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Acharonim present two explanations for this rule: 1) Since the shomer was to a significant degree negligent, he cannot claim exemption due to oness. 2) At the time that he was negligent, the shomer became provisionally obligated to pay unless he would succeed in returning the object intact. Upon failing to do so, even if it ended up being due to oness, he pays based on the earlier obligation.
To better understand the explanations, we will discuss two Talmudic cases in this context. The gemara (Bava Metzia 36a) deals with a shomer who allowed an animal to run free, but instead of being stolen, it died of natural causes. Although this seems like a classic case of tbpvsb, the gemara cites different opinions on the matter. Abayei said he is obligated because "the air of the meadow killed it." Rava says he is exempt because "the angel of death does not care if it is here or there." It follows that, according to Rava, there has to be some circumstantial connection between the negligence and the eventual death.
The gemara (ibid. 93b) discusses a shepherd who left his flock and came to town, during which time wild animals killed some sheep. The shepherd must pay because of tbpvsb. The Rif says that this gemara follows Rava’s approach. Abayei would not agree with this conclusion because the shepherd’s absence did not have an impact on the outcome, even coincidentally. The Ra’avad says that even Abayei would agree with the latter gemara because, had the shepherd been there, he might have been possessed with a spirit of bravery and saved the sheep (see Rosh, Bava Metzia 3:9).
The Gilyon Maharsha (CM 291:9) says that the above machloket depends on the two approaches to tbpvsb. If the idea is that we consider that there was p’shi’ah based on what he did in the beginning, this would apply only when there is some connection between the original p’shi’ah and the eventual damage. If the idea is that an obligation is created that remains until the object is returned safely, then even if the cause for it not returning is unrelated to the shomer’s negligence, he still must pay.
P'ninat Mishpat (832)
Various Rabbis
101 - Damage to an Illegally Parked Car
102 - Laws of Shomrim Watchmen
103 - A Shomer Who Gave to Another Shomer
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Various Rabbis
Various Rabbis including those of of Yeshivat Bet El, such as Rabbi Chaim Katz, Rabbi Binyamin Bamberger and Rabbi Yitzchak Greenblat and others.
Moreshet Shaul Moreshet Shaul: A Crown and its Scepter – part II
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 294-5
P'ninat Mishpat P'ninat Mishpat: Multiple Agreements and Parties – part III
based on appeal of ruling 80082 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: A Contractor’s Leaving the Job in the Middle – part I
based on ruling 84013 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Undoing a Problematic Partnership – part III
based on ruling 84061 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'NINAT MISHPAT: A Mess of Loans, Repayments and Grievances – part II
based on ruling 83033 of the Eretz Hemdah-Gazit Rabbinical Courts
P'ninat Mishpat P'ninat Mishpat: Realtor’s Fee on Large Commercial Building – part I
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
Rabbis in Midrash
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(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
(based on ruling 85031 of the Eretz Hemdah-Gazit Rabbinical Courts)
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(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
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Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the laying of the cornerstone of the Yeshiva Chakla’it in Kfar Haroeh)
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the laying of the cornerstone of the Yeshiva Chakla’it in Kfar Haroeh)
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Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the cornerstone laying for the Yeshiva Chakla’it in Kfar Haroeh – 1938)
Based on Siach Shaul, Pirkei Machshava V’Hadracha p. 263 (address at the cornerstone laying for the Yeshiva Chakla’it in Kfar Haroeh – 1938)
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Parshat Eikev
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P'ninat Mishpat P'ninat Mishpat: Complaints about Contractor’s Work – part II
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
(based on ruling 83037.1 of the Eretz Hemdah-Gazit Rabbinical Courts)
