Class Notes - Class #13

We are continuing with our series of mitzvah/essays related to civil law.

Causes of Action Continued:

3.  Custody of someone else’s property.

            There are many situations where one person has custody of someone else’s property.  Each different situation generates different outcomes if the property is missing or damaged.


            A.  Theft

            Mitzvah #54 requires the judge to restore stolen property to its original owner or to arrange for the thief to pay compensation.  There are several situations where the thief pays a penalty in addition to compensation.  Someone who steals clandestinely rather than openly pays double damages. He is penalized for having more fear of other people than he has of God. Someone who steals a sheep and makes it irretrievable, for example by slaughtering it, pays fourfold damages.  Someone who steals an ox and makes it irretrievable pays fivefold damages.  Under certain circumstances, if the thief does not have the resources to repay, the beit din may sell him into slavery to raise money to pay the compensatory damages.  Also, if a thief is sneaking into a habitation where someone is present, the person is permitted to protect himself from the thief, using lethal force if necessary to protect his life.

            The dinei hamitzvah in this essay raises the predictable complexities.  What happens if the stolen item has increased in value; does the thief pay the value when the item was stolen or when the case was decided?  What happens when one thief steals from another thief?  What happens if the stolen property was fenced?  Are the rules different if the thief steals real property rather than personal property?  If the thief stole property belonging to the Temple?  To a non-Jew? 


B.     Unpaid custodians – Shomer Hinam

Mitzvah #57 covers a situation where the plaintiff asks the defendant to

do him a favor and watch his stuff. (“Can I please leave a few cartons in your garage?”)  While the defendant has custody of the stuff it disappears or is damaged.  Because the defendant is doing the plaintiff a favor, the defendant has very limited liability.  We are concerned, however, that the defendant has invented some story for what happened to the stuff and has in fact stolen it.

            In general, the shomer hinam is only liable to reimburse the owner if the goods were lost or damaged because of the shomer’s negligence.  In some other cases, accident or unforeseeable damage, the shomer has to take a shvua to avoid paying compensation.  The shomer is not liable if the goods are stolen through no fault of the shomer.

            The situation is entirely different where the shomer misuses the goods in his custody, operating with it in ways the owner did not authorize.  That is a form of theft.

            Our author, in the dinei hamitzvah, mentions several cases where the court is faced with facts that keep changing.  Those cases let us see how much conflicting evidence there might be in these cases, and just how complicated they can get.


C.     Paid Custodian – “Shomer Sachar” (See mitzvah #59.)

Here, the person holding another person’s goods is being paid to watch the goods.  (“I will pay you to let me keep a few cartons in your garage.”)  A paid custodian has more potential liability than an unpaid custodian.  In most cases the shomer sachar is liable if the goods are lost or stolen.  One becomes a shomer sachar if he or she is compensated in any way for holding the goods; for example, an artisan who takes someone’s goods for repair is a shomer sachar because the artisan will be paid for his work, and his work includes custody of the goods.

Another issue that arises here is the question of whether the shomer sachar can pass off the job of watching the goods to someone else.  Our author says that the shomer sachar can recruit his close family members to help with the job, and that the owner of the goods should have expected that might happen.  But the shomer sachar cannot delegate the job to anyone else without increasing his potential liability. 


D.     Renter – “Socher” (Also see mitzvah #59)

Another situation where one person has custody of someone else’s property is where one rents goods from someone else.  The rules for someone who rents goods are parallel to the rules for a shomer sachar, and our author treats them together in one mitzvah/essay. Our author does mention that, according to Rambam, someone who rents a house or a boat may sub-let the house or boat as long as the sub-lessees are comparable tenants who will not do unexpected damage to the premises.  Other authorities disagree; they would not allow a sub-lease.


