Siman 306

All artisans to whom one gives items to repair by contract are like paid bailees, to be liable for theft and loss, and this is their benefit: that they profit from what is given to them to repair in order to take their wage [Tur]. And even if they received the wage beforehand, their law is like a paid bailee, not like the one who disagrees in this; and it is similar to a paid bailee and a renter, for because there is the benefit of both of them, the Torah therefore obligated them for theft and loss and exempted them from unavoidable accident, as I wrote at the beginning of siman 291 according to the Yerushalmi, and an artisan is also the benefit of both of them [and the reason that the Sma wrote is in the Shas, Bava Metzia 80b, according to Rabbi Meir, but according to that which we establish that he is like a paid bailee, the reason is simple].

Some say that specifically a contractor has the status of a shomer sachar, but a day laborer does not have the status of a shomer sachar, but rather that of a shomer chinam [Sma]. And some say that even a day laborer has the status of a shomer sachar when he performs the work in his own home and not in the home of the employer [Bach]. And some say that even a day laborer who works in the home of the employer has the status of a shomer sachar [Shach and Mishneh LaMelech]. And from the words of our early teachers [Rashi and Nimukei Yosef] it is implied that it is specifically when they perform the work in their own homes and not in the home of the employer. And the reason seems to me to be that in truth he does not receive payment for his guarding, and the reasons stated regarding this are not sufficient to obligate him as a shomer sachar. And regarding a renter, whom the Torah obligated as a shomer sachar, this is the reason: who will guard it if not him, since the owners are not with it? And so too regarding a craftsman, the primary reason is that when the owners are not with it, who will guard it? And automatically we compare the obligations to one another since it is for the benefit of both of them. But when the work is in the home of the owner, why should we place the guarding upon the craftsman as a shomer sachar? Let the employer guard it himself. And automatically, the primary obligation is upon a contractor, for a day laborer mostly works only in the home of the employer; but if he works in his own home, his status is like a contractor [as mentioned above in what our teachers wrote regarding contractors, and the term craftsman applies more to a contractor, and so it appears ibid. 112. And examine this].

A craftsman who finished his work and said to the owner, "Take yours and bring money," is like one who says, "I am not withholding it for the money," and his status is that of a shomer chinam, like a shomer sachar after his period of guarding has concluded. And so, even if he only said to him, "I have finished the work," and the owners did not take the vessel, he is only like a shomer chinam, for we assume that the reason he said to him "I have finished" is like saying, "Take the vessel for yourself." But if he said, "Bring money and take yours," he is still a shomer sachar as he was, for since he withholds it for his money, he is compelled to guard it. And if he said, "Take yours and I am no longer guarding it," he is exempt even from negligence, for he has revealed his intent that he no longer desires its guarding at all, and with what can he compel him? And when he says explicitly, "I am no longer guarding it," it implies clearly that he removes himself even from the guarding of a shomer chinam and commands him to receive the object. However, if he said, "Bring money and take yours and I am no longer guarding it," this is nothing, for since he withholds it for the money, he is compelled to be a shomer sachar [Sma]. And in a case where money is not due to him, such as where he already received it, even if he said to him "Take yours" without specification, he is not even a shomer chinam; for specifically when money is due to him, then even though he does not withhold it for the money, nevertheless it is worthwhile for him to be a shomer chinam, but not when it is not due to him [Shach].

