Shemira Be-Ba'alim (95b)

  • Rav Ezra Bick
            Shemira be-ba'alim frees the shomer from liability in the event that something happens to the pikadon (guarded object). The conclusion reached le-halakha is that this exemption applies even when the shomer was negligent in the performance of his duties (see shiur #3) and so the inherent logic behind this law remains unfathomable - why should the shomer be exempted from all payments by virtue of the fact that he merely contracted the owner to work for him at the time the pikadon was transferred? Thus, this halakha should undoubtedly be viewed as a "gezeirat ha-katuv" - a law prescribed by the Torah remaining inaccesible to our limited powers of comprehension. Nonetheless the question remains how the gezeirat hakatuv should be understood; i.e, how is the Torah instructing us to view a case of shemira be-ba'alim such that, having accepted the Torah's viewpoint, it now makes sense that there is no liability for the shomer.
            I would like to advance two possible answers.
Note: This question is addressed by the Torah commentators mentioned in the sources at the end of last week's shiur. In this week's shiur I shall utilize only halakhic-Talmudic sources.
A. One COMBINED act of borrowing
1. R. Hamnuna's Model
            Rav Hamnuna states (daf 95b) that a sho'el is always liable unless the owner is hired to work WITH the pikadon. (For example,to plough with the borrowed cow or to lead the borrowed donkey.) Furthermore, the owner must be with the pikadon from the onset of the borrowing until the time of the accident.
            It would appear that R. Hamnuna has a particular model of the nature of the exemption of be-ba'alim, and he insists that the conditions of that model be met. What underlies R. Hamnuna's opinion? Why does he restrict sheila beba'alim in this manner? I would suggest that, according to R. Hamnuna, sheila be-ba'alim provides an exemption because we view the animal as remaining in the control of the owner and in his responsibility as opposed to being under the jurisdiction of the sho'el. By means of illustration: If I hire a workman, for instance a painter, to come work in my house and he brings his tools with him - would it be correct to say that I have hired the painter, and in a separate transaction borrowed from him a paintbrush (since the brush serves my interests)? I think we would all agree that I have hired the painter with his brush - the painter is in MY employ but the brush is under HIS direct control. In such a case, were an accident to occur to the brush, I would surely not be responsible!
            In a similar vein, Rav Hamnuna claims that even if I have explicitly borrowed a pikadon, and at the same time I hire the its owner to work with it, the Torah directs us to see this a case of hiring someone to work with his pikadon - the pikadon is under the care of the worker, who is its proper owner, and never enters my sphere of responsibility. Hence, there are two conditions for she'ila be-ba'alim to take effect:
a. The owner must be the one who is actually working with the animal (i.e. it be under his control); AND
b. This state of affairs must continue until the accident. It is crucial that the owner be the shomer at the time of the accident and NOT the sho'el.
NOTE: We have not explained WHY the Torah instructs us to view she'ila be-a'alim in such a manner. We have merely described the model that fits the halakha according to R. Hamnuna.
            The gemara rejects R. Hamnuna's opinion and exempts the shomer from payment even if the owner is engaged to perform an activity bearing no relationship to the animal. It is sufficient that he be hired at the time of the borrowing, even if he has finished his work prior to the accident. It is possible that according to the gemara's conclusion, the restrictions of R. Hamnuna are not necessary since his model is incorrect. Nonetheless, I contend that we can utilise R. Hamnuna's model to understand the conclusion of the gemara: R. Hamnuna is a literalist, who demands that the circumstances of she'ila be-ba'alim actually and practically support the model outlined above. It is possible, though that while this model and its underlying logic are correct - according to the gemara's conclusion, the "gezeirat hakatuv" dictates that we halakhically view any case where transfer of the pikadon takes place at the same time as the employment ofthe owner, as if it is the owner who is being employed and he is merely bringing along his implements with him. Accordingly, sheila be-ba'alim precludes liability because in effect no assumption of responsibility takes place on the part of the shomer.
