Translation:Shulchan Aruch/Choshen Mishpat/291

Paragraph 1- An unpaid watchman is exempt from taking an oath on a case of theft or the item being misplaced. He is only required to pay in a case of negligence.

Paragraph 2- An unpaid watchman is one whom another deposited money, vessels, an animal or another item with him to watch, and the watchman agreed to watch it. Even if the watchman did not explicitly agree to watch, but told the owner to leave it with him, he would be an unpaid watchman. If he said leave it in front of you, or simply said leave it, or said here is the house in front of you, however, he would not even be an unpaid watchman and would not be required to take any oath. We would, however, place a cherem on anyone who has taken a deposit and not returned it its owners. Nevertheless, if someone was travelling on the road and another told him take these shoes with you, and he responded leave them here on the donkey and he left them there but did not accept them in his hands, and he traveled with them exactly as they were left without tying it, and he went off to the side to relieve himself leaving the donkey on the road, and the shoes were lost, he has the status of an unpaid watchman, he is negligent and is required to pay because we do not say the concept that if someone simply says leave he is not an unpaid guardian except in a place that is guarded. On the road or something similar, he has certainly accepted guarding. There are those who disagree and hold that even in a place that is not guarded, he would not be an unpaid watchman unless he says leave it in front of me.

Paragraph 3- If one requested permission from another to bring his animals or fruits to his courtyard, and the owner gave permission but did not say anything about watching, he is not obligated to watch the items at all.

Paragraph 4- Even where one accepts to watch, he is only liable for the value of the item he agreed to watch. If the owner gave him a gold dinar to watch and he told him to be careful with it because it is silver, and the watchman was negligent and the dinar was misplaced, he would only be liable to pay for silver because he can say to the owner he only accepted watching a silver dinar. The same applies to anything similar. If he caused a loss with his own hands, however, he would pay for gold. If Shimon accepted seforim from Reuven to bring to another location and they were taken as tax, and Shimon says that Reuven was negligent because he said one does not pay taxes on seforim and without this assurance he would not have agreed to watch it because he does not want to deal with tax matters, Shimon is in the right.

Paragraph 5- There are those who say that as soon as a watchman accepts to watch an item or says leave it in front of me, and the owners are removed from guarding it, the watchman is liable if he is negligent, even if he did not pull the item. There are others who say he is not liable until he pulls in a location where pulling would acquire.

Paragraph 6- If the watchman was negligent and did not guard the item properly in one area, even if ultimately the item was misplaced because of an unavoidable accident in another area, he is considered negligent and must pay. An incident occurred where one deposited money with another and the watchman left them in a partition of reeds and were stolen from there. The Rabbis said that although this is a proper guarding with respect to theft, it is not a proper guarding with respect to fire and because he did not hide it in the ground or a wall of a building, he is negligent, and in any case where one was negligent in the beginning but an accident occurred in the end, the watchman is liable. The same applies to anything similar.

Paragraph 7- If one deposits either vessels or money with another and tells the watchman to give him back his deposits, and the watchman responds that he does not know where he placed the deposit or in what location he buried the silver, and he asks him to wait until he finds it and returns it, the guardian is negligent and must pay immediately.

Paragraph 8- If thieves came upon the watchman and stole the deposit from him, and had he yelled people would have come to rescue, he would be liable because his not yelling is negligence. Even if violent thieves came he needs to yell and ask people to help him stand up against the thieves. If it was possible for him to do so and he did not do so he is liable. He is only required to ask for help at no cost. If he could not find anyone to help him unless he paid, however, he is exempt.

Paragraph 9- If the watchman was negligent and did not watch the animal properly and it went out to the swamp and died there in a typical fashion, he would be exempt. Although he was originally negligent with respect to wolves and thieves, and had a wolf tore it up or had it been stolen from there he would be liable, now that it died in a typical manner, he is exempt because the animal leaving did not cause its death. If a thief stole it from the swamp and it died in a normal manner in the thief’s home, however, the watchman would be liable, even though he is an unpaid watchman, because even if the animal did not die it was already misplaced in the hands of the thief and the animal leaving is what caused it to be stolen. The same applies to anything similar.