If one gave to craftsmen to repair and they spoiled it, they are obligated to pay the entire value of the vessel. And it is not only necessary to say if he gave a vessel to a craftsman to repair something, such as if he gave a carpenter a chest, a box, or a cabinet to fix a nail in them and he broke them, that he is obligated to pay everything the vessel was worth before he spoiled it; but even if he gave a carpenter wood to make from them a chest, a box, or a cabinet, and they were broken after they were made, he pays him the value of a chest, box, or cabinet according to their value before the breakage, with the deduction of the value of his labor. This is because we establish that a craftsman does not acquire through the improvement of the vessel. And its explanation is that when the craftsman makes a vessel from the wood of the homeowner, we do not say that the improvement by which the vessel was improved belongs to the craftsman and that he has a portion in the body of the vessel until he is paid his wage—which would be like an acquisition in a collateral not at the time of the loan—rather, the improvement belongs to the homeowner since it was made from his wood, and to the craftsman reaches only wages. And if so, he has spoiled the vessel of his fellow and is obligated to pay. And so ruled the Rif and the Rambam in the tenth chapter of Hiring, and so ruled our teachers, the authors of the Shulchan Aruch. And although in Even HaEzer siman 28 they wrote two opinions on this, this is because of the stringency of a married woman [Bach]. And in Yoreh Deah siman 121, where it appears they are in doubt regarding this law, there is another reason there, and it is explained there in the Tur, and so it appears from what will be explained in siman 339. However, there is one who wrote that it is a legal doubt, for from the Yerushalmi Bava Kamma chapter 9 [halacha 4] it appears explicitly that a craftsman acquires through the improvement of the vessel [Shach]. However, there is one who says that even according to the one who holds a craftsman acquires through the improvement of the vessel, it is only regarding a contractor and not a day laborer [Ma'aneh Mi-Yitzchak]. And it is a logical reason, for a day laborer's eye and heart are only upon his daily wage and not upon the completion of the vessel [and what the Shach wrote, why the Gemara there did not establish it so, is not a difficulty at all, for there it is explicit "make for me bracelets and earrings," behold he hired him for the making of the vessel, and a standard craftsman is through contracting as I wrote; and what the Rashba wrote in Bava Kamma 98b, that he acquires through the improvement only regarding spoiling, requires great study from that case of "make for me bracelets," and in siman 339 it will be further explained].

The builder who took upon himself to demolish the wall and broke the stones or damaged them is liable to pay, for he should have been careful in his work. We do not say that since he was hired to demolish, his work is only the demolition, for it is not so; for certainly the intention of the owners is that he protect their good stones so that they do not break. And if he was demolishing the wall from this side and it fell from another side and the stones broke, he is exempt, for this is nothing more than a mere indirect cause. But if on account of the blow that he struck with strength it fell from another side, he is liable, for it is like one who shoots an arrow and damages directly; and specifically if he struck more than is appropriate, but if he struck in the manner of the craftsmen, he is exempt. And it will be explained in siman 384.

If one gave wool to a dyer and the cauldron scorched it—meaning he boiled it excessively and the wool was burnt and ruined—he must give him the value of his wool. This is specifically if it was ruined immediately, before the dye fell into it and improved it. But if it was ruined after the dye fell into it and improved it, he gives him the value of his wool and its improvement, provided the craftsman does not acquire the improvement of the vessel. According to what I wrote, that this is a legal doubt, one does not extract the improvement from him. And if he dyed the wool, but dyed it poorly from the dregs at the bottom of the cauldron, or if they gave it to him to dye red and he dyed it black, or black and he dyed it red, or if one gave wood to a carpenter to make a fine chair from them and he made a poor chair or made a bench, the sages of blessed memory said [Bava Kamma 100b] that if the improvement is greater than the expenditure, the owner of the vessel gives him the expenditure; and if the expenditure is greater than the improvement, he gives him only the improvement. The Rishonim disagreed as to its interpretation. Some say it is like one who descends into the field of his fellow without permission, as will be explained in siman 375. For example, if the wool is worth ten dinars and the dyer spent ten dinars on dyes and other expenditures: if the wool is now worth more than twenty dinars, such that the improvement by which the wool was improved is greater than the expenditure the dyer spent, he gives him the expenditure of the ten dinars he spent. And if it is now worth only eighteen dinars, he has only expenditure to the measure of the improvement, which is eight dinars, and his labor is not appraised for him at all since he acted without permission. However, one does not appraise within the principal what the wool would have been worth had he done as the owners commanded him. According to this, if the dyes and all expenditures belonged to the owners, there is an appraisal here only on one side, which is that the dyer takes nothing at all; and only when it is worth less than what the householder spent on the wool, the dyes, and the expenditures, must the dyer pay him the deficit.

