Does the Torah Differentiate between an Unpaid and a Paid Bailee?

The Four Bailees in Jewish Law

Halakhah has detailed discussions of the laws of bailees or custodians (שומרים): those are given legal possession of an object without rights of ownership. In the standard halakhic understanding, B can take legal possession of that item from A, the owner, without taking ownership of the item, in four different ways.

1. Unpaid Bailee, שומר חנם (shomer chinam)—A can ask B to guard the item as a favor, with no money exchanging hands.

2. Paid Bailee, שומר שכר (shomer sakhar) or נושא שכר (noseʾ sakhar)—A can ask B to guard the item and pay B for doing so.

3. Borrower, שואל (shoʾel)—B can borrow the item from A and not pay for the favor extended by A.

4. Renter, שוכר (sokher)—B can rent the item from A, i.e., borrow it but pay for the privilege.

The Verses About Bailees in Exodus 22

The rabbis constructed their bailee laws from their reading of the Torah’s bailee laws in Exodus 22. I focus here on the first two types described in Exodus 22:6-12.

Bailee Law #1

^{שמות כב:ו} כִּי יִתֵּן אִישׁ אֶל רֵעֵהוּ כֶּסֶף אוֹ כֵלִים לִשְׁמֹר וְגֻנַּב מִבֵּית הָאִישׁ אִם יִמָּצֵא הַגַּנָּב יְשַׁלֵּם שְׁנָיִם: ^כב:ז אִם לֹא יִמָּצֵא הַגַּנָּב וְנִקְרַב בַּעַל הַבַּיִת אֶל הָאֱלֹהִים אִם לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ:

^{Exod 22:6} When a man gives money or goods to another for safekeeping, and they are stolen from the man’s house—if the thief is caught, he shall pay double; ^22:7if the thief is not caught, the owner of the house shall depose before God that he has not laid hands on the other’s property.

Bailee Law #2

^כב:ט כִּי יִתֵּן אִישׁ אֶל רֵעֵהוּ חֲמוֹר אוֹ שׁוֹר אוֹ שֶׂה וְכָל בְּהֵמָה לִשְׁמֹר וּמֵת אוֹ נִשְׁבַּר אוֹ נִשְׁבָּה אֵין רֹאֶה:^כב:י שְׁבֻעַת י־הוה תִּהְיֶה בֵּין שְׁנֵיהֶם אִם לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ וְלָקַח בְּעָלָיו וְלֹא יְשַׁלֵּם: ^כב:יא וְאִם גָּנֹב יִגָּנֵב מֵעִמּוֹ יְשַׁלֵּם לִבְעָלָיו:^כב:יב אִם טָרֹף יִטָּרֵף יְבִאֵהוּ עֵד הַטְּרֵפָה לֹא יְשַׁלֵּם.

^22:9 When a man gives to another an ass, an ox, a sheep or any other animal to guard, and it dies or is injured or is carried off, with no witness about, ^22:10 an oath before YHWH shall decide between the two of them that the one has not laid hands on the property of the other; the owner must acquiesce, and no restitution shall be made.^22:11 But if [the animal] was stolen from him, he shall make restitution to its owner. ^22:12 If it was torn by beasts, he shall bring it as evidence; he need not replace what has been torn by beasts.

The rabbis note an important difference between the two laws pertaining to the claim that the animal was stolen: In the first law, the bailee merely swears that he had nothing to do with the object’s disappearance and he is not liable for anything; in the second law, he must make restitution.^[1] How is this difference to be explained?

Two Kinds of Bailees: Rabbinic Interpretation

The classical rabbis offered an elegant solution: The first case refers to an unpaid bailee while the second refers to a paid bailee. The logic of this distinction is that an unpaid bailee is doing the owner a favor, and accordingly has limited responsibility. A paid bailee, however, was hired to do a job, and thus, has more responsibility. This explanation is found already in the Mekhilta (early midrashic commentary on Exodus) and later in the Jerusalem and Babylonian Talmuds.^[2]

Rashi (1040–1105) sums up the classical rabbis’ teaching in his commentary on 22:9:

כי יתן איש אל רעהו חמור או שור – פרשה ראשונה נאמרה בשומר חנם, לפיכך פטר בו את הגנבה, כמו שנאמר (פסוק ו) וגונב מבית האיש, אם לא ימצא הגנב ונקרבבעל הבית לשבועה, למדת שפוטר עצמו בשבועה זו. ופרשה זו אמורה בשומר שכר, לפיכך אינו פטור אם נגנבה, כמו שכתוב (פסוק יא) אם גנוב יגנב מעמו ישלם

“When a man gives to another an ass or an ox”—The first section (verses 6–7) speaks of the unpaid bailee and therefore he is free of liability for theft, as it is written, (v. 6) “[When a man gives… for safekeeping…] and they are stolen from the man’s house, … if the thief is not found, the owner of the house shall depose,” taking an oath. You may learn from this that he (the bailee) frees himself from liability by this oath. This [second] section (verses 9–12), however, speaks of a paid bailee who is therefore not free from liability if the object has been stolen, as it is written, “but if it was stolen from him, he shall make restitution to its owner.”