2. The Rambam
            The mishna (daf 94a) lists two cases of sheila be-ba'alim: One, when both transactions - the borrowing of the pikadon and the hiring of the ba'al - take place SIMULTANEOUSLY; and one, where the owner is hired PRIOR to the borrowing. At first glance, we would not be inclined to view this as two distinct cases - quite simply, the mishna wishes to clearly eliminate the case where the borrowing precedes the hiring. In other words, the hiring has to be in effect when the borrowing takes place, and simultaneity is a special case of the general rule - even then, the hiring is in effect at the time of the borrowing. In this light, careful reading of the Rambam provides a surprise. The Rambam never explicitly quotes the case of the hiring preceding the borrowing! The Rambam's definition of the halakha of be-ba'alim (hilkhot Sechirut 1:3) refers only to "borrowing the owner with the object." While this does not imply that prior hiring of the owner before the borrowing is not included in be-ba'alim - it is after all an explicit statement of the mishna - it at least indicates that the case of simultaneous transactions is logically prior and central - closer to the definitive model of the halakha. R. Soloveitchik zt"l, explains that the Rambam is working with the model of be-ba'alim that we delineated above. The exemption of be-ba'alim derives from the view of the borrowing as being subsumed under the hiring - there was only ONE COMBINED ACT OF HIRING. This primarily obtains only when both transactions were conducted simultaneously, so that I am able to combine them and thereby deny the independence of the borrowing, consequently denying the creation of liability on the part of the sho'el. Prior hiring, according to this understanding, is an extension of simultaneous transactions (and not the other way around). Apparently, if the owner is already hired, when the object is borrowed I "add" it to the original hire. Therefore, in his definition, the Rambam refers only to "Imo" ("together) - the theoretically defining characteristic which results in non-liability.
3. Peshiya - There are two opinions in the gemara if be-ba'alim exempts the negligent shomer from liability or not and we rule that it does. (See Rambam hilkhot Sechirut 1:3). As is well-known, the Rambam has a unique opinion concerning peshiya - "peshiya ke-mazik" (hilkhot Sechirut 2:3), Even in cases where there is an exemption from liability for a shomer, such as real estate, the negligent shomer is still liable, since peshiya is "akin to torts," to direct damage. Nonetheless, be-ba'alim exempts even peshiya. This accords well with the explanation we have just given for the Rambam - since the exemption of be-ba'alim is based on a model which declares that the object was never borrowed and never entered the responsibility of the borrower, even peshiya cannot engender liability. If one has not borrowed the object at all, he cannot be considered negligent! Only one who bears responsibility can be considered negligent when he fails to fulfill his responsibilities. (Next week we shall have to refine this definition, as it will prove impossible to say that he bears NO responsibility to watch over and protect the object. But for the time being, even in this simplistic form it will help us to understand the difference between shemira of real estate, where there is only an exemption of monetary obligations, and be-ba'alim, where there is, according to the model we have advanced, a deficiency in the actual relationship between the individual and the object - someone else is responsible in his place.)
B. Responsibility towards the objects of an employee
            The first possibility we described above posits the exemption of beba'alim on the relationship of the ba'alim TO THE OBJECT. Since the object is his, and it enters the realm of the borrower together with him (or after him), it remains in his responsibility, and, ipso facto, does not enter the responsibility of the borrower. Another possiblity would be to posit the basis of the exemption on the relationship between the owner AND THE BORROWER. In other words, because the owner of the object is the employee of the borrower, he cannot obligate the borrower to pay him for damages to the object.
            (Below, I shall attempt to explain how this possibility would be understood according to Rav Hamnuna, who, as we have seen, insists that the model be fulfilled in actuality, which will require us to more fully explicate the reasoning behind this position). For now, I wish only to stress the last point. The exemption derives from the identity of the ba'alim. Examples of such a kind of exemption are not lacking. For instance, a minor does not create obligations in a shomer. Similarly, hekdesh does not create shomer obligations. We may conclude that the obligations of shemira depend on the existence of an owner of a certain type; i.e., that the identity of the owner is a factor in creating an obligation (the "mechayev"). Here, I suggest that an employee does not create obligations on the part of his employer. The existing relationship prevents the new relationship of shomer-ba'alim from coming into existence.
(Note: The second example I suggested - hekdesh - requires some elucidation. One might have argues that the exemption there is based on the nature of the OBJECT, like real estate, rather than the identity of the OWNER. In fact, Rav Chaim argues that both points are correct, based on two different verses - "shor re'eihu velo shor hekdesh" (the owner), and "kesef o keilim velo karka, hekdesh veshtar" (the object). In this manner he explained the absence of a statement in the Rambam that peshiya is chayav in hekdesh. Rav Chaim suggested that peshiya is only chayav (posheiya k'mazik") where the OBJECT is excluded, which removes responsibility for the object, but leaves personal responsibility to the owner. In the case of hekdesh, however, even personal responsibility to the owner is removed, so that peshiya is non-liable as well.)
