed over his guarding to others, it was explained in siman 291. And it was also explained there that anyone who deposits, he deposits with the understanding of his wife and his children and the members of his household. And it was also explained there if they do not have the means to pay, what their status is. And the shamash in the beit knesset and beit midrash, if the guarding of the vessels of the beit knesset and the beit midrash is upon him, his status is like a shomer sachar, for behold he takes a wage or income. And it is not money that has no claimants, for behold the gabbai claims from him, and furthermore, the public are the claimants, as I wrote in siman 301, section 10; see there.

The liability of a shomer sachar is explicit in the Torah, that he is liable for theft and loss and exempt in cases of ones. And how is his liability for theft? Not specifically when he did not guard properly, such as when he forgot to lock the door or did not lock it properly, for that is peshiah for which even a shomer chinam is liable; rather, even if he locked it properly and it was stolen or lost, he is liable. For the shomer sachar must guard with superior guarding, in the manner that our father Yaakov guarded the sheep of Lavan, of whom he said, "In the day the drought consumed me, and the frost by night; and my sleep fled from my eyes," and in the manner of the city guards upon whom the guarding of the city is cast [end of chapter 7 of Bava Metzia]. And he is not exempt unless armed bandits came upon him and he stood against them and was unable to save, or that he was unable to stand against them due to fear, for this is a complete ones, and so too any ones of this type. And when he is victim to an ones, the owner pays him his wage [Shach], for what was there for him to do? For he performed his guarding properly, and it was from Heaven that he was victim to an ones.

From the perspective of logical reasoning, it appears that since the Torah exempted an occurrence of ones for a shomer sachar, if so, if he buried the deposit deep, deep in the ground and it was stolen via an underground tunnel, or if a sickness of insanity befell him, or sleep fell upon him by ones, or another ones where he is unable to guard, he should be exempt from theft. However, there are some of our teachers who hold that since the Torah obligated a shomer sachar for theft even though theft is close to ones, therefore even if he guarded properly and placed the deposit under the ground at a depth of a hundred cubits where it is impossible to steal it from there except via tunnels, or even if sleep overcame him or sickness jumped upon him and he could not guard it, and anything similar to this, and it was stolen, he is liable. And even if he surrounded it with a wall of iron, and even if even if he were there he would not have been able to save it, such as if an armed thief came, nevertheless he is liable for theft and loss unless he was there and was unable to save it. And our teachers, the authors of the Shulchan Aruch, wrote according to this opinion. But many disagree with this and hold that when it is stolen via a complete ones he is exempt; for even though the Torah obligated him when he locked it properly and it was stolen, this is because if he had been there or had not been sleeping it would not have been stolen, and even though this too is close to ones, nevertheless the Torah obligated him, but in a case of complete ones he is exempt when it is stolen [Yam Shel Shlomo, and Shach, and the Gra, and it is implied from Tosafot Bava Kamma 57a, and Mordechai chapter HaMafkid, and from Hagahot Maimoniyot chapter 4 of She'elah, and from Yerushalmi Shevuot chapter 8 which they cited, though according to the version before us it is a proof to the contrary, for it says there that they assess based on his person, and examine carefully]. And it appears that it is a legal doubt. And this is a simple matter: if it is known in the city what the methods of guarding are for shomrei sachar and he guarded with this guarding, he is exempt even according to the first opinion, for it was with this understanding that he handed it over to him [Mordechai ibid.]. And so too when one handed him an object to guard for a fee and the depositor knew that the guard is not next to the deposit and it was stolen by a complete ones, he is exempt. But when it was stolen not by a complete ones, even though he did not commit peshiah as he locked it properly, he is liable, for in this the Torah obligated him, unless he stipulated thus from the beginning or the custom is so.

What is considered an unavoidable accident? If an armed bandit comes upon him, even if the guardian is also carrying weapons, because the bandit risks his life more; and this is the "captive" mentioned in the Torah. And he takes his payment since it was an unavoidable accident, for he has performed his labor. And even if the unavoidable accident did not come upon the deposit itself but rather upon the person of the guardian—for example, they locked him in so that he could not leave the house and they took the objects that were in the courtyard—this is also considered an unavoidable accident. This is unlike the one who says that it is not an unavoidable accident unless the accident was upon the deposit [see the Beit Yosef].

