by R. Gidon Rothstein
4 Nisan: R. Moshe Feinstein on What Constitutes Proper Care For Others’ Items
Watching other people’s property brings various levels of responsibilities, and the standard of care is sometimes whatever the person could be expected to anticipate. In Iggerot Moshe, Choshen Mishpat 1;69, dated the fourth of Nisan 5722 (1962), R. Moshe Feinstein explained how that works. His case was of a shochet, a ritual slaughterer, who let a bird escape from a coop (or cote or ark—a place where one holds birds) when retrieving one for slaughter. Was he liable?
There’s no definitive answer, R. Feinstein says at the outset, since it depends on what was reasonably expectable. If there was good reason to think birds would escape (say, e.g., the birds crowd the door every time he opens it), then it’s negligence, and he’s liable even if we consider him a shomer chinam, someone who is watching others’ property without being paid.
That’s banal, but R. Feinstein’s next line is not. He says that, at first glance, even if the man has acted exactly this way many times before, that itself is not sufficient to make clear he wasn’t being negligent. That a person can be negligent without consequences a thousand times doesn’t mean that’s not negligence.
We might have thought that ordinary conduct that doesn’t produce negative outcomes is, by definition, not negligent, but R. Feinstein is denying that (an example that comes to mind is reckless or drunk driving; there are people who drive that way for months or years without an accident. That doesn’t show that that driving isn’t negligent or reckless).
The relevant standard, R. Feinstein says, is whether he opened the door enough that a bird could push its way out. If so, he sbould have been watching to make sure that none did.
Maybe It’s Not Negligence
Then he suggests that that might overstate the case. Perhaps regular conduct that usually does not go wrong might be defined in halachah as more like genevah ve-avedah, theft and loss, rather than negligence. Those are negative events that are likely enough to happen that many types of shomrim (people watching items for others) are required to be on guard for them, but a shomer chinam, someone watching for free, only has to have taken the expected care to avoid them (if he puts the item in a locked box, for example, he’s not liable even if it then gets stolen; he’s not allowed to ignore the possibility, but reasonable care exempts him from liability).
Support for this view comes from Baba Metzia 93, where a man is held liable for crossing camels over a bridge two by two, since he should have known to lead them singly. Many authorities, including Shulchan Aruch, saw that as similar to theft and loss, not negligence. To R. Feinstein, that’s because he likely had done this before without bad outcomes; that doesn’t mean it’s fine, but it makes it less culpable than negligence.
Nimmukei Yosef’s Counterargument
Nimmukei Yosef argued that the man crossing the camels over the bridge was negligent (in his view, as suggested earlier, the fact that negligence doesn’t lead to disaster doesn’t redefine it as not negligent), just that the agreement to have someone watch your property includes an implicit condition that the shomer only commits to common standards (so that if people generally act negligently, the shomer still has the right to be negligent in that way. If everyone in a small town leaves their doors unlocked, in this line of reasoning, that’s still negligent in terms of theft, but the shomer would be allowed to assume that that’s all s/he committed to doing). R. Feinstein reads Rambam and Shulchan Aruch, too, as having read that case as an example of nezikin, of the watcher having actively damaged the animal in question, so that it wasn’t a problem of shemirah, of watching, but of hezek, damage.
For Nimmukei Yosef, when the ritual slaughterer opens the door, his negligence regarding the other birds’ escape can’t be excused by saying he never agreed to watch it that way, since the negligence itself is as if he had actively damaged the owner.
R. Feinstein’s uncomfortable with that, because it implies that if the shomer clearly had accepted an obligation to watch something—I’m leaving out the technicalities of how and when that might happen, and when it’s considered a shomer chinam or sachar, that he’s paid to watch the item—we’d have a more complicated discussion about the level of care the two assumed he was undertaking.
Our Slaughterer as a Mazik
Coming back to our case, the slaughterer’s lack of care could be seen as the kind of negligence that constitutes hezek, damaging another’s property. The possibility of a bird getting out, even if he’s done this many times with no problem, and no one else he knows would take that kind of care, is still real enough that his failure is negligent and damaging (I think this is the element of the discussion that drew me to this responsum—the reminder that just because everyone does it, and without anything going wrong, doesn’t make it non-negligent).
Nor can R. Feinstein imagine that there was an implicit condition to free him of liability, since any conditions between the owner and the slaughterer would have addressed only the bird he was slated to slaughter—he’s not really a shomeron the other birds, since they’re not his concern.
R. Feinstein sees this as parallel to another iteration of the case of the man leading animals, in which he led them past someone else’s field, and damage was caused to that field.
Since that person’s an outsider to whatever agreement existed between the watcher and the owner, the watcher is obviously liable (reasonable standards of care are irrelevant, since he wasn’t party to any conditions or assumptions between these two). That’s true if the damaged property was owned by someone else, and it seems to also be true for any separate property of that owner’s (if I’m leading the animals by someone else’s property and would be liable, there doesn’t seem to be much difference if that property happens to belong to the animals’ owner, since there’s no connection between the animals and the property).
Here, too, the bird that escaped wasn’t a part of their agreement, and seems to therefore be the responsibility of the slaughterer (I could imagine reading this whole issue differently; I could imagine a posek who would say that since opening the gate was necessary to get that bird, the slaughterer inherently became a shomer for the others).
Wiping Out the Whole Group
Where the slaughterer was supposed to be killing all the birds, the situation changes. There, the standard would seem to be what people tend to do, since he never agreed to put in the extra effort to avert that possibility. Except that if he’s getting paid to slaughter all of them, he might qualify as a shomer sachar, a paid watchman.
That’s true, R. Feinstein held, even if he would get the same salary were the owner to bring him the birds himself (so he’s not being paid to retrieve the birds, which would seem to make him an unpaid watchman for that part of the process). The pay turns him into a shomer sachar, obligated in the higher level of care (liable even for ones, for situations out of his control).
R. Feinstein raises one last possibility to exempt him. Perhaps craftsmen entrusted with others’ property aren’t fullyshomrei sachar; perhaps they’re only considered paid watchmen in terms of the usual standards. Care beyond that—which we require of a traditional paid watchman—is perhaps not what the halachah meant.
Caution in the Face of Lack of Precedent
Logical as that is, he hasn’t seen prior authorities who offer such a distinction, and therefore feels he has to refrain from saying it himself. [This, to me, is an odd comment, because I’ve seen him make plenty of daring claims based on his own logic, without stepping back as he does here; my guess is that in those situations, he became convinced he was offering the only plausible reading of an earlier source so that, to him, he wasn’t saying a new idea purely as a function of his own logic. Here, he felt he was.
That’s a large and important topic within the realm of deciding halachah—how do decisors envision what they’re doing in a particular moment, and how does that affect their decision to go out on a limb or not? For another time].
Sum total, this slaughterer seems to be on the hook. If he was reaching for one bird, any others were ancillary to his job, and he was negligent (and therefore seen as actively damaging them). If all the birds were headed for his knife, he still seems to be liable because he’s a shomer sachar, a paid watchman, and therefore liable even if the damage occurred for reasons outside his control, let alone that he could have averted had he only paid sufficient attention.
A reminder that reasonable care isn’t always enough.