Shabbat Parashat Vaetchanan | 5769
P’ninat Mishpat: Laws of Shomrim (Watchmen) – part II
(based on Sha’ar Ladin - Halacha Psuka, vol. 60)
We saw last time that even a shomer who is exempt from paying when the object was damaged or lost b’oness (under extenuating circumstances) is obligated when this was preceded by his p’shi’ah (negligence). This is based on the rule that techilato b’p’shi’ah v’sofo b’oness (=tbpvsb), in other words, the makings of negligence which end up with damage of oness, obligates the shomer.
The gemara we ended off with last time (Bava Metzia 93b) said that if a shepherd left his flock to go to town, whereupon a wild animal killed some sheep, the shepherd is obligated to pay. In that context, Abayei and Rabba dispute whether a paid watchman (shomer sachar), including the shepherd in question, is required to watch more carefully than one would do for his own property (Abayei) or not (Rabba).
The gemara says that according to Abayei, one can explain why in the case of the shepherd, he would be obligated even for that which dangerous animals did, even though it should be considered oness. That is because, as a shomer sachar, he should have done a better than average job. Tosafot say that since we obligate him based on tbpvsb, it must be that coming in to town at a normal time is considered p’shi’ah. However, Tosafot is disturbed why the gemara says that if he had no chance of saving the animals if he were there, he would be exempt. Tosafot answers that going in to town at a normal time is not a real case of p’shi’ah but a level of semi-negligence that is equivalent to genieva va’aveida (theft or loss) for which a shomer sachar is obligated but a shomer chinam (for free) is not. In that case, we do not say that in the case of an eventual oness, the watchman would be obligated. Tbpvsb requires to begin with a real p’shi’ah.
The Gilyon Maharsha (Choshen Mishpat 291:9) proves that, according to the
Top of page
Print this page
Send to friend
This edition of Hemdat Yamim is dedicated to the memory of
R ' Meir ben Yechezkel Shraga Brachfeld
Hemdat Yamim is endowed by
and Louis and Lillian Klein, z”l.
Hemdat Yamim of this week
is dedicated in memory of
Yitzchak Eizik ben Yehuda Leib a"h,
whose Yahrtzeit is the 29th of Av