If a fire broke out in the city and the items for which one was a shomer sachar were burned, it is considered an oness if he was unable to save them himself or through others. And even if he is saving his own property and consequently the item for which he was a shomer sachar was burned, since he was able to save the item, it is not considered an oness on the grounds that his own items would have been burned [Shach]. However, a shomer chinam is exempt in such a case [Acharonim]. And specifically when he knows with certainty that the deposit was burned; but if he does not know with certainty, only that the deposit was placed in the house that burned, he is liable in any event, for he cannot swear that it was burned, as perhaps thieves entered and stole it, since for the most part thieves are commonly found at the time of a fire, may the Merciful One save us, and he is indeed liable for theft. Therefore, the shomer sachar is liable to pay unless the thieves who entered were armed bandits, for then he shall swear that it was burned or stolen by armed bandits and be exempt; or according to the latter opinion in section 7, when he was under duress and was unable to come to the house, he is exempt even from theft, as I wrote there.

Any type of unavoidable accident, with the exception of the accident of theft, one is exempt. For example, a shepherd to whom wolves came and preyed upon an animal from him: if it was one wolf, it is not an accident, even during a time of a plague of wolves, for he can rescue it from one wolf. But two wolves, this is an accident and he is exempt. Regarding an unpaid bailee, it is possible that he is exempt even with one wolf; for granted that it is not an accident, nevertheless it is also not negligence, and it is like theft and loss. There are some of the great authorities who wrote thus, and so it appears primary. Two dogs are not an accident even if they came from two directions, but more than two is an accident even when they came from one direction. And there are those who say that from two directions even two dogs are an accident [Tur]. And regarding an unpaid bailee, according to everyone he is exempt. But for one dog, even an unpaid bailee is liable, for it is easy to drive it away and he was negligent when he did not drive it away [it appears to me]. And the lion, the bear, the leopard, the cheetah—which is a type of damaging animal—and the snake, these are accidents when they came on their own. But if he led the animals to a place where damaging animals or bandits are common, this is not an accident and he is liable to pay. And even an unpaid bailee is liable in this, for this is complete negligence in that he led them to a place of danger [it appears to me].

There is one who says that that which we said, that it is not considered an ones like one wolf and two dogs, this is specifically when he did not exert effort to save and fled out of fear; but if he exerted effort to save and could not prevail over them, you have no greater ones than this, and even with one dog, for what more could he have done? Therefore, even a shomer sachar swears that he exerted effort to save and was unable, and is exempt. These are words of reason, and such is the primary ruling.

Just as a shepherd who led the animals to a place of danger is considered negligent, so too, even if he did not lead them to a place of danger but rather he was the cause of their being taken by force—for example, if he incited the thief against himself and said to him, "Behold, we are many shepherds in such-and-such a place, and we have such-and-such weapons in our hands"—even if his intention was for good, to show him that he is not afraid of him so that fear would fall into the heart of the thief regarding coming upon him, nevertheless, if from these words the thief became aware of where they are shepherding and came armed and overcame him and took from the flock, the shepherd is liable, for in any case he himself was the cause of this. And there is room for doubt regarding an unpaid bailee when his intention was for good, whether this is considered negligence such that he would also be liable or not; but where his intention was not for good, it is obvious that he is negligent and liable to pay. And the owners can administer a shevuat hesat to him as to whether his intention was for good, and so too in any such case [it appears to me].

And not only this, but even if there was no cause for the duress and he also did not have the power to save them by himself, nevertheless, if he could have saved them through others and did not save them, he is liable. And even if he informed the owners to hire people to save them, he is liable, for the matter is incumbent upon him. Therefore, a shepherd who should have saved the torn animal or the captive animal through other shepherds and with staffs and did not do so, behold, he is liable. And even a shomer chinam is liable in this, for it is complete negligence, as this is the obligation of a shomer. However, there is a difference between a shomer chinam and a shomer sachar, for a shomer chinam is not obligated to hire shepherds and staffs unless he can obtain them for free, for he did not take upon himself such exertion that he would need to hire people. Nevertheless, if he went ahead and hired shepherds and staffs, the owner is obligated to reimburse him up to the value of the animals. And even another person who is not a shomer, if he did so, one is obligated to reimburse him, for he is no worse than one who descends into the field of his fellow and improves it, who takes the improvement as is written in siman 375 [Shach]. And a shomer sachar is obligated to hire the shepherds and the staffs and everything necessary for their rescue up to the value of the animals, and he goes back and takes their payment from the owners. And if he did not do so, and he should have hired and did not hire, behold, this is negligence on his part and he is liable to pay. And let it not be difficult for you that if the expenses reach up to their value, what will the owners gain from this? For in truth, even this is a gain, that he will not need to exert himself and buy others, and all the more so with animals that are accustomed to his voice and his leading, which is not the case when he buys new ones [end of chapter 7 of Bava Metzia]. And nevertheless, if he did not save them and is liable to pay, he only needs to pay according to their value, but for the exertion and for the fact that they are accustomed to him, there is no reason to make him liable. And so too, he does not need to spend more than their value for their rescue, for perhaps it is not the will of the owner to reimburse him for this [Sma]:

