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 Shabbat Parashat Shemini| 5767P'ninat MishpatPossible Negligence by a Non-Jewish Watchman - Based on Halacha Psuka, vol. 6 - Condensation of a p’sak by Beit Hadin Lemamonot of Kiryat Arba
Case: The plaintiff, a Jew, handed over his flock to a non-Jewish shepherd to care for the sheep until he would find a buyer for them. Many sheep died from overeating barley. The plaintiff claims that the shepherd knew that the flock was used to being fed from grazing; thus, giving them so much barley was negligent. The defendant says that he did not know that the flock consisted of grazers and that he treated them exactly like his own flock. He also points out that he watched the flock for free as a favor.
Ruling: There is a factual dispute between the plaintiff and the defendant over whether the defendant was negligent in his care of the flock. The gemara (Bava Metzia 42b) discusses a similar case. Someone entrusted an ox which was missing teeth to a herdsman to care for, and, because of the ox’s inability to eat normally, it died. The gemara says that if the dispute were between the owner and the herdsman (the gemara’s case was more complex), the herdsman would have been obligated to pay, as he should have checked to see if the ox was eating. However, our case is quite different. Firstly, the flock here did eat and, therefore, there was nothing for him to notice. If he had known that they were fed from the pasture, it would have been his fault, but he denies knowledge of that, and no evidence was presented to support that assertion. Additionally, the gemara stresses the fact that the herdsman was a paid watchman (shomer sachar) in justifying his high level of responsibility. In our case, all agree that the shepherd was unpaid (shomer chinam). Thus, only negligence would obligate the shepherd, and there is a claim but no evidence of negligence.
Furthermore, we need to establish whether the shepherd, who in this case is a non-Jew, is bound to the Torah’s obligations of a watchman. The Rambam (Sechirut 2:5) and Shulchan Aruch (Choshen Mishpat 301:9) rule that the laws of watchmen are only between two Jews, not between a Jew and a non-Jew. The case they discuss is where the Jew is the watchman; however, the S’ma (301:12) adds that the same is true when a Jew is the owner and a non-Jew is the watchman. Therefore, the laws of a watchman do not obligate the shepherd in this case.
There are opinions that when a watchman is negligent, he is obligated like one who damages, not only through the laws of a watchman. However, since there are significant dissenting opinions (see Shulchan Aruch, ibid.:1), one cannot extract payment from the shepherd in this case.
Based on the analysis above, the defendant is exempt from paying.
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