And some say that even what it would have been worth had he performed according to the command of the owners is also calculated in the principal. For example, if the wool costs ten gold pieces and the dyes and expenses ten, and if he had dyed as he was commanded it would have been worth another five gold pieces and would have amounted in total to twenty-five gold pieces—this is the principal which is called "expenditure." And if now the enhancement is greater, such as if it is now worth twenty-six, he takes a zuz. And if it is only worth twenty-five, he takes nothing. And if it is worth less than twenty-five, if he provided the expenditures, he only takes from his expenditures according to the calculation that will leave the owners with twenty-five. And if the owners provided the expenditures, the dyer must return to them up to this amount. And that which the sages, of blessed memory, said—that when the expenditure is greater he gives him the enhancement—is because usually the dyer provides the expenditures. And even though regarding one who descends [to a field] without permission we do not calculate thus, this is because he did not command him at all; but here, he indeed commanded him, but he deviated from his command. Therefore, we calculate in the principal according to what he commanded [this is the intent of the Tosafot in Bava Kamma ibid.]. However, in a case where he dyed it poorly, you do not find the enhancement greater than the expenditure in such a manner, for it is impossible that through damage it would be worth more [ibid.]. And expenditures that the dyer spent on laborers are calculated in the principal, and he must return them to him if there remains a value of twenty-five; and if it is worth less than this, he deducts for him according to the loss [Haggahot Ashri ibid.]. And there is one of our teachers who holds that we calculate in the expenditure also the wage of the dyer like a day laborer, so that if there is more in the enhancement, he takes like a day laborer [Rashi, Avodah Zarah 7a]. And so it is regarding one who descends without permission [Shach]. And reason dictates thus, for although we do not give him according to what was agreed with him, nevertheless he is no worse than any other laborer. And there is one who rules thus as the law [ibid.].

This law that has been explained is from the enactment of the sages and not from the strict law in all matters, such as one who gave [wool] to dye red and he dyed it black or vice versa, and similarly one who gave wood to make a chair and he made a bench, for by the strict law he acquired them through change, just as one who stole wood and made them into vessels, where he pays according to the value at the time of the theft; so too here, he should only have had to pay the value of the wool or the wood alone. However, since he did not intend to steal, the sages made this enactment so that there would not be great loss to both of them. Therefore, it is not in the power of either of them to change [this]; for example, if the homeowner says, "I do not want this enactment, but rather let him give me the value of the wool and the wood," we do not listen to him if the artisan does not agree to this, for perhaps it is difficult for the artisan to give the money. And certainly if the artisan says, "Here is the value of your wool and your wood," we do not listen to him when the homeowner does not agree to this. And even though even if he did not acquire it through change, he would nevertheless acquire it through the improvement of the vessel he made according to the one who holds that an artisan acquires through the improvement of the vessel, and he would only pay according to the value before the improvement—however, it has already been explained that an artisan does not acquire through the improvement of the vessel. And even according to the one who holds that he does acquire, since it is an enactment of the sages, it follows that just as they enacted regarding change, so too they enacted regarding the improvement of the vessel [for if not so, according to this opinion the law would change, and it does not imply thus; and the Rambam wrote this for the sake of clarity, and as I wrote in this section, so it is proven from the Rambam and the Bartenura in the Mishnayot; and that which the Shach wrote that from Bava Kamma 102 it implies that by the strict law it is so, requires great study, and he unnecessarily criticized the Maharshal, and so it appears from the Gra in subsection 8, and also the words of Tosafot there on 7a can be said thus; and delve into this].

One who brings wheat to be ground and the miller ruined it during grinding, such as by not moistening them properly and the flour came out poor like bran or coarse meal, or it was supposed to be fine flour and it came out as regular flour and the like; and similarly, one who gave flour to a baker and he ruined it during baking, such as by making it "fallen bread" which breaks when one holds it and the like; and similarly, one who gave an animal to a shochet to slaughter it and it became nevelah during the slaughter: if they acted for a wage, they are liable to pay their value, and if they acted for free, if they were experts in this business, they are exempt from paying, and if they were not experts, they are liable to pay. And the reason is that when he is not an expert, he is negligent, for he should not have undertaken work in which he is not an expert, and for negligence even a shomer chinam is liable. However, when he is an expert, he is not negligent; nevertheless, it is also impossible to compare it to an accident, for if he had supervised well, this would not have occurred, and it is similar to theft which is close to an accident, for which a shomer sachar is liable and a shomer chinam is exempt. And if it is not known whether he is an expert or not, it is upon him to bring proof that he is an expert, and if he did not bring proof, he shall pay. And even though the majority of those found near slaughtering are experts, nevertheless, since he ruined it, he has departed from the rule of the majority. And a shochet who is an expert for chickens, even if he is not an expert for other species, nevertheless for chickens his law is like an expert [as is evident in Bava Kamma 99b]. And it appears to me that what the Sages, of blessed memory, said, "and did not moisten them," means that he did not moisten them properly, for if he did not moisten them at all, you have no greater negligent person than this.

