The Responsibility of a Sho'el (94b)

  • Rav Yair Kahn
            The liability of a sho'el transcends that of other shomrim, insofar as he is responsible to pay for damages incurred through events beyond his control.  This category is known as oness.  The monetary responsibility of a sho'el with respect to this category requires elucidation, since it practically and logically goes beyond the responsibilities of a normal shomer.  How can a sho'el guard against events beyond his control?  Why should he be liable for damages in situations where the object could not be protected?  In this shiur, we will attempt to explain the nature of the far-reaching liability of the sho'el.
            The gemara notes that the Torah explicitly holds the sho'el responsible only in the event of breakage (injury) or death.  The case of looting (which is addressed alongside breakage and death regarding a shomer sakhar) is conspicuously absent.  At first glance, we would assume that a sho'el is responsible in the case of looting as well. After all, he is responsible for death which could not be prevented, indicating that his liability is absolute (with the exception of "meita machmat melakha").
            Nonetheless, the gemara suggests a reason to excuse a sho'el specifically in the case of looting, despite his liability for death.  Although both are categorized as "oness," the possibility of death was considered by the sho'el, while the unlikely event of looting was not.  However, the sho'el never accepted upon himself to reimburse the mash'il (lender) for damages generated by improbable events which were never contemplated.  This suggestion implies that the reason a sho'el is responsible even for oness, is because he considered the possibility and accepted its consequences.  In short, the liability of the sho'el is due to an agreement on his part to compensate the mash'il in the event of loss.  Therefore, a sho'el is not liable for anything not included in this unwritten contract.
            The gemara concludes that a sho'el is responsible in the improbable event of looting as well.  This conclusion does not necessarily contradict the basic premise regarding the liability of a sho'el.  Perhaps the unwritten contract did not relate to specifics.  Instead, it is a general and sweeping agreement to reimburse the mash'il in the event of damage.  On the other hand, the conclusion of the gemara may suggest an alternate approach regarding the liability of a sho'el.  Unfortunately, our gemara is silent regarding what this other possibility may be.  Therefore, we will take a brief glance at other sugyot which may illuminate this issue.
            The gemara in the first perek of Bava Kama (11a) states that we do not assess regarding theft, while we do assess with respect to damages.  For instance, if a pot is stolen, and subsequently breaks, we do not return the broken pieces to the original owner, and assess in order to charge the thief the amount of devaluation.  Instead, we charge the thief the full value of an unbroken pot, and allow him to retain the pieces.  However, if one damages a similar pot, the broken pieces remain the property of the owner, and the "mazik" (culprit) pays the assessed devaluation.
            Tosafot (s.v. Ein) explain that this issue hinges on the question of ownership.  A thief attains a degree of ownership over the object.  Therefore, if it breaks, the pieces belong to him, and he has to replace the entire pot.  However, in the event of damage, there is no acquisition of the object.  Hence, the damaged pieces still belong to the original owner, and reimbursement for the devaluation is sufficient.
            Regarding sho'el, the gemara is unsure whether the sho'el should keep the pieces, and be charged for a new vessel, or if the pieces remain the owners, and only devaluation is reimbursed.  At first glance, we would assume that a sho'el in this regard is similar to one who damages.  After all, he does not own the object, and merely accepts upon himself liability in the event of loss.  Accordingly, reimbursement for the devaluation should suffice.  Why should a sho'el be charged for the entire pot?
            Tosafot explain that according to the opinion that demands total replacement, we view the sho'el as having initially acquired the pot, and he is now responsible to return it.  Therefore, if it breaks, he must pay for a new pot, similar to a thief.  The indication that a sho'el actually acquires the object, is his liability for "oness.”  In other words, a sho'el does not accept upon himself to pay in the event of "oness," but rather acquires the object and is subsequently responsible for its return.