Paragraph 10- If the watchman brought an animal to the top of the mountain and it fell and died, that would be negligence. If the animal died in the ordinary course, he would be exempt.

Paragraph 11- If the animal went up on its own, it is not considered negligence, even if it was not forced to go up. Rather, it is like something stolen or misplaced and an unpaid watchman would be exempt.

Paragraph 12- If an unpaid watchman left the animal and entered the city, and a lion came and trampled it or a wolf came and tore it, and he entered at a time people typically enter, he would be exempt, even had he been able to rescue the animal had he been there. If he entered at a time that people do not have the practice to enter, we evaluate whether had he been there he would have been able to rescue, in which case he would be liable. Otherwise, he would be exempt.

Paragraph 13- What is proper practice of watchmen? It all depends on the deposit. There are deposits where the way to watch it is to leave it in a gatehouse, such as beams and stones. There are deposits where the way to watch it is to leave it in the courtyard, such as large bundles of flax or anything similar. There are deposits where the way to watch it is to leave it the house, such as shirt or cloak. There are deposits where the way to watch it is to leave it in a box or chest and lock it, such as wool clothing, silver vessels, gold vessels or anything similar. There are those who say that a standard box is considered dug up by mice and he must place garments or something similar on top of a flag and not leave them in boxes. Everything depends on the circumstances.

Paragraph 14- If a watchman leaves the deposit in an inappropriate place, and it was stolen from there or misplaced or even if an unavoidable accident occurred, such as were a fire broke out and burnt the entire house, the watchman was negligent and is required to pay. Even if he left the deposit with his own item, if it was an appropriate place for guarding, he would be exempt, but if it was not fit for guarding he is liable. He is permitted to place his own items there, but not another’s.

Paragraph 15- Silver, dinar, and tongues of gold and silver and precious stones can only be guarded in the ground. The watchman would place a tefach of dirt or hide the bottom tefach of the wall that is closest to the ground or in the tefach closest to the beam, even if he does not place it in the middle of the thickness of the wall but just brings it one tefach in. He should not put it in middle of the wall, however, because the thieves may dig and steal it. Even if he locked them up properly in a box or hid them in a place where nobody is familiar with or would speculate, he is still negligent and would be required to pay.

Paragraph 16- If one deposits silver coins with another on Friday close to sunset, the watchman is not required to trouble himself and bury them until Saturday night. If he delayed on Saturday night from burying them and did not bury them before they were stolen or an accident occurred, he would be liable. If the owner is a Torah scholar, the watchman is not liable unless he delayed burying it after Havdalah. There are some who say the same is true where the watchman is a Torah scholar.

Paragraph 17- If the watchman accepted the item conditional that he does not have to hide it in the ground, and similarly a condition to place any other matter with his own, we would follow whatever the condition is.

Paragraph 18- When is it true that silver can only be guarded in the ground? At a time were thieves are commonplace and fraudsters are seeking them. In a place that does not have these, however, the watchman does not need to cover them in the ground. Rather, he can leave them in the place where he leaves his own money if that place is a guarded place based on the location and time of the deposit.

Paragraph 19- Even at a time where thieves are commonplace, they did not say silver can only be guarded in the ground except in a case where one deposits with another to watch without specifying. If one deposits money with another so that he invests with it and turn a profit, however, it is obvious that it is as if he said explicitly that it does not require burial in the ground.

Paragraph 20- If one deposits silver with another on the road to bring to his house or sends him with money to bring from place to place, they need to be piled and placed in his hand or tied properly on his stomach, opposite his face, until he reaches his house and buries them properly. If he did not tie them in this manner, even if an unavoidable accident occurred he would be required to pay because he was negligent originally.

Paragraph 21- Anyone who deposits with a homeowner, deposits with the intention that the item will be guarded by the watchman’s wife, children and adult household members, whether the deposit was vessels or money. Similarly, if the watchman returned the item to the owner’s wife, he would be exempt. If the watchman gave the deposit to his minor children and household members, his slaves, whether adults or minor or one of his relatives that does not live with him in his house and are not supported by his table, however, and it goes without saying if he gave it someone else, he is negligent and would be required to pay, unless the second guardian can bring proof that he was not negligent. Similarly, if the watchman allowed others to enter the place where the deposit was kept, and the item was stolen, he would be required to pay because he was negligent, even if the guests were not presumed to be thieves.

