“Rav Pappa said: Once an unpaid custodian says: ‘I was negligent in the care of the deposit, and consequently it was lost or stolen,’ he acquires the double payment if the thief is apprehended. For if the custodian desired, he could have absolved himself from liability by claiming that the deposit was stolen through no fault of his own.

“Once a paid custodian says: ‘The deposit was stolen,’ he acquires the double payment if the thief is apprehended. For if the custodian desired, he could have absolved himself from liability by claiming that the deposit either broke or died.” (Gemara Bava Metzia 34a)

The passages contained in Shemot 22:6-14 outline various categories of Shomrim (custodians). Basing itself on those verses, the Mishnah (Gemara Bava Metzia 93a) identifies four types of custodian, each with its own unique responsibilities and liabilities:

1.     Shomer Chinam – an unpaid custodian. He must safeguard and maintain the object in his care, as must every Shomer, and may not use it for his own purposes. He is liable for any loss or damage caused by his own negligence, but not for that caused by any other mishap.

2.     Shomer Sachar – a paid custodian. He, too, may not use the deposit for his own purposes. Since he receives remuneration for watching it, he is held to a higher standard of care. Hence, he is liable even for theft or loss not due to his negligence. Nevertheless, he bears no responsibility for mishaps beyond his control, such as the death, breakage or forced seizure of the deposit.

3.     Socher – a renter. He pays for the right to use another’s property. Rabbi Meir and Rabbi Yehudah dispute whether his liability is identical to that of the unpaid custodian or of the paid custodian. The Halachah follows the latter view.

4.     Sho’el – a borrower. He has secured the right to use another’s property gratis, and thus bears the highest degree of responsibility. Accordingly, he is liable even for mishaps beyond his control, with the exception of work-related damages (so long as the deposit was being put to normal use).

When a Shomer claims exemption from liability, (e.g. if an unpaid custodian asserted that the deposit was stolen,) he must support his claim either by adducing witnesses or by swearing that his claim is true. This oath is a Biblical obligation. In addition, he must swear that he has not been negligent in safeguarding the object. Further, in the case of paid and unpaid custodians, he must also swear that he did not appropriate even part of the deposit for his personal use.1

Even when a Shomer is willing to pay for the loss of property in his care, he must nonetheless swear that the object is not in his possession. The Rabbis instituted this oath, in order to ensure that the Shomer will not surreptitiously purchase an item that he covets.2

1.       If a Shomer did appropriate the deposit, he is regarded as a thief and is subsequently liable even for mishaps beyond his control (Gemara Bava Metzia 41a)

 

2.       This article is based on the Introduction to Chapter 3 of the ArtScroll Edition of Gemara Bava Metzia

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