It appears to me that the same applies to all crafts when they did not deviate from the owner's intent and performed the work, but rather caused damage, such as one who gave a carpenter a chest, a box, or a cabinet to repair and it broke, or a builder who accepted a contract to demolish a wall and the stones broke; if they act for free and bring proof that they are experts in this, they are exempt from paying. However, in the case of "dyed it poorly" or "red and he dyed it black," which constitutes a deviation and damage from the original intent, there is no distinction. And regarding "it scorched in the cauldron," if he did not supervise at the time it stood over the fire, he is negligent; but if he supervised, only that for some reason it scorched in the cauldron, if he is an expert and acts for free, he is exempt. And so it is in all crafts in similar cases.

There is no distinction regarding payment between a large payment or a small one, even a perutah's worth. Moreover, even the slaughterers who take the rectums from the kosher animals alone is considered payment, and if they rendered the animal nevelah, they are obligated to pay even though they do not take payment for this one; for since if it had not become treifah he would have taken this as his payment [Sma]. According to this, regarding chickens he would be exempt when he does not take payment for them. However, there is another reason: that the payment he takes from the kosher ones is his payment also for the treifot and for the chickens, and according to this, he is also obligated regarding chickens [Shach]. And so too in other labors similar to this. And know that a blessing is not considered payment; and even though in the Gemara they said [Chullin 87a] that a blessing is worth ten gold coins, nevertheless it is not payment, for payment is only a monetary matter [Ktzot HaChoshen]. And the proof is from a guardian of a lost object, for even though he is performing a mitzvah, nevertheless he is not a shomer sachar; and even according to the one who holds that he is a shomer sachar, this is because he is exempt from giving tzedakah at the time he is occupied with it, as is written in siman 267, section 17.

In what case are these words said? When it was certainly rendered a nevelah. But if he performed a terefah upon it that invalidates it due to doubt, such as if he paused during the minority of the simanim, and similarly other terefot of slaughtering during the minority of the simanim, he is exempt. And similarly, if he found the knife notched, having checked it before the slaughtering, and it is possible to say that it was notched by the neck bone after the slaughtering—even though we are stringent regarding the prohibition, as is written in Yoreh Deah siman 18—nevertheless, regarding monetary matters we do not extract money based on doubt. And even though regarding blemishes we say it is a mistaken purchase even in a case of doubt, as is written in siman 232, for there, since people distance themselves even from a doubt, there is no greater blemish than this and it is a mistaken purchase; this is not the case when one comes to extract money because he damaged it, for he can say, "Bring proof that I caused you a loss" [Shach]. And even though the practice there is to forbid it, nevertheless, he is exempt from payment. And our teacher, the Rema, ruled accordingly. Nevertheless, he has lost his wage, for perhaps he slaughtered with a notched knife; just as the owner cannot extract the loss from him, so too he cannot extract his wage from the owner. And one of the great later authorities wrote that this is specifically regarding a stringency that has not spread throughout the entire province, where some are lenient and some are stringent; but in a matter where there is no one who is lenient, such as it was in the first minority and the last minority, he must pay, for this is like a certain terefah, and so appears to be the primary view [ibid.]. And a shochet who removed a sircha, and his intention was to remove it and render it kosher according to the custom, and he ruined it during its removal and it was rendered a terefah afterwards, he does not need to pay, since his intention was for the good [Netivot HaMishpat].

And not only for an actual physical action is one liable, but even for mere speech sometimes, such as one who shows a coin to a shulchani to know if it is good and to accept it or not, and he said to him "it is good" and it was found to be bad or forged; if he gave him payment for his inspection, he is liable to pay even though he is an expert and does not need to apprentice under others in coin expertise. And if he inspected it for free, he is exempt if he is an expert who does not need to apprentice; but if he is not an expert, he is liable to pay. And this is provided that he says to the shulchani, "I am relying on you," or if the circumstances showed that he was relying entirely only on his inspection. Without this, we cannot obligate the shulchani, because he can say, "I did not know that you would rely on me alone and not ask others as well, and therefore I did not scrutinize it very thoroughly." And some say that even in an unspecified case he is also liable, for anyone who shows a coin to a shulchani presumably relies on him entirely. Our teacher, the Rema, wrote that the first opinion appears primary. And for payment, he is liable even if he did not say "I am relying on you" [Netivot HaMishpat], for since he takes payment, it is certain that he relies on him entirely. And this liability is from the laws of garmi, which will be explained in siman 386, and for payment, his liability is like a shomer sachar.

