We are opening the third chapter of Tractate Bava Metzia, Chapter 3 Mishnah 1. The subject of the chapter is the responsibility of a watchman, meaning the depositary: when an object belongs to Reuven and he hands it over to Shimon, under what circumstances does Shimon bear responsibility for what happens to the deposit entrusted to his care?
The Torah, in Parashas Mishpatim, defines four types of watchmen, and the distinction between them is fundamentally based on the question of who derives the benefit from the arrangement. (The terms owner of the deposit, the owner and the depositor - all mean the same thing.)
The four watchmen:
Shomer chinam - the unpaid watchman, who is doing a favor for his friend. A person leaving town who is afraid to leave his bicycle at home asks his friend to keep it in his house, and the friend agrees to watch it for free. Since all the benefit goes to the owner and the watchman receives nothing, his responsibility is very limited: if the bicycle is stolen or lost, and certainly if an unavoidable accident beyond his control occurs to it, he is exempt from paying.
Only two scenarios obligate an unpaid watchman to pay: if he was negligent - for example, he left the bicycle outside his house and it was stolen or rusted in the rain; and if he became a "sholei'ach yad", which literally means he extended his hand, meaning he used the deposit without permission. The owner asked him to watch it in a safe place and forbade him to ride it, and if the watchman took it for a ride he is no longer a watchman but a robber, and from then on his responsibility is absolute for whatever happens to it, even in cases of theft and loss.
Sho'el - this is the other extreme, a borrower. A neighbor asks his friend to borrow his bicycle for an hour, and all the benefit goes to the borrower, since the owner lends him his item for free. Therefore, the borrower takes upon himself maximum responsibility: he must return the item even if an unavoidable accident beyond his control occurs to it. Theft and loss are not valid claims at all, and even if armed robbers came and put a gun to his head and he handed over the bicycle - although he was forced and obviously that is what he should do, he is obligated to return the value of the bicycle to the owner, because that was the agreement. Likewise, if lightning struck it and it burned up: it is not his fault, but he is nevertheless obligated to return it. In borrowing, there are no excuses.
There is one exemption, called "meisah machamas melachah": an animal that died during the course of the very work for which it was borrowed - the borrower is exempt from paying. There is also a law of "be'alav imo", but we will explain that at a later time.
Shomer sachar - this is the middle case, the paid watchman. Here there is a give and take relationship, and both sides receive something: the owner gets his bicycle watched, and the watchman receives payment for watching it. Since the watchman receives compensation, he takes upon himself additional responsibility: he is liable even for theft and loss, and if the bicycle is stolen or lost he must fully compensate the owner.
However, his responsibility is still limited: in an unavoidable accident, such as if someone put a gun to his head and demanded the bicycle, he is not expected to sacrifice his life for it, and he is exempt. Likewise, if lightning struck the bicycle, he can claim it is not his fault and he is exempt.
Socher - the renter who takes an item for rent. Here too there is a give and take relationship, as the renter pays money to take the bicycle for a week. The Tannaim, Rabbi Meir and Rabbi Yehudah, argued whether his obligations are like an unpaid watchman or a paid watchman, and the halachah is that a renter bears exactly the same responsibility as a paid watchman. The reason for this: since an economic transaction was created from which both sides profit, they meet in the middle as it were, and since the arrangement is mutual - their obligations are equal.
The oath of the watchmen:
A watchman is exempt under certain circumstances, but when he makes a claim of exemption - an unpaid watchman who claims it was stolen, a paid watchman who claims an armed robber came, or a borrower who claims "meisah machamas melachah" - he is obligated by the Torah to swear a formal oath in beis din in order to exempt himself from payment. This oath includes two components from the Torah:
An oath on the claim itself - he must swear that it was indeed stolen, lost, or the like, according to his claim.
An oath that it is not in his possession - that the item is not currently in his domain. It is not enough to claim that it was stolen or lost, because it is possible that he eventually found it.
The Sages added two more components to the oath, and this is through the mechanism called "gilgul shevuah": a person is not obligated to swear under certain circumstances, but when he is swearing anyway, additional components can be added to his oath (a principle we learned from Sotah, and discussed not long ago). The additional components are:
That he was not negligent - that he was not negligent in his watching.
That he was not a sholei'ach yad - that he did not misappropriate the item and did not use it without permission.
The need for this is clear: an unpaid watchman who watched and the item was stolen is exempt, and he can swear on his claim and on the fact that it is not in his possession - but perhaps beforehand he left it outside or went out for a ride with it, and in such a case he does not deserve an exemption even though it was stolen, because he took upon himself responsibility due to negligence or being a sholei'ach yad. It turns out that every watchman who is exempt from payment swears the oath on all its components, both from the Torah and from rabbinic enactment.
Let us approach the Mishnah:
The first Mishnah jumps right into the deep water. Since the verses regarding watchmen are explicitly stated in the Book of Shemos chapter 22, the Mishnah assumes that the student already knows them, and therefore it turns directly to the questions of "what happens if." The first "what happens if" deals only with an unpaid watchman - who is exempt from paying when the item he watched was stolen, and he makes a claim of theft.
As we recently learned: A thief who stole an object and was caught pays double. If he stole a cow and sold or slaughtered it, he pays five times its value; and if it was a goat or a sheep that he slaughtered or sold, he pays four times its value.