E.    Borrower – “Shoel” (See mitzvah #60.)

A borrower has the highest level of responsibility because the borrower is getting benefit from the owner’s goods and not compensating the owner in any way. The borrower is basically liable for anything that goes wrong.  One exception is if the borrowed object broke when the borrower was using it for its intended purpose.  The borrower was doing exactly what the lender expected the borrower to do, so the borrower is not liable.  But the borrower should beware of using the borrowed object in some unusual way.  The borrower is required to take care of upkeep for the borrowed object while it is in his custody; for example, if he borrowed an animal he is required to feed the animal.  The borrower may not lend the borrowed item to someone else without the owner’s permission.

Our author discusses a series of cases where the “borrower borrows the lender along with the object.”  If the owner is present when the damage occurs, the borrower is not liable; the owner is responsibility to protect his own goods.  It is harder to understand why the borrower is not liable is the owner was present but left before the damage occurred.  The rule appears to be that if the owner is present at the beginning of the transaction, the borrower will not be liable for damage, but if the owner shows up later the borrower is liable even if the owner is present when the damage occurs.  The author argues that there was need here for a clear, simple rule. 

(Did you notice how much clearer this essay is than the several preceding essays?  There is a sudden improvement in our author’s writing style.  I have no idea why that occurs, but I am quite pleased.  It makes working with his book a whole lot easier.)



            Mitzvah #49 deals with the damages that a successful plaintiff can recover for personal injuries.  There are really two source verses here, Exodus 21:18 and Leviticus 24:19, “an eye for an eye, etc.”   A successful plaintiff who has suffered physical injury can collect compensatory damages that fall into five categories:  disfigurement, pain and suffering, lost wages, medical expenses and embarrassment.  At the opening of the dinei hamitzvah section the author mentions that there are five categories but he does not list them. Instead, he focuses most of the dinei hamitzvah section on questions related to damages for embarrassment.  Perhaps he focused on embarrassment because that is the most ephemeral of the categories, but that is only my speculation.

             Our author does say that calculating damages for embarrassment depends on the social status of the people involved.  Look at the questions he raises in the dinei hamitzvah section; most of them raise questions about how much embarrassment is actually involved given the person who is harmed.  Can a plaintiff recover damages for embarrassment if the plaintiff was sleeping when the incident happened? If someone who is sleeping manages to harm and embarrass someone, for example by falling out of bed onto the plaintiff, the defendant cannot be responsible for embarrassment damages because his harmful act was not intentional. (That sleepy plaintiff is still liable for the other categories of damage, however.)   If so, can someone presumed to be incapable of adult intentional action, someone severely mentally ill or a child, be held responsible for embarrassing someone?  (Someone who is deaf and mute is assumed to be incompetent, as most such people probably were until recent advances in education.)  You can read through the rest of the questions raised in the dinei hamitzvah section to see if you can anticipate how those factors would impact on the amount of embarrassment damages.

            Unfortunately, we have no detail in this essay about how the other types of damages are calculated.


Before we complete this topic and go on to other things, let’s pause to look at a sample Mishnah that uses some of the principles we have been discussing.  Consider the following text, the first case in the first mishnah in Baba Metzia, and see if you can answer the questions about it.


“Two are holding onto a tallis.

One says ‘I found it.’

And the other says ‘I found it.’

One says ‘It’s all mine.’

And the other says ‘It’s all mine.’

One swears that he owns no less than half of it.

And the other swears that he owns no less than half of it.

And they split it.”


Now consider these questions:

Where is this happening?

Does it matter that this is a tallis, or might it be something else?

Is it possible that both characters are telling the truth, or is one lying?

What do you think really happened to generate this dispute?

Why doesn’t one character let the other character carry the tallis?

Where does the question in this mishnah end and the answer begin?

What evidence is there included in the question?

What options are available for the answer to the question?

Why does each character swear?

Why is the formulation of the oath different from the claim each character is making?

What happens if either character does not want to take an oath?

How do they split it?

This text is casuistic.  Can you restate this question in conceptual terms?

Using this text as a precedent, can you formulate a different case for which this case would provide an answer?  Are there any differences between your proposed case and this case?