            In short, based on the gemara in Bava Kama, two approaches to the liability of a sho'el emerge.  The first is grounded upon the agreement of the sho'el to compensate the owner for any loss incurred.  The second is based on the acquisition of the sho'el, and his subsequent requirement to return the object to its owner.  (There is also an intermediate possibility: Upon receiving the object, the sho'el agrees to either return or pay for the object, although there was no initial acquisition on his part.)
            These two approaches express themselves regarding various laws related to a sho'el.  One example is found in a sugya in Ketubot (34b): Rav Papa rules that one who borrows an animal, and slaughters it on Shabbat is not liable due to the rule of "kim lei be-deraba minei" (one is not obligated for monetary payments incurred simultaneously with a transgression which is punishable by death).  According to Rav Papa, the monetary obligation of the sho'el is incurred at the point of the "oness" - on Shabbat when he slaughtered the animal and desecrated Shabbat.  Therefore, he does not have to pay for the animal.  However, the gemara raises the possibility of a dissenting opinion, which argues that the obligation of the sho'el is incurred at the original point when the sho'el receives the animal.  Since there was no transgression at that point, the sho'el is liable to replace the animal he slaughtered on Shabbat.
            These two opinions correspond to the two approaches with respect to the liability of the sho'el.  If we consider the sho'el as required to return the animal as a result of his acquisition, then this obligation is incurred when he receives the animal.  However, if his liability is a function of his agreement to reimburse the mash'il, then it is reasonable that he becomes obligated monetarily only when the loss is incurred - at the actual point of the "oness."
            The exception to the absolute liability of the sho'el is "meita machmat melakha" - damage caused due to the use for which the object was borrowed.  This exclusion is logical if we explain the liability of the sho'el in terms of an agreement.  Since borrowing the object for a certain use is the primary purpose of the agreement, liability in cases of "meita machmat melakha" was implicitly excluded from the initial contract.  After all, the object was not borrowed to be placed aside for safe-keeping (see 96b).  However, if we consider the sho'el as having acquired the object, and, therefore, obligated to return it, why is meita machmat melakha excluded?  This question will be treated when we deal directly with the exclusion of meita machmat melakha (shiur #7).
            Returning to our sugya, we established that according to the original position of the gemara, the liability of the sho'el is rooted in his agreement to reimburse the mash'il for any damages incurred.  Therefore, the gemara considered the possibility that the sho'el would not have to pay for unlikely damages which he never contemplated.  The gemara concludes that the sho'el is liable even under such circumstances.
            This conclusion of the gemara can be understood in one of two ways.  It is possible that although this specific form of damage was not considered, reimbursement for damages in general was included in the original agreement.  Alternately, we may reject our initial assumption, and argue that the liability of the sho'el is not based on his agreement, but is rather a function of the acquisition of the sho'el.  This acquisition obligates the sho'el to return the object, or its value to the mash'il.  Accordingly, the conclusion of the gemara that there is no distinction between likely and unlikely damages is obvious.
Sources for next week's shiur:
1.  Bava Metzia 95a "Itmar ... ke-shomer chinam (95b).
2.  Rambam Hilkhot Sekhirut 2:3.
3.  Shakh Choshen Mishpat 66:126 "Lefi aniyut da'ati ... kinush de-alma."
4.  Netivot Ha-mishpat 291:34 until "Lo imat," 301:1, until "Patro ha-katuv."
5.  Yerushalmi Shevu'ot 8:1 "Et mar ... eino nishba."
6.  Tosafot Bava Kama 57b s.v. Nimtza.
7.  Tosafot Bava Metzia 96b s.v. Ba'al.
1.  Intuitively, should ba'alav imo apply in the case of peshiya?
2.  What might be the justification for this exception to the rule?
3.  What is 'odd' about the Torah's 'description' of the obligation to pay for peshiya?
4.  The gemara in Bava Metzia excludes a shomer from paying for land, hekdesh or contracts.  In addition, a shomer is excused in the case of ba'alav imo.  How would you compare these two exceptions?
5.  Can someone be responsible to watch an item even if he isn't formally classified as a shomer?