Lesson # 254 •Bailments (Part VII)
This is the last lesson dealing with the responsibilities of the unpaid bailee.
The owner entrusted the object to the bailee, who in turn entrusts the object to a third person. The object is lost or damaged while in the possession of the third person. There are now three parties to the transaction, the owner, the bailee, and the third person. What are their respective rights?

The halacha is now established that if the bailee entrusts the object to a third person to guard and the object is lost, stolen, or damaged, the bailee is liable. The reason given is that the owner can state that he believes the bailee should the bailee take an oath to relieve himself of liability, while the owner does not trust any other person to take an oath of non-liability. This holds true even if the third person enjoys a reputation that he is more trustworthy than the bailee. Therefore, if the object was lost or stolen or damaged in the presence of witnesses so that the bailee is not called upon to take an oath, the bailee is not liable since there is no oath involved. Similarly; if the bailee was present when the object was lost or stolen or damaged and the bailee can testify to facts that show no liability to the owner, the bailee is not liable. The owner cannot raise the plea of the bailee only being believed by him since it is the bailee who is taking the oath of non-liability.

If the bailee entrusted the object to the third person in the presence and knowledge of the owner and the owner did not protest, then the bailee is not liable if the object was lost, stolen, or damaged in the possession of the third person. Therefore, if the owner was accustomed to entrust this third person, then the bailee is not liable to the owner if the object was lost, stolen, or damaged while in the possession of the third person. If the third person does not have the money to pay the owner, the bailee is still liable to him.

When the owner entrusts the bailee with the object to be guarded in the home of the bailee, it is assumed that the wife, sons who are of age, and other members of the household of the bailee will also be engaged in the guarding of the object. But if the bailee entrusted the object to minor children or to others in the house but who do not reside with the bailee, the bailee is liable for loss. However, if it can be shown that the owner knows that the bailee never guards the object by himself but always entrusts the object to another person, the owner cannot be heard to plead that the bailee is liable for loss of the object.

There are two reported cases in the Talmud that appear in all of the codes: The owner entrusted the bailee with moneys to guard. The bailee entrusted the moneys to his mother, who hid the moneys but not too well, and the moneys were stolen. It was held that the bailee is not liable because he entrusted the moneys to a member of his household. This case also involved the situation where the bailee did not inform his mother that the moneys were not his since the bailee felt that the mother would take better care of the money if she thought it belonged to her son. The mother had no liability to the owner since she was not told that the money belonged to the owner and not to her son. The bailee was required to take an oath that the money that he gave to his mother that was stolen from her was indeed the money entrusted to him by the owner, and the mother was required to swear that she hid the moneys from view; If they both took the oaths they are free of liability to the owner.

However, if the bailee advised his wife and the members of his household that the money he is entrusting to them belongs to the owner, and they did not guard the object as they should have, they are liable to the owner and the bailee is not liable. If the wife or the other members of the house- hold who are liable to the owner do not have money to compensate the owner, there are opinions both ways whether the bailee is liable to the owner.

The other case: The owner of hops entrusted the hops to the bailee, who also had hops of his own. The bailee instructed his servant to place some hops into the beer, pointing to his own hops. The servant placed some of the owner's entrusted hops into the beer. When the owner sued to recover the value of the hops, it was held that the servant was not liable since his master the bailee did not tell him to put these hops in and not the others. The servant might have thought that the bailee pointed to certain hops only to make things easier for him but it did not matter which hops he put into the beer. The bailee is not liable since he told the servant to place "some of these hops into the beer. "

The bailee pays to the owner the benefit of the owner's hops in his beer. Thus if the beer turned sour and the bailee has no benefit, he pays nothing to the owner.

The bailee must take an oath that all of these facts are true.

Termination of the role of the bailee
At the time that the bailee is entrusted with the object by the owner, they may stipulate the length of the term of the bailment, the time and place where the object should be returned to the owner, and any other agreements they may have regarding the return of the object. All such agreements will be binding on both parties.

For example, a car rental company may permit the lessee to return the car in another city if that is convenient for the lessee.

Assume that there is no agreement between the parties regarding the termination of the role of the bailee and how and where to return the object to the owner.

There are two ways to look at the situation:
(1) from the perspective of the owner or
(2) from the perspective of the bailee.
(1) The owner may at any time, even before the agreed-upon time of termination, request that the bailee return the object and terminate the bailee's role. He may not do this in the case of the lessee or the borrower. The owner cannot demand that the bailee return the object to a place other than the place where the object was entrusted to the bailee. If the object was entrusted to the bailee in Tel Aviv, the owner cannot demand its return in Jerusalem. The owner cannot make such demand even if he offers to pay the expenses of the bailee to make such delivery. This holds true even if the object that was deposited was money and the bailee has other money in Jerusalem to give to the owner in place of the money that he is holding in Tel Aviv. However, if the bailee brought the object to Jerusalem, the owner can demand its return there. On the other hand, even if the bailee brought the object to Jerusalem, the owner can demand that the object be returned in Tel Aviv;
(2) Assume that the time of termination has not yet arrived. There is an opinion that the bailee may terminate his role the same as any employee may resign his employment at any time. There is another opinion that he is not similar to an employee and thus he may not resign his role as a bailee. The bailee may return the object to the owner wherever he may find him (or the owner's wife if the object is returned to the home of the owner), except if the place stated by the bailee is too remote and is desert-like. If the bailee forced the owner to receive the object back, it is a valid return of the object.

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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