Or HaChaim on Exodus 22:6/אור החיים על שמות כ״ב:ו׳

1 כי יתן איש אל רעהו כסף, If a man deliver money to his neighbour (to keep), etc. Our sages in Baba Metzia 94 understood this passage as speaking of a שומר חנם, a trustee who does not get compensation for his trouble. As such he is not liable in the event the item on deposit with him was either stolen or lost. The sages there consider such a trustee as guilty of rendering an oath concerning any kind of misconduct a trustee could have committed. I do not know whence the sages derive their conclusion. The Torah obligated said trustee to swear that he had not been negligent in guarding the item properly against theft or disappearnce. Having sworn this oath he is free of any further liability. Rashi, (folio 95) in his commentary on the case of someone who borrows a neighbour's tools or beasts (without paying for the use) and who was guilty of some form of abuse, writes as follows in his introduction to the discussion of a שומר חנם. "The Torah deals with a situation where a wrong was committed, seeing the Torah uses the expression על כל דבר פשע in connection with the oath to be rendered." Whence does Rashi conclude that verse 6 speaks of a שומר חנם? Perhaps Rashi's reasoning is that the fact that verse 6 describes items such as money or utensils which normally do not require any special supervision seeing that they do not move about. It is likely that these are the items which a neighbour would undertake to guard without compensation. In verse 9, however, the Torah chooses as its examples such animals as a donkey, an ox, etc., animals which require much more supervision, something that one cannot expect from one's neighbour unless one pays him for his troubles.

2אל רעהו, to his neighbour, etc. Our sages in Baba Metzia 56 understand this word as excluding a situation where the item was deposited with the Temple Treasurer for safe-keeping. The reason that such a Temple treasury is not liable for any damages is that there is no time when G'd Himself does not supervise everything entrusted to the Temple treasury. Requiring confirmation by an oath would be most inappropriate then.

3כסף או כלים, money or utensils, etc. The Torah did not really have to write more than "when a man gives to his neighbour to keep, etc." Verse eight already lists all the various things which are subject to safe-keeping. Our sages deduce from here all the details of liability if the trustee did not exercise due care. If the verse had spoken about a keeper who does not receive compensation, the Torah needed to mention only money, why did the Torah add the additional "or utensils?" The Mechilta suggests that just as money is something one is in the habit of counting, the utensils mentioned are also of the kind which are normally counted; this statement is used for the principle that any claim not involving something that can be measured, counted, or weighed is not a true claim. Thus far the text of the Mechilta. There is no contradiction with what we have written. I believe that an additional reason for the Torah writing the word כלים is to tell us that even if the keeper was willing to compensate the owner by paying for the missing utensils he has not thereby discharged his liability of swearing an oath that he was not negligent in his guardianship. In chapter six of his Hilchot She-eylah u-Pikadon Maimonides writes that if the utensil in question was in good condition at the time he received it, the keeper has to render an oath (concerning his not having been at fault if it disappeared). While it is true that Maimonides considers this rule merely of rabbinic origin, he regards the Torah's words: "if he did not put his hands במלאכת רעהו," as proof that the only way the utensil was identifiable was that it was the work of his neighbour. Even if one could not identify it by size, weight or quantity, the keeper still has to render an oath if he claims he had lost it or that it had been stolen.

4לשמור, to keep safe, etc. In his Mechilta Rabbi Yishmael describes a scenario according to which the owner deposited the items in the home of the keeper and told him: "keep it safe for me." If, however, he merely said to him: "your eyes are on it," the neighbour bears no responsibility. In Baba Kama 93 the sages interpret the word לשמור, to guard, as excluding liability for losing it, tearing it, or money which had been intended for distribution to the poor. It is evident from the words of Tossaphot on that folio that the Rabbi only meant to exonerate the keeper from negligence if the owner had not used the words: "keep it safe for me." If, however, the keeper had damaged or abused the utensil in question with his own hands he is still liable for compensating the owner unless the owner had specifically authorised the keeper to destroy the item in question. I find it hard to understand how the sages could deduce two separate exclusions from the word לשמור, A) that if the owner had not specifically worded his request by saying "keep it safe for me" that the keeper would not be liable for negligence, and b) that if the owner told the keeper to destroy it that he would not incur a penalty for doing so? I believe that the interpretation in the Mechilta is soundly based on our accepted principles of exegesis, whereas the statement in Baba Kama is merely based on logic. The author of that theory used the wording of the verse as an אסמכתא, a loose link to the written Torah, in order to support a rabbinic decree. You ought to realise that the reason the sages added the clause of excluding the keeper's liability if the ultimate designation of that money had been distribution of it to the poor, is based on the fact that it is money which has no legal claimants. Rabbi Yoseph cites an occurrence in which a purse full of money for the poor in Pumbedita arrived there. Rabbi Yoseph entrusted this money for safe-keeping to a trustee; the money was then stolen from said trustee due to the latter's negligence, and Rabbi Yoseph declared the keeper as liable to replace it. Abbaye queried this, citing a Baraitha in which the words לשמור ולא לחלק לעניים are used as the basis for exonerating the keeper from liability. Thereupon Rabbi Yoseph countered that this applied only if the money had not been allocated for the poor in a specific location (compare Rashi there). In that instance, however, the money had been intended for the poor people of Pumbedita and each one of them had a claim to a certain portion of this money. Seeing the matter is so, there was no need for the Torah to write a special exclusion such as the word לשמור in order to teach us that the keeper is not liable for money which has no legal claimants. As soon as the money had been designated for the poor, the owner, i.e. the person entrusting the purse containing such money to a neighbour for safe-keeping, no longer owned it and therefore could not hold anyone responsible for it. It should not make any difference whether the person entrusting the purse of money had told the keeper to distribute it to the poor or not; the keeper should be free from liability as the money has no legal claimants. The proof for this argument lies in Abbaye's query. What was Abbaye's argument? Perhaps in the case of Rabbi Yoseph the person handing the purse to the trustee had told him specifically: "guard it well?" Why did Abbaye not use the stronger argument that we can prove from the Baraitha that unless the trustee had been told specifically: "guard it well," he had not accepted liability for negligence even if the money had not been intended for distribution to the poor at all? Furthermore, the sages state in that Baraitha that Rabbi Nathan interpreted the word לשמור as including anything which is comparable to either money or utensils.