And the same applies if Reuven asked Shimon if Levi is wealthy and reliable to lend him money, and he said to him that he is wealthy and reliable, and he lent to him based on his word—if he said to him, "I am relying on you," or if the matter proves as such, that he is relying on him, and afterwards it was found that he was not then wealthy and reliable, he is liable to pay him according to the law of a guarantor, as is written in siman 129. And if he did not say to him, "I am relying on you," and the matter did not prove that he was relying on him, he is exempt [Shach]. And similarly, if one comes to take merchandise on credit from a merchant, and the merchant asked someone if he can extend credit to this person, the law is also thus [ibid.]. And it appears to me that this is specifically when he asked him not in his presence; but if he asked in his presence, one should not hold him liable, for it is known that in his presence he was not able to say that he is not reliable, and one should not hold him liable except in a case of a complete guarantee. And even if only the borrower knows that he asked him, it appears to me that one should not hold him liable, and the lender and the merchant should not have relied on him. And assessors who appraised items for a creditor and they accepted based on their appraisal, and afterwards it was found that they erred, this is not similar to these laws, and their law is like a beit din that erred, who are exempt, as is written in siman 25 [Netivot HaMishpat]. And this is specifically when he or the beit din requested them to appraise; but if they came of their own accord and said they would appraise, and he is able to rely on them and they erred, they are liable to pay according to the laws of garmi, and they do not have the law of a beit din [it appears to me]. And similarly, if they appraised for a fee, it appears to me that they are liable in every case, for their law is like a paid bailee.

Our teacher, the Rema, wrote: One who gives money to his fellow to write a Sefer Torah for him and mistakes were found in it, and he must hire another to gloss it—if they are mistakes that scribes are accustomed to making, the scribe is not liable for anything. However, if he erred so much that it is not the custom to err, he is liable. Nevertheless, we follow the custom; if the custom of the place is that the writers of books gloss them themselves, even this one must gloss it. And in ordinary places where it is not upon the scribe to gloss, if he arose and glossed it on his own, the owners are obligated to pay him. Thus far his words. For he is like one who descends into the field of his fellow without permission, which was explained in siman 375. And specifically when his desire is to rely upon his glossing, but if his desire is not to rely upon him and he gives it to another glossator, he does not need to pay him [it appears to me].

[Bava Metzia 109a] Our sages, of blessed memory, said that one who is appointed over the city for one of the crafts and caused damage, we remove him without warning. For example, one who plants trees for the people of the city and caused a loss in their planting; and similarly, a shochet of the city people who rendered many animals treif in his slaughtering; and a bloodletter who injured several people; and a city scribe who writes documents who erred and the parties suffered a loss through him, whether a scribe in the holy tongue or a scribe in foreign tongues [it appears to me]; and a teacher of children who was negligent and did not teach even one full day [Sma] or taught them with errors; and all similar cases among the craftsmen where it is impossible for them to return the loss they caused, we remove them without warning, for they are like those who are perpetually warned to be diligent in their craft since the public appointed them over it. And even when they work for free, we remove them so that they shall work neither for free nor for pay [Sma]. And even when they work for pay and in a matter where it is relevant that they pay restitution, such as with a butcher, nevertheless we remove them, for behold, they need the meat and of what use is the payment? And so too in all similar cases [ibid.]. And there are those who say that this is not specifically for the public; even if he was appointed for an individual, he may remove them before the time. And it appears to me that regarding one appointed for an individual, his power is not so great that he may remove them so that they shall no longer work for others, and even though from the wording of the Tur it implies they are equal, this is regarding the removal. And all this is when it is their way to cause loss frequently, but for a random loss we do not remove them, and at the very least they must be established through three times or that they warn them [Nimukei Yosef ibid.].

An incident occurred regarding Reuven who gave spun yarn to Shimon to weave a garment for him, and he claimed against him: "You swapped my good yarn for bad." Shimon admitted that it was swapped for him, but said that it was done without his knowledge, and he said to Reuven: "Swear how much the damage is and I will pay you." Reuven claimed: "I do not know how much it is; you swear how much and pay me." Shimon also said that he does not know. The Rosh, of blessed memory, ruled [Responsa, Klal 104] that Shimon is obligated to swear and is unable to swear, and he pays according to the assessment of the appraisers. And even though this law applies only to a certain claim, as is written in siman 75, nevertheless, this is like a certain claim, for behold, he certainly claims that there is damage, and this one admits it to him but does not know how much; and perforce he must pay according to the assessment of the appraisers [and the difficulty of the Ketzot HaChoshen is answered].