Siman 304

One who moves a barrel from place to place and stumbled in his walking and the barrel broke, by Torah law a shomer chinam is exempt, for it is not negligence, as was written in siman 412 that one who stumbles is not negligent. However, a shomer sachar is liable, for even though he is not negligent, nevertheless it is also not an oness, and it is similar to theft, and he is liable to pay since this is not a great oness. But the sages enacted that even a shomer sachar does not need to pay, and his law is like a shomer chinam, that he must swear that he was not negligent with it—for example, that he did not carry it properly or that he intentionally caused himself to collapse; even if his intention was not to cause damage, nevertheless he is negligent, and everything is according to the matter. And why did the sages enact thus? Because of the "tikkun of the world," for if you say that he must pay, you will have no person who will move a barrel for his fellow for payment. Therefore, they treated the breaking of the barrel like the death or injury of an animal, which is an oness. And he must also pay him his wages since it is like an oness [Sma]. And some disagree, that even though the sages enacted that he should not pay, they did not enact that he should take his wages [Taz]. And logic dictates thus, for since they treated him like a shomer chinam, why should he take wages? And in a case of negligence, even a shomer chinam is liable.

The Tur wrote that this is specifically when it was a place of a slope, but not in a place of a slope, where he carried in a level place and stumbled and broke the barrel, it is negligence and he is liable. The great later authorities wrote that the Tur disagrees with all the poskim, and also the Rambam and the Shulchan Aruch did not mention this distinction, and even not in a place of a slope he is exempt. In my humble opinion, it seems clear that it is impossible to say so, for even his father, the Rosh, of blessed memory, did not mention this distinction [at the end of the sixth chapter of Bava Metzia], and if the Tur had disagreed with him, how could he not have mentioned his opinion at all? Furthermore, in the Remazim which the Tur composed, he also wrote thus. Furthermore, how could our teacher, the Beit Yosef, not mention in his great work that there are those who disagree on this? And more difficult than this, the Tur himself in siman 412, section 6, who ruled that one who stumbles is not negligent, also did not mention that this is specifically in a place of a slope; and if so, his own words contradict his own words.

Therefore, it seems to me that they do not disagree at all, and all admit that anyone who stumbles must necessarily do so due to some cause, such as stumbling over a stone or a piece of wood, or if the place was icy or a slope and the like. And the one who holds that one who stumbles is negligent, even in such a case he is negligent, for a person must observe the path upon which he walks. However, for the halacha, we established that it is not the way of people to observe the paths [Bava Kamma 27b] and one who stumbles is not negligent. But on a straight path on smooth ground, on what did he stumble? Perforce, he fell through negligence, for he did not walk in the manner of people. And all the poskim who spoke of one who stumbles intended that he stumbled due to a cause, and because of its great simplicity, they did not need to mention it. And the Tur, who mentioned this matter here, did so because in the Gemara they mentioned this regarding the transport of a barrel, but later in siman 412, he did not need to mention it, for he stands at the beginning of the subject which deals with one who places a pitcher in the public domain and another comes and stumbles on it. Therefore, everything mentioned there as stumbling is due to some cause. [And there is clear proof from the Ra'avad at the beginning of chapter 3 of Hilkhot Sekhirut, and it is also apparent from Rashi, Bava Kamma 29a, s.v. "ela," who mentioned that statement of Rav Papa that he should have examined, and there he stumbled by means of the pitcher. And it is also apparent from the Rosh there, who mentioned that case of the barrel. And although from Tosafot there, s.v. "u'Shmuel," it does not imply so, nevertheless, even without this, what they wrote there requires great study, for what did they challenge Shmuel? On the contrary, according to him it works well, and not in darkness, and it can be settled, see there. Furthermore, how can we create a distant dispute, that according to Rav, Shmuel, and Rabbi Yochanan he is negligent even when he stumbles on the pitcher, while according to us he would not be negligent even when not by means of anything at all? And there is further proof from there, 31a, where Rava said the first is certainly negligent, and Rashi explained that he fell on his own, see there carefully. And the proof of the Shach is not decisive to one who examines there, and delve into it.]

The Tur wrote: A person carrying a large barrel that is heavy for one person to carry, and he tripped over it and it broke, he is negligent and is liable. Thus far his words. And even a gratuitous watchman is liable, for due to the heaviness of the burden he tripped in his walking; and therefore, even though generally anyone who trips over something is not considered negligent, nevertheless in this case its beginning was with negligence, as he took a burden heavier than his strength. And this must be determined according to the custom of those who carry burdens in that place.

He further wrote that one who carries a burden on a pole curved in the middle and places it on his shoulder, and places two jugs on the two ends and it breaks, he pays half, for it is not a complete accident since it is light for two and heavy for one. Thus far his words. And according to this, a shomer chinam does not need to pay at all since it is not complete negligence, as it is the way for one person to carry a heavy burden in this manner, like the way of the water-drawers in our locales. And according to his words, if two carried them they are exempt, for it is a complete accident. But the Rambam wrote [ibid.]: And they further enacted in this matter that if two carried it on a pole and it broke, they pay half; since this burden is large for one and light for two, it is like an accident and yet not an accident, and they pay half if there are witnesses that they were not negligent with it. Thus far his words. And his reasoning is that since this burden is heavy for each one of them, it is possible to say that each one of them relied on his fellow to lighten his burden, and it is negligence [Levush], and only because of the enactment they shall pay only half.

