by R. Gidon Rothstein
Ya’akov spends enough of Parshat VaYetzei watching Lavan’s flocks to spur She’iltot to discuss shomrim, the laws of who is responsible when matters go wrong while one Jew is in charge of another’s property. In Rambam’s presentation, we find two immediate surprises: he divides shomrim into three separate mitzvot ‘aseh, and batei din, courts, are the ones implicated in those mitzvot.
[My point is: there is no clear Torah mitzvah for a person watching another’s items to take care of them properly, other than an extension of returning lost property. The mitzvah here is for courts to adjudicate matters when shomrim issues arise.]
Rambam’s Court Focus
In Obligation 342, Rambam says the mitzvah is the set of rules the Torah taught regarding a shomer hinam, a person who takes care of an item as a favor, receiving no compensation (the verses are Shemot 22;6-8). Minhat Hinuch 57 reminds us “items” for these purposes include only davar ha-mitaltel ve-gufo mamon, movable property with inherent value (as opposed to immovable land and/or deeds/checks, whose value depends on the amount of money committed to in them).
The next mitzvah in his list says much the same for both a nosei sachar, someone paid for caring for the object, and a socher, a renter, based on 22;9-12. [The Torah does not discuss the socher directly, the Gemara works out, after some deductive and inferential effort, to which of the three named shomrim a socher is most similar.]
Rounding out the possibilities, Obligation 344 records 22;13-14’s ideas, the requirement to implement the rules for a sho’el, a borrower.
Especially because Rambam understands these to be rules for a court, I could have imagined rolling them into one, courts are to judge caretakers, each according to his particular rules (Rambam does this elsewhere as well, such as with laws of ritual purity). The way he presents it seems to emphasize the importance of attending to the details of agreements when one party is in temporary possession of another’s property, to be sure no one is dealt with unjustly.
The Reason and Basic Laws
For each of these three, Sefer Ha-Hinuch (who counts them as nos. 57-60; he inserted the laws of claims people make against each other as no. 58), says the reason is known (meaning obvious, so he need not say it), a surprise to me, who can think of various options. I assume he intended some version of the importance of safeguarding the justice in people’s regular financial interactions, shomrim on a continuum with theft, paying wages on time, and so on.
The laws he gives as examples support the idea. Instead of discussing the many ways a shomer hinam is exempt from payment, such as where the item was lost or destroyed through no fault of his/hers, Sefer Ha-Hinuch only speaks of versions of to’en ta’anat ganav or avdah, where the shomer falsely claims it was stolen or lost, affirming the claim with an oath s/he might make multiple times, or regarding the property of a minor.
Minhat Hinuch points out Rambam included this idea among the laws of genevah, theft, suggesting he considered the shomer hinam who makes this false claim a kind of thief. The shomer only becomes so, however, if s/he swore in court the item was lost or stolen.
Minhat Hinuch also slips in what Sefer Ha-Hinuch largely ignored, shelihut yad, where the shomer takes the item for his/her personal use (Sefer Ha-Hinuch may have thought that counted more like pure theft). From the moment of the shomer commtting an act of acquisition (lifting it, pulling it to oneself), s/he becomes liable for whatever happens.
Making clear what Rambam did not quite, Sefer Ha-Hinuch says the beit din that does not judge these laws has neglected an aseh. It is their mandatory role to be ensuring those who watch others’ property do so correctly, and the correct results ensue when matters go awry.
Shomer Sachar (Socher, too)
For the renter or hired caretaker, Sefer Ha-Hinuch’s basic definition of the mitzvah envisions conflict. Before we get there, Minhat Hinuch points out the payment (from the renter, the socher, to the owner or the owner to the hired caretaker, the shomer sachar) can happen at the beginning or end, must be more than a perutah, and includes any benefit reaped by the shomer. Any craftsperson, such as a tailor, is considered a shomer sachar, for example, because s/he will eventually be paid for the work.
Where for the shomer hinam, Sefer Ha-Hinuch said the mitzvah was to judge the rules, here he says the mitzvah arises where the owner and shomer are in a dispute, the courts told to step in and judge the matter. Apparently, where no money was involved, disagreement happened less, unless the shomer claims the item has been destroyed. Money brings fights.
Here, he includes laws such as the requirement for the shomer to take an oath if the item was lost/destroyed be-ones, unavoidably. The shomer must pay for theft or loss (because there is always some negligence in those situations, he says, as well as their having been paid to watch the item. This last idea does not apply to a renter, the reason the Gemara takes more time to figure out his/her level of responsibility).
