Baba kamma 11b.
Before leaving for an extended vacation, you entrust your golden, convertible Porshe to your best friend, Billie One, a car enthusiast like yourself, to look after until your return. To ensure that the engine is in working order when you get back, you instruct Billie One to take the car out for a run each day but you do not pay him for his trouble.
Two weeks later, while sunning yourself at Club Med, Billie One decides to go on vacation himself for two days. So he drives your Porshe to Billie Two who owns a parking garage, and pays him $50. While pulling her car out of the parking lot, Jane, a customer of Billie Two hits your Porshe causing it extensive damage. Upon return from vacation, Billie One returns to you your damaged car and though embarrassed, he feels no obligation to pay for the damage. “After all,” he explains, “I did not abandon your car. I handed it over to Billie Two, a professional parking attendant, and I even paid him. I am afraid you will have to take it up with the car parking garage.” Billie Two maintains that the damage that occurred was an accident beyond his control because Jane had no right to drive the car in the parking garage and should have waited for Billie two to drive it out. So you take Billie one to Beit Din, a Jewish court of law. You ask the Dayan, the Judge, to figure it out.
Billie One has the Status of a “Shomer Chinam,” an unpaid bailee who has agreed to guard a deposited item free of charge. As such he is not responsible for accidental damage caused without any negligence on his part. Billie Two has the status of a “Shomer Sachar,” a paid bailee who receives compensation for guarding the item. As such, he has a greater duty of care to look after the deposited item because he is being paid for his trouble. Accordingly, he is responsible for accidental damage caused even without any negligence on his part.
“What do you want from me?” argues Billie One. “I acted responsibly. I gave the Porshe to a Shomer Sachar who has an even greater duty of care towards you than I do.
In this situation, the Dayan will rule against Billie One. Unless you explicitly permitted Billie One to entrust the car to Billie Two or unless such permission can be implied from your past behavior, Billie One has no right to do what he did. You, the owner can say, “Ein Retzoni She’yeheh Pikdoni Beyad Acher,” I placed my trust in Billie One because I know him but I do not know Billie Two”. One cannot be required, after the fact, to trust somebody one does not know, even if that person has a higher standard of care over the deposited item.
Reprinted with the permission of Raphael Grunfeld, the author of Ner Eyal on Seder Nashim and Nezikin. TO ORDER NER EYAL ON SEDER MOED CLICK HERE ON ShopOU or buy it at your Judaica bookstore. Any questions can be addressed to the author at firstname.lastname@example.org.
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