Bava Metzia - Daf 36
- Rav: שומר שמסר לשומר is פטור
The Gemara quotes a machlokes: שומר שמסר לשומר – Regarding a שומר who gave over his פקדון to another שומר, Rav says he is exempt from the פקדון’s loss. Abaye adds that this is not only so where a שומר חנם gave the פקדון to a שומר שכר, דעלויי עלייה לשמירתו – where he raised the level of its watching (because the second שומר, being more liable, guards it more diligently), but even in the reverse case, where a שומר שכר gave it to a שומר חנם, thereby decreasing its protection, he is still exempt, דהא מסרה לבן דעת – because he gave it over to a mentally competent person capable of guarding it, and was not negligent. Later, Rav Chisda says that Rav’s opinion was not stated explicitly, אלא מכללא – rather, it was assumed by implication of a ruling he made. Gardeners who would leave their hoes with an elderly woman for safekeeping, once left them with one of their own. He heard celebratory sounds from a wedding hall, and gave the hoes to the elderly woman and left, and the hoes were stolen. Rav ruled him exempt, causing people to believe that Rav always exempts a שומר who gives his פקדון to another, but in truth, this case is different, since these gardeners used to leave the hoes with her.
- Rebbe Yochanan: שומר שמסר לשומר is חייב
Rebbe Yochanan holds that a שומר who gives the פקדון to another is always liable. Abaye explained that this is not only so where a שומר שכר gave it to a שומר חנם, thereby decreasing its watching, but even in the reverse case, whereby he upgraded its watching, he is liable, because the owner can say: אין רצוני שיהא פקדוני ביד אחר – “I do not want my פקדון to be in another’s hands.” Tosafos explains that it is as if the owner stipulated that if the שומר gives it to someone else, he will be responsible for any loss which could conceivably be blamed on its new location. Rava rules like Rebbe Yochanan, but gives a different reason, that the owner can say: את מהימנת לי בשבועה – “You are believed by me with a shevuah to claim the פקדון was lost without negligence, האיך לא מהימן לי בשבועה – but [the second שומר] is not believed by me with a shevuah, and I am not obligated to accept it.”
- פשע בה ויצאת לאגם ומתה כדרכה
A machlokes is presented: פשע בה ויצאת לאגם – if [the שומר] was negligent in watching [the animal], and it escaped to a marsh (in which it was unprotected from predators and thieves), ומתה כדרכה – and it died naturally, Abaye quoted Rabbah as saying he is liable. Not only according to the opinion that one is liable for תחילתו בפשיעה וסופו באונס – an event which begins with negligence and ends with an unavoidable mishap, that the שומר would be liable here as well, but even according to the opinion that one is normally exempt in such a case, this שומר is liable, because we say: הבלא דאגמא קטלה – the foul air of the marsh possibly killed it, and his negligence directly caused its death. Rava quoted Rabbah as saying that the שומר is exempt. Not only according to the opinion that תחילתו בפשיעה וסופו באונס is פטור, that the שומר here would also be exempt, but even according to the opinion that one is normally liable in such a case, this שומר is exempt, because we say: מלאך המות מה לי הכא ומה לי התם – regarding the angel of death, what difference is it to me if the animal was here or there? Its death was entirely unrelated to his negligence and would have happened anywhere.
