Lesson # 258 • The Paid Bailee part 2
The Standard of Care Required
Assume that the owner of an object has entrusted it to a paid bailee to watch. For example, the owner delivered it to a warehouse man to watch in his warehouse. The object was damaged or lost while in the possession of the warehouse man, a paid bailee, and cannot be restored to the owner at all or in the condition it was in when it was entrusted to the bailee because it was damaged, lost, or stolen. If the paid bailee watched the object according to community standards for watching such objects, he is not liable. If he failed to meet such standards, he is liable. Since most communities do not have such set standards, the halacha proposes standards to help guide Beth Din. As was stated above, he is liable for theft of the object, which includes not only the obvious type of theft as, for example, the object was stolen because the bailee failed to close the door or because he fell asleep while he was guarding the object. Theft also includes the situation where the bailee locked the door properly and yet the object was stolen or lost. He is not liable if it cannot be restored because it was damaged, lost, or destroyed by force majeure.

The paid bailee will be absolved of liability if the object was lost in a manner completely unexpected and beyond the control of the bailee such as where armed robbers come upon him and seize the object and he does not have the ability to fend them off, and in similar cases. If a fire broke out, as was often the case in the restricted ghetto Jewish areas in Europe, where fire consumed neighborhoods, and the object was burned, the paid bailee is not liable if he could not have saved the object even if he exerted effort to do so or even if he hired others to do so. However, if the object could have been saved if he exerted himself, he is liable. If he could save either his own objects or that of the owner and he saved his own, he is liable to the owner. The paid bailee is free of liability only if he takes an oath that the object was consumed by the fire. Very often in the wake of large conflagrations, there is looting in the burned out homes and businesses. It may be that the object was not consumed by the fire but was stolen by thieves after the fire, in which event the paid bailee is liable. It may be that the bailee is not able to know with certainty whether the object was lost to the fire or was lost to thieves and thus he cannot take an oath. In this situation he is liable to the owner.

However, if the only people who looted were armed robbers, the bailee is free of liability in either event, the fire or armed robbers having caused the loss of the object, both of which are force majeure; his oath will be in the alternative that either armed robbers or the fire caused the loss of the object. Upon taking such an oath the paid bailee is free of liability.

Regarding the care of animals by the paid bailee if they are lost or destroyed as a result of force majeure, he is not liable, otherwise he is liable. Assume that the animal he is watching is attacked by wild animals, he is liable if he made no attempt to save the animal according to conditions that prevailed, depending upon the type and size of the attacking animals. If he did make an attempt and was not successful, this is the highest degree of force majeure, and he takes an oath and is free of liability. In all of the cases the shepherd is free of liability only when they [the wild animals or the armed robbers] came upon the place where the shepherd happened to be. However, if the shepherd led his flock to a place where there are wild animals or armed robbers, these are not cases of force majeure and he is liable.

In a reported case, a shepherd challenged armed robbers and showed that he did not fear them and told them that there were many shepherds in the vicinity and they had many weapons. Using the information as to the whereabouts of the flocks, the robbers overcame the shepherds and carried off the flocks. The shepherd is liable for the loss since he provoked the robbers by challenging and informing them.

A shepherd who pleads that he helped save the animal of the owner with the help of other shepherds whom he hired for that purpose and there are no witnesses as to how much he spent, takes an oath how much he spent and he can make a claim only up to the value of the owner's animal. If the shepherd abandoned his flock and went to the close-by town, whether or not during the time when shepherds usually go to the town, and wolves or a bear came by and attacked the flock and tore the animals, we do not automatically say that had he been there he would have saved the flock.

Rather, the situation is assessed to determine whether with the assistance of other shepherds and sticks he could have rescued the flock. If he could have, he is liable to the owner; if he could not have, he is absolved of liability; If beth din could not determine whether or not he could have saved the flock, he is liable to the owner.

Similarly if the shepherd leads his flock over a bridge and one animal pushes another animal, causing it to fall into the river rapids below; he is liable since he should lead the animals over the bridge one at a time, for he is being paid to guard the animals in a competent manner.

Because he is negligent at the outset by leading all of the animals together over the bridge, although when the animal falls it was because of an outside force majeure, he is liable. If the animal in the custody of the paid bailee dies a natural death, it is deemed a case of force majeure and the bailee is free of liability; However, if he starves the animal and it dies, it is not a case of force majeure.

If the animal flees from him and ascends the peak of a slope and then flees again and falls down, it is a case of force majeure. The animal ascends to the top of a hill and dies there of natural causes or the paid bailee is negligent in permitting the animal entrusted to him to go to a meadow where the animal dies a natural death. The bailee is not liable because it was not the animal's leaving the bailee that caused its death. However, if the animal is stolen by a thief from the meadow and dies a natural death in the thief's custody the bailee, even an unpaid bailee, is liable to the owner.

The subject matter of this lesson is more fully discussed in volume VIII chapters 303 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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