Shomrim: Difference between revisions
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When someone temporarily has someone else's property, they become a shomer- or bailee in contemporary English. As shomer, they have a responsibility towards the item, and a corresponding liability if something goes wrong. | When someone temporarily has someone else's property, they become a shomer- or bailee in contemporary English. As shomer, they have a responsibility towards the item, and a corresponding liability if something goes wrong. | ||
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== How do you become a shomer? == | == How do you become a shomer? == | ||
Some say that even if the person has agreed to be a shomer, his responsibilities as shomer don't begin until he makes a formal act of | # Someone does not become a shomer until the owner of the item asks them to watch the item, and the other party verbally accepts to watch the item. | ||
# Some say that even if the person has agreed to be a shomer, his responsibilities as shomer don't begin until he makes a formal act of acquisition on the item.<ref>Shulchan Aruch CM 291:4</ref> | |||
# If the owner asks someone to watch something, and the other person responds "leave it," the person's response is not considered to be acceptance of the role of shomer.<ref>Shulchan Aruch CM 291:2</ref> | |||
# At the time of acceptance as shomer, the shomer is able to ask the owner to change his liability if something goes wrong. | |||
# If someone gives something to carry somewhere- it is assumed that by taking the item someone has become a shomer Chinam.<ref>Shut Rosh 94:2. The Rosh was asked about a case where Reuben (pseudonym) heard that Shimon (pseudonym) would be traveling to a nearby city. Reuben asked Shimon to carry a pair of shoes for him. Shimon agreed. Shimon put the shoes on his donkey without tying them down. When Shimon got off his donkey to use the bathroom, the shoes fell off and were lost. Reuben demanded that Shimon pay for his negligence because Shimon was a Shomer Chinam. | |||
The Rosh ruled that even though Shimon did not accept upon himself to be shomer, nevertheless since he nevertheless became shomer because were "he not to guard them in the road, certainly they would be lost in the road." | |||
This teshuva of the Rosh is quoted in the Shulchan Aruch CM 291:2.</ref> | |||
# One is only a shomer for that which the shomer is aware of. Some say if you accepted the role of Shomer mistakenly, you are not a shomer.<ref>Shulchan Aruch CM 291:4. | |||
In Bava Kama 62a, Rava is quoted as having said that if someone give a shomer a coin to guard and tells him that it is silver but it is really gold. If the coin is later damaged by virtue of the shomer's negligence, the shomer only has to pay the value of a silver coin, since he thought he was accepting to be shomer of a silver coin. | |||
In Mordechai Bava Kama (Remez 207), a story is quoted of a person who borrowed a sword which he later lost. It turned out that the sword really had been used as collateral for a loan by the lender. Therefore when the borrower lost the sword, he had not only caused a loss of the sword itself, but rather the loss of the entire loan. The Mordechai writes that the borrower is only liable to pay the value of the sword proper, since the borrower was not aware of the sword's collateral value when he borrowed the sword.</ref> | |||
== Shomer Shmasar Lshomer == | == Shomer Shmasar Lshomer == | ||
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== Shomer Sachar == | == Shomer Sachar == | ||
A craftsman is a shomer sacher for the things which he repairs | # A shomer sachar is liable for all situations that the item is lost, except when the loss happened outside of his control | ||
# In order to be considered a shomer sacher, he must be paid a salary for his work with the item. | |||
# Any person who profits because of the item is considered a shomer sachar | |||
# A craftsman is a shomer sacher for the things which he repairs | |||
# A broker is a shomer Sachar for the items he stores on behalf of a seller | |||
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== Shoel == | == Shoel == | ||
A shoel or borrower is someone who is given an item to use temporarily for free. The shoel is liable if anything happens to the item, even if it is not a fault of his own. A shoel is only exempt is damage happened to the item from the task for which it was lent. | A shoel or borrower is someone who is given an item to use temporarily for free. The shoel is liable if anything happens to the item, even if it is not a fault of his own. A shoel is only exempt is damage happened to the item from the task for which it was lent. | ||
''Meta Machmat Melacha''- Death from work | |||
== ''Balav imo'' == | == ''Balav imo'' == | ||
Latest revision as of 19:58, 18 July 2024
When someone temporarily has someone else's property, they become a shomer- or bailee in contemporary English. As shomer, they have a responsibility towards the item, and a corresponding liability if something goes wrong.
The Torah distinguishes between four categories of shomrim who each have a different level of liability and responsibility
Shomer Chinam- Someone who watches someone else's item for no salary
Shomer Sachar- Someone who is paid to watch something
Socher- Some who rents something
Shoel- Someone who borrows something.
How do you become a shomer?
- Someone does not become a shomer until the owner of the item asks them to watch the item, and the other party verbally accepts to watch the item.