These are in contrast to the shomer hinam, who is only liable for negligence (a detail he did not mention in the discussion of shomer hinam him/herself!). Minhat Hinuch tells us the shomer’s liability for negligence continues even his/her negligence wasn’t the reason for the loss, as long as it contributed to it.
Ancillary Rules of Hired Caregiving, Taking Us Back to a Shomer Hinam
Other topics Sefer Ha-Hinuch mentions: where a shomer messes up the job s/he was paid to do (misevaluates money, ruins material brought to be sewed into a suit, etc.); the strange exemption of sechirut (or she’elah, borrowing) be-ba’alim, where the person renting an item has also hired the owner and therefore becomes exempt for whatever happens to the item (even more surprising regarding a sho’el, who is otherwise liable in all instances); when one caretaker transfers the item to another, with the second one at either a higher or lower level of responsibility.
And more, but that gives a basic idea. For who is obligated by the mitzvah, here Sefer Ha-Hinuch says whoever is qualified and fails to judge such cases has neglected the commandment. More, he notes there are separate mitzvot regarding shomrim despite there already being a mitzvah (the previous one in the Sefer Ha-Hinuch) to judge claims made by one Jew against the other, because shomrim concerns arise more commonly, wherever people live.
Another idea he could have said regarding shomer hinam but did not. Suggesting he saw a qualitative difference, shomer hinam going wrong only when the shomer makes a move toward stealing, a matter for the courts. With renters or caretakers, the money makes room for many other versions of conflict, implicating all qualified regardless of official position, because this is going to bedevil a society more often and more commonly than problems with shomer hinam or even with claims of other sorts.
Sho’el—The Centrality of Shemirah Be-Be’alim, Borrowing Owner with Item
Sefer Ha-Hinuch defines a sho’el as we might expect, what it is, why s/he is liable even for losses beyond anyone’s control, because the shomer has taken responsibility for it, has not given anything for the favor of having it, making it like a loan, which a borrower must repay regardless of fault in its loss.
Then he suggests the exemption of she’elah be-be’alim, if the owner was hired (or loaned) to the borrower at the time of the borrowing, is because the owner could have watched it. He recognizes a weakness in his idea, that the borrower need not repay the item even if it is lost after the owner left (the borrower hired a driver for the day, during the course of the day borrowed something else from him, and it was destroyed that night). He says the Torah did not want to make too-delicate distinctions, and therefore left it a blanket rule.
In his view, the same reasoning explains sechirah be-be’alim, why this idea works also for renters. As far as the presentation goes, he seems to see the absolute obligation of the sho’el, other than in shemirah be-be’alim, as the essence of the rules of the sho’el.
Other Rules of Borrowing
He then moves on to rules of the mitzvah without pausing to give a reason, or even to say its reason is well-known. The rules he highlights include metah mahmat melachah, where the item dies or wears out through use, another way the sho’el will be exempt (although this way seems less essential to the nature of the mitzvah, because he puts it among dinei ha-mitzvah rather than in the explanation of it).
Minhat Hinuch justifies this exemption because the borrower took the item to use it. Perhaps because of that, there is a debate (cited in Shulhan Aruch and Rema) about whether a sho’el will be liable for an ones in the course of using the item in its usual way–armed robbers take a donkey while it is being used to transport packages.
The rest of the rules he brings up are about relative side issues: we treat the payment of the sho’el for a lost or destroyed item similarly to how we treat payments for damages, the obligation of a sho’el to feed an animal s/he borrows starts with the moment it comes into his/her possession, inheriting an item currently loaned to someone else that then dies, borrowing an item with no implied end to the loan, the usual assumed term of a loan (Minhat Hinuch says if there is no defined term, the owner can ask for it back at any time; others thought thirty days is the assumed number; once the term of a loan ends, he is sure the borrower no longer has the right to use the item), what it means for a teacher to be considered loaned to his students (and when that is true), and more.
With, again, the beit din responsible for stepping in when matters go wrong.
To my eye, Sefer Ha-Hinuch has differentiated subtly but unmistakably between shomer hinam and sho’el on the one hand, who take roles in interactions where questions of paying damages do arise but disagreements are unusual, and shomer sachar/socher on the other, where conflict is more expected, and anyone able to must step in to keep or restore the peace.