Lesson # 251 • Bailments (Part IV)
Proving the non liability of the bailee
As seen in the prior lessons, each of the four classes of bailees is sometimes free of liability although he cannot return intact the object that was entrusted to him or which he hired or borrowed. The bailee may raise a defense that he never received the object from the owner, or that he returned it to the owner, and also be relieved of liability. He may be required to take an oath similar to the "oath of objects" to be free of liability. The unpaid bailee is not liable if the object was lost or stolen from him, if it was lost by force majeure or an act of God, or if the owner was employed by the bailee at the time that the object was delivered to the bailee. He may be required to take the "oath of bailees" to be free of liability. The lessee is not liable if the object was lost by force majeure or an act of God, or if the owner was employed by the bailee at the time that the object was delivered to the bailee, or if the object was damaged while being used in the manner for which it was leased.

The borrower is not liable if the object was damaged while being used in the manner for which it was borrowed or if the lender was employed by the borrower at the time that the object was delivered to the borrower. In all situations where the bailee or borrower can free himself of liability, he will win the lawsuit brought by the owner or lender if he can bring witnesses who testify in support of his plea of lack of liability. If he cannot produce witnesses, then the bailee or the borrower will be found not liable in any of the aforesaid situations if he takes "the oath of the bailees". If the unpaid bailee pleads that he is not liable because the object was stolen from him, and then witnesses testify that the bailee stole the object, according to Torah law; he must pay the owner the double penalty paid by a thief. However, the Beth Din system at the current time does not have jurisdiction to enforce payments of penalties. Therefore, if the bailee pleads that the object was lost and witnesses testify that it was stolen by the bailee, he does not pay the double penalty.

Valuing and paying for the lost object
Assume that the object is damaged while in the custody of the bailee. It was worth $100 when the damage occurred. It is now worth $30. The bailee must return the object and add $70.

Assume that the unpaid bailee is found to be liable to the owner for the loss or damage of the object because the bailee was negligent. Assume that the value of the object fluctuates between the time that the object is entrusted to the bailee and the time when the loss occurs. The bailee makes payment for the value of the object at the time when the loss occurs, in this case the time when he was negligent that resulted in the loss of the object. (In the case of a paid bailee or a lessee, it is valued at the time that the object was lost or stolen or when the bailee was negligent. In the case of a borrower, it is valued whenever the loss occurs since he is always liable, except if the borrowed object dies while in use. In the case of a robber who is not able to restore he object that he robbed, he makes payment in accordance with the value of the object when it was robbed. As soon as he robs the object, the owner loses jurisdiction over the object andhe cannot sell it or donate it to charity.

But in the case of the bailee it is still under the jurisdiction of the owner and he can sell it or donate it to charity.) The bailee is not liable for an amount of money greater than that which he was told the object was worth. If the owner understates the value of the objector the type of object it is, the liability of the bailee is limited to that value. Assume that the owner informs the unpaid bailee that the contents of the package that the bailee agreed to guard contains bars of silver when in reality it contains bars of gold. If the bailee is negligent and the package is lost, the bailee must pay for the value of bars of silver valued at the time that the bailee's negligence caused the package to be lost. However, if the bailee intentionally causes the loss, he has to pay for the value of the bars of gold, if the owner can prove that they were of gold. If the second person undertakes the role of a bailee under a mistake of fact, then he is not liable if there is a loss. An example given in the codes is as follows: The owner asks Reuven to travel to a foreign place and to take a load of books for him to the other place and agrees to pay Reuven a set fee.

The only method of travel to that place is through an area frequented by robbers who take merchandise by force. All those who travel that route try to avoid the robbers or try to hide as much of the merchandise as they can.

The robbers seize the books. The owner pleads that Reuven was negligent in not taking precautions to avoid the robbers. Reuven pleads that he was not aware of the perils of that route and that the owner should have told him about the perils and if he had told him, that Reuven would not have undertaken the trip. It was held that the owner was negligent in not advising Reuven of the perils and Reuven was not liable to the owner for the loss of the books. Similarly; if the owner advises the bailee that the guarding of the object is relatively simple and it turns out that it is difficult to guard the item, the bailee is not liable for loss. There is one opinion that holds that payment may be made by the bailee paying in cash or in kind or by transferring real estate for that value to the owner. These payments in kind may be made even if the bailee has cash. If the payment is made by transferring real estate it must be made from the highest quality land of the bailee. There is another opinion that if the bailee possesses cash or real estate he is not permitted to pay in kind. I think that in our times, the latter opinion should be followed.

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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