Lesson # 257 •The Paid Bailee part 1
It can be stated:
(2) He is liable if the object was lost by him or if it was stolen from him. This holds true for theft as distinguished from armed robbery; the latter is classified under force majeure. This holds true even if he guarded the object in a normal manner and was not negligent.
(3) He is not liable for loss, destruction, or any other non-return of the object as it was delivered to him if due to force majeure.
(4) He is liable for the non-return of the object no matter what the reason, if he uses it, since any use by a paid bailee is unauthorized, including if the object "dies" while he is using it. A lessee or a borrower is not liable if the object that he rented or borrowed "dies" while it is being used for the purpose for which it was rented or borrowed. For example, if the lessee rents a car from A-plus Car Rental Agency and while he is driving it in a normal manner the engine ceases to function through no fault of the lessee, the lessee is not liable.
(5) The bailee is not liable to the owner for loss, damage, destruction, or any other non-return of the object entrusted 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 that 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 best way for the bailee to prove his non liability is to produce witnesses who can testify that the object was destroyed in a manner that would exonerate the paid bailee from liability; For example, witnesses testify that an electrical fire broke out because of negligence of the electric utility doing repair work in the neighborhood, and the fire spread to the home of the paid bailee, which fire destroyed the entrusted object. If there are witnesses to the event the bailee must produce the witnesses.
If there are no witnesses to the event, the bailee may take the bailee's oath. There are three oaths involved.
(1) The bailee takes an oath that the object is not in his possession because it was lost by force majeure, and details the type of force majeure. This prevents the situation where the paid bailee claims that the object was lost through force majeure when in reality he still has the object in his possession.
(2) The bailee takes an oath that he was not negligent in bringing about the loss of the object, nor was it lost by him, nor was it stolen from him. In all these situations he would be liable to the owner.
(3) The bailee takes an oath that he did not make unauthorized use of the object. If he had made unauthorized use, he would be liable no matter what the cause of the loss, including force majeure.
In the case of a paid bailee, the payment to be made by the paid bailee to the owner is the value of the object at the time that the object was lost or stolen or when the paid bailee was negligent. The bailee is not liable for the care of the object until he enters upon the role of a bailee.
According to most opinions, all that is required to establish the legal relationship of owner and paid bailee is a simple meeting of the minds as seen through the discussion between the owner and the proposed paid bailee to make the latter person a paid bailee, or as sometimes seen through their actions. There is a second opinion that holds that mere agreement is not sufficient to establish the owner/paid bailee relationship. According to this second opinion, the proposed bailee does not become a paid bailee unless there is also performed an act to the object that would have been an act of acquisition had the object been sold from the owner to the proposed bailee.
Payment to the Bailee
There are various ways in which payment in kind may be made. It may be that the owner states that he will do a favor for the bailee in return for the bailee guarding the object for a specified term; it may be for a favor already performed by the owner for the bailee. It may be that the owner forgives the bailee a loan inconsideration of the bailee guarding the object, or extends the time for payment; it may be the owner's promise to make a loan to the bailee if he will guard the owner's object. This last agreement constitutes illegal interest for the owner who will get his money back and will also obtain the benefit of the guarding of his object by the bailee/borrower.
Nevertheless, the bailee must guard the object. It may be that the owner will publicize in his newspaper the activities of the bailee, or obtain for the bailee an audience with an important person. Or it may be that the owner performed an act on behalf of the bailee that the Torah required him to do, such as to save the bailee while he was drowning. It may be that the bailee commenced the guarding as an unpaid bailee but then the owner did something for the bailee, such as giving the bailee a gift. Anytime that the owner, whether explicitly or by inference, does something for the bailee in return for the bailee guarding the object of the owner, the bailee is a paid bailee.
A broker, a buyer's representative who is paid for each purchase by the storekeeper, or a salesman who holds the owner's object for sale and is to be paid for selling it, is a paid bailee while the object is in his possession.
Reuven takes an object from a seller to show to Shimon, and if Shimon likes it, Reuven will purchase it as a gift for Shimon, and if Shimon does not like it, Reuven will return the object to the seller. Shimon does not like the object; Reuven becomes a paid bailee from that time until he returns the object to the seller.
Partners are in the role of a paid bailee one to the other.
A person hired as a helper in a household is a paid bailee for the owner's objects if the duties include taking care of the owner's objects.
A lender who holds collateral for the repayment of the loan is deemed a paid bailee regarding the collateral.
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: email@example.com and via website: www.israelbooks.com and at local Judaica bookstores. Questions to firstname.lastname@example.org