Shabbat Parashat Chukat | 5769

Hemdat Hadaf Hayomi: A Shomer Sachar who did not Guard

Baba Metzia 57-63

A person who receives payment to guard an object is defined as a shomer sachar. Since he receives payment, the level of protection that is expected from him is high, and he must make sure that the object does not get lost or stolen. If the object is lost or stolen, he must pay for it. However, if it was lost due to circumstances beyond his control, such as if it was taken by an armed robber, he is exempt.

However, this week in the Daf Hayomi we learn that these guidelines do not apply to all items. The Mishna (56a) states that a shomer sachar for slaves, real estate, banknotes, and hekdesh (property belonging to the Beit Hamikdash) is not required to pay for loss or theft. Nevertheless, the Gemara (58a) states that he loses his salary. The reasoning is that, even though he is not required to pay if these items were lost or stolen, he is still required to guard them from being lost or stolen. Therefore, if he did not guard them properly, he loses his pay. However, if he guarded properly, but they were lost due to circumstances beyond his control, he receives his pay.

The question is, what happens when a regular shomer sachar loses the object or the object is stolen, and he is therefore required to pay, does he lose his salary in addition to paying for the object? According to the Ketzot Hachoshen (227, 11), since he did not protect properly, he does lose his pay. However, this statement appears to be contradictory.  If in the end he does not receive payment, then it turns out that he never was a shomer sachar, so how do we require him to pay for the lost or stolen object?

The Ketzot answers that the definition of a shomer sachar is not one who actually receives pay, but rather one who, if he would have done his job properly, would have received pay. If the guardian had done his job he would have received payment, and he is thus defined as a shomer sachar. Therefore, on the one hand, he has to pay for the lost or stolen object, and on the other hand, since he did not properly execute his job, he loses his pay.

The Chazon Ish (Baba Kama 7, 18) argues with the Ketzot.  He claims that we cannot both require the shomer sachar to pay for the object and not give him his payment. According to his opinion, only for hekdesh did the Gemara say that he loses his pay, since there he is not required to pay for the object. However, in a case where he does pay for the object, the payment is itself a form of fulfilling the protection for the owner, since he gives the owner the value of the object, and he therefore does not lose his salary.

Summary: A shomer sachar who did not protect properly and the object was lost or stolen, if it was an item that he does not have to pay for, then he loses his salary.  If he has to pay for the loss, according to the Ketzot he pays and loses his salary. According to the Chazon Ish he pays for the loss but receives his salary.  

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