Siman 305

A paid guardian's law is like an unpaid guardian regarding other claims, such as regarding if he denied the essence of his guardianship and said to him, "You did not hire me to guard at all," or if he said to him, "You used the object and damaged it," and the like; he swears a hesset oath and is exempt, for this is not the oath of guardians that the Torah obligated, as the Torah oath is only when he admits to the essence of the deposit as the depositor stated, but claims it was an accident, as was written in siman 296. And when he claims it was an accident, if it is in a place where witnesses are common, he is forced to bring witnesses, and if not, he shall pay. And when witnesses are not common in that place, he shall swear that it was an accident, and he shall include in his oath that he did not misappropriate it, for if he had misappropriated it prior to the accident, he would be like a robber and liable for accidents, for it was an accident while in his domain. He shall also include that it is not in his domain, for perhaps after the accident it was returned to his hand from the hand of the attacker [Taz]. And if he says that it was stolen and "I am prepared to pay," we administer an oath to him that it is not in his domain, and it is not a Torah oath. And if the thief is found afterwards, the double-payment is his; and even if he said "I was negligent with it" and the thief is found, the double-payment is his, and this is from the assessments of our sages, of blessed memory, as was written in siman 295. And a guardian who claimed "I am not a paid guardian but rather an unpaid guardian," and it was stolen, and he claims that he is an unpaid guardian and exempt, and the depositor says that he is a paid guardian and liable to pay, it appears to me that if he has no witnesses regarding the theft and must swear the oath of guardians, he shall swear by inclusion of a claim that he is an unpaid guardian. But if he has witnesses regarding the theft, he only swears a hesset oath, for this is not the oath that the Torah obligated for guardians. However, according to the opinion we brought in siman 294, section 3, that even the oath "that I was not negligent" is from the Torah, he shall swear this oath, and by inclusion of a claim he shall also swear that he is not a paid guardian, unless there are also witnesses that he was not negligent.

If it was stolen by armed bandits, for which a shomer sachar is exempt, and the thief was identified, the shomer must pay the owner and he shall bring the thief to judgment, as is written in siman 294. And some say that he does not need to pay, but rather the burden is upon him to stand with the thief in judgment [Sma]. And there it was explained that some say when it is known that he will recover it from the thief, he is obligated to pay the owners immediately. And even if he already swore and was exempt, and afterwards the thief was identified, since the thief was found, he is obligated to bring him to judgment, and his law in this is not like a shomer chinam, as the reason was written there. And regarding the matter of payment to the owner, it depends on the opinions that were explained.

If a shomer sachar accepted upon himself to be liable even for accidents, or if he stipulated to be exempt from theft and loss, and from negligence and from an oath, everything is according to his stipulation, as has been written in siman 291, and he loses his wages, see there. And if he said generally "that I shall not be liable for its responsibility," he is exempt even from negligence. At the beginning of the guardianship no kinyan is required, but once he has begun to guard, a kinyan is required as has been written there. And "on condition" is not effective [Shach and Taz]. The law of a shomer who handed over to a shomer was explained there. And anyone who deposits, he deposits with the understanding of his wife, his children, and the members of his household, as has been written there.

It has already been explained at the end of siman 291 that the decree of the Torah is that "borrowing with the owners" is exempt from the laws of guardians, for if the owners of the object were in the work of the guardian at the beginning of his guardianship, even though at the time of the accident they were not with him in his work, he is exempt even from negligence. Therefore, one who says to his fellow, "guard for me and I will guard for you," it is a case of guardianship with the owners, for each one is in the work of his fellow to guard for him. But if he said to him, "guard for me today and I will guard for you tomorrow," they become shomrei sachar to one another, for at the time of the guardianship his fellow is not with him in his work. And the same applies when he says to him, "guard for me this hour and I will guard for you a second hour," for since they are not at the same time, this is not guardianship with the owners even when they are on the same day [Shach]. And they have the law of a shomer sachar, for each one receives payment in that his fellow guards for him. And if Reuven said to Shimon, "guard for me today and tomorrow, and I will guard for you tomorrow and the day after tomorrow," Reuven is exempt from the law of a shomer sachar because tomorrow, at the time he begins to guard, Shimon is with him in his work; but Shimon has the law of a shomer sachar and there is no guardianship with the owners in his case, because at the start of his guardianship Reuven is not with him in his work. And even though tomorrow he will be with him in his work, nevertheless, since at the beginning of the guardianship he is not in his work, it is not guardianship with the owners [it appears to me].