            Above, I pointed out that the first explanation is primarily applicable to a case where the transactions were simultaneous, and only by extension to the case where the employment preceded the borrowing. In this second explanation, the relationship is reversed. The primary case of be-ba'alim is where the employment took place before the borrowing, so that the owner who gives you his object is identified as an employee of yours. The case of simultaneity is a special case of this general principle - even if he was not an employee BEFORE the borrowing, it is sufficient that he is an employee at the exact moment of the borrowing.
1. The Ra'avad - At the very beginning of the perek, the gemara asks about the possibility of actual simultaneous transactions: "para be-meshicha ve-ba'alim be-amira?" (The borrowing is effected legally by an act of meshicha - a formal act of acquisition like any kinyan, whereas entering employment is effected by a verbal agreement). The Rishonim question the accuracy of the implication that employment begins immediately from the verbal agreement, based, among other sources, on a gemara on 97a, which seems to suggest that one is only considered to be legally employed (specifically for the purpose of determining sheila be-ba'alim) when actually at engaged in work (see Tosafot 94a s.v. Para). Tosafot reconciles the discrepancy by modifying both sources, claiming that the employment begins from when one begins to prepare oneself to work, or to go to work, which is called "amira" on 94a (as opposed to meshicha, a formal "act" of kinyan) and "the time of work" on 97a. The Raavad (cited in the Shita Mekubetzet 94a, s.v. "Ima") gives two answers. The first is identical to that of Tosafot. It is the second that I wish to examine more closely. (If you do not have a Shita Mekubetzet, the text is also available from our website, at ).
The need for "starting" or "going" (to work) is only in order to be liable to pay, but "taromet" (a valid cause for complaint) applies even before (if the worker would renege after agreeing verbally) since he is acting improperly. We see then that so long as he does not renege, he is hired by virtue of the verbal agreement alone; whereas the cow is not borrowed until it leaves his property and then it is acquired through meshicha for the duration of the period of borrowing, to be liable for accidents and for its food. And even though the cow's owner can renege on his agreement to work, for even in the middle of the day (after he begins to work) he can renege, nevertheless, so long as he does not renege... it is a case of sheila be-ba'alim.
            The Raavad, in contradistinction to the Tosafot, claims that "ba'alim be-amira" should be taken literally, even though monetary obligations of employment do not begin until he begins to actually work, since there is a moral obligation to fulfill the verbal agreement.
            The Ra'avad is claiming that there are two critical moments in the hire of a worker; the verbal agreement, when an obligation to work some time in the future is created, and the actual beginning of labor, when monetary obligations obtain. Although the worker can renege from his verbal agreement, the Ra'avad nonetheless claims that so long as he does not, it can be considered to be the moment of the commencement of the employment. (This point is an interesting one, suggesting that even non-binding agreements can be considered to have validity. This does not concern us now, however.)
            The Ra'avad's second point is that between these two moments, the first is the defining one for deciding whether it is a case of sheila be-ba'alim. Now this would seem to be inappropriate according to the first model we sketched out above. In order for the cow not to be under my responsibility, it has to be under the responsibility of the owner, since he is working in my employ. But if his relationship with me is not a monetary one (as he has not commenced working) how can it transfer the monetary responsibility in regard to the cow from me to him? The exemption according to the first model is based on our viewing the two transactions as one - you have "borrowed" (this is the gemara's own language) both of them together. But according to the Ra'avad, you have not borrowed the two of them to the same degree - the object is really and fully borrowed, to an extent which exceeds the "borrowing" of the owner. How then can the borrowing of the object be subsumed within the borrowing of the employee?
            Alternatively, the second model makes more sense here. The Ra'avad argues that although the individual is not fully employed for different purposes, his basic identity is that of an employee, so long as he has not reneged on his commitment. Since this model bases the exemption of the identity of the object's owner, this may well be sufficient. Since he is, formally, your employee, he cannot obligate you in the obligations of shemira.
2. R. Peretz - Let us now return to our sugya on 95b, moving to the end. Rav Hamnuna actually put forward two restrictions (see Rashi s.v. "Tiyuvta"):
a. The employment must be for the purpose of using the object itself in the employ of the borrower; AND
b. The employment must continue until the time of the damages - that is, the state of sheila beba'alim is not established by the conditions of the original transactions alone.