The Mishnah now asks: What if an unpaid watchman claimed that the object was stolen, and chose not to swear - as people are reluctant to take an oath, or he does not want a relationship of suspicion and bitterness with his friend - and said: "Even though it was stolen, I want to compensate you and pay you the value of the bicycle." Afterwards the bicycle thief is found, and not only is the bicycle returned but there is also a double payment; or the cow thief is found and there is a fivefold payment. Who receives these penalties, those payments that exceed the original value of the stolen object? This is the subject of the Mishnah.
"Hamafkid etzel chaveiro behemah o kelim" - One who deposits an animal or vessels with his friend, who acts as an unpaid watchman (and we will return later to the reason the Mishnah mentions both cases). "Venignevu o she'avdu" - The deposit was stolen or lost. "Shilem velo ratzah lishava" - The watchman chooses not to swear, even though he could have sworn and exempted himself, and he agrees to pay.
"Kevar amru: shomer chinam nishba veyotzei" - This is a reminder of the known rule, that one who serves as an unpaid watchman swears in the event of theft or loss and departs completely exempt, and pays nothing, provided he swears.
"Nimtza haganav, meshalem tashlumei kefel. Tavach umachar, meshalem tashlumei arba'ah vachamishah" - If the thief is subsequently found, he pays double; and if he slaughtered or sold a cow, a goat or a sheep, he pays four or five times the value.
"Lemi meshalem? Lemi shehapikadon etzlo" - The additional payments are given to the watchman. In other words: A watchman who paid even though he was not obligated to pay for a theft, thereby acquires the right to the double or fourfold and fivefold payments, if there are any.
And why? The conclusion of the Gemara is that at the time the depositor hands over the object to the watchman's domain, there is an implicit agreement. Even though he does not state this explicitly, he is effectively saying from now: If the object is stolen and you are exempt as an unpaid watchman, and yet you choose to pay me - I agree that if it is found afterwards, not only will you get your money back but you will keep the double payment for yourself. For a bird in the hand, a full and immediate payment, is better for him than two or four and five in the bush, which may or may not materialize. This tacit agreement exists from the outset, and therefore the rights are transferred to the watchman.
And why did the Mishnah mention both an animal and vessels? Because the two cases are different from one another:
With an animal: Caring for an animal involves a great deal of effort, and the watchman did this for free - but on the other hand, the payments are high, as they can reach four or five times the value. One might have thought that the owner would hesitate to transfer these sums to the watchman, and the Mishnah teaches that he does indeed waive them.
With vessels: If I asked you to watch my bicycle, it just sits in your storage room and does not bother you at all. One might have thought that in such a case the owner would not agree to transfer the double payments, since he only asked for a small favor. Nevertheless, the Mishnah establishes that even with vessels the owner transfers this right, and one who agreed to pay even though he was not obligated to - he is the one who acquires the double payment.
It is worth noting: Even when the unpaid watchman agrees to pay instead of swearing, he still must swear a separate oath that the deposit is not in his possession. The reason for this, as explained by the Ramban, is that he might be, so to speak, violating the prohibition of "Lo Sachmod" (do not covet), by coveting his friend's property and justifying it in his mind: his friend's bicycle appeals to him, it is one of a kind or he cannot obtain one like it, and therefore he says, "I am willing to pay for it, since it is lost and I do not know where it is", and he excuses this to himself by saying that the owner loses nothing since he receives the full value, while he gains the bicycle. Therefore, even though he pays, he must swear that the bicycle is not in his possession. This is a separate law in and of itself.
It also emerges from here that if the watchman agreed to pay and the thief was found even before he actually paid - the watchman has already acquired the double payment, since the very agreement to pay is what entitles him to it.
The Mishnah now presents the opposite case: "Nishba velo ratzah leshalem" - The unpaid watchman prefers to swear and not to pay. "Nimtza haganav, meshalem tashlumei kefel. Tavach umachar, meshalem tashlumei arba'ah vachamishah. Lemi meshalem? Leva'al hapikadon" - The payments are given to the original owner. There is no great novelty here: the animal or bicycle is his, he is the injured party, and the additional payment belongs to him.
However, one point should be added: if the watchman initially said that he prefers to swear rather than pay, and indeed did so, but subsequently changed his mind - not wanting a dispute with his neighbor and everything that entails - and agreed to pay beyond the letter of the law, since he already exempted himself with an oath, through this payment he earns the right to collect the additional payments, should there be any.
In summary: At the beginning of the chapter, we discussed the four watchmen and their levels of responsibility based on the amount of benefit they derive - an unpaid watchman, who is exempt in cases of theft and loss but liable for negligence and misappropriation; a borrower, who is liable even for unavoidable accidents, except for when the animal dies due to normal work; a paid watchman, who is liable for theft and loss but exempt in cases of unavoidable accidents; and a renter, for whom the halachah follows the opinion that his status is like that of a paid watchman. We also saw the components of the watchmen's oaths, both on a Torah level and a rabbinic level. The Mishnah itself introduced a novel ruling, that an unpaid watchman who chooses to pay instead of swearing earns the double, fourfold, and fivefold payments by virtue of the owner's implied consent, whereas if he swears and does not pay - the payments go to the owner of the deposit, unless he subsequently changes his mind and pays.