SHOMERIM (Heb. שׁוֹמְרִים; "bailees").
The law relating to a bailee (i.e., one who is entrusted with the money or chattels of another) is first given in the Torah (Ex. 22:6–14) in several statements of principle from which have been deduced the three categories of bailee, known as the shomer ḥinnam, the shomer sakhar, and the sho'el.
the shomer Ḥinnam
The shomer ḥinnam (שׁוֹמֵר חִנָּם; lit. "an unpaid bailee") is based on the first case cited in the Torah of one who is given "money or stuff" to look after (Ex. 22:6–8). Such a bailee is not liable to the owner in the event of the goods being stolen (and the thief not apprehended), provided that he confirms on oath before the court that he had not embezzled or otherwise converted the goods to his own use (lo shalaḥ yado, lit. "not put forth his hand"). In fact, his duty of care is minimal and his liability is limited only to cases where loss resulted from his own negligence (cf. bm 3:10; Sh. Ar., Ḥm 291:1). Thus, in the absence of proven negligence and subject to his taking the prescribed judicial oath, he would also not be liable for loss caused by inevitable accident or un-foreseeable damage (i.e., *ones; Yad, Sekhirut, 1:2 and 3:1ff.; Sh. Ar., Ḥm 291:6 and 9). It was such leniency which led to this particular portion of the text being construed as relating to the shomer ḥinnam (Yad. loc cit. 1:2) compared with the higher duty of care imposed on the shomer sakhar (cf. Laws of Hammurapi, 125, 263–7). On the other hand, any bailee, even a shomer ḥinnam, who meddles with the deposited article without the owner's authority is considered guilty of theft (i.e., larceny by conversion; see *Theft and Robbery) and is consequently liable for any subsequent loss. Indeed, according to Bet Shammai, the mere formulation of his intent to "put forth his hand," without his necessarily committing an actual act of conversion, suffices to render the bailee liable, but Bet Hillel does not extend the principle so far (bm 3:12; Yad, Gezelah, 3:11; Sh. Ar., Ḥm 292).
the shomer sakhar
The shomer sakhar (שׁוֹמֵר שָׂכָר; lit. "a paid bailee") is derived from the second case in the Torah of one who is entrusted with "an ass, or an ox, or a sheep, or any beast, to keep, and it be hurt, or driven away…" (Ex. 22:9–12). The fact that this case refers only to animals, whereas the previous case mentions "money or stuff," has been interpreted as drawing a distinction, not between the types of property deposited (cf. Philo, Spec. 4:35; Rashbam, Ex. 22:6), but between the types of bailment, since "the safekeeping of money or vessels is generally undertaken without payment [i.e., shomer ḥinnam], whereas that of animals is undertaken for reward [i.e., shomer sakhar]" (Naḥmanides to Ex. 22:6). In this case the bailee is liable in the event of the goods being stolen or lost (which is further authority for the conclusion that Scripture is here referring to a shomer sakhar), and he cannot be absolved even by taking the judicial oath, except in certain specific instances where accident was a contributory factor. However, liability could be avoided, on his taking the judicial oath, if loss resulted from the animal dying or being driven away (bm 7:8; Yad, Gezelah, 1:2; Sh. Ar., Ḥm 303:1–2). The term "sakhar" has been given a wide interpretation, so as to include the receipt by the bailee of any benefit whatsoever from the article deposited. Accordingly, an artisan who is entrusted with an article on which he is to exercise his craft for remuneration is deemed a shomer sakhar (bm 6:6; cf. bm 43a; Shitah Mekubbeẓetbm 94a; Sefer ha-Ḥinnukh no. 59). However, during the talmudic period a rabbinical enactment specifically exempted a carrier from liability arising through his transportation of barrels "even though imposed on him in strict law… lest no person be willing to transport his neighbors' barrel" (Yad, Sekhirut, 3:2).