A shepherd who claimed, "I rescued [the animals] by means of shepherds for a fee," and he has no witnesses regarding how much he expended, he takes an oath as to how much he expended and collects, like all those who take an oath and collect which the sages enacted, since he expended with permission. And he cannot claim more than the value [of the animals], for in this regard he would have had a migo to say that they were torn by wolves. And he shall take an oath with a sacred object like all those who take an oath and collect as was explained in siman 89. And also regarding a shomer chinam the law is so.

It has already been explained in section 7 that regarding ganeva through absolute compulsion, some obligate and some exempt. However, even according to the opinion of those who exempt, there is a distinction between the compulsion of ganeva and another compulsion. For a shepherd who left his flock and came to the city, whether at a time when it is the way of shepherds to enter the city or at a time when it is not the way of shepherds to enter, and wolves came and tore them or a lion trampled them, we do not obligate him without an assessment of whether he would have been able to save them had he been there. For we say perhaps if he had been there, a spirit of heroism would have clothed him and he would have saved them; rather, we assess him: if he could have saved them by means of shepherds and staffs, he is liable, and if not, he is exempt. And even though if he entered at a time when it is not the way to enter, it is "beginning with negligence and ending with compulsion," nevertheless, the compulsion is not on account of the negligence since he would not have been able to save them even if he were there, and he is exempt in such a case, as I wrote in siman 291. But regarding ganeva in such a case, even if he entered at a time when it is the way to enter and it was stolen from there by compulsion in a manner that even if he were there it would have been stolen as well, nevertheless he is liable, for behold every ganeva is close to compulsion and even so the Torah obligated him. And so too even if he was sleeping at a time when people sleep, even so he is liable [Netivot HaMishpat]. But regarding other compulsions he is exempt, as has been explained. And nevertheless, if the matter is not known whether he could have saved them if he were there, he is liable, for we say presumably he could have saved them. And even though he entered at a time when it is the way to enter, nevertheless he is a shomer sachar and must guard with extra guarding [Gemara]. But a shomer chinam is exempt even when he entered at a time when it is not the way to enter, for regarding him we do not depend on saying that presumably he could have saved them [Sma]. And some say that in such a case even a shomer chinam is liable, for the reason is not because we say presumably he could have saved them, but rather the reason is because every shomer is obligated to swear that he knows clearly that it was taken by compulsion, and he cannot swear since he does not know clearly, and he is liable to pay [Shach and Taz]. However, when he entered at a time when it is the way to enter, in any case a shomer chinam is exempt even if he could have saved them, for he guarded properly according to his guarding, since behold he did not act with negligence. And some disagree with all this and hold that when he entered at a time when it is not the way to enter, he is liable in every case, even if he could not have saved them if he were there, because it is "beginning with negligence and ending with compulsion," and we attribute the compulsion to the negligence, for perhaps if he were there he would have saved them by way of a miracle. For in "beginning with negligence" we attribute the compulsion even to a remote possibility that perhaps it is on account of the negligence, as I wrote in siman 291. And even a shomer chinam is liable, only according to our teacher, the Rema, as we explained there in section 41, a shomer chinam is exempt. And if he entered at a time when it is the way to enter, we do not attribute it to a remote possibility even for a shomer sachar, since he did not act with negligence [Sma].

