The Book of Bailments

We will describe how many types of bailees exist, which is explained in this second part, at which we have arrived.

Bailees are made up of three [types of] men: One of them is a paid keeper, called a shomer sakhar; another is an unpaid keeper, called a shomer ḥinam; and the third is not called a keeper at all. Each of these three has laws which differ from the others. There are two types of loss: A loss when there is no possible way [of avoiding it], called a compelled loss or in Hebrew, ’ones; or a loss for which there is a possible way [of avoiding it], called a negligent loss or in Hebrew, peshi‘ah.

Let us begin with the person with the least onerous [obligations], which is the one who is not called a keeper at all, but who has the bailment in his possession. This is what we say when he is not responsible for watching it at all. His case is inferred from two established passages in scripture: When a man gives his friend money, etc., to watch and when a man gives his friend a donkey (Exodus 22:6–11), because in each of these, to watch is written. The sages said [the following] by way of interpretation. R. Nathan says: [This verse applies] when he deposits it with him and says to him, “This is yours to watch.” The law regarding this man is that he is absolved from all types of loss, and the absolution from [the responsibility of] watching comes from one of three situations. [Either] he explicitly clarifies that he has no [responsibility] for watching it, or he says a statement implying this, such as, “The house is before you [if you want to deposit a bailment there],” or “the shop,” or “the basket,” or “the chest,” or what have you. This indicates that he is lending the house or the shop and is not taking responsibility for watching [the bailment]. Guarding it is too hard for him. As the sages stated:

A man said to his fellow, “Let me leave these coins with you.” [The other man] said to him, “The house is before you.” [The coins] ended up getting stolen. They came before Rava, who said: [When the bailee says,] “The house is before you,” he is not only not a paid keeper, but is not even an unpaid keeper. [b. Bava Meẓi‘a 49b]

Or he says that he will watch it, but he makes a condition that he will not be obligated in the case of a loss. If it happens like that, he is not obligated in anything, as the sages stated:

An unpaid keeper may make a condition that he will be exempt from an oath, or a borrower [may make a condition] that he will be exempt from paying compensation. [m. Bava Meẓi‘a 8:10]

If the matter is as I described, and if anything occurs to the bailment, he is absolved from delivering it or swearing an oath.

The second man is the unpaid keeper, who is called a shomer ḥinam, and whose [obligation of] watching is more onerous than the first and less so than the third. The situations which make him an unpaid keeper are if it is said to him, “Watch this” or “Give this thing to So-and-so,” and he says, “Yes,” or he takes it in silence, or he says, “Leave it in my hands.” Then he is an unpaid keeper. As [the sages] stated: [If one says] “Watch this for me” and he says, “Leave it for me,” [he becomes] an unpaid keeper. If that is the case, and the bailment is lost in any way, one of two laws is applied to him: either he brings witnesses to the loss and is absolved, or he swears an oath and is cleared. This is explained in the text [of the Torah], that if there is no proof, he swears an oath, as it says: If the thief is not found (Exodus 22:7), and if there is proof, he does not swear an oath. [ . . . ] Though this statement was indeed stated with regard to a paid keeper, reason dictates that [it applies to] an unpaid keeper as well. If witnesses can absolve someone who is being paid, it is even more appropriate that they absolve someone not being paid, unless it is clear to us that he was negligent, in which case we do not accept his oath and we obligate him under the law, since he was negligent. As the sages stated: To watch, not to cause a loss. The matter of negligence has two sections which we will mention in the continuation, God willing.

The third man is the paid keeper, who is called a shomer sakhar and whose [obligation for] watching is more onerous than the first two. That is, the first two are not obligated to occupy themselves or constantly attend to the bailment; rather, the two of them are required to secure it as people do and then go about their business afterward. As for these men [of the third type], the paid keeper is required to attend constantly to the bailment and protect it himself, unless he is compelled [by force to give it up].