Or HaChaim on Exodus 22:8/אור החיים על שמות כ״ב:ח׳

1 על כל דבר פשע, Concerning any matter of trespass, etc. Our sages in Baba Metzia 57 understand the first words על כל as an inclusive rule, whereas they consider the subsequent details, i.e. שור, חמור, etc., as exclusions of categories not fitting the details mentioned; the final words על כל אבדה are again nterpreted as an all inclusive rule covering any movable object which represents money. This excludes landed property which cannot be moved, slaves which are compared to land, as well as documents which are not viewed as constituting money. Maimonides rules similarly in chapter two of his Hilchot Geneyvah. The plain meaning of this ruling appears to be that if the שומר חנם was negligent in guarding either a slave or documents he would not be liable seeing that he would not even be liable for the disappearance of either money or utensils unless he had been negligent.

2I have found the following statement by Maimonides in chapter two of his Hilchot Sechirut: "It appears to me that if the unpaid keeper was negligent in his supervision of slaves entrusted to him for safe-keeping, or in similar situations, he is liable to make restitution. The only reason we find an exemption to such liability in the case of slaves, documents, and lands, is when they have been stolen or lost and the keeper does not have to render an oath as to his not having been negligent. If, however, there is evidence of the keeper having committed a trespass, we follow the rule that everyone who commits a trespass is treated as if he had caused actual damage and has to make restitution. There is no distinction in such a situation between lands, documents, and movable objects considered as equivalent to money. Anyone examining this will find that this ruling is absolutely correct. Thus far Maimonides on the subject. Various commentators disagree with Maimonides on this, however. Their argument is that if the keeper (also a borrower) had indeed committed an actual trespass in the presence of the owner, he would not have been considered as guilty as the Torah states specifically that if the animal he borrowed died while the owner was present (i.e. had approved of the activity to which the borrower put such animal) the borrower does not have to pay (22,23). This includes a situation when the borrower was clearly guilty of trespass. Maimonides himself writes in chapter one of his Hilchot Sechirut that "even if he was guilty of trespass, i.e. negligent guardianship, as long as he had obtained permission for the activity the borrowed animal performed, the borrower is free from paying compensation. Maimonides cites Exodus 22,23 as proof for his ruling. Clearly, we cannot compare the law applicable to someone who is merely guilty of negligence to someone who has caused damage with his own hands. The פושע, negligent person, is neither in the category of a guardian nor is he an actual מזיק, spoiler. He is a person who had absented himself from his task of guarding an object, as a result of which the object entrusted to him disappeared. The spoiler, on the other hand, caused the damage himself. As a result the commentators query how it is possible that such a spoiler should not be responsible for his actions? At the very least the unpaid keeper should have to swear that he was not negligent seeing that if he was negligent he is guilty.

3I believe that the commentators who attacked Maimonides by using the example of a borrower who uses the owner's animals or tools with his permission are quite wrong The situation they cite is an entirely different one from the one discussed by Maimonides. In that case the Torah had stated explicitly that the borrower is free from making restitution. When the Torah excluded an unpaid keeper's liability in the event he has been entrusted with a slave, documents, or land, the Torah nowhere excluded the keeper's liability in so many words even if the keeper was only negligent, never mind if he turned out to be a spoiler (מזיק). The Torah spoke only of a situation when such a keeper "did not put a hand to the matter entrused to him." This means that he is free only if he was not a מזיק. When we do hold an unpaid keeper responsible for lack of care this is only an outgrowth of the law applicable to a מזיק. How could we apply such an exclusion to something the Torah had not mentioned at all as being applicable to any category of a keeper? While it is true that if the negligence of such a keeper was not in the realm of being a spoiler we would have said that the Torah excluded him from all the categories of damage an unpaid keeper is liable for even if this was not mentioned by the Torah specifically. However, once we see that when the sages indict such an unpaid keeper they do so on the basis of the law of the spoiler, how can we suddenly apply such leniency in the matter? This is precisely why Maimonides wrote that the keeper in question must not be exonerated.

4You may ask that seeing we treat the negligent keeper in a category similar to that of a spolier, then a householder who set ablaze the stack of corn of a hired hand or the hired hand's garment should equally be exonerated, for the negligent person is equivalent to a spoiler whom the Torah has exonerated. Perhaps the Torah meant to exonerate only a keeper who became a spoiler not any other spoiler such as the householder referred to in the most recent example. Furthermore, it appears that even Maimonides will admit that a negligent person is not considered as exactly in the same class as the spoiler, and that if he burned a garment entrusted to him for safe-keeping by its owner he is obligated to replace it. You will find that Maimonides writes in chapter 21 of his Hilchot Ishut that if a wife broke utensils (of her husband) while engaged in the authorised use of same, she is exonerated by a decree of the rabbis. Thus far Maimonides. Commentators remark on this that the woman should at least have to swear that she had not been careless! Concerning such an oath Maimonides writes in chapter 4 of Hilchot She-eylah u-Pikadon that if someone deposits an object with his neighbour for unpaid safe-keeping and it is stolen, the keeper has to swear that he has not laid a hand on said object; seeing that he already has to swear one oath, he is required to add that he has not been negligent either and that the theft did not occcur after he had laid a hand on the object entrusted to him. We can see from the wording that Maimonides considers the principle of the oath as a biblical injunction which covers only the fact that the object had indeed been stolen and is no longer in the keeper's possession. Maimonides clearly considers the oath that the keeper was not negligent as something secondary, rabbinic in nature. If not for the original oath, the keeper would not have had to swear an oath regarding negligence at all. We do not find one word in the Torah concerning an oath about negligent guardianship. It follows that when there is no injunction in the Torah that an oath has to be sworn, the rabbis have not imposed an oath concerning negligence either.

5As a result of the considerations we have just outlined, the exclusion in the Torah which we derived from the list of movable items such as oxen, donkeys, etc., applies only to such oaths in which the keeper declares that he has not himself laid a hand on the objects entrusted to him. If the injured party claims that the keeper has been negligent, he must swear a שבועת הסת, an oath designed to pacify the claimant, an oath instituted by the rabbinic authorities in the period of the Talmud. This oath is mentioned by Rabbi Nachman (Baba Metzia 5) as a rabbinic ordinance. According to the Talmud there the reason we would be unable to apply this oath in the case of Rabbi Yoseph who had entrusted to someone money for safe- keeping is that we do not superimpose one rabbinic ordinance on another. We described the details of the matter of Rabbi Yoseph on page 730. It is clear from Abbaye's question in that story that he felt that the Torah had exonerated the keeper even from the obligations for which a negligent keeper is liable, seeing that there was no one who could legally have claimed this money.