WEEKLY DAFootnotes #31
Bava Metzia 93-99; Issue #31
11-17 Adar 5762 / 23 February - 1 March 2002
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SLEEPING ON THE JOB
Yaakov served his father-in-law Lavan as a shepherd for twenty years. When he finally left him there was a sharp confrontation between the two following Lavan's catching up with him at the end of a hurried pursuit. In the course of their exchange of charges Yaakov protested that he had gone out of his way to faithfully guard Lavan's cattle only to be constantly deceived in terms of compensation.
"During the day I was consumed by the heat," he said in recalling his dutifulness in the most difficult circumstances, "and at night by the frost; and sleep escaped my eyes" (Bereishet 31:40).
In his protestation that he never slept on the job was Yaakov claiming that he did more than was required of him as a "shomer sachar" - a paid guardian - or merely stressing that he discharged his responsibilities faithfully?
There is a difference of opinion between the sages on this point. The Sage Rabbah is of the opinion that a shomer who naps at a time when it is customary for all people to nap cannot be considered negligent if a theft or loss occurs during his slumber. Only guards of a city whose inhabitants totally depend on them for the protection of their lives and property are expected to forsake sleep. Although Yaakov was not such a guard he did more than was expected of an ordinary shepherd and gave up his sleep in order to guard Lavan's cattle.
Rabbi Chisda and the Sage Rabbah bar Bar Chana disagree. When a man hires a shepherd to guard his animals he has a right to expect this shomer to forsake sleep. The beraita, then, which cites Yaakov's statement as a standard for forsaking sleep was not referring to the level of responsibility incumbent only on a city guard but on every paid shomer.
Bava Metzia 93b
WHEN ARE THE OWNERS THERE?
Although there are three different levels of responsibility assigned by the Torah to the various categories of "shomer" guardians, there are a couple of matters they all have in common. Every "shomer" is responsible to compensate the owner if the loss of the guarded object comes about as a result of his inexcusable negligence. On the other hand, all of them are exempt from such payment if the "owner was with him." Although this exemption is mentioned explicitly only in regard to the guarding responsibility of the borrower of an animal (Shmot 22:12-13), our Sages deduced from the text of the Torah that it extends as well to all other categories of shomer.
The literal translation of "the owner was with him" can be misleading. It does not refer to the presence of the owner at the scene of the accident which caused the animal "to be broken or die." What it does mean is that if at the time the borrower - or, by extension, any shomer - undertook responsibility for guarding the animal, its owner's services were also either borrowed or hired by the shomer. The owner is then considered as "being with him" even if he was no longer in his employ or company at the time of the accident.
The literal translation most have offered is some sort of grip on understanding this exception on the basis of the owner's presence at the scene of the accident shifting responsibility from the shomer to himself. But once we have discarded that interpretation we face a mystery as to why a shomer should be exempt from all responsibility - even for negligence - just because the owner was in his employ at the time he became a shomer.
Seforno, in his commentary on Torah, suggests the following approach. An owner who is willing to lend or rent his service to the man he is about to appoint a shomer must have a very special relationship with him. The Torah therefore considered the arrangement which he made with the shomer was to actually give him the animal as a gift and only require him to return it at the end of the lease period if it is intact. This is the implied understanding between the two which sets the basis for exempting the shomer from making payment if he is unable to return the animal for any reason.
Bava Metzia 95a
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