While the explanation of the classical rabbis and Rashi solves the problem of the discrepancy between the verses, they develop a distinction that is nowhere to be found in these biblical verses.

Ibn Ezra

Rabbi Abraham ibn Ezra (1089–1167), normally a peshat commentator who would be sensitive to the problem of using an explanation that is not based in the words of the verse itself, nevertheless supports the traditional reading and bolsters it with what he calls a proof (Exod 22:9, shorter commentary):

והעד: כי זה הוא שומר שכר, והראשון שומר חנם, שאמר ישלם לבעליו, והראשון ונקרב

The proof that this [second section, beginning with verse 9] refers to a paid bailee and the first section [verses 6–7] refers to a unpaid bailee is that [here in the second section] the text says [the bailee] “shall make restitution to the owner,” while in the first section it says only [that the bailee] deposes [that he has not laid hands on the other’s property, but does not make restitution].^[3]

He is arguing that we see the two texts with different laws attached to them, so we have to say that one refers to a paid bailee and one to an unpaid bailee. But ibn Ezra’s argument is circular.

Rashbam’s New Approach

Rashbam (R. Samuel ben Meir, c. 1080–c. 1165) returns to the words of the verses, seeking any hint that could explain the difference between the two cases. He finds a new explanation of the difference, not the one offered by Rashi (his grandfather), ibn Ezra, and the classical rabbis. From his commentary to Exodus 22:6:

כי יתן איש אל רעהו כסף או כלים וגו’—בפרשה זו פוטר את השומר מגנבה ואבידה ובפרשה שנייה מחייבו בגניבה ואבידה, ופירשו רבותינו ראשונה בשומר חנם, שניה בשומר שכר.

“When a man gives money or goods to another for safekeeping”—In this [first] section (vv. 6–7), the bailee is described as not being liable in a case of theft or loss. In the second section (vss. 9-12), the bailee is described as being liable in a case of theft or loss. The rabbis explained that the first section refers to a unpaid bailee while the second section refers to a paid bailee.

Thus far, Rashbam merely reiterates the traditional interpretation,^[4] which he juxtaposes with his own—so that we cannot fail to see his innovation:

ולפי פשוטו של מקרא פרשה ראשונה שכת’ בה כי יתן איש אל רעהו כסף או כלים לשמור, מטלטלין הם ולשומרם בתוך ביתו כשאר חפציו נתנן לו. לפי[כך] אם נגנבו בביתו פטור, כי שמרן כשמירת חפציו.

Following the plain meaning of Scripture, however, the first section, “when a man gives money or goods to another for safekeeping,” refers to the guarding of chattels that are commonly kept inside of one’s house, and that were given to him so that he would guard them in the same way that he guards his own possessions. That is why, if they were stolen from his house, the bailee is not responsible, for he guarded them [in the expected manner,] as one guards one’s own possessions.

אבל פרשה שנייה שכת’ בה כי יתן איש אל רעהו חמור או שור או שה וכל בהמה לשמור, ודרך בהמות לרעות בשדה, ודאי כשהפקידם, על מנת לשומרם מגנבים הפקידם לו, ולכן אם נגנבו חייב:

But in the second section (vv. 9–12), “when a man gives to his neighbor an ass, an ox, a sheep or any other animal to guard,” since animals commonly graze outdoors it is to be assumed that when he entrusted them [to the bailee] he expected that the bailee would protect them from thieves. Accordingly, if they were stolen, the bailee is responsible.

Rashbam is arguing that the Torah itself notes a clear distinction between the two cases. Verses 6-7 describe the bailee who is guarding “money or goods,” i.e., chattels. The second section, the Torah writes, concerns a person guarding “an ass, an ox, a sheep or any other animal.” Rashbam then explains his logic.

A bailee is supposed to guard the property of others כשמירת חפציו, the same way that the bailee would guard his or her own property. For chattels, the bailee could generally put them in a safe place and forget about them. They do not require constant vigilance. Animals, on the other hand, move around if the bailee doesn’t watch them. They require enough guarding to make theft more difficult.^[5] If the animal was stolen, the bailee must have fallen short of the standard of care required.^[6]

Rashbam’s explanation is not found in earlier rabbinic literature. In fact, the Mishnah may have specifically chosen language that rules out any possible distinction between chattels and animals. A chapter of the Mishnah (Bava Metzia3:1) that deals with the rules of bailees actually begins with the phrase “if a person gives a bailee animals or chattels to guard and they were stolen” (המפקיד אצל חבירו בהמה או כלים ונגנבו)—thus making it clear that, for the Mishnah, the law about theft from a bailee is the same whether the bailee was guarding chattels or animals.^[7]

