Lesson # 256 • Unauthorized Use by the Bailee part 2
In the last lesson we began to explore the role of the bailee if he made unauthorized use of the object entrusted to him for safekeeping. We now continue with this subject.

Acts constituting unauthorized use
The Talmud and codes give examples of acts constituting unauthorized use and the extent of the liability of the bailee when there is an unauthorized use of the object, which can be achieved only if the object is lifted or pulled, and those situations where there is some taking of part of the object but there is not a lifting or a pulling of the entire object. There are situations where even in the latter case the bailee will bear full liability for the loss or damage to the object. There are times when the owner will designate a place or the bailee will designate a place for the object to remain to which the owner agrees. The object cannot be moved from that place (except as shown in this lesson). There may be times when no specific place is designated for keeping the object except that the unpaid bailee may not be negligent.

The owner entrusts the bailee with a barrel of wine that is set down in a special place in the bailee's wine cellar. The bailee tips the barrel without moving, lifting, or pulling it from its spot where it rested and removes a quart of wine. If the barrel breaks after the bailee takes the wine from the barrel, the bailee is not liable for the breakage, but is responsible to pay the owner for a quart of wine. Since he did not move or lift or pull the barrel from its spot he is not guilty of unauthorized use. The bailee is liable only for the part of the object that he actually took; the balance still belongs to the owner who bears the responsibility for all loss except for the negligence of the unpaid balance.

However, if the balance of the wine in the barrel turns sour, the bailee is liable for the price of wine for the entire barrel. The wine would not have turned sour if the barrel was full. It was only because the barrel was opened and air came in that the balance of the wine soured. This may not apply to other types of beverage such as whiskeys or juices.

The owner entrusts the bailee with a barrel of wine that is set down in a special place in the bailee's wine cellar. The bailee lifts the barrel to take a quart of wine. The bailee is liable for all loss that will thereafter occur to the barrel of wine even if he does not actually take the quart of wine. The bailee is liable since he lifted the object with the intent to cause some depreciation to the barrel of wine by taking some of the wine. At that moment he is liable for the entire object since he is now deemed to have robbed the wine from the owner.

The bailee takes the entrusted barrel of wine not to drink from it or to use it and the bailee moves the barrel to a place other than where it is left. If the barrel was moved for the sake of the barrel, such as to keep it away from heat, and the barrel breaks while the bailee is handling it or afterward when it was returned to its place or a new place, the bailee has no liability; However, if he moves the barrel for his own purposes, such as to stand on it, the bailee is liable if the barrel breaks at any time. If he moves the barrel to get to the space on which the barrel stood, the bailee is liable if the barrel was then lost or damaged through his negligence but not if through force majeure.

Acts constituting unauthorized use of money
The owner may instruct the bailee that he may not use the money that is entrusted to him. Should the bailee use the money or refuse to return the money to the owner when demanded of him, he is a robber and responsible for the return of the money. Or the owner may permit the bailee to invest the money or otherwise use the money entrusted to him. The bailee may be deemed a borrower or a paid bailee depending upon the circumstances. Absent any agreement, the following laws prevail.

The owner entrusted money with a money changer or a shopkeeper or a person who lends money on interest. This refers to a person who lends money to a non-Jew. If it is contained in a purse that is not sealed nor tied with a peculiar knot, the bailee is permitted to use the money. It is known by all that money lenders, moneylenders on interest, and shopkeepers are always looking to borrow money. He is permitted to use the money since it is assumed that if the owner did not want the money changer or shopkeeper to use the money, he would have tied the money up in a peculiar manner. Since the bailee may use the money, he has the status of a paid bailee regarding the money even before he actually uses the money. If the owner demands the money back, the bailee may give him other money in an equal amount. If the money was lost or stolen or lost or damaged because of the negligence of the bailee, he is liable to the owner; he is not liable if the money was lost through force majeure.

Once the bailee uses the money he has the status of a borrower and is liable under all circumstances. This last law holds true even if the bailee restored the money to the purse, he is liable as a borrower until he restores the money to the owner.

All of the profits made by the bailee belong to the bailee. If the bailee does share the profits with the owner, it is not considered interest to the owner. When the owner makes a demand for the return of the money and tells the bailee that he needs the money to invest it and the bailee does not give the money back to the owner, the bailee is liable for the loss of profits that the owner sustained by not having the money returned to him. The bailee may tell the owner that the money is invested and if the bailee wants to participate in the investment, for loss or for gain, the owner may agree or may wait until the bailee completes his investment. If the bailee advises people that he has invested the money for the owner and if there is a profit, such profits belong to the owner.

If the money was entrusted to the money changer or shopkeeper or a money lender on interest, and the money is contained in a purse that is sealed or tied in a peculiar way, the bailee is not permitted to use the money. If therefore the money was lost through his negligence, he is liable; if lost or stolen or lost through force majeure, he is not liable.

The owner entrusted a bailee who is not a money lender, a lender on interest, or a shopkeeper with a purse of money. The bailee may not use the money. Therefore the unpaid bailee, if he placed the money in a suitable secure place, is not liable for any loss unless there was a loss due to the negligence of the bailee. The non-money- lender bailee lifted the purse to take out one coin or other money a part of the object that is not attached to the other part of the object. The majority view is that the bailee assumes full liability for the entire purse and contents of the money if they are later lost or stolen or lost through force majeure. There is a strong dissent that holds that there is some doubt as to the accuracy of the majority holding: perhaps the bailee is liable only for the money that he took from the purse or perhaps he is liable for the entire purse.

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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