            The gemara cites two different braitot to refute Rav Hamnuna, introducing the second with the words, "ve-od tanya." Rashi explains that the first braita refutes Rav Hamnuna's first proposition, and the second refutes the second. R. Peretz (Tosafot R. Peretz, s.v. "Ve-od tanya" - this is also found at the web address cited above for the Raavad) insists that the language "ve-od tanya" implies that both braitot independently refute all of Rav Hamnuna'a position. Since the second one refers only to the second postulate, that of the TIME of the employment, R. Peretz faces the task of showing how negating Rav Hamnuna concerning the need for continual employment until the time of the damage implies that his first position is refuted as well.
(The second braita) states explicitly that "ba'alav imo" is necessary only at the time of the borrowing alone, and not at the time of the damage, hence this braita explicitly proves that we do not require that he be working with the cow, since at the time of the borrowing there is no work be done whatsoever. The only reason that R. Hamnuna requires that he work with the cow is because he requires that he be employed at the time of the damage, which is a time of work.
            In other words, R. Peretz argues that the only possible explanation for the requirement of R. Hamnuna that the owner be hired to work with the cow is in order to more closely bind him to the actual work of the cow at the time of damage. Hence, once we know that in fact he need not be hired at all at the time of damage, there is no reason to require that he be hired to work with the cow.
            It is immediately apparent that this argument is not valid according to the assumption of the first model. There we argues that R. Hamnuna requires that the owner be hired to work with the cow in order that we can say that the cow is never borrowed at all, but remains under the responsibility of the owner. The requirement that he remain employed until the damage is an ADDITIONAL requirement, positing that if he quits work prior to the damage, the cow will become borrowed, and in the borrower's responsibility, from the time he ceased to be employed. There is no reason why this cannot be rejected without rejecting the basic model, simply by positing that the status of the cow is determined at the time of the initial borrowing and does not change later on.
            R. Peretz makes sense only according to the second model. He is making a further assumption concerning the explanation of this model, at least according to R. Hamnuna. The owner of the cow cannot obligate me with the obligations of shemira when he is my employee if he is working with the cow when the cow dies, apparently because I then argue that since he was the immediate one in charge, his responsibility supplants mine. Since he was "there," he should have watched the cow! As an example - and only an example - of this kind of thinking, we may consider the argument of the Ramban in Bava Kama that although a person is always responsible for personal damage, even if it is a case of "oness," if the injured party bears a greater responsibility, the person is exempt. (The case is where I go to sleep and injure someone sleeping next to me while sleeping. If he lay down after I did, I am exempt from payment.).
            Accordingly, the only reason R. Hamnuna requires that he be hired to work with the cow is not, as we posited in the first model, so that there be only one act of borrowing for both the object and the owner, but so that he be considered to be very "close" to the object, directly supervising it when the damage occurred. Since the exemption derives from the lifting of responsibility from the borrower due to the owner's greater proximity and consequent responsibility, it obviously applies only to the time of damage itself. Once that requirement is refuted, there is no sense to the argument at all.
            However, the model can still be applied without R. Hamnuna. The law of "be-ba'alim" is a formal one and does not require that the actual situation reflect it accurately. If the owner is working for the borrower when the object is borrowed, the Torah declares that the owner cannot obligate the borrower, since his position vis-a-vis the borrower is weak - he should have himself prevented the damage. Once the obligation is not imposed at the time of the transaction, it will not come into place later.
C. The meaning of "imo be-melakha"
            We shall discuss next week some possible distinctions between these two approaches. For this week, I would like only to point out its relevance to the gemara's discussion according to R. Hamnuna what is the degree to which the owner need be actually together with the cow. The gemara raises the possibility that ploughing, where the owner is behind the animal, would constitute sheila be-ba'alim according to R. Hamnuna, but breaking the ground in front of the animal as it moves would not be. (The possibility is eventually rejected, but the gemara states that it has logical plausibility.) Try and understand this distinction according to the two models I presented.
Next week
            Learn the gemara up to "ba'i Rami bar Chama" (96a). This is fairly straight forward, and I will have only a few comments based on the gemara's language more than anything else.
            The next section consists of a series of unanswered questions of Rami bar Chama. Each one requires a good deal of thinking to understand. For next week, we shall discuss only the first four (until "... leka mamona"). After learning Rashi and Tosafot, see the Rambam. How does his reading of the gemara differ from Rashi's?