Lesson # 253 - Bailments (Part VI) We begin this lesson with a discussion of the standard of care required of a bailee. The standard of care required of the bailee depends upon the object that is entrusted to him. Every community will have its own standards depending upon the climate and standards of refrigeration of perishable objects, the types and number of thieves and burglars, the types of safes and other things of that nature. Beth Din in each community must adopt standards that are in conformity with the habits of the community and the type of object that is entrusted to the bailee. The fact that the bailee treated the object entrusted to him in the same manner as he treats his own object is not a defense if the object gets lost or damaged, unless his standard for his own objects measures up to the community standard. A great deal of the laws in the codes deal with entrusting clothing or cash to bailees, and I have included only those two types of objects. What follows are some of the laws that go back to Talmudic times regarding these specific objects entrusted by the owner to the bailee. All the rules are applicable only if the parties between themselves do not agree otherwise. The owner and the bailee can set their own standards of proper guarding of the object by the bailee. Clothing should not be stored in trunks since mice find their way in and destroy the clothing. Rather it should be hung in a closet out of the reach of mice. There is an opinion that this applies only if the trunk contained some food resulting in food particles still being in the trunk. This may not apply if the trunk is placed near water, since mice will not eat the garments if there is water to drink. Garments containing furs or skins must be stored in cool places; otherwise, they will spoil from the moisture in the walls of the closet. Moneys (moneys were then always coins and not paper money) have special rules to protect against rust and other spoilage and against theft. What is said regarding moneys also applies to jewelry, precious stones, gold pieces, and similar objects. The bailee should bury them in the ground at least about 3.5 inches (tefach) deep, and where thieves abound who are adept at finding things buried in the ground, they should be buried into the walls of a house. Certain exceptions are made if the money is entrusted to the bailee on the eve of the Sabbath or a Holy Day or immediately at the conclusion of these days, when the bailee does not have time to hide the money. The aforesaid Talmudic requirements were changed during the Middle Ages and the standard became what a reasonable person would do with his own money, he could do with the money he was guarding as a bailee. If the bailee received the money to deliver it to another place, he was required to hold the moneys tied up in his hand and if there was along journey, the bailee had to sew the money into his garment or to put it into a money pouch that he kept under his clothing. All these things had to be done in such a manner that pickpockets could not get to the money. Negligent conduct by the unpaid bailee The unpaid bailee is liable to the owner if a loss occurs through his negligence. Each community should set its own standards depending upon the time and place of the bailment. The owner and the bailee can agree among themselves to the type of guarding that the bailee should follow (and the extent of his liability). Absent such agreement, the following are some of the rules as laid down in the Talmud and the subsequent codes and responsa literature. If the bailee hides the object so well that he cannot locate it when the owner demands it back, this is deemed negligence and the bailee is immediately responsible to compensate the owner for the loss of the object. The owner is not required to wait until the bailee finds the object. Each plea of "I do not know where the object is" is deemed to be a confession of negligence and is equivalent to "I destroyed the object," in which case he is liable. Another situation: If a bailee does not know whether the object is lost through his negligence or through force majeure, he must pay the owner since he cannot take the oath that will absolve him from liability. He can take the oath of bailees to free himself of liability only if he can swear with certainty that he was not negligent. The bailee realizes that someone is stealing the object or faces a robber and if he cries out the thief or the robber will flee since others will come to his defense. He fails to cry out without being threatened that he will be injured if he cries out, he is negligent of not having cried out. If he is threatened, he is not negligent if he fails to cry out. The unpaid bailee is liable if there were people available who could have come to his aid without any expense to him. If there were people who would come to his aid but insisted upon being paid, the unpaid bailee is not required to offer them compensation and if they then refuse to help him, he is not liable for not having made compensation to the others. The bailee will be reimbursed for the expense. There is a well-known topic in Talmudic law and that also appears in all of the codes, commentaries, and responsa literature known in its original as techilosah bepeshia v’sofoh b'ones. That is, the bailee was at the outset negligent in how he guarded the object, but the object was lost through force majeure. Is the bailee liable? The Talmud after much discussion concludes that the bailee is liable with a few exceptions, if there can be shown some casual connection between the negligence and the force majeure. That is, if not for the negligence the force majeure would probably not have caused the loss. The concept can best be illustrated by a few examples: The bailee hid the object in a picket of reeds, a place where it would be difficult for thieves to find it, but it was a place where there were many fires. The object was stolen from the hiding place. The bailee was found liable, for had he hid the object in another place, the thief may not have found the object to steal it. The bailee guarded the animal that was entrusted to him in a place that was safe from wild animals such as lions and wolves but was frequented by thieves. The animal was devoured by wolves. The bailee was liable because if he had guarded it in a place that was safe from thieves, then it would also probably have been safe from wild animals. However, if the event would have occurred regardless of the precautions taken, then the bailee is not liable even if he acted negligently in the first instance. For example, the bailee is guarding the animal in a place frequented by both wild animals and thieves. The animal dies a natural death. There is no liability since there is no causal connection between the negligence and the death of the animal. 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 [The Sukkot
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