The same applies if he said, "Lend to me and I will lend to you" immediately; it is a case of borrowing in the presence of the owners, for the lender is engaged in the work of the borrower to guard for him the vessel lent to him. And similarly, if he said to him, "Guard for me and I will lend to you" immediately, it is a case of guarding in the presence of the owners, for the owners are preparing themselves to perform for him the work of lending, to lend him his vessels, as we do not require specifically a major labor, but even a light labor. However, regarding the lending, his law is like a shomer, for after he has borrowed from him, the lender is not with him in his work. And similarly, if he said to him, "Lend to me today and I will lend to you tomorrow" or after some time, the first is liable, for the lender is not guarding his own vessel at the beginning of his work. And regarding the second, if tomorrow his vessel is still borrowed by the first, it is for him a case of borrowing in the presence of the owners, for the first must guard it. But if tomorrow it returned to him, he too is liable for its guarding as a shomer sachar, as will be explained. And similarly, in "Guard for me and I will lend to you tomorrow," this is not guarding in the presence of the owners, for the owner is not preparing himself to lend to him and is not engaged in his work; and the same applies after an hour. And such is the law in "Lend to me and I will guard for you," it is a case of guarding in the presence of the owners, for at the time of his guarding, the owners are guarding his object which they lent. But the borrowing is not in the presence of the owners [Netivot HaMishpat], for the lender is not with him in any work, rather his law is like a shomer sachar and not like a borrower, for not all the benefit belongs to the borrower, since he guards for him in exchange for the lending. And there is one who says that according to this view, the borrowing is also in the presence of the owners, for since the lender accepted upon himself the guarding of the borrower—and for this reason the law of the borrower is only like a shomer sachar—and he benefits him by exempting him from unavoidable accidents, it is called borrowing in the presence of the owners [Taz]. However, it is impossible to say so, for if so, any shomer who benefits from the owners in some matter at the beginning of his guarding would be exempt due to the reason of guarding in the presence of the owners; for while it is true that when the owners are with him even in a light labor it is guarding in the presence of the owners, this does not apply to that which he benefits him.

And there are those who disagree with all of this and hold that "lend to me and I will lend to you," and all the more so "guard for me and I will lend to you" or "lend to me and I will guard for you," even at one time, this is not "borrowing with the owners" nor "guarding with the owners." For it is not called "work" that the borrower's vessel is with him as a loan and that if an accident occurs he will be liable to pay; for it is only called "work" in "guard for me and I will guard for you," where he performs the act of guarding in practice, and not by the fact that the vessel is with him as a loan. Therefore, this is not called "with the owners" at all. Rather, in all of these, their law is not like a borrower but like a shomer sachar, for one is only a borrower when all the benefit is his; but here, since he lent to him, he also lends to him in return. And so too in "guard for me and I will lend to you" or "lend to me and I will guard for you," behold, he guards for him in return for his loan. Our teacher, the Rema, wrote according to this opinion. Nevertheless, one should not extract money against the first opinion [Taz].

According to the first opinion, that in a case of "lend to me and I will lend to you" it is considered borrowing in the presence of the owners, if Reuven said to Shimon: "Lend me your garment which is light to wear, and take my garment which is heavy and you wear it," and one was lost, the second cannot withhold the garment of the first, and it must return to the first, for it is borrowing in the presence of the owners and he is exempt even if it was lost through negligence. And according to those who disagree, he is liable even for theft and loss, but if it was lost through an unavoidable accident he is exempt, for his status is like a paid bailee and not like a borrower, as I have written. However, if the second person was occupied with the garment of the first in some labor, such as if he placed it in his wagon or on his donkey to transport it across the river or to carry it as a load and did not wear it on his body, the first is exempt even according to those who disagree, because the second is with him in his labor to transport his garment across the river or to carry it as a load [Beit Yosef, and it is well-settled according to this opinion the incident in Bava Metzia 81a regarding the tall man and the short man, see there and examine carefully].

And even according to the first opinion, it is not called "borrowing with its owners" in such a case where the borrowed object is not in the hand of the borrower but in the hand of another. For example, if Reuven owed money to Shimon and gave a pledge, and he did not place the pledge in his hand but in the hand of Levi, and Shimon lent an object to Reuven. If the pledge were in Shimon's hand, Reuven would be exempt, for Shimon is with him in his work to guard his pledge. But since the pledge is not in his hand, he is not Reuven's guardian, and Reuven is liable for accidents. And Shimon's liability for the pledge is either as an unpaid guardian or as a paid guardian according to the opinions at the beginning of siman 72. And if the lending was in exchange for the pledge that he took from Reuven, and Shimon wants to use the pledge, they become paid guardians for one another as I have written. [And this is the intention of the Rema who wrote that they are paid guardians for one another, for there is no other understanding of this except that it deals with such a case, and so it is in the Maharik, shoresh 125].

A shomer sachar, even though he is exempt from the laws of safeguarding when there was "safeguarding with the owners," nevertheless loses his wage, just as with matters that are not subject to the law of safeguarding which were explained in siman 301, where he loses his wage as is written there; so too regarding "safeguarding with the owners." And even a craftsman, whose law is like a shomer sachar as is written in siman 306, if it was "with the owners" he is exempt, yet he loses the fee for his craftsmanship even though the essence of his wage is not for the safeguarding [Netivot HaMishpat], and not like the one who is uncertain about this. For even an agent loses the wage of his agency in such a case, even though the essence of his wage is for the agency and not for the safeguarding [Bava Metzia 58a]. The general rule of the matter is that whenever the owners suffered a loss through the shomer, the craftsman, or the agent, even though he is exempt from paying according to the decree of the Torah, he nevertheless loses his wage. And if in the craftsmanship or the agency there remained a small profit, but they lost the great profit that was meant to be, it is possible that they take their wages according to the value of the profit. And all this is specifically when it did not occur through an ones, but in a case of a complete ones, one is obligated to pay him his wage, for in every case of a shomer sachar the law is so, for what could he have done? And he has performed his action, as is written in siman 303.