- Some say that even if the person has agreed to be a shomer, his responsibilities as shomer don't begin until he makes a formal act of acquisition on the item.[1]
- If the owner asks someone to watch something, and the other person responds "leave it," the person's response is not considered to be acceptance of the role of shomer.[2]
- At the time of acceptance as shomer, the shomer is able to ask the owner to change his liability if something goes wrong.
- If someone gives something to carry somewhere- it is assumed that by taking the item someone has become a shomer Chinam.[3]
- One is only a shomer for that which the shomer is aware of. Some say if you accepted the role of Shomer mistakenly, you are not a shomer.[4]
Shomer Shmasar Lshomer
- One guard should not give the item to another guard to watch. However, he could give it to his wife or children to watch.[5]
Shomer Chinam
- A shomer chinam, someone watching someone's property for free, is exempt from lose and theft.[6]
- When a shomer chinam loses something he's exempt. Some say that he is exempt once he put in a safe place and doesn't remember where he left it. Others argue that he is obligated in such a case because of negligence. Rather he is only exempt if he left it in a safe place and now he looks in that place and doesn't see it. He is exempt even though there's no suspicion of a robbery but nonetheless if it was moved by someone else or the like it is called losing an object and is exempt.[7]
Shomer Sachar
- A shomer sachar is liable for all situations that the item is lost, except when the loss happened outside of his control
- In order to be considered a shomer sacher, he must be paid a salary for his work with the item.
- Any person who profits because of the item is considered a shomer sachar
- A craftsman is a shomer sacher for the things which he repairs
- A broker is a shomer Sachar for the items he stores on behalf of a seller
Socher
A socher is someone who pays money in order to rent an item. A socher has the same liabilities as shomer sacher.
Shoel
A shoel or borrower is someone who is given an item to use temporarily for free. The shoel is liable if anything happens to the item, even if it is not a fault of his own. A shoel is only exempt is damage happened to the item from the task for which it was lent.
Meta Machmat Melacha- Death from work
Balav imo
A shoel and socher are exempt from liability if they began work accompanied by the owner.
Sources
- ↑ Shulchan Aruch CM 291:4
- ↑ Shulchan Aruch CM 291:2
- ↑ Shut Rosh 94:2. The Rosh was asked about a case where Reuben (pseudonym) heard that Shimon (pseudonym) would be traveling to a nearby city. Reuben asked Shimon to carry a pair of shoes for him. Shimon agreed. Shimon put the shoes on his donkey without tying them down. When Shimon got off his donkey to use the bathroom, the shoes fell off and were lost. Reuben demanded that Shimon pay for his negligence because Shimon was a Shomer Chinam. The Rosh ruled that even though Shimon did not accept upon himself to be shomer, nevertheless since he nevertheless became shomer because were "he not to guard them in the road, certainly they would be lost in the road." This teshuva of the Rosh is quoted in the Shulchan Aruch CM 291:2.
- ↑ Shulchan Aruch CM 291:4. In Bava Kama 62a, Rava is quoted as having said that if someone give a shomer a coin to guard and tells him that it is silver but it is really gold. If the coin is later damaged by virtue of the shomer's negligence, the shomer only has to pay the value of a silver coin, since he thought he was accepting to be shomer of a silver coin. In Mordechai Bava Kama (Remez 207), a story is quoted of a person who borrowed a sword which he later lost. It turned out that the sword really had been used as collateral for a loan by the lender. Therefore when the borrower lost the sword, he had not only caused a loss of the sword itself, but rather the loss of the entire loan. The Mordechai writes that the borrower is only liable to pay the value of the sword proper, since the borrower was not aware of the sword's collateral value when he borrowed the sword.
- ↑ Bava Metsia 36b, Shulchan Aruch C.M. 291:21
- ↑ Bava Metsia 94b, Shulchan Aruch C.M. 291:1
- ↑ Gemara Bava Metsia 35a explains that if a person lost an object because he doesn't know that is negligence and not exempt. Meiri b"m 35a quotes two opinions about the definition of losing an object that is exempt. Some say that one is exempt anytime one put it in a safe place but if one doesn't remember where he left it that is negligence since he didn't put it in a safe place. However, others say that it is negligence if one doesn't remember where one left it even if one certainly put it in a safe place. Shomrim Hafked p. 138 explains that according to the second opinion the only time one is exempt for losing an object is if one looks in the place where one left it and it isn't there but there was no evidence of thievery. This is implied by Igrot Moshe CM 1:32. Ritva b"m 35a follows the first opinion of the Meiri, but the Rambam and Shulchan Aruch CM 291:7 follow the second opinion. Shomrim Hafked does as well.
