Thursday, October 22, 2009

the nature of chiyuvei shemira

We have not done any lomdus in the past week, so time to make up for it. My son is learning Bava Kamma in 10th grade and asked the following kashe, which I thought was pretty amazing, but I'm obviously biased : ) He pointed out that R' Elchanan in Koveitz Shiurim Pesachim #17 discusses how to understand the nature of the chiyuvim on shomrim when things go wrong, e.g. an item is lost or stolen -- Is the penalty of payment a result of the Torah imposing a punishment or obligation to make restitution on the shomer, or is the restitution a function of the agreement between the shomer and the mafkid, similar to a contractual obligation?

Without going through R' Elchanan's discussion, one can at least prove that a sho'el is obligated to make restititution by virtue of his agreement with the mafkid. The halacha is that a shoel must always return or pay for the object he borrows, even if the object is lost or destroyed by accident (with the exception of accidental breakage that occurs during normal usage). Yet, Tosfos (Bava Kama 27b d"h u"Shmuel [however, see Ramban, B.M. 82 who disagrees]) holds that a person is not liable for damages (nezek) that occur in a completely accidental mishap -- the Torah never imposes a penalty in cases of oness gamur. Why then is a shoel obligated to pay in a case of oness gamur? The answer must be that even though the Torah does not obligate payment, the shoel assumed that added liability by virtue of agreeing to the terms of shei'lah with the mafkid.

Here's the catch: Bava Kama (4b) quotes a barysa in the name of R' Oshiya that lists 13 avos nezikin, counting among them the four shomrim. Each shomer is counted as a separate av l'nezikin because each has a unique halachic set of rules that govern the shomer's obligation to make restitution for theft or damage. But wait a minute, said my son -- a shoel is unique only in that he pays even in cases of ones, which no other shomeir must do. The reason a sho'el pays in cases of ones has nothing to do with the halachos of nezikin imposed by the Torah -- his obligation stems from his kabalas achrayus, his self-imposed agreement with the mafkid! Why then does this count as a separate category of av nezikin?

I don't feel so bad for being stumped because his rebbe was also stumped. We will see if he comes up with anything.


  1. A thought off the top of my head:

    Does it have something to do with transfer of possession? A shomer is a temporary custodian. He doesn't actually take personal possession of the article. A shoel, on the other hand, might be seen as taking a time limited ownership of the article with the understand that at the end of the term the rights revert back to the original owner. This would create an essential difference between all three shomer classes and the shoel.

  2. Rashi and Tos. explain the difference is bec. of the chiyuv onsin.

  3. The question here is why is there a chiyuv onsim. You want to say because he accepted on himself the obligation to be responsible for onsim. However, what if we took a different approach. The reason he is responsible for the chiyuv onsim is because he becomes like the owner since he has all the rights as the owner and it has nothing to do with him accepting the chiyuv onsim upon himself, it has to do with his status as the owner.

    The nafka mina would be if he never actually accpeted a chiyuv onsim then according to your pshat, he would not have to pay for onsim.

    In this regard he is on a different level of shemirah. Whereas a shomer sachar, shomer chinam and socher are all three not the owners, just watching the object, the shoel actually takes the place of the owner for everything and this is why he is obligated in oness. It has nothing to do with him accepting upon himself the obligation to pay for oness, but rather his status as the owner. And every owner is responsible for the loss of his own object.

  4. The question still remains -- the chiyuv is not m;din nezek, but from some other din....

    I don't know what it means to say that the shomeir is like the owner. He cannot sell the object, he would not be yotzei a mitzvah which requires "lachem" with the object, etc. -- he fails every test of ownership that I can think of, not to mention the fact that simple reading of the text. What proof do you have that he is the owner and not simply a shomer ("4 shomrim" - v'do"k)?

  5. Anonymous11:13 PM

    I don't think the shomrim are identified as avos nezikim because of the rules governing restitution. Rather, each is an av mazik because he harms the owner in a uniqe way. The first deliberately, the next through negligence, etc.

    The shoel is also an av insofar as he uses the owners property without compensating him in any way. In beis din, that is not a nezek which we recognize. Enforcement, as you point, arises out of the terms of the agreement between the parties. But for R Oshiya's list, the use of another's property without compensation is a kind of nezek, and the shoel is the av that exemplifies it.

  6. I like this answer.

  7. My point was this, in regards to Nezikin, damages that occur to this object, the shoel is considered as responsible as the owner himself. Meaning he has to take the loss for anything that happens to the object.

    The different Shomers are different levels of reponsibility. The Shoel has the highest level of responsibilty, the shomer chinam the least. Tosfos on daf 4B even says that shomer sacher and socher are din echad and the 13 are really twelve. I believe this is because of the similar responsibilty required of them.

    The idea of the shoel being chayiv for onsim because he has ahcrayos, according to Rav Elchanan, could be understood that he had an agreement with the owner, but then you run into the problem of what if he said he doesn;t want to be responsible. If you say that he is inherently responsible because of the nature of the shoel then you answer up that question and it has nothing to do with an ccepting of achrayus.

    Also, I do not understand the anonymous' answer. How does the Shoel using the object with permission qualify him as doing nezek at that point? THe using of the object is the opposite of nezek to the point that if the animal dies while the shoel is using the animal the shoel is patur from paying damages.

