- Family and Society
- Damage and Theft
Questions on Shomrim/Pikadon Hello! I have two questions on the laws of pikadon. The first pertains to a shoel that gets paid, and the second to a shomer chinam that pays. Thanks so much for your time! First: The sugyah of Sheliah L’ravah (Bava Metzia 96a) is mashma that a sheliah with a very limited scope, so long as it’s a normal usage (according to Rashi; and even abnormal, within the Rambam’s mehalech), constitutes a full-fledged sheilah. What if there’s an item that a shomer sachar would normally watch for approx. $100. The value of using this item within some limited scope is $5. The mafkid and nifkad agree that the nifkad can “borrow” the item to use within that limited scope, and in addition to that usage, the nifkad will receive $95. We can raise this question both, when the nifkad approaches the mafkid with the deal and uses a loshon of sheilah (“lend me and pay me”), or the mafkid approaches the nifkad (“I’ll pay you for the shemira: $95 and you can use it within the limited scope). There is a strong element of sh’eilah, in that there is a kinyan for usage; however, a shoel is “kol hana’ah shelo,” which arguably isn’t the case when a nifkad adds payment to the sh’eilah, because the payment testifies that he needs someone to watch the item. There might even be a hint of sechirus, in that the nifkad could’ve received $100, but, in a sense, paid $5 for the right to use the item. What is the din of such a nifkad? Second: A shomer chinam that pays. From the sugyah of “Liraos bah” (also 96a), a scenario which either renders the nifkad a shoel (but possibly not b’ba’alim) or questionably renders him a shoel, there would seem to be a strong mashmaos that a shomer, who has no reshus to use the object, and no such kinyan, would not be able to act in such a manner, at least not overtly. So, I won’t ask regarding a shomer chinam that might desire to pay for the opportunity to walk around town and have people think that he owns the item; but, what about someone who’s willing to pay an adam chashuv just for the right to watch the adam chashuv’s pikadon. All he wants to do is, after the shmirah has completed, tell people that he was a shomer for ploni. Does the payment on behalf of the shomer indicate that he benefits from the pikadon and therefore renders him a shomer sachar, even though there was no direct benefit, and no benefit whatsoever during the shmirah? The only case of a shomer chinam that pays (sort of) that I can think of is the gavra gutza/gavra aruch scenario in Hasocher es ha’umnin (82a), according to some Rishonim (like the Chiddushim Hamiyuchasim L’haRitva), who learn that, since the gavra aruch didn’t need the gavra gutza’s garment, even if the gavra aruch wears the gavra gutza’s garment after the swap, he isn’t a shoel (lichaora, within this shita, he’s a shomer chinam – after he did the other guy a favor, he just needed to wear something). In a sense, the gavra aruch is a shomer chinam that paid (by lending his garment, which was desired by the gavra gutza), yet he remains a shomer chinam; however, this shouldn’t have any bearing on our case, in which the shomer chinam clearly desires the object, albeit for an indirect hana’ah. Over there, the gavra aruch would prefer not to do the deal at all. So, what’s the din in the hypothetical case? Thanks so much! Shmuel Breban [email protected]
In regard to the first question; it seems clear that in the time frame of the She'elah he is considered a Shoel, and the rest of the time he is considered a Shomer Sachar. Regarding the second question, at first glance you could possibly compare it to a Shomer Avedah who is considered a Shomer Sachar according to Rav Yosef in Bava Kama 56b. because he does not get paid directly, but indirectly by the fact that he does not need to give the poor bread while he takes care of the Avedah, as one who is occupied with a Mitzvah is exempt from another Mitzvah. And so ruled some of the authorities, see Shulchan Aruch Choshen Mishpat 267, 16 and in the Nosei Kelim. But the truth is that in the hypothetical case you raised he will not be considered a Shomer Sachar, because he is paying for the pleasure of telling everyone that he was the Shomer for the important person. The result is that the actual guarding was for free. The main reason a Shomer Sachar is responsible for theft and loss is because the Mafkid claims to the Shomer; the reason for me paying you is for extra guarding. In this case when the important person will claim that he paid the Shomer by the fact that he appointed him as his guard, the Shomer will reply that he gave already monetary compensation for it, and is therefore not obligated to extra guarding. The result is that the actual guarding is for free and he is treated as a Shomer Chinam. See more on the subject in the references quoted by the Pitchei Choshen, laws of Pikadon & She'elah 2, 5.