We continue to discuss the levels of liability of the watchmen, and the parameters of an unavoidable accident and negligence regarding the death of an animal.
The Parameters of an Unavoidable Accident in the Death of an Animal:
"Mesah k'darkah - harei zeh ones" - The animal died a natural death: due to a heart attack, due to old age, or for no apparent reason. Animals die from time to time, and this is nothing but a complete unavoidable accident, for what could the shepherd have done?
"Sigpah umeisah - einah ones" - The word 'siguf' in the language of the Sages means self-affliction, in the manner of ascetics who whip themselves and roll in the snow. Here, as the Bartenura explains, the intention is "he afflicted it" - that he did not give the animal enough food and water, until it suffered under his care and weakened, and finally died. This is not an unavoidable accident, but rather the fault of the watchman, who did not treat it properly. As long as one can connect the poor treatment of the animal to its death, the watchman is negligent - his behavior was inappropriate, and therefore he is liable.
"Alsah l'rashei tzukin v'naflah - harei zeh ones" - If the animal ran away and climbed to a rocky and dangerous area and fell from there, this is an unavoidable accident. This is provided that the shepherd did everything in his power to prevent this and the animal ran away nonetheless; but if it was he who brought it up there or allowed it to go out, the blame rests on him.
"He'elah l'rashei tzukin v'naflah umeisah" - The shepherd himself brought the animal to a dangerous place, and there it fell and died. In this case he is liable, and even if it fell from a place that under other circumstances would not be considered his fault.
Let us illustrate this: A shepherd who walks on a path with a steep slope on its side, where an animal stepping over the edge will die - walking on this path does not constitute negligence. The animals are supposed to look where they are stepping and should not step over the cliff, and if they do so, it is an unavoidable accident. But when the shepherd brought the animal up to a dangerous place, even if it did not fall from the actual dangerous rocks but only from the edge - a place that in itself would not have been considered dangerous and would not have been considered an unavoidable accident - he is nevertheless liable.
The Rule: Beginning with Negligence and Ending in an Unavoidable Accident:
This is a rule that runs like a golden thread throughout the topic: A person who began his action with carelessness and negligence, and later on, what happened occurred through an unavoidable accident - beyond his control - bears liability. As is often said: Accidents do not just happen, they are caused. This is an accident that was caused, for the reckless behavior itself imposes a general liability on him, even if the specific incident that occurred at this moment did not stem directly from that recklessness. Since he acted recklessly, he bears responsibility, is liable, and it cannot be called an unavoidable accident.
The Watchmen Making Conditions on the Laws of the Torah:
From here the Mishnah moves on to a new topic: "Masneh shomer chinam lihyos patur mishavuah, v'hashoel lihyos patur mil'shalem, nosei sachar v'hasocher lihyos p'turin mishavuah umil'shalem" - an unpaid watchman may stipulate to be exempt from an oath, and a borrower to be exempt from paying, a paid watchman and a renter to be exempt from an oath and from paying. The watchmen are permitted to stipulate in advance with the owner, and their condition is valid:
An unpaid watchman: The rule is that an unpaid watchman takes an oath and is thereby exempted from various liabilities. But if, before accepting the responsibility upon himself, he stipulated with the owner and said: "I will watch over your animal as an unpaid watchman, but I will not take an oath, and you cannot obligate me to take an oath" - the condition is binding.
A borrower: He too is permitted to stipulate that he will not be obligated to pay under certain circumstances, and the condition is valid if they agreed upon it in advance.
A paid watchman and a renter: Regarding them as well, one can stipulate that they will not take an oath and will not pay.
When these matters are stipulated in advance and the owner agrees to them, these conditions override the fundamental rules established by the Torah.
And why does this not constitute stipulating against what is written in the Torah, making a condition contrary to Torah law? We will discuss this question, with God's help, in the next Mishnah.