Lesson # 260 •Pleas of the Paid Bailee

As seen from prior lessons, there are two distinct pleas that the bailee can put forth to absolve himself of liability for the loss of the object:
(1) he may admit that he was a paid bailee but is absolved from payment for the loss of the object since it was lost through force majeure; or
(2) he denies that he was a paid bailee, or claims that he returned the object to the owner. There is also another possibility:
(3) he admits liability and wants to pay for the lost object.

The first plea is that the loss of the object came about through force majeure. The unpaid bailee is not liable if the object he is guarding is lost or stolen; he is liable only if the loss came about from his negligence. The paid bailee is liable not only for the loss occasioned by his negligence but also if the loss was occasioned by loss of the object or by theft; he is not liable if the loss or damage to the object resulted from force majeure.

The parties may between themselves agree to terms other than that of the law; such as the paid bailee always being liable for loss even if occasioned by force majeure, or he is never liable even if the loss is occasioned by his negligence, or any other agreements they may enter into.

Assume that the paid bailee pleads that the loss came about through force majeure, and there were witnesses to the occurrence. He must produce witnesses or he will be liable for the loss. If there were no witnesses present he 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, and the loss was occasioned by force majeure.
(2) The bailee takes an oath that he was not negligent in causing the loss of the object, nor was it lost by him, nor was it stolen from him.
(3) The bailee takes an oath that he did not make unauthorized use of the object.

If the force majeure consisted of an armed robber, and he is then found, the bailee must bring the robber to Beth Din and prosecute the case for a money judgment against the robber, which money is paid to the owner.

The second plea is that there are other reasons that the bailee is not liable. He may plead that the conversation between him- self and the owner did not establish his role as a bailee, or that he was an unpaid bailee rather than a paid bailee, and is not liable if the object was lost or stolen, or that there were stipulations regarding his liability and as a result of such stipulations he is not liable to the owner. Or the second party pleads that the owner never entrusted him with the object to guard. The second party takes a hesseth oath that what he claims is the accurate state of facts and is absolved of liability.

There is a third possible plea: the bailee admits liability, as for example he admits that the object was stolen and he desires to pay for the object. Assume that the object is (1) of the type that is readily available and may be easily purchased by the bailee, and (2) is of uniform quality. He pays for the object and is free of any oaths. If one of these two criteria is lacking, he goes through the procedure of the next paragraph.

If the object is unique or a type that is not readily available in the marketplace, the procedure is different. The unpaid bailee takes an oath instituted by the Rabbis of the Talmud similar to the first oath listed above. The bailee then makes payment for the object. If there is a dispute between the owner and the bailee as to the value of the object, the bailee takes an oath as to its value. Although the bailee must take oath, he is absolved from taking the other two oaths. There is authority that the owner can require the bailee to take oath (1) even if he has already accepted payment of the object from the bailee.

If the object was lost because it was stolen, and the bailee paid the owner for the lost object, and the thief is found, he pays the value of the object to the bailee.

The Bailee Hires the Owner
The bailee is not liable to the owner for not returning the object to him if the owner was present and working for the bailee 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 when 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 owner entrusts an object with any of the four types of bailees. The bailee hires or borrows the services of the owner together with the delivery of the object to the bailee, or the owner was already in the employ of the bailee as a paid employee or his services were borrowed. The bailee has no liabilities to the owner even if the bailee is negligent in how he guards the object. (The bailee is liable if he intentionally damages or destroys the object.) But if the bailee first became a bailee of the object and there- after hired or borrowed the services of the owner, the bailee is liable the same as any other bailee; he must pay for the loss even if the owner was present when the loss occurred. Conversely, if the owner was hired or borrowed when the object was delivered to the bailee, the bailee is free of liability even if the owner is not present when the loss of the object occurs.

There are thus situations when a bailee will not be liable to the owner of the object he is guarding even if the bailee is negligent, because the owner of the object is in the employ of the bailee. There are situations where Reuven and Shimon exchange services, each guarding the object of the other, or one guards and one borrows, or both borrow. The lender renders a service to the borrower, albeit small, when he prepares the object to be loaned. In the reported cases, the person is either liable because he is not a bailee who has hired the owner, or he is not liable because he has hired the owner under the conditions as set forth above, such as the owner being in the employ of the bailee when the bailee takes possession of the object. Since the law is the same in all four classes of bailees, it also applies to the borrower, who is one of the types of bailees. There is an authority that lending does not constitute being hired by the borrower, and thus those laws that follow in which the lender is considered to be an owner hired by the borrower do not apply and the borrower or other person who is guarding the object is liable.

The subject matter of this lesson is more fully discussed in volume VIII chapters 305 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 Parshat Vayishlach Homepage]
[The TORAH tidbits Homepage] [How to use TORAH tidbits]
[About The OU/NCSY Israel Center] [About TORAH tidbits]
[www.ou.org]