*********************************************************

This week of Torah learning at the Israel Koschitzky Virtual Beit Midrash
 is being sponsored by Ronni & Nachum Katlowitz
in honor of Ronni's father's birthday.
Mr. Yanik Pasternak, Happy Birthday!

*********************************************************

The Yeshiva wishes Rav Moshe and Atara Taragin
(and the entire Taragin/Fass family)

a warm mazal tov
on the bar-mitzva of their son Dovid!

*********************************************************

Lecture #01: Sokher

Parashat Mishpatim provides an extensive and detailed list of various monetary laws.  Within this list, the subject of shomrim - people responsible to guard the property of others - is addressed.  Recognizing the likelihood of different forms of shomer arrangements, the Torah cites three different scenarios, delineated by three separate “parshiot.”  The FINAL parasha of these three clearly designates the laws of a sho’el, one who borrows and item.  The first two parshiot, however, are more ambiguous, forcing Chazal to decode the references.  Ultimately, the first parasha is identified as a reference to a shomer chinam, one who watches property for free, while the second is associated with a shomer sakhar, a hired watchman. 

The THREE part division would seem to contradict the numerical structuring of shomrim offered by the mishna in Bava Metzia (93a). According to the mishna, there are actually FOUR types of shomrim – a sho'el, shomer chinam, shomer sakhar, and a sokher, one who rents an item.  The Torah itself did not describe a situation of sokher at all!  The absence of the sokher in the Torah’s description suggests that the regulations regarding a sokher are the same as those of one of the original three shomrim.  Since his halakhot are not unique, the sokher does not merit separate mention in the Torah.  What is unclear is WHICH shomer the sokher is comparable to, a shomer chinam or a shomer sachar.  This question is debated between R. Meir and R. Yehuda, although it is unclear which Tanna adopted which position. 

Without question, the more basic and more intuitive approach compares a sokher to a shomer chinam.  Just like the unpaid watchman, the sokher is not paid to watch the owner’s property; he should not be considered a shomer sakhar.  He should therefore have the same basic responsibilities as a shomer chinam - to provide "basic" supervision for the item he has rented and to pay only in situations of gross negligence, peshiya.  Associating a sokher with a shomer sakhar would force us to re-examine the dynamic of a sokher and – quite possibly - the nature of a shomer sakhar. 

In truth, even the position which compares a sokher to a shomer sakhar may not have intended the comparison in a literal sense.  The gemara cites this position as claiming “sokher KE-shomer sakhar” (a sokher is LIKE a shomer sakhar).  The “kaf” of comparison (KE-shomer) can be perceived in two very different fashions.  It may suggest parity – in this case, “a sokher is identical to a shomer sakhar.”  Although the sokher is not salaried, he does receive BENEFIT, as he makes use of the item, and that BENEFIT may render him a classic shomer sakhar.  Alternatively, the “kaf” may imply SIMILARITY; a sokher is similar to a shomer sakhar, but he constitutes an independent situation.  Since he isn’t salaried, he cannot be deemed an ACTUAL shomer sakhar.  However, though he is distinct from a shomer sakhar, HIS HALAKHOT are similar to those of a shomer sakhar- he pays for gross negligence as well as theft or loss (geneiva va-aveida).

This second understanding may have been adopted by Rashi.  In his comments to Mishpatim 22, as well as his comments to Bava Metzia (80b, s.v. R. Yehuda), Rashi likens a sokher to a mini-sho'el.  He is similar to a sho’el in his ability to utilize the item, but since he does not receive full advantage (since he must pay for his use), he can not be obligated to pay for all accidents, as a sho’el is.  The socher's responsibilities mirror that of a shomer sakhar, who pays for everything excluding accidents.  However, the socher shares more in common with a sho’el than he does with a shomer sakhar. 

Rashi’s reading seems latent in the Torah’s presentation of the shomrim.  Although the sokher does not merit his own section, there seem to be allusions to him contained in the section regarding the sho’el.  In presenting the laws of the sho’el, the Torah adds, (Shemot 22:14) “im sakhir hu, ba be-sekharo” – “if he is renting, then he takes the utility with his [rental] payment.”  By embedding the reference to rental within the section of sho’el, the Torah may be reminding us of the affiliation between the two.  A sokher is nor REALLY a shomer sakhar.  He is rather a mini-sho’el whose laws are modeled upon those of a shomer sakhar. 

