Lesson # 249 •Bailments (Part II)
Classes of bailees (Shomrim)
All that is said in these lessons regarding bailees apply whether the owner and/or the bailee is a man or a woman or a minor. There is an exception: If the wife holds objects belonging to her husband and breaks it through her negligence, she is not liable to him. The reason is for the stability of the home. However, if she intentionally breaks his things she is liable. If a bailee did accept an object from a married woman he should return it to her when the time for the return of the object has arrived.

The following are the four classes of bailees:
(1) The unpaid bailee (Shomer Chinam). In the case of the unpaid bailee, the owner asks the bailee to guard something for him. A typical case might be a passenger in an airline waiting room who wishes to go to the restroom asks someone whom he knows or whom he just met to guard his suitcase for him. There are certain expectations that the owner has when he entrusts the unpaid bailee to guard the suitcase, such as he will not walk away and leave the suitcase unguarded. The unpaid bailee on the other hand cannot be expected to safeguard the suitcase if an armed robber demands that he hand over the suitcase or be shot. In the situation of the unpaid bailee, the owner is the sole benefited party and the unpaid bailee receives no benefit.

(2) The paid bailee (Shomer Sachar). The owner, instead of asking the unpaid bailee to guard the suitcase, can check the suitcase with a clerk who is an employee of the airport and to whom the owner pays an agreed-upon fee. The owner's expectations are now higher than they were in class (1) where the bailee is unpaid. Here the bailee is getting paid and has greater responsibilities. Both the owner and the paid bailee receive benefit; the owner in that his object is being guarded, and the bailee in that he is being paid.

(3) The lessee (Shocheir). A person (the lessee/bailee) wants to rent a car for a week and he goes to a car-rental agency and rents a car and pays (or will pay) the agreed-upon weekly rental. Both the owner and the lessee receive benefit; the owner/lessor by receiving a fee and the lessee the use of the car. The benefits are just the opposite in types (2) and (3). In type (2) the bailee receives a fee, and in type (3) the lessor/bailor receives the fee. In type (2) the object is held by the person receiving the fee, and in type (3) the object is held by the person paying the fee.

(4) The borrower (Sho'eil). A person would like to type a letter but does not own a typewriter. He goes to a friend's house and borrows the friend's typewriter, without any fee involved. The borrower is the sole beneficiary of the transaction; the owner receives no benefit. The borrower has more responsibility than in the three prior classes.

Liabilities of the bailees
(Although there are four classes of bailees, the halacha classifies the aforesaid four classes of bailees into three classes. Classes (2) and (3), the paid bailee and the lessee, have some of the same responsibilities and liabilities.)

In general, the responsibilities and liabilities of the four classes of bailees revolve around six factors that come into play when it is not possible for the bailee to return the object to the owner; the four classes of bailees are analyzed below against these six factors. (i) The object was lost through the negligence of the bailee. (ii) The object was lost by or stolen from the bailee. (iii) The object was lost by force majeure (an event sometimes referred to as an act of God and beyond the control of the bailee to prevent). For example, a fire broke out and he cannot rescue the object; or a robber threatened to harm him if he did not surrender the object. Robbery differs from theft (the object was stolen from him). In the former the bailee is threatened and he is not in danger; in the latter the bailee is not aware that the object is being stolen and his safety is not threatened. (iv) The object "died" while being used in the natural course of events. For example, an automobile is being driven and the engine fails to work. Or a horse dies while pulling a plow, or a computer fails to function. (v) The object cannot be returned for any reason after the bailee made unauthorized use of the object. The bailee is considered to be like a robber and the object is deemed to have passed to the ownership of the bailee for purposes of liability when he made unauthorized use of the object; he is liable for its return no matter what the circumstances of its loss. (vi) The object cannot be returned for any reason but the owner was working for the bailee, even in an unrelated job, when the bailee or the borrower took possession of the object. There is an exception to this broad principle of exonerating the bailee; if the bailee intentionally damaged or destroyed the object, he will be liable even if the bailor was working for him when he took possession of the object. In all the situations the non-return of the object intact is due to the object being lost, stolen, damaged, destroyed, or to force majeure. The bailee's keeping the object for himself, or denying that the object was given to him or that he returned the object, or similar reasons are not here covered. We will now test these six factors with each type of bailee:

(1) The unpaid bailee:
(i) He is liable for the non-return of the object if due to his negligence, it was lost, damaged, or destroyed. This is close to destroying the object willfully (for which he is liable) since the owner is relying upon him for the minimal protection of the object. (ii) He is not liable for the non-return of the object if it was lost by him in a non-negligent manner, or if it was stolen from him. The two situations, the theft of the object from the bailee and the loss of the object, are not alike. In the case of the theft it is almost force majeure; in the case of loss it almost borders on negligence. Yet both situations free the unpaid bailee from liability. (iii) He is not liable for the non-return of the object if it was lost through force majeure. (iv) He is liable for its non-return if the object "dies" while the bailee uses the object, since an unpaid bailee has no right to use the object. (See (v). (v) He is liable for the non-return of the object no matter what the reason, if he uses it, since any use by an unpaid bailee is unauthorized. (vi) The bailee is not liable to the owner for not returning the object to him if the owner was present and working for the bailee (even in an unrelated job) when the bailee took possession of the object. This is true even if the owner was not working for the bailee at the actual time when the object was lost, even by the negligence of the bailee. However, the bailee is liable if he intentionally damages or destroys the object.

The liabilities (the six factors) of the paid bailee, the lessee and the borrower shall be dealt with IYH in the next lesson

The subject matter of this lesson is more fully discussed in volume VIII chapters 291 of A Restatement of Rabbinic Civil Law by E. Quint. Copies of all volumes can be purchased via email: orders@gefenpublishing.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to quint@inter.net.il

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