Translation:Shulchan Aruch/Choshen Mishpat/303

Paragraph 1- A paid watchman is also not required to watch until he pulls in a location where pulling is appropriate, as was discussed in Siman 291 with respect to an unpaid watchman. There are those who say that if one sends another with something to bring to another location and gave him a gift along with it, the watchman would be a paid watchman. If Reuven asks Shimon if he has such and such item to sell and he offers to sell it for him, and Shimon says to pay such and such amount and Reuven can keep the profit, Reuven becomes a paid watchman on the item, even if he was silent when he accepted the item.

Paragraph 2- A paid watchman is liable if the item was stolen or misplaced. There are those who say that even if he watched it properly and put the silver 100 amos under the ground where it is impossible for it to be stolen without caves, or he went to sleep at a time that people sleep and the item was stolen, or he got very sick and could not watch the item or anything similar, he would be liable, even if he surrounded the item with an iron wall. Even if had the watchman been there he would not have been able to rescue, he is still liable if the item was stolen or misplaced unless he was actually there and could not rescue.

Paragraph 3- A paid watchman is exempt in the case of an unavoidable accident. What is an unavoidable accident? If armed robbers attacked him, even if the shepherd himself was armed because the thieves will risk their lives more. If a fire broke out in the city and the items the paid watchman was guardian on were burnt, it has the status of an unavoidable accident if he was unable to save it himself or with others. This is only where we know it definitely burnt. If we don’t know, however, and the house was just burnt, the watchman cannot swear that it was burnt because an idolater may have entered and taken it. Thus, the watchman would be liable to pay unless the looting idolaters were armed, in which case he can swear that it either burnt or was stolen by armed thieves.

Paragraph 4- If wolves came and grabbed sheep from a shepherd and it was only one wolf, that would not qualify as an unavoidable accident, even at a time where wolves are out. If there were two wolves, that would be an unavoidable accident. Two dogs is not an unavoidable accident, even if they came from two sides. If it was more than two, it would be an unavoidable accident.

Paragraph - There are those who say that all that we said that does not qualify as an unavoidable accident is only where the watchman did not attempt to rescue. If he attempted to rescue and was unable to, however, there is no greater unavoidable accident than that and he would swear on it and be exempt.

Paragraph 6- In a case where a lion, beer, leopard or marten attacks, that would qualify as an unavoidable accident, assuming they came on their own. If the watchman brought the deposit to a place where animals or thieves roam, that would not be an unavoidable accident and he would be liable.

Paragraph 7- If a shepherd came upon a thief and began to taunt him to show he is not afraid of him, and he said “we are grazing in such and such field, with such and such weapons,” and that thief came and defeated the watchman and took the item, the shepherd would be liable.

Paragraph 8- If a shepherd had the ability to rescue a seized or captured animal with other shepherds or sticks, and he did not call other shepherds and did not bring sticks to rescue, he would be liable. This is true regardless of whether he was paid or unpaid, except that an unpaid watchman would need to call other shepherds and bring sticks at no cost, and if he did not find he would be exempt, whereas a paid watchman would need to hire shepherds and sticks up to the value of the animal in order to rescue. He would then take payment from the owner. If he did not do so and could have hired but did not, he is negligent and would be liable.

Paragraph 9- If a shepherd claims he hired shepherds to rescue, he would swear and collect what he claims because he cannot claim more than the value of the item, and he could have claimed the animal was ripped apart and would swear while grasping a holy item.

Paragraph 10- If a shepherd left his flock and came to the city, regardless of whether it was the time for shepherd to enter the city or not, and a wolf came and devoured the animal or a lion came and clawed it, we do not say had he been there he could have rescued. Rather, we evaluate whether he could have rescued with other shepherds and sticks, in which case he would be liable. Otherwise, he would be exempt. If the matter is unknown, he would be required to pay. There are those who say that if he entered at a time where it is not the practice to enter, he would be liable in all cases, because he was negligent originally while an accident occurred at the end. See earlier 291:12.

Paragraph 11- If a paid shepherd transported the animals over the bridge and one of them pushed another into the dangerous part of the river, the shepherd is liable because he should have transported them one at a time given that a watchman takes payment in order that he watch properly. Because he was negligent in his guarding originally when he transported them together, although an accident ultimately occurred when the animal fell, he would be liable.

Paragraph 12- If the animal died in its ordinary manner, the watchman would be exempt. If he afflicted it and it died, such as where he put it in the sun or cold, he would be liable, even if the animal did not die immediately.

Paragraph 13 If the animal overpowered him went up to the top of the cliff and fell, that would be an unavoidable accident.

Paragraph 14- If he brought the animal up to the top of the cliff or the animal went on its own and he could have prevented it but did not do so, even if the animal overpowered him and fell and died or broke something, the watchman would be liable because a watchman is liable for all cases of original negligence but ultimate avoidable accident.

Paragraph 15- If he brought the animal to the top of the mountain and it died in its typical manner or if the watchman was negligent and did not guard it properly and the animal went to the swamp and died there in a typical manner, he would be exempt. If it was stolen from the swamp and died in the thief’s possession, however, the watchman would be liable. For the laws of a paid watchman whose time had concluded, see later Siman 343.