Lesson # 252 •Bailments (Part V)
The unpaid bailee is not liable for the care of the object, nor for the "oath of the bailees," nor for feeding an animal if it is the object that is left with him, until he assumes the role of an unpaid bailee. According to most opinions, all that is required to establish the legal relationship of owner and bailee is a simple meeting of the minds as seen through the discussion between the owner and a second person to make the second person an unpaid bailee, or sometimes as seen through their actions. The owner usually initiates the transaction by asking a second person to guard the object, such as "Guard this for me," or other words to that effect, and the second person states, "I will guard the object," or words to that effect, and the owner departs. At that moment the second person becomes an unpaid bailee, since the words of the second person indicates his intent to accept the offer of the owner to become a bailee and that he undertakes to guard the object.
There are situations where the agreement of the offer and acceptance between the parties is not that clear-cut. The codes give many examples and sometimes with conflicting results. I set forth some of these fact patterns and the results as seen in the codes and cases. In essence, each case must be judged by Beth Din to determine if the second person accepted to be a bailee. If he did and there is a loss resulting from his negligence, he is liable; if he did not and there is a loss, he is not liable.
Some examples: The owner asks the second person to guard his object. The second person replies: "Leave the object in front of me," or other words to that effect. Such as "Leave it with me" or such other words from which Beth Din can determine evinces an intention on behalf of the second person to undertake to guard the object. Held: he is a bailee, since the words "leave the object in front of me" indicates that "I accept to guard the object."
The owner asks the second person to guard his object. The second person replies, "Leave it down in front of you," or "Leave it," or "The place is before you," or other words to the effect that fail to show that without doubt he undertook to be a bailee. Held: he is not a bailee.
Although the second person does not become a bailee, he is liable if he or his property caused damage to the object. There is an opinion that this holds true only if the conversation takes place in the market or in the courtyard of the second person. There is an opinion that even if the conversation takes place in a public place the second person becomes a bailee. Otherwise, why did he tell the owner "Leave the object in front of you," or "Leave it," or "The place is before you "? If the second person did not intend to become a bailee, the owner does not need his permission to leave the object in a public place. Therefore, we attribute intent to the second person to become a bailee. But if the conversation takes place on a highway and the second person is continuing on the highway and the owner is not going on the highway, he is a bailee. Also, if the place that he instructs the owner to place the object is unguarded, and the owner is about to depart, the second person becomes an unpaid bailee even without explicit words to that effect. The following case decided by R. Asher ben Yechiel (Asheri, Toledo, Spain, 1250-1324, Responsum 24:2) is cited by all of the subsequent codes:
Reuven was about to depart on a journey and Shimon asked Reuven to deliver a pair of shoes to someone at Reuven's destination. Reuven, without taking the shoes him- self, instructed Shimon to put the shoes on the donkey that Reuven was taking with him, and Shimon put the shoes on the bundles that the donkey was carrying.Reuven did not tie the shoes to the bundles but left them there as Shimon had placed them. Reuven departed and walked alongside the donkey and along the way stopped to use the toilet facilities. The shoes were lost. It was held that Reuven was an unpaid bailee and responsible for the shoes since he was negligent in not tying the shoes to the bundles on the donkey and Shimon did not accompany Reuven on the journey.
The owner states to the second person "Keep your eyes on the
object" and the second person replies "Leave the object in front of me."
Held: he is not a bailee.
The owner places the objects in front of the second person without saying anything. The second person states, "I will guard the object." Held: he is a bailee.
The owner asks the second person for permission to bring his animal or his merchandise into the second person's courtyard. The second person replies, "O.K." or "The courtyard is before you." Held: not only is the second person not a bailee; he is not even liable if the second person's animal damages the merchandise. It is presumed that when the second person said "O.K.," he meant that the owner could bring in his merchandise but would guard them himself. All that the second person has undertaken is to permit the owner to place his object on his outdoor property without compensation. The second person has not undertaken to guard the object without explicitly so stating. If the second person states that the owner will pay a fee and does so, the second person is still not deemed to be a bailee since the fee is deemed to be rent for the place and no part of the fee for the guarding the object. Furthermore, the second person is not responsible if his animal injures or damages the object that the owner left on the second person's real estate.
The owner asks the second person if he can bring his merchandise into the house of the second person and he is told "O.K." Held: the second person is a bailee.
The owner asks the second person if he can bring his merchandise into the house of the second person. The second person replies, "The house is open to you," or "The house is before you." Held: He is not a bailee.
The owner asks the second person if he can bring his merchandise into the house of the second person. The second person designates a place or corner or room in the house. Held: he is not a bailee.
There is a second opinion that holds that mere agreement is not sufficient to establish the relationship of owner/bailee. According to this opinion, the second person does not become an unpaid bailee unless there is also performed an act to the object that would have been an act of acquisition had the object been sold from the owner to the second person.
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: firstname.lastname@example.org and via website: www.israelbooks.com and at local Judaica bookstores. Questions to email@example.com