The sho'el (שׁוֹאֵל, "borrower") is explicitly mentioned as the third type of bailee (Ex. 22:13–14), and on him is imposed the highest duty of care toward the owner of the article, since the bailee has borrowed it for his own benefit. He is therefore liable to make restitution in all cases of "damage or death," even though they are caused by inevitable accident or other unforeseeable circumstances, as well as in cases of theft or loss. Exceptionally, however, the sho'el may be able to avoid liability "if the owner of the article was with it at the time" – this being interpreted by the tannaim as referring to the case where the owner is borrowed or hired along with his animal or chattel (bm 8:1). The scope of this halakhah was extended to make it applicable in circumstances where the owner was with his property at the time the bailment was accepted, though not necessarily when the loss or damage later occurred, and also in circumstances where the owner was hired by the sho'el for purposes quite unconnected with the hiring of his property. Its application has even been extended to the other types of bailees (bm 95b; Yad, Sekhirut, 1:3 and She'elah, 2; Sh. Ar., Ḥm 291:28). This exemption of the sho'el has been justified on the grounds that, in the circumstances mentioned, the owner would presumably take care to guard his own property (Sefer ha-Ḥinnukh no. 56; see also supplement to Torah Shelemah, 18 (1958), 187f.).
The cited text of the Torah concludes with the following statement: "If it be a hireling, he loseth his hire" (Ex. 22:14). This has been construed as a continuation of the provisions relating to the sho'el. However, the view of some scholars is that this phrase creates another category of bailee, distinguishable from the unpaying borrower, which is called the sokher ("hirer"; Midrash ha-Gadol to Ex. 22:14 and Rashi thereto; see also Ḥ. Albeck, in: Sinai, 50 (1961/62), 103f.). However, the laws of the sokher do not appear to be elucidated in Scripture (cf. Laws of Hammurapi, 249) and the tannaim disputed the question whether such a bailee is to be treated as a shomer ḥinnam or a shomer sakhar (bm 93a). Hence, "their laws [i.e., of bailees]… are three" (bm 93a; Yad, Sekhirut, 1:1). The halakhah was decided on the basis that the law of the sokher is that of the shomer sakhar (Yad, Sekhirut, 1:2; Sh. Ar., Ḥm 307:1).
Measure of Damages
Generally, the degree of a bailee's liability in damages is proportionate to the degree of benefit he received from the bailment. Thus the sho'el, who enjoys full use of the article borrowed, is fully liable; the shomer sakhar (and the sokher), who derives partial or indirect benefit, may take the judicial oath for a part and compensate for a part; and the shomer ḥinnam, who receives no benefit, may simply take the judicial oath and escape all liability (tj, Shevu. 8:1; Tos. to Ket. 56a–b).
The Torah lays down that a thief must compensate his victim by repaying either twice or four or five times the value of the stolen article (Ex. 22:3–8 and see *Theft and Robbery). If a bailee chooses to compensate the owner for an article stolen during its bailment, rather than take the judicial oath, the thief, if later apprehended, must pay the stipulated double, four-or five-fold penalty directly to the bailee and not to the owner (bm 3:1; Yad, She'elah, 8:1; Sh. Ar., Ḥm 295:2). This ruling is based variously on scriptural authority (see Mekh. Sb-Y to 22:6; tj, bm 3:1), on the principle of an assignment of rights by the owner to the bailee, and also on a rabbinical enactment (bm 34a: Sefer Keritut, 5:3, 165; Ritba, Nov. bm 34a).
The fact that certain types of property are referred to specifically in the text (e.g., money, stuff, animals) led the sages to conclude that the laws of bailment are not intended to apply to slaves, deeds, immovable property, consecrated property (hekdesh), and the property of idolaters (bm 4:9; bm 57b, 58a; Yad, Sekhirut, 2:1; Sh. Ar., Ḥm 301:1), although the rabbis especially provided for the bailee's judicial oath to be taken in respect of consecrated property, lest such property "be treated lightly" (Yad, Sekhirut, 2:2). Nevertheless, the laws of bailment may be rendered applicable to the above-mentioned classes of property by way of a special undertaking to that effect (bm 58a; Yad, loc. cit.; Sh. Ar., Ḥm 301:4).
