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Beit Midrash Series P'ninat Mishpat

Chapter 93

The Manner in Which a Shomer Becomes Obligated

858
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The gemara deals with a case of one who borrows an object from a friend and the lender regrets the loan. As for rentals, once the borrowing has taken effect, the lender cannot back out during the agreed upon borrowing period. When, though, is the point of no return? One opinion is that it is when the borrower begins using the object. However, the gemara accepts the opinion that it is from the time the borrower performs the act of kinyan one would use to acquire the object. The Rambam (Sechirut 2:8) says that until that kinyan takes place, a shomer is not obligated in payment should something go wrong to the object. Let us look at the sugyot of the gemara on this matter.
P'ninat Mishpat (576)
Various Rabbis
92 - A Shomer Who Gave to Another Shomer
93 - The Manner in Which a Shomer Becomes Obligated
94 - Dayanim With Authentic Semicha
Load More
The mishna (Bava Metzia 81b) says that if one asks his friend to watch something for him and the latter says, "place it before me," he is a shomer chinam (an unpaid watchman). The gemara says that acceptance of being a shomer obligates him. Tosafot (ibid. 89a) says that the obligation is not dependent on there having been a kinyan. As opposed to the Rambam, they posit that kinyan is relevant only regarding backing out. According to the Rambam, the gemara must be discussing a case where the object was in the shomer’s domain, a situation which is itself a kinyan (chatzer) when he accepted the shemira. The Ran cites a compromise opinion. Regarding a borrower and a renter, who have rights in the object which require a kinyan, their obligations are also dependent on it. Regarding a simple shomer, where kinyan is not naturally relevant, the obligations begin when he accepts to watch the object. The Ran himself feels that regarding a paid shomer, the kinyan is significant as it represents the beginning of the work for which he is paid and thus becomes responsible too. Conceptually, both opinions in the Ran are like Tosafot, just that the kinyan becomes a significant indicators if it creates new rights.
One can ask, according to Tosafot: what actually obligates the shomer before a kinyan, which is usually that which creates monetary consequences? The K’tzot Hachoshen (307:1) says that a shomer is like a worker, in regard to whom the beginning of the work is the time that the mutual obligations and rights begin. This is not simple for two reasons: he admits that according to the Ran, it is kinyan, not the beginning of work, that begins the consequences; it is not clear that a shomer chinam is a worker.
The stronger explanation seems to be along the lines of arev (a guarantor). The gemara (end of Bava Batra) says that if one is willing to lend money only if there is an arev, the arev becomes obligated by the loan if necessary without a kinyan. Many learn a broad concept from here: one becomes obligated by an assurance he gives someone where the latter acted based on the assurance. This applies in the case of a shomer, as the object’s owner leaves the object based on the shomer’s assurance that he is watching it and will pay if he fails to do so properly.


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