THE JERUSALEM INSTITUTE OF JEWISH LAW 
Rabbi Emanuel Quint, Dean 

Lesson # 75 - TORAH OATHS - Oath #3: Oaths of Bailees

The third and last Torah judicial oath deals with bailees (SHOMRIM), which I have designated as Oath #3. What is a bailee? He is a person (Reuven) or entity (ABC Corporation) who legally holds something belonging to a second party (Shimon) or entity. Shimon gave Reuven the thing to hold. This is different from the case of finding something, the owner did not give it to the person holding it, rather the person holding the object, found it.

There are four kinds of bailees as described in chapters 291 to 347 of Hoshen haMishpat. The oaths that we are discussing are found in Chapter 87. Laws of bailees in short: Reuven may be: (1) an unpaid bailee (SHOMEIR CHINAM); (2) a paid bailee (SHOMEIR SACHAR); (3) a renter (SHOCHEIR); or (4) a borrower (SHO'EIL). Corresponding examples: (1) Shimon is at the airport and wants to go into the duty free shop and asks Reuven to watch his carry-on bag until he does his shopping. (2) Shimon arrives at his destination and wants to check his bags at the airport for which the baggage handler, Reuven, charges a fee. (3) Shimon has a car renting agency and Reuven rents a car from Shimon. (4) Reuven borrows Shimon’s car to drive to Eilat. In all of these cases there is a standard of care that Reuven is responsible for. 

In case (1), (a) Reuven is responsible for the object that he is watching if he was negligent in how he watched it and as a result of his negligence the object was stolen or lost. (b) However, Reuven is not responsible if the object was lost or stolen without his negligence. And it goes without saying that he is not responsible for the loss of the object if it was lost or destroyed by an act of G-d, such as an earthquake. In case (2), (a) Reuven is responsible for the loss or destruction of the object if he was negligent in watching it ,or if it was lost or stolen even without his negligence contributing to the loss. (b) However, Reuven is not responsible if the objects was lost or destroyed by an act of God, such as an earthquake. In case (3), (a) Reuven is responsible for the loss or destruction of the object if he was negligent how he watched it, or if it was lost or stolen even without his negligence contributing to the loss. (b) However, Reuven is not responsible if the objects was lost or destroyed by an act of God, such as an earthquake. [Cases (2) and (3) are similar in the responsibilities of Reuven.] In case (4), (a) Reuven is nearly always responsible. If the object was lost or destroyed by his negligence, or was lost or destroyed even without his negligence, or even if it was destroyed in an earthquake or any other act of God, Reuven is still responsible for the loss or destruction of the object that he borrowed. (b) However, if the object “died” while being used in the manner for which it was borrowed, Reuven is not responsible for the loss or destruction of he object. For example, while Reuven is driving to Eilat in the car he borrowed from Shimon, the car dies, that is the motor and transmission die and the car cannot be used again, then Reuven is not responsible.

Thus under (1)(b), (2)(b), (3)(b), and (4)(b), Reuven is not responsible for the loss or destruction of the object. In order for Reuven to prove that he is not responsible, he has to take a Torah oath. 

In case (1)(b) Reuven takes three oaths: (i) that the object is not in his possession because it was lost or stolen; (ii) that he was not negligent in causing the loss of the object; and (iii) that he did not make unauthorized use of the object. 

In case (2)(b) Reuven takes three oaths: (i) that the object is not in his possession, and the loss was occasioned by force majeure; (ii) that he was not negligent in causing the loss of the object, nor was it lost by him, nor was it stolen from him; and (iii) that he did not make unauthorized use of the object.

In case (3)(b) Reuven takes three oaths: (i) that the object is not in his possession, and the loss was occasioned by force majeure; (ii) that he was not negligent in causing the loss of the object, nor was it lost by him, nor was it stolen from him; and (iii) that he did not use the object in a manner other than in a normal manner.

In case (4)(b) Reuven takes three oaths: (i) that the object is not in his possession because it was destroyed while he used it (or was damaged while he used it); (ii) that he was not negligent in the care of the object, nor was it lost or stolen while in his possession, nor was the loss occasioned by force majeure; and (iii) that he used the object only in the manner for which he borrowed the object.

In all four cases, Reuven, the person who had Shimon’s object in his possession may take the oaths to free himself of liability. Should he refuse to take the oaths, Reuven will have to pay Shimon for the loss of the object.

The first oath in each set consists of a statement that Reuven does not have the object in his possession. This eliminates the possibility that Reuven is willing to pay Shimon for the object and then Reuven can keep the object for himself. The first oath also gives a reason why the object is not in Reuven’s possession and that is the reason that will relieve Reuven of responsibility.

 The second oath in each set sets forth a statement that the object was not lost through some reason that would have made Reuven liable for the loss.

The third oath in each set differs. In cases (1) and (2) where Reuven is a watchman of Shimon’s object, whether for compensation or without compensation, Reuven has no right to make use of the object and if he does he will be liable for its loss, no matter what the reason including an act of G-d. In case (3) where Reuven rents the object to use it, he must use it in a manner that is normal for the use of the particular object rented. If he used it in another manner, his use may make him liable for its loss, no matter how occasioned. In case (4) Reuven is always liable except if he used the object in a manner for which he borrowed it. 

In all three Torah judicial oaths it is the defendant who is faced with the option of taking or not taking the oath. If he takes the (set of) oaths he will not be liable to Shimon. Should he decide not to take the oaths he will be liable to Shimon for the loss of the object.

The subject matter of this lesson is more fully discussed in Vol.III, Ch.87 and in Vol.III, Ch.294 of A Restatement of Rabbinic Civil Law by E. Quint and on sale at local Judaica bookstores. Questions to quint@inter.net.il