  8. Anonymous4:18 PM

    Permission to use can be compared to mechila; after it has been obtained, we won't recognize a claim, but that doesn't mean there hasn't been nezek.
    In this way of understanding shoel, I suspect the ptur of meis machmas melocho is seen as a term of the agreement between the owner and the shoel.

  9. I thought that was exactly what permission to use meant, that there is no nezek. The nezek done by the case of a shoel is damage done by anything other than the normal use of the object. I just don't understand how the nezek is specifically that which the object was borrowed for if what he is chayiv on is anything but.

  10. Also, according to the rules of nezek, I believe, that if I give you my flower pot and tell you to break it, that is not consdiered nezek.

  11. Anonymous5:38 PM

    Its not clear what precisely the "shoel" is borrowing.
    And what R Elchanan is referring to when "things go wrong".

    Why would there not be any concern about damages for the "shoel".

    Technically,the "shoel" would be responsible for any damages caused by whatever it is, that he is borrowing.
    In addition to being responsible for not damaging what he is borrowing.
    Personal responsibility does get complicated when done correctly and halachically.

    jaded topaz

  12. Jaded-

    I am not sure what you are saying. The idea goes like this: A shoel borrows a cow for plowing a field. SO if the animal is damaged or dies while he is plowing the field then he is patur from paying. If anything else happens, like on the way to the field the cow is damaged or dies, then the shoel has to pay, even if it is struck by lightning.

  13. Anonymous6:16 PM

    I understood the question to be why would there be an issue of "damages" for mishaps for the shoel if the initial responsibility is based solely on the contractual agreement unlike the shomer who is responsible if what he borrows gets damaged under his protection ....

    But damages to others,caused by the thing or animal that was borrowed,during the time of the borrowing, would be damages that are not covered by the initial agreement.
    The shoel would still be responsible for those additional damages.

    What if the deer I borrowed for my holiday card photo, munched up a nearby rose garden / zinnia and cosmo patch on the way to the park....
    This garden variety mishap would be damages, I would be responsible for,but not damages that were included in my "responsibility" based on the contractual agreement...

    jaded topaz

  14. sorry I thought you were refferring to something i said.

  15. Anonymous7:38 PM

    Chaim B,
    you said
    "The question still remains -- the chiyuv is not m;din nezek, but from some other din...."
    "The reason a sho'el pays in cases of ones has nothing to do with the halachos of nezikin imposed by the Torah "

    I'm not sure I understand the question.
    If the object or animal he/she borrows damages a third party,the borrower would be obligated to pay the owner who is responsible to compensate the damaged party.

    Or he/she could just pay the damaged party directly,but that would still be considered paying the owner for damages he is responsible for on an ones level and primarily based on the laws of nezikin ......

    Why would this ones have nothing to do with nezikin ?

    Anonymous up above,

    What does the possibility or probability of the owner being damaged for the reasons you mentioned, have to do with whether or not "the reason the shoel pays in case of ones" is primarily based on the laws of nezikin.

    Will the shoel be responsible for and paying, to compensate for the kind of damages you mention ?

    If there is no restitution required, and "nothing went wrong" with the borrowed property which is what I believe the original discussion with R Elchanan was about,then there is no ones for damage claims.
    And there is no payment for damages hence no question on whether or not the reason the shoel has to pay is based on the laws of nezikin or not.

    On the other hand,if ure referring to borrowing without a contractual agreement/relationship and or even the consent of both parties then i guess i kind of understand ure point.
    But not sure why it would not be recognized by a bais din if documented, enunciated and pleaded properly.

    I guess shoel has to first be defined precisely and definitively.

    Is there always an agreement between the shoel and the other party. What if its not apparent that one party is borrowing from and or "using" the other party ?

    If someone "uses" someone,that would be an example of a "shoel". who is obligated to return and or compensate the individual for what he/she used the individual for.
    And any subsequent damages caused.

    So the ones for the shoel could definitely be based on the laws of nezikin by incorporating both the "degradation" classification, which is part of the 13 classifications of damages listed by R Oshiya, and R Hiyya's classifications which include deception,fraud, and seduction.

    jaded topaz

  16. Anonymous5:32 PM

    E-man: I am suggesting that R' Oshiya's list, at least insofar as a shoel is concerned, has less to do with the "rules of nezek" than with the "facts of nezek". In this case, the facts of nezek are that the shoel has damaged the owner by using his property without compensation, even as the owner has graciously permitted him to do so.

    Jaded Topaz: I'm suggesting that there are two different kinds of damage: (1) use of the owner's property which would be governed by the rules of nezek if not for the fact that the owner gave the shoel permission to use the property. This is what R' Oshiya refers to as an av. (2) other damage which, in R' Elchanan's rendering, is governed by the terms of the agreement between the owner and the shoel.

    I hope these comments are helpful.

  17. ANON SAID: I don't think the shomrim are identified as avos nezikim because of the rules governing restitution. Rather, each is an av mazik because he harms the owner in a uniqe way. The first deliberately, the next through negligence, etc.---ad kan.

    if he's right, then why isn't loiveh considered a mazik, a borrower also takes without compensation?