Why One Shomer Cannot Entrust an Item to Another

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by R. Gidon Rothstein

14 Cheshvan: R. Uzziel on Why One Shomer Cannot Entrust an Item to Another

The backbone of responsa, I perhaps don’t say often enough, is halachic process, getting at the nuts and bolts of concept. From time to time, it seems worth our while to tackle responsa about those kinds of issues, even when they do not directly translate into a practical question. [It’s, le-havdil, like the difference between basic and applied science research].

An Older Scholar Responds to a Younger One

Shu”t Mishpetei Uzziel 4; Choshen Mishpat 45, dated 14 Cheshvan 5693 (1932), addresses a very young Tzitz Eliezer (R. Waldenberg was born in late 1915, so he’s almost seventeen at this point). He addresses him as “rav nichbad ve-yakar, honored and dear rabbi,” a reminder of how impressive R. Waldenberg was from his very youth (or, possibly, R. Uzziel did not yet know R. Waldenberg, since he was Chief Rabbi of Tel Aviv and R. Waldenberg lived in Yerushalayim, but the closing good wishes—that R. Waldenberg study well and his fountains spread widely– indicate that he knew he was addressing a talented but very young scholar).

R. Uzziel apologizes for the three weeks it’s taken him to respond, citing his work load and his own set learning.  Maybe it’s just me, but it catches my attention that the 52-year-old R. Uzziel, an accomplished Torah scholar, still has a regular course of study he will not put aside in order to study other Torah. First comes his fixed learning, then this other interesting material.

R. Waldenberg had wondered why Rashi (Baba Metzia 36) would hold that a shomer she-masar le-shomer, someone watching an item for its owner who gave it to a third party to watch, isn’t then more liable. If a shomer chinnam, someone watching without pay, gives it someone else to watch, that first shomer will not have to compensate the owner for damage or loss as long as it didn’t happen through peshi’ah, negligence, just as if he watched it himself.  Shouldn’t his having varied from the understanding with the owner make him more liable?

The young R. Waldenberg argued that the shomer becomes the owner of the item (for purposes of liability) while it’s in his care, so that he can do what he wants with it, as long as he lives up to his original level of responsibility. He then showed how that perspective could affect other topics, but our interest is R. Uzziel’s response and disagreement.

Reasonable Care

There’s a simpler way to read the sources, he says, that the watchperson is acting within his/her rights as long as s/he gives it to a competent adult, legally responsible for an equal or higher level of care. We may trust that people will live up to their commitments, R. Uzziel is saying, so that absent obvious reason this third party is unqualified, it should be no harm, no foul.

That’s not true if the second shomer is obligated only at a lower level. In that case, the owner could justifiably complain that s/he did not mean to entrust it to such a shomer. Once that’s true, even if what happened was beyond the level of responsibility of the first shomer, the owner can still demand payment.

For example, if the first shomer was supposed to ensure the item wasn’t stolen or lost (because s/he was paid) and gave it to a shomer who watches it for free, and is therefore liable only for negligence, the owner could demand payment even if what happened to the item was beyond anyone’s control. That’s because the shomer gave it to someone to whom the owner could rightfully object, and therefore became liable for anything that happened to it.

 (This seems to say that a shomer with a lower level of responsibility watches the item less carefully generally, such that the owner can object. Otherwise, it’s not clear why giving it to the second shomer creates any extra liability.)

In some cases, the Gemara says the owner must collect from the second shomer. For R. Uzziel, that’s where that second shomer undertook equal or higher responsibility but then did not fulfill those responsibilities. Since the first shomer acted within his/her rights, the owner must go directly to the person who did not live up to what s/he had contracted to do.

Where the first shomer violated his/her commitment, by giving the item to someone with less responsibility (a borrower paid someone to watch it, for instance), damage is the first shomer’s problem. If it’s damage for which the second shomer is also liable, the first one can collect from that second one, but the owner deals with the first one. As far as the owner is concerned, the shomer mishandled his/her responsibility, so that shomer can be held responsible.

Or the Shomer Was Never Allowed To

That way of looking at it makes why R. Yochanan would hold that the first shomer is always liable, even if the second shomer agreed to a higher level of responsibility shomer (e.g., a shomer chinnam paid someone else to watch it). It’s because R. Yochanan disputes the basic idea that a shomer may entrust an item to another responsible adult; in his view, the owner trusted this personand/or felt comfortable that s/he would be able to collect from him/her if something went wrongThe owner never accepted the shift of address for getting his/her item back.