A shepherd who takes a wage, who brought the animals across a bridge and one of them pushed its fellow and it fell into the current of the river, even though he was not negligent at all and in the case of a shomer chinam he would be exempt in such a case, nevertheless regarding a shomer sachar it is called negligence. It is like a loss which is close to negligence, even though it is not actual negligence. His liability is because he should have brought them across one by one, for a shomer does not take a wage except to guard with superior guarding, and he must be concerned about everything he does lest negligence result from it. Since regarding him it is considered negligence that he brought them across as one, it turns out that he was negligent in their beginning. Therefore, even though he was under duress at their end at the time of the fall, he is liable, for its beginning was with negligence and its end was with duress, and the duress resulted from the negligence. The general principle of the matter: there are things that regarding a shomer sachar are considered as negligence and not regarding a shomer chinam, for with a shomer chinam it is not called negligence unless there was actual negligence, such as if the bridge was shaky or narrow such that two oxen could not stand upon it and it was inevitable that one would fall into the water. But on a strong and wide bridge, he is not obligated to trouble himself and lead them one by one. However, with a shomer sachar, even this is negligence, for he should have considered that perhaps they would push one another, as one who takes a wage must be concerned with all concerns in his guarding, and similarly in other matters of guarding.

A paid shepherd whose animal died in its natural way is exempt, for it is a complete accident, and regarding this it is said, "and it dies or is broken etc. the oath of Hashem shall be etc." This is specifically when he did not deviate with it at all, but when he deviated with it, we attribute the death to the deviation; for example, if he caused it some affliction, such as standing it in the sun or in the cold, or starved it slightly, or allowed it to drink water that is not good for it or some food that is bad for it, and it died. And even if it did not die immediately, he is liable, for we say that perhaps from that moment it began to deteriorate and died from this after some time. However, if we saw that it was subsequently healthy and good in its appearance, he is exempt when it dies after some time; for since the accident cannot be attributed to the negligence, he is exempt even as a paid guardian, as there is no difference in this between an unpaid guardian and a paid guardian [and so it appears from Tosafot Bava Metzia 93b, s.v. sigfah]. And if it can be attributed even in a remote way that the accident was due to the negligence, we explained in siman 291, section 41, that according to our teacher, the Rema, there is a difference between an unpaid guardian and a paid guardian, as I wrote in section 15.

If it overpowered him and ascended to the mountain peaks, or it overpowered him and fell, this is a complete ones. However, if he brought it up to the mountain peak, even though it overpowered him and fell from there, he is liable, for its beginning was with negligence and its end was with ones. This is specifically when he did not bring it up there for the purpose of pasture, for if he brought it up to graze, he is exempt, as I wrote in siman 291, section 40. And if he was able to overpower it so that it would not fall and he did not overpower it, even if he brought it up for pasture, he is liable, and even in the case of a shomer chinam the law is so, as I wrote there. And if it ascended on its own and he was able to prevent it from doing so and did not prevent it, even though the fall was through ones—that it overpowered him and fell and died or was broken—a shomer sachar is liable. For even though this is not complete negligence and a shomer chinam is exempt in such a case, as I wrote there, nevertheless a shomer sachar is liable, for regarding him it is considered negligence and it is like a loss for which the Torah obligated him; since there was no pasture there, he should not have allowed it to ascend, for he should have been concerned lest it fall from there, and therefore even though the fall was through ones, he is liable because its beginning was with negligence. But if it died there in its usual manner, even if he brought it up to the mountain peak, which is complete negligence, or if he was negligent with it and did not guard it properly and it went out to the marsh and died there in its usual manner, he is exempt, as I wrote there, for there is no difference to the Angel of Death between this place and another place, and we do not say that the air of that place killed it unless it is known that the air of that place is harmful to animals, as I wrote there in section 39. And even though regarding a shomer sachar we attribute the ones to the negligence even in a remote doubt, nevertheless regarding death this is not an attribution at all unless there is some known reason. However, this is certainly the case: when it was stolen from a person and died in the house of the thief, he is liable, for as soon as it was stolen, it stood in the domain of the thief and his own died. And even a shomer chinam is liable in such a case, as I wrote there in section 42, and especially a shomer sachar, who even without this is liable for theft. Therefore, even if he led it to the marsh for pasture and it was stolen from there and died in the house of the thief, he is liable [Taz]. And likewise, if it went out to the marsh through his negligence because he did not guard it properly, and an armed bandit took it, which is a complete ones, and it died with him, he is liable, for its beginning was with negligence in that it went out to the marsh not for pasture, and he is not exempted by the death [Sma]. And a shomer sachar whose time expired, we explained there, and it will also be explained in siman 343 with the help of Heaven.