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 Shabbat Parashat Shemini| 5764P’ninat MishpatShavuot (Oaths) - Part IV - Shavuot Hashomrim (Watchmen)
One of the sh’vuot from the Torah is the sh’vua of a shomer (watchman), who claims that that which happened to the object was something for which he is not responsible.
Sh’vuat hashomrim contains three elements (Bava Metzia 6a):
1. That the object is no longer in the possession of the shomer but was lost, stolen or destroyed in a manner that makes him exempt.
2. That the watchman was not negligent in a manner which caused the object’s disappearance or its demise.
3. That the watchman did not misappropriate the object during the period of watching (shlichut yad).
The p’sukim that obligate the sh’vua read as follows: “If a man gives to his friend money or utensils to watch….the watchman will approach the court if he did not [illegally] reach out his hand to his friend’s object” (Shemot 22:6-7). One could read the p’sukim in such a way that the main element of the oath is that he did not misappropriate the object. However, the Rambam (Sh’eila U’pikadon 4:1) says that the main element is that the object was lost or stolen. In fact, the Rambam states that the element of misappropriation is incorporated into the shvu’a only through the concept of gilgul sh’vua.
Gilgul shvu’a means that when one administers a shvu’a, he has the ability to add in elements that are not subject to oaths independently. In our case, the Rambam feels that one cannot, without clear grounds for suspicion, require one to swear that he did not misappropriate something which was entrusted to him to watch. Only because the shvua exists anyway, in regard to its other elements, can it be expanded to include this as well.
The Rambam understands the aforementioned pasuk as follows. The sh’vua will exempt the watchman only on the condition that there was no previous misappropriation. Therefore, if the shomer brings witnesses that the object was lost or destroyed in a manner that does not obligate him to pay, then the sh’vua on shlichut yad alone is not administered (ibid. 6:3).
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