Rashbam’s understanding of the difference between the two bailees is the common explanation found among modern critical commentators.^[8]

Ramban’s Harmonization

Though the Torah commentary of Rabbi Moses Nahmanides (Ramban; 1194–1270) is deeply based in Jewish mysticism, he also had a keen sense of peshat. He too noticed that the distinction between the two types of bailees is described by the Torah as a distinction between guarding chattels and guarding animals. He took a different approach by attempting to harmonize between the peshat and the rabbinic ruling:

פרשה זו נאמרה בשומר חנם, ולפיכך פטר בו את הגניבה, כפי קבלת רבותינו. ונזכר סתם בכתוב, מפני שדרך שומרי כסף או כלים לשמרם בחנם. והפרשה השניה שבשומר שכר הזכירה חמור או שור או שה וכל בהמה, ודרך הבהמות לתתן ביד רועים לשמור, וירעו אותם בשכר.

According to the traditions of our rabbis, this [first] section (verses 6–7) refers to an unpaid bailee and that is why the bailee is exempt in a case of theft. This was not made explicit in the text [but was implied], because most people who guard money or chattels do so without receiving remuneration. But the second section that deals with a paid bailee, mentions “an ass, an ox, a sheep or any other animal.” Animals are generally given to shepherds to guard, and the shepherds are paid for this work.

Ramban explains that the distinction here between guarding chattels and guarding animals is directly connected to the distinction between unpaid and paid bailees.^[9]

Problems with Harmonization

This harmonizing approach—namely that “money or goods” indicates an unpaid bailee, and “an ass, an ox, a sheep or any other animal” indicates a paid bailee—breaks down quickly. A bailee could agree to watch chattels but request payment, or could agree to watch animals gratis. In fact, the Mishnah quoted above (Bava Metzia 3:1) makes this very point.^[10]

The proposed harmonization logically implies that when the Torah says, “the person guarding an animal is responsible in the case of theft,” it means that a paid bailee is responsible in the case of theft, even if he is guarding something other than animals. In other words, even though the Torah explicitly distinguishes between animals and chattel, this distinction is overridden by the criterion of pay versus no pay, despite this never being mentioned in the Torah. This can hardly be called a peshat reading!

Shadal’s Modern Approach

Shadal (Samuel David Luzzatto; 1800–1865) was one of the first modern commentators to make extensive use of Rashbam’s commentary, which had been lost for centuries, and was published for the first time only in the eighteenth century. Shadal often sided with Rashbam, including on the issue of bailees. After summarizing Rashbam’s position and that of the classical rabbis, Shadal mentions the harmonization discussed above:

ואמת כי כסף או כלים שאינם זזים ממקומם, דרך לשמור אותם בחנם; אבל בעלי חיים שמירתם קשה, ודרך ליטול עליה שכר.

True, since chattels and money do not move around, usually they are guarded for free. Animals, however, are harder to guard and usually a salary is paid.

In other words, usually the two criteria of A) chattels/animals and B) unpaid/paid come out the same. But Shadal continues:

ואמנם אין זה מוכרח, כי יתכן שיקבל עליו אדם לשמור בהמת רעהו עם שאר בהמותיו בחנם, ואעפ״י שרשאי היה שלא לקבל שמירתה, הנה אחר שקבלה חייב בפשיעה אם נגנבה, אעפ״י שאיננו נוטל שכר;

This, however, does not have to be the case. A person could agree to guard his friend’s animal for free while he is guarding his own animals. While he does not have to do this favor, nevertheless once he takes it on, he is considered [according to the peshat of Torah law as understood by Shadal and by Rashbam] negligent if the animal is stolen [and is required to make restitution] even though he was not being paid for his guarding.

In other words, Shadal believes that in the case of an unpaid bailee guarding an animal (the case specifically mentioned in the Mishnah cited before), Torah law comes to a different conclusion than the rabbis did. The rabbis would exempt the bailee from payment; the Torah requires it.

To this contradiction, Shadal applies a favorite solution of his:

ורז״ל הקלו כמשפטם, ואמרו שאינו חייב בפשיעה אם אינו נוטל שכר.

The rabbis, in their usual way, were more lenient. They ruled that [such a bailee] is not deemed negligent unless he was being paid.

Shadal resolves the conflict between the peshat and rabbinic literature by saying that the rabbis here acted as legislators, not interpreters, of the Bible. In this, he was advocating a very new approach to the peshat/midrash halakhah issue.^[11]

Rashbam and the Conflict Between Peshat and Rabbinic Law

Moses Mendelssohn (1729–1786) criticized Rashbam for offering explanations that contradicted the common halakhic understanding of legal texts.