Interestingly, the Rambam in his Sefer Ha-Mitzvot lists the sokher within the mitzva detailing the shomer sakhar.  This may indicate a disagreement with Rashi and a position which views a sokher as a variety of a shomer sakhar.  Alternatively, the Rambam may not be taking a stand and may merely be listing a sokher within the category of shomer sakhar, whose halakhot he happens to share. 

The question of whether to view a sokher as a classic shomer sakhar or an independent halakhic entity whose laws mirror those of shomer sakhar may influence the numerical discrepancy noted above.  The gemara in Bava Metzia (93a) already senses the tension between the biblical three shomrim and the mishna’s four. The gemara claims that although four shomrim exist, they only exhibit three different categories of halakhot. 

An interesting manifestation of this issue appears in Bava Kama (4b).  The first mishna in Bava Kama lists four models of damages caused by a person’s property (avot nezikin).  In a variant version of this mishna R. Chiya provides a more expanded list of thirteen.  The number thirteen is only achieved by counting a sokher separate from a shomer sakhar.  If the sokher were a classic shomer sakhar, would R. Chiya have achieved his count? In fact, Tosafot in Bava Kama reminds us that although R. Chiya notes the number thirteen, there are only TWELVE halakhic categories of payment, since a sokher shares his payment responsibilities with a shomer sakhar. 

An interesting nafka mina may concern a question posed by the gemara in Bava Metzia (98b).  The law of ba’alav imo determines that if the owner is working for the shomer at the point of transfer or deposit of the item, the shomer is exonerated from all payments.  Furthermore, this exemption applies equally to all shomrim.  The gemara poses a question regarding a sho’el who began his relationship with the owner of the item under the terms of ba’alav imo.  After his borrowing time expired, he then rented the animal without the conditions of ba’alav imo.  Since the rental followed immediately subsequent to the borrowing, perhaps the ba’alav imo state of the original borrowing should acquit the receiver from obligations as a renter.  The gemara may be pondering how structurally similar the sho’el and sokher really are.  Can we conflate a sequence of sho’el followed by sokher, or do each remain autonomous?  Perhaps this question is influenced by the true nature of the sokher.  If he is a classic shomer sakhar, it would be difficult to incorporate him with a prior status of sho’el.  If, however, a sokher is a mini-sho’el, it would be more likely to see these two arrangements as integrated. 

A different question would surround an interesting scenario posed by the gemara in Bava Metzia (97b).  The laws of modeh be-miktzat determine that a compound claim that was partially confessed to, triggers a shevu’a upon the denied part of the claim.  For example, if Reuven demands $100 and Shimon admits to owing $50, he must pay the $50 (as per his confession) and swear that he doesn’t owe the remaining $50.  The gemara structures an application of modeh be-miktzat for a shomer who agreed to watch multiple animals or who rented several animals while borrowing other animals. If the shomer acknowledged his RENTING of an animal (and thereby agrees that he owes payment for the theft of that animal) but denied BORROWING a different animal, he should be obligated to defend his claim about the borrowed animal through a shevu’a.  After all the prosecution has claimed payment for two deposited animals and the shomer agrees to one and denies the other.  This appears to be classic modeh be-miktzat.  The gemara questions this setup: “What was demanded wasn’t confessed, and what was confessed wasn’t demanded!” Modeh be-miktzat only pertains if the two parts of the claim (the confessed element and the denied component) surrounded similar items (money, grains, etc.). If Reuven were to claim that Shimon owes wheat and barley and Shimon were to confess the former and deny the latter, no oath would be obligated for the denied barley.  The two claims remain distinct and no modeh be-miktzat ensues. In our case, the RENTED animals and the BORROWED ones are dissimilar; they cannot be integrated into one legal claim and there is no situation of modeh be-miktzat. 

This reading of the gemara – adopted by the Ra’avad - implies a DIFFERENCE between the sokher and the sho’el, presumably viewing the sokher as a CLASSIC shomer sakhar, bearing no structural affinity to the sho’el. 

Ultimately, the option to view a sokher as a classic shomer sakhar leads to a broader discussion: must a shomer sakhar be paid an actual salary or can mere benefit render him a “paid” watchman?  Adopting the first position would probably exclude a sokher from being designated as an ACTUAL shomer sakhar; as a socher he receives no actual salary.  Asserting that a status of shomer sakhar can be based upon benefit without actual salary may expand the category of shomer sakhar sufficiently to include the sokher.  This question will be addressed in the upcoming lecture, iy”H.