The Rambam, of blessed memory, wrote [ibid.]: If it broke in a place where witnesses are not commonly found, they swear that they did not break it through negligence and they pay half its value, for each one should only have carried a load that he could have withstood on his own. From here you learn that one who carried a large barrel that is not the way of any porters to carry alone is negligent, and if it broke, he pays everything. Thus far his words. And this is according to the words of the Tur in section 4. And there are some of our teachers who hold that as long as the load is not for two people and one carried it and broke it, even though he is negligent, he only pays half [Rashi and Rashba], for it is similar to an accident and similar to negligence because there are people who strengthen themselves to carry much as long as it is not a load for two, and a shomer chinam is exempt.

The porter who carried a barrel of wine for a shopkeeper and broke it through negligence and became liable to pay, and it is worth four zuz on the market day and on other days it is only three zuz, the opinion of the Rambam is that if he returned it to him on the market day, he is obligated to return to him a barrel of wine or pay him four zuz, for on the market day he could have sold it for four. Therefore, this is specifically if he did not have wine to sell on the market day, but if he had wine, he returns to him three, for he did not cause him a loss, since he had wine without it, and if he had this barrel, he would not have sold it now. And if he returned it to him on other days, he returns to him three. And even though regarding guardians we follow the time of the negligence, how much it was worth then, as written in siman 291, section 18, and according to this the law should be that if he broke it on the market day he should pay four and if he broke it on other days he should pay three, why do we follow in this the time of the return? For certainly it is so, that regarding the primary rise and fall of the price of the merchandise we follow the time of the negligence, but regarding that which they take on the market day a zuz more than on other days, this is not in the category of a rise and fall in price, but rather the nature of commerce is so, and it is like a labor fee, for on the market day because of the multitude of buyers and the multitude of labor they sell slightly more expensively and they know that tomorrow they will sell for a zuz less. Therefore we follow the time of the return, for if he returned it to him on other days he shall return to him three, but when he returns it to him on the market day, behold he desires to return to him four, for if not so, who forced him to pay him on the market day? Therefore he shall return to him either a barrel of wine or four zuz [as appears to me in his reasoning, and that which they questioned him is well-settled].

But most of the poskim disagree with this and hold that we follow the time of the breaking, according to the law of a shomer who pays according to the time of the negligence. If he broke it on other days, he pays three, and if he broke it on a market day, when he comes to pay on other days, he must give him four. He is not discharged by returning a barrel of wine, for on that day that he damaged it, it was worth four, and now he returns what is only worth three. He cannot say to him, "Wait until the market day and it will be worth four," for he can say to him, "I need the money immediately." And even if he had much wine on the market day when he broke it, and wine remained for him and he would not have sold it then, nevertheless, the price of it then was four and he damaged four, and he must pay him four and not what will be worth four. But if he comes to pay him on a market day, he can return to him a barrel of wine, for he is returning to him the value of four. Our teacher, the Rema, wrote that this is specifically when he has no other wine to sell now in the market; but if he has other wine to sell, it is for him like other days, and he must give him specifically the value of the wine. And this is specifically if he bought the wine after the breaking; but if he had this wine before the breaking, he is discharged by returning the barrel in any case [Sma], for if you say that it is not worth four to him now, then he did not damage four for him since he had wine. Therefore, if he had much wine on the market day that he broke it, and he returns it to him on a market day when he still has much wine, he returns to him a barrel of wine and is discharged. [And the Taz disagrees with this, and I have not descended to the depth of his opinion; also, regarding what the Shach wrote concerning the opinion of the Rambam, all the commentators of the Rambam did not understand it so, and also according to the reason I wrote, it is impossible to say so; and delve into this.]

And there are some of our teachers who hold another approach in this, and they also hold like the Rambam that there is no difference regarding the time of the breaking; however, regarding the return as well, there is no difference between whether he returned it to him on the market day or on other days. Rather, if he returned it to him before the first market day after the breaking arrived, he returns to him a barrel of wine, and if he returned it to him after the first market day, he returns to him four, for had he possessed the wine, he would have sold it on the market day for four. Therefore, if he had much wine on the market day, he can always return to him a barrel of wine [Rashi and Tosafot Bava Metzia 99b]. And this opinion holds that we always appraise it as four; since it is worth four on the market day, this is like a fixed price. Therefore, as long as the market day has not passed from the time of the breaking, he returns to him the barrel and he shall sell it on the market day. But when the market day has passed and he did not have wine, he has caused him a loss of four, and there is no benefit in him returning to him a barrel of wine to sell on the second market day, for even without this he would sell then, and the past market he lost four; therefore, he returns to him four.

According to all the opinions we have explained, when he returns the money to him, he has the ability to deduct for him the exertion that he would have been required to exert in its sale and other types of expenses involved in the sale of a barrel of wine, such as if he must give a craftsman a wage for boring the barrel [Rashi], for their barrels were of earthenware and they required a craftsman to open the hole, and so too anything similar to this.

Our sages, of blessed memory, said that even in a case where the worker is liable to pay, nevertheless it is a mitzvah to act toward him beyond the letter of the law and not to take the damages from him, unless he caused the damage intentionally; but when he caused the damage through negligence, this is not considered a damager, and regarding this it is stated, "In order that you may walk in the way of good men." And not only this, but if the worker is poor and has nothing to eat, he should give him his wages so that he will have something to eat, and regarding this it is stated, "And keep the paths of the righteous." And the sages of the Shas acted in this manner [at the end of the sixth chapter of Bava Metzia]. And it is implied in the Gemara that the judge is obligated to tell him so, that it is proper to act thus, and he should say to him that even though it is not according to the law, nevertheless good and righteous people act thus; and if he listens, he listens, and if not, they do not compel him in this matter. And it has already been explained in siman 291 that regarding a shomer sachar, once his time has ended, his guarding has ended, and even if the object is still in his house, he is only a shomer chinam, and it will be explained in siman 343.