Shabbat Parashat Vaetchanan | 5769

P’ninat Mishpat: Laws of Shomrim (Watchmen) – part II

(based on Sha’ar Ladin - Halacha Psuka, vol. 60)

We saw last time that even a shomer who is exempt from paying when the object was damaged or lost b’oness (under extenuating circumstances) is obligated when this was preceded by his p’shi’ah (negligence). This is based on the rule that techilato b’p’shi’ah v’sofo b’oness (=tbpvsb), in other words, the makings of negligence which end up with damage of oness, obligates the shomer.

The gemara we ended off with last time (Bava Metzia 93b) said that if a shepherd left his flock to go to town, whereupon a wild animal killed some sheep, the shepherd is obligated to pay. In that context, Abayei and Rabba dispute whether a paid watchman (shomer sachar), including the shepherd in question, is required to watch more carefully than one would do for his own property (Abayei) or not (Rabba).

The gemara says that according to Abayei, one can explain why in the case of the shepherd, he would be obligated even for that which dangerous animals did, even though it should be considered oness. That is because, as a shomer sachar, he should have done a better than average job. Tosafot say that since we obligate him based on tbpvsb, it must be that coming in to town at a normal time is considered p’shi’ah. However, Tosafot is disturbed why the gemara says that if he had no chance of saving the animals if he were there, he would be exempt. Tosafot answers that going in to town at a normal time is not a real case of p’shi’ah but a level of semi-negligence that is equivalent to genieva va’aveida (theft or loss) for which a shomer sachar is obligated but a shomer chinam (for free) is not. In that case, we do not say that in the case of an eventual oness, the watchman would be obligated. Tbpvsb requires to begin with a real p’shi’ah.

The Gilyon Maharsha (Choshen Mishpat 291:9) proves that, according to the Rif, when a shomer sachar’s initial actions were that of geneiva va’aveida, which is not a real p’shi’ah but is enough to obligate a shomer sachar, he is obligated if damage occurred later b’oness. The logic behind this machloket, he says, depends on the general machloket as to why tbpvsb is obligated. Tosafot posits that even Abayei agrees that there needs to be some connection between the p’shi’ah and the oness and his machloket with Rava (see last week’s article) is only on the extent of the connection. However, when the original “p’shi’ah” was not real negligence but on the level of theft or being lost, there is no obligation on an eventual oness. The Rif, though, understood that, according to Abayei, one can be obligated to pay without any connection between the p’shi’ah and the oness, as only returning the object will overcome the obligation that started previously. In that case, he will say that this is so even if the initial obligation was based on a semi-negligence of geneiva va’aveida.

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