Shabbat Parashat Eikev | 5769

Hemdat HaDaf HaYomi: The Need for a Kinyan by Shomrim

This week in the Daf Hayomi, the Gemara (99a) states that just like when a person wants to buy an object, he must perform an act of kinyan in order to buy it, so too by shomrim (guardians), the shomer must perform a kinyan on the object he is receiving to guard. At first glance, this appears puzzling. When a person gives over an object for guarding it remains his, so what purpose does the kinyan the shomer does serve?

According to the Rosh (Baba Metzia 8, 15), the kinyan is not needed for the obligation of the shomer to guard. The shomer is obligated to guard from the moment the owner stops watching over the object and relies upon the shomer. The need for a kinyan is only by a renter or a borrower, in order that they will acquire the right to use the object for the duration of the rent or borrowing period. Until they perform a kinyan, the owner can renege and not rent or lend them the object. But once they perform a kinyan, the owner cannot demand the object until the end of the period for which the object was rented or borrowed.

However, the opinion of the Rambam (Sechirut 2, 8) is that the kinyan is needed for the obligation to guard as well. Until the shomer performs a kinyan he is not obligated to guard and he is not responsible if something happens to the object. The Shulchan Aruch (291, 5) quotes both the opinion of the Rambam and the Rosh.

The Ktzot Hachoshen (307, 1) claims that this argument reflects two different understandings of the obligation of shomrim. According to the Rosh, a shomer is a type of worker. The obligation of a worker begins when he starts working. Therefore, no kinyan is needed for a shomer, and immediately when he starts working, which is from the moment the owner relies upon him to guard, he is obligated to guard and is responsible if something happens to the object.

However, according to the Rambam, a shomer is not a type of worker. Rather, the object transfers into the possession of the shomer thus deeming him responsible for it. Therefore, according to the Rambam, a kinyan is required in order for one to become a shomer.

Summary:

There are two opinions amongst the Rishonim as to the need of a kinyan by shomrim. One only requires a kinyan by a renter and a borrower in order to attain the right to use the object. The second requires a kinyan for the obligation to guard as well.     

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