Rambam rules that way (Laws of Monetary Damages 4;11), phrasing it as that the owner can say to the first shomer, pay me, and go collect from the person to whom you entrusted the item. Rambam then adds that if the shomer gave the item to someone the owner would or should have expected, such as his/her son, the owner in fact must deal with the second shomer. If it was clear at the outset that this second shomer might be involved, the owner must deal with him/her.

R. Uzziel Rejects a View of Rishonim

Ra’avad, Tur, and Beit Yosef (Choshen Mishpat 396) suggested that the owner could collect from whichever of the two s/he chose to, a view R. Uzziel finds to be without source and illogical. If the shomer had the right to give this item to someone else, the owner should have to turn to the second shomer, and if the shomer did not have that right, the first shomer should have to be the address for the owner’s collections (and the second shomer should be able to rebuff the owner’s standing to sue him).

For that reason, R. Uzziel says we should follow Rambam. (Note that he is taking a position on a dispute among rishonim based only on his preference for the logic behind that view; I think that’s rare for rabbis of R. Uzziel’s time—by then, I think the general custom was to refuse to choose between rishonim, out of respect for those earlier scholars. It’s a mark of R. Uzziel’s independent-mindedness that he feels comfortable thinking and writing this way].

Even in the Case of Shemirah Be-Ba’alim

When R. Uzziel reads Rambam as focused on the shomer’s misdeed in giving the item to a second person, he can then explain an otherwise puzzling ruling. In Laws of Renting 1;4, Rambam obligated that first shomer even in a case of shemirah be-ba’alimShemirah be-ba’alim is an odd rule the Torah institutes, that where the owner of an item was him/herself rented or loaned out to the shomer, the shomer will never be liable for damage to the item. For instance, were the owner of a company to borrow an item from an employee, that would be shemirah be-ba’alim; since the employee is rented out to the owner.

That’s enough of a summary for our purposes, since Rambam says that exemption will not work if the shomer (in the example I gave, the employer) entrusts that item to someone else (again, even at a higher level of responsibility).  Why should that be? However shemirah be-ba’alim works, why does the shomer lose that exemption if s/he pays someone to watch it?

Kessef Mishneh suggested that giving it to a second shomer is an act of mazik be-yadayim, damaging the item oneself (there are actions so likely to lead to damage, they are tantamount to damaging it yourself. Many have argued that that’s how Rambam saw peshi’ah, negligence). R. Uzziel is dissatisfied with that view, and instead says that it’s because the first shomer did not have the right to give it to that second shomer, so that whatever evidence that second shomer will offer as to what happened is not evidence the owner is required to accept, leaving the first shomer with no way to exempt him/herself (even though the standards for obligating a shomer  be-ba’alim are so high).

Ways for a Shomer To Entrust the Item to Someone Else

The two ways a shomer can avoid that situation, for R. Uzziel, are if s/he gives the item to someone the owner him/herself frequently relies on as a shomer, and does so at a level of responsibility equal to or greater than the first shomer’s own. In those cases, the owner cannot reject the trustworthiness.

Otherwise, the first shomer is still the person to whom the owner turns, and need not accept the second shomer’s information or oath-backed assurances that the first should not be liable.

When the Watched Item Causes Damage

One more instance where R. Waldenberg had seen evidence the shomer becomes the owner in many senses was where the watched item (e.g, an ox) caused damage. Since the phrase used is that shomer nichnas bimkom ha-be’alim, which most literally means the shomer takes the place of the owner, R. Waldenberg had suggested that was what was happening.

R. Uzziel sticks to his guns, and says it means the shomer agreed to be responsible in this way. That makes the shomer the litigant of first and last resort for the owner; since the shomer wasn’t negligent, though, s/he can turn to the second shomer for compensation.

This answers several side questions R. Uzziel elaborates, but we’ll leave the discussion here. For all that he disagreed with just about the entire claim, he closes by saying he had written to accede to R. Waldenberg’s request that he respond. Because Torah scholars care about their ideas being engaged and addressed, finding where they have or haven’t reached their goal, the truth of Torah. 

About Gidon Rothstein

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