Paragraph 22- If one knows with certainty that the watchman does not typically watch deposits, but gives it to someone else that does not live in his home and is not supported by his table, the law is the same as one who gives to his household member.

Paragraph 23- An incident occurred with one who deposited money with another, and the watchman gave the money to his mother who hid them but did not bury them and the money was stolen. The Rabbis said the watchman is not required to pay because he gave the money to his mother, and anyone who deposits does so with the understanding that the watchman would give the deposit to his children and household members. Although the son did not tell his mother they were a deposit, he can argue that all the more so would she be careful with the money if she thought it belonged to him. Similarly, the mother is not required to pay because he never told her it would a deposit. The Rabbis said the watchman should swear that it was this same money that he gave to his mother and the mother would swear that she hid them and they were stolen, and they would be exempt. The same applies to anything similar. This is only true with respect to money and anything similar in that is not a defined item, so they would both swear. If it is a defined item, only the second watchman would swear and not the first.

Paragraph 24- From the above story we can deduce that if a watchman gave a deposit to his wife or household member and informed them that it was a deposit, and the household member did not guard it the way it is supposed to be guarded, they would be required to pay the owner of the deposit and the homeowner would be exempt, because anyone who deposits does so with the understanding that the watchman’s wife and children will guard the item. If the household member does not have with what to pay, there are those who say the homeowner is required to pay and there are those who say he is exempt.

Paragraph 25- An incident occurred where one deposited hops with another, and the watchman had other hops, and he told his servant to throw such other hops into the beer but the servant went and threw the deposited hops in the beer. The Rabbis said that the servant is exempt because the watchman did not tell him to throw from this one and not the other one, and it appeared to the servant that he was just directing him to a location but was not being exact about it. Similarly, the watchman is exempt because he told the servant to throw these other hops. He would only pay the value of the benefit he received. Thus, if the beer became vinegar, the watchman would be exempt from paying. In either case, the watchman is required to swear that this is what took place. The same applies to anything similar. If the deposited hops were far from the location of the beer and his hops were closer, and the agent delayed from coming and the watchman was there and did not say anything, he would be liable because when he saw that the servant delayed he should have though before the hops where thrown into the beer that he is bringing it from afar. If the watchman was a paid watchman, there are those who say he would be liable either way because he should have been explicit and said do not throw these.

Paragraph 26- If a watchman gave to another watchman, he is liable, even if he is an unpaid watchman and gave to a paid watchman, because the owner can tell the first watchman that he trusts him with an oath, but not the second watchman, even if it is known to all that the second is a better and straighter person than the first. If the watchman gave to another watchman in the presence of the owner and the owner did not object, however, he would be exempt. Thus, if it is the general practice of owners to deposit this type of item with a second watchman, the first watchman would be exempt from paying, so long as he did not downgrade the watching. If he downgraded the watching, however, such as where the first watchman was paid and the second was unpaid or the first was a borrower and the second was a paid watchman, the first watchman is negligent and must pay, even if he borrowed or rented with the owner. If there are witnesses that the second watchman guarded appropriately, the first watchman would be exempt. Even if there are no witnesses but the first watchman saw and can swear, he would swear and be exempt. See 72:30.

Paragraph 27- When is this true that an unpaid watchman is only liable for negligence? In the case of a standard watchman. If he made a condition that he would even be liable for unavoidable accidents, however, he would be liable, even if it was just words without a kinyan.

Paragraph 28- If one deposits with another, whether with payment or for free, or he lent or tented to him, and the watchman borrowed or rented the owner with their item, the watchman would be exempt from everything. Even if he was negligent with item he was watching and it was misplaced because of that negligence, he would be exempt, because the verse states, “If the owners are with him, he shall not pay.” When is this true? Where he borrowed or rented the owner at the time he took the item or they loaned or rented out to him before. Thus, since they are working with him at the time he took the item, even if the owner was not with him at work at the time the item was misplaced, he would be exempt. If he took the item first, however, and then rented or borrowed the owners, even if the owners were working with him at the time it was misplaced, he would be liable.