Principles of Liability
The *posekim are divided on the question of whether a bailee's obligations, and thus his consequent liability to the owner, commence immediately when the agreement between the two parties is concluded, or only after a meshikhah (legal act of acquisition; see *Acquisition, Modes of) of the bailment (Sh. Ar., Ḥm 291:5). A general rule, which is based on logical deduction, is that a bailee is not liable for damage caused to the bailment while it is being used for the purpose for which it was received, e.g., a cow borrowed as a beast of burden that dies of its labors (metah meḥamat melakhah; bm 96b; Yad, She'elah, 1:1; Sh. Ar., Ḥm 340:1).
A bailee who is able to safeguard his bailment with the help of others and fails to do so is considered negligent – a distinction being drawn between the respective duties of care owed by a shomer ḥinnam and a shomer sakhar (Yad, Sekhirut, 3:6; Sh. Ar., Ḥm 303:8). Any necessary expenses involved in safeguarding a bailment are recoverable even by the shomer ḥinnam from the owner, as there is no obligation to incur such expense.
The laws of bailment may be expressly varied or excluded by agreement between the parties (bm 7:10); this view is even held by R. Meir, who considers it inapplicable in other legal contexts (bm 94a). The freedom of the parties to vary or exclude the general principles of the law is recognized even though the result may be to impose more stringent obligations on the bailee (Yad, loc. cit. 2:9; Sh. Ar., Ḥm 291:27, 296:6, and 305:4).
Rights and Duties of a Bailee
One bailee may not entrust his bailment to another (Tosef. bm 3:1). If he does so and the bailment is lost or damaged, Rav held that the first bailee can only escape liability to the same extent as he would have been able to do had he retained the bailment, but R. Johanan held that he is liable even in the case of force majeure (bm 36a and Rashi thereto). Subsequently, this dispute was interpreted by Abbaye to mean that according to Rav there would be no liability even though a shomer sakhar entrusted his bailment to a shomer ḥinnam, whereas according to R. Johanan liability would arise even though a shomer ḥinnam entrusted his bailment to a shomer sakhar. Rava ruled finally that the halakhah should be in accordance with the opinion of R. Johanan – as explained by Abbaye – on the grounds that, as no privity of contract existed between the owner and the second bailee, the former was not obliged to accept the latter's judicial oath (bm 36a–b). Furthermore, the first bailee can avoid liability only if "inevitable accident" can be proved by independent witnesses (Yad, Sekhirut, 1:4; Sh. Ar., Ḥm 291:26).
If a bailment deteriorates while it is in the care of the bailee, he has a duty to inform the owner immediately, if the latter is available (Hai Gaon, Sefer ha-Mikkaḥ ve-ha-Mimkar, ch. 6; Sh. Ar., Ḥm 292:15). There is a dispute in the Mishnah over the bailee's obligations when the owner is not available, some tannaim taking the view that "fruit, even if wasting, must not be touched," while Simeon b. Gamaliel states that the "fruit" must be sold and its value thus preserved, but only at the direction of the court, i.e., not on the bailee's own initiative (bm 3:6). In talmudic times this dispute was regarded as referring to a case where the rate of deterioration was normal for the type of article involved, but in a case where the rate of deterioration was excessive, all scholars agreed that the bailee had a duty to sell the bailment (bm 38a; Yad, She'elah, 7:1; Sh. Ar., loc, cit.). Any such sale had to be to a third party and not by the bailee to himself, so as to avoid suspicion (Tosef., bm 3:8; Pes. 13a; Yad, She'elah, 7:5; Sh. Ar., Ḥm 292:19).
A bailee may be relieved of his responsibility if the owner refuses to accept the return of his property. A statement in the Mishnah, that an artisan is a shomer sakhar who becomes a shomer ḥinnam upon his offering to return the article against payment, was later interpreted to mean that an artisan who expressly indicates to the owner that he wishes to be relieved of all responsibility for the article is thereafter exempted from any liability, even that imposed on a shomer ḥinnam (Rema, Ḥm 306:1 and Sma, ibid., n. 4). In the event of the owner being abroad, the bailee may be relieved of his obligations by depositing the article with the court, who will then appoint a trustee for it until the owner's return (Yad, She'elah, 7:12; Sh. Ar., Ḥm 293:3).
A bailee from whom a deposited article is stolen must take three judicial oaths, affirming: that he was not negligent as regards his bailment; that he did not "put forth his hand" to it (see above); and that it is no longer in his possession (bm 6a and Rashi; Yad, She'elah, 4:1; Sh. Ar., Ḥm 295:2). However, it was prescribed that a bailee who is prepared to pay compensation must nevertheless take the third of these oaths, "lest he has set his eyes on the bailment" (bm 34b), although Maimonides limited the application of this ruling only to cases where the article was not normally available in the open market (Yad, loc. cit. 6:1; Sh. Ar., Ḥm 305:1).
A bailee who denies the existence of a bailment and commits perjury concerning it, but later admits to the truth, is obliged to compensate the owner to the extent of the article's capital value plus a fifth, and must also bring a guilt offering (Lev. 5:20–26; Shevu. 5 and 8:3; and see *Oath).
Modern Israel Law
In the State of Israel the law of bailments is governed by the Bailees Law, 5727 – 1967, which closely follows the principles of Jewish law as described above (see Divrei ha-Keneset, 49 (1967), 2148f.). Thus, the three categories of bailee are similarly defined (sec. 1), each attracting a different (and increasing) degree of liability, determined by the degree of benefit received by the bailee (sec. 2, and see explanatory remarks in: Haẓa'ot Ḥok, no. 676 (1965/66), p. 54). Also, the bailee is exempted from liability for damage or loss sustained while the article was being ordinarily used in accordance with the terms of the bailment (sec. 4). Yet further, the bailee is held liable if he knowingly fails to inform the owner that his property is likely to suffer damage (sec. 2(d)), and he is impliedly authorized to take such urgent steps as may be reasonably necessary to prevent such damage (sec. 6). The Bailees Law also deals with the question of a bailee who entrusts his bailment to another (sec. 3, 7), and makes detailed provision with regard to one who refuses to accept the return of his property from a bailee (sec. 11). Still following the principles of Jewish law, the freedom to contract out of the act is specifically allowed, namely: "The provisions of the act shall apply… where no different intention appears from the agreement between the parties" (sec. 14).
During the Knesset debates on the Bailees Law, both the minister of justice, in his opening statement and especially during his reply, and other Knesset members from the various political parties, stressed that the bill was based on Jewish law, and much of the discussion was devoted to examining the relevant Jewish legal sources (see the remarks of Minister of Justice Joseph, and mks Raphael, Abramov, and Hausner, 44 dk 215–218 (1966)).
The Bailees Law contains 16 sections, the great majority of which are based on Jewish legal principles. An interesting question with regard to the title of the statute arose at the second and third readings of the bill. The title originally proposed was the "Safekeeping of Property Law" (Ḥok Shemirat Nekhasim), a term unknown to Jewish law, whereas the term "bailees" (shomerim) is well known in Jewish law, which speaks of four types of bailees (arba'ah shomerim). The proposal to call the statute the "Bailees Law" was rejected in the Legislative Committee on the ground, among others, that statutory titles generally state the nature of the activity or transaction rather than that of the persons involved – e.g., the "Sale Law," rather than the "Sellers Law" (see the remarks of mk Azanyah, 49 dk 2149 (1967), and also those of mk Aloni, quoted infra). However, when the bill was presented for its second and third readings, the title was changed to the Bailees Law, 1967. Some of the reasons for the proposed change merit quotation (Remarks of mk Aloni, 49 dk 2148 (1967).
When we began to deal in the committee with this law, which in effect transforms or translates the Mejelle and other legal rules into an Israeli code based on Jewish law, I did not understand what was meant by "safekeeping of property" until I saw the text of the various sections. Then I realized that we were concerned with the law of bailees (shomerim), as I had learned at school from the Bible and the Talmud; and, understandably, that was the primary association when I went over the material. In all innocence, I then asked why the statute is not entitled the "Bailees Law" rather than the "Safekeeping of Property Law," and I was told that this indeed had been the original intention, but that the word shomerim [bailees, which also means "watchmen" or "guards"] evoked in many people an association with the Ha-Shomer (the "watchmen") in the Galilee, with *Ha-Shomer ha-Ẓa'ir, a political youth movement, and with other such worthy organizations.
It seems to me that… we are dealing with Jewish legislation governing the bailment of property that is entirely structured according to the four types of bailees in Scripture, and yet this statute fails to declare its connection with those [Scriptural] rules concerning bailees. This being the case, serious doubts arise as to whether the Knesset has acted properly up to this point – and we have very many years ahead of us – by cutting out associative words, symbols, concepts, and linkages which could promote attachment to our heritage, our history, and our cultural values, particularly in a field of which we are so proud. For it is our people who laid the foundation for social legislation in western thought.
I was a teacher for a number of years, and I regretted that the Wage Protection Law was not called the "Wage Delay Prohibition Law," so that when teaching the Scriptural verse "The wages of a laborer shall not remain with you…" a teacher could drive the point home by telling his pupils that this law of the Torah still applies today That is the significance of continuity. Thus is fashioned the associative link that is educationally so important. This is perhaps the best kind of continuity, because it unites us all without religious or national compulsion, in that this ethical and legal basis serves as a general foundation for modern legal thought, and there is no need to be embarrassed or to hide the fact that its source rests on the foundation laid down by the Jewish people when the Torah came into being. It similarly pained me when we adopted the Severance Pay Law, the source of which is the verse "Do not let him go empty-handed: you shall furnish him (ha'aneik ta'anik lo) [out of the flock, threshing floor, and vat]," that the word ma'anak ("grant") is not a part of the title. It is a pity that a school teacher cannot point out the association between that law and the Scriptural verse. Not only in grade school, but even in the university, many do not realize the connection between the two. I want my children to know when they study this subject that this is not a legally unenforceable Biblical precept; it is intimately connected with daily life in Israel.
See also ibid., for mk Azanyah's reply, admitting that the bill included many legal concepts of Jewish law but claiming that the Hebrew term shomer, "bailee," was not sufficiently indicative of the contents of the law):
This is not the place for a detailed review of the Bailees Law and how its provisions rest on principles of Jewish law. The first two sections of the statute are sufficient to illustrate the point we wish to make here.
After initially defining a "bailment" as "lawful possession not by virtue of ownership," Section 1 provides:
(b) A bailee of property who derives no benefit for himself from the bailment is an unpaid bailee (shomer ḥinam).
(c) A bailee of property who receives payment or derives some other benefit for himself from the bailment, and is not a borrower, is a paid bailee (shomer sakhar).
(d) A bailee of property for the purpose of using or benefiting from it without paying consideration is a borrower (sho'el).
The names given here in Hebrew to these three types of bailees (the four types of bailees in Jewish law, so far as the applicable legal rules are concerned, are actually three; see Maimonides, Yad, Sekhirut, ch. 1), as well as their definitions, are based on Jewish law; anyone who has ever studied the passages on bailees in the Torah or in the Talmud will immediately note the close connection between these definitions and those sources.
Principles of Jewish law in regard to the categories of bailees and their respective levels of liability and duty of care were relied upon in court decisions particularly in view of the close connection between the Bailees Law, 5727 – 1967, and halakhic principles. ca 34/80 Ali v. Sasson, pd 36 (3) 281, was an appeal regarding an alleged lottery win where the relevant slip given to the lottery agent was not traced. The appeal was heard by Justice E. Scheinbaum who referred to the explanatory comments of the bill that emphasize the principles of Jewish law underlying the new legislation. The Supreme Court held that the lottery slip was an object that could be a subject of bailment and that the lottery agent did not keep it in a suitable way, and was thus negligent. The Court reviewed the categories of bailees in Jewish law and their respective liability, in particular that of the unpaid bailee, who is only liable for negligence (peshi'ah; Sh. Ar., Ḥm. 291:1, 13, 14; cf. Maim, Yad, Sekhirut 1:2), defined as "failing to guard [the property] in the manner of bailees…" (Mishnah, bm 3.10). In finding the bailee negligent, the Court held that the lottery agent, as a paid bailee, could be found liable, being exempt from liability only if the loss or damage is caused by ones – i.e., force majeure, his liability being more extensive than that of the unpaid bailee, who is liable only for peshi'ah – negligence. However, as in this case the appellant's claim was based solely upon his testimony, the alleged damage was not proven and the appeal was dismissed.
In ca. 1129/01, Atiah v. Ḥen Shaḥar etc., the Beersheba District Court ruled that the paid bailee was not liable for damage caused to an object in his care (a tractor, stipulated by the parties to be transported with its engine running, was damaged by fire as a result), though it was contended that regular use or use according to the conditions of the bailment cannot exempt the bailee from negligence. In finding the bailee not liable, the District Court held, in keeping with Jewish law, that since the parties may stipulate between themselves in regard to liability and the duty of care, and such stipulation need not conform to fixed halakhic principles (Maim., Yad, Sekhirut 2:9), the question was determined by the conditions of the bailment; consequently, in this case, the paid bailee was not liable for the damage caused.
An additional case also adjudicated in the Beersheba District Court, in which the Court ruled in accordance with the Jewish law on bailees, was the Ayalon case (ca 1260/01 Ayalon Insurance Company v. Makhon Lev (unpublished), given 17/6/03). In that case, a garage owner, who had received a car for repairs, notified its owner that he had completed the work, and that he could come to take his car. The owner requested the garage owner to leave it in the garage overnight, telling him that he would only take delivery of the car the next day. The garage owner agreed, but during the night the garage was burgled and the car stolen.
Under section 6 (b) of the Contract for Services Law 5734 – 1974, the contractor's responsibility for property is that of a paid bailee for the purposes of the Bailees Law. Section 6 (a) of the Law stipulates that when the work on the property in the contractor's possession has been completed, the customer must take delivery of the property at the time agreed upon or, in the absence of agreement, within a reasonable period of time after the contractor notifies him that he has completed the work. The trial court ruled that since the car owner did not come to take the car upon being notified by the garage owner that he could take it, the continued guarding of the car in the garage could be regarded as a favor. As such, the garage owner was an unpaid bailee, and was under no obligation to indemnify the owner for the theft. In the appeal court, the District Court judge J. Elon) interpreted the term "reasonable time" in the law in accordance with the Jewish law on bailees (after substantiating the connection between the Bailees Law and Jewish Law).
The judgment states that, indeed, under Jewish Law, from the moment of informing the customer that he should come and take his property, the artisan's status changes from that of a paid bailee to that of an unpaid bailee: "All artisans are regarded as paid bailees; but if they declare, 'take your property and then bring us money,' they rank as unpaid bailees" (Mishnah, bk 6:6). But in the talmudic passage discussing this provision in the Mishnah, a distinction is made between the artisan's notification as formulated above, and the case of the artisan who notifies the customer: "Bring money and then take your property" (bm 81b). In the latter case, together with his notification of completion of the work, the artisan makes its return to the customer conditional on the payment of his fee. This is the artisan's right of lien, by virtue of which he is a paid bailee (Maggid Mishneh, Rabbi Vidal de Tolosa (14th-century Spain); on Yad, Sekhirut 10:3).
The talmudic passage (ibid. 80a) offers two explanations regarding the nature of the "benefit," which confers him the status of a paid bailee even after having completed his work. The first, "as a result of benefit received due to the fact that the customer ignored all the other artisans and specifically chose him," means, in other words, that the artisan has an interest in maintaining his reputation, which will attract clients who know that they can rely on his responsibility and his safeguarding of property given to him to repair. The second, "for the benefit occasioned by his ability to withhold the property as against his fee, and that he is not required to make efforts to collect his fee," means, in other words, that the artisan's right of lien per se, which he has on the property given to him, is a "benefit" which converts him into a paid bailee of the property, even after completion of his work.
The Court stated that "in both cases, the Talmud's point of departure was that the actual payment of the artisan's work fee constitutes a 'benefit' that gives him the status of a paid bailee for as long as his work is not completed. However, even after completion of his work and prior to the customer having regained his property, the contractor may still derive various benefits from his possession of the property, and it is by virtue of these benefits that he retains the status of a paid bailee for this additional period."
This was the background for the Court's construction of the term "reasonable time" in section 6 (a) of the Contract for Services Law as including the benefits that the artisan was likely to derive. Consequently, as opposed to, and in overturning the ruling of the trial court, the Appeal Court ruled that the time period of one night, during which the car remained in the garage, fell within the ambit of "reasonable time," that the garage owner was subject to the law governing the paid bailee, and therefore responsible.
[Menachem Elon (2nd ed.)]
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