Lesson # 248 •Bailments (Part I)
We begin now a topic that so many of us studied in our first introduction to Gemara, that of the four shomrim, guardians of objects. Commencing with this lesson and continuing for many other lessons, we deal with the laws of bailments. The bailment situation, that is, one person lawfully holding an object of personal property belonging to another person, is a common situation. I have called the holding of the object for another person "guarding" the object. It is referred to in some works as "keeping" the object, or "watching" the object, or "holding" the object. I have used the term "guard" to include all of these meanings. All businesses and individuals that lease objects are part of this situation; the person who borrows his friend's pen to write a few words is in this situation. The person who guards a friend's belongings while his friend goes away for a few minutes is in such a situation. All those entities that are in the warehousing business are in that situation. An auction house that holds objects for sellers is in that situation.

These are only a few of the myriad of examples. The "owner" (the bailor) of the object is designated as such, except that when he lends the object to a borrower, he is designated as "the lender". The person who holds the owner's object is the "bailee," except that when he borrows the object from a lender, he is designated as the "borrower." The person who is asked to become a bailee but has not yet become a bailee is designated as "the second person”. The article of personal property that is being guarded by the bailee is the "object."

Although this lesson and the following lessons dealing with bailments, I have included in the opening lessons some of the laws of the other bailees to show the interrelationship of the four classes of bailees. In halacha, bailees are divided into four classes: (1) the unpaid bailee (shomer chinam); (2) the paid bailee (shomer sachar); (3) the lessee (socher); and (4) the borrower (shoel). In all four classes, the owner has entrusted an object to the person who is now holding it legally.

I shall now set forth many of the questions that shall IYH be raised in the lessons that follow:

There is a general principle in halacha that in matters regarding their money, the parties may make any stipulations that do not contravene halacha. (An example of where the parties may not stipulate how to spend their money is in the case of paying interest on a loan. There is no exception to this halacha. Neither the lender nor the borrower may stipulate interest into a loan.) May the parties stipulate that an unpaid bailee has greater liability or less liability than the halacha imposes on this class of bailee?

At what moment does one become a bailee? What is the responsibility of the bailee? When is he liable and when not liable to the owner for loss or damage to the object? What if a bailee who is not permitted to use the object does use it? What if there is a deviation in the use of the object by the borrower or lessee from the purpose for which the object was borrowed or leased? What if the owner or lender is employed by the bailee when the bailee is entrusted with the object? If a purchaser of an object leaves the object with the seller for temporary safekeeping, is the seller a bailee?

Assume that the bailee cannot return the object and has a claim that will exonerate him from liability for the non return; how does he raise and prove his defense? What if there are no witnesses? When does the bailee take "the oath of the bailees"? What is the proper standard of care required of an unpaid bailee? What are some examples in halacha of such care? It should be remembered that when the halacha was historically established there were no banks with safe deposit boxes, nor burglar alarms, nor locks on doors or other devices to withstand the sophisticated burglar of today: What are some examples of negligent care? How is the value of the object determined and how are the damages assessed if the bailee is negligent in his care of the object? There are some standards that do vary with time and some that persist in halacha through the ages.

How and when does the role of the bailee terminate? What is the relationship between the owner and the bailee after the relationship has terminated and the object is still in the possession of the bailee? May a bailee, without the authorization of the owner, ask a second person, whether compensated or not compensated, to become the bailee in his place? What are the rights and liabilities of each party if the original bailee gives the object to a second bailee? Does it matter whether the second bailee is a member of the family of the original bailee? These lessons have been arranged in the following sequence: the classes of bailees; the fact that whether the owner and/or bailee is a man or a woman makes no difference.

Once the various classes of bailees has been set forth, there is then discussed the situations in which the bailee is liable to the owner for loss or damage to the object entrusted to the bailee; these differ from one class of bailee to another. There is an omnibus exception to the liability of the bailee and this is set forth in the lesson dealing with the owner of the object working for the bailee. May the parties stipulate that the liabilities of the bailee shall be otherwise than the halacha provides? Assume that the owner pleads that the bailee is liable to him. How can the bailee defeat this claim and prove non liability? If the bailee is liable for his conduct there must be an assessment of the monetary value of the object and the time of the valuation of any loss, so that the bailee will know the extent of his liability to the owner; the manner of payment of the damages is included in the same lesson. Once these rights and liabilities have been set forth, these lessons show how a person enters the role of a bailee, the standard of care required of a bailee, and what constitutes negligence on the part of a bailee (including the situation where the bailee was negligent but the loss came about from force majeure). As a corollary of this last topic of what constitutes negligence, there is discussed the situation where the original bailee gives the object to a third person to guard. Is this negligence? The topic concludes with lessons on how the owner/bailee relation- ship terminates, and the liabilities of the bailee if the object is left with him after such termination.

As I stated at the outset, many of us studied this topic in our first introduction to Gemara and many times since. Others remember these topics from their attending Gemara classes or by learning daf yomi. And many readers will be studying this topic for the first time. I trust that you will be enthralled by this topic as being one that follows the Torah student all his life. The subject matter of this lesson is more fully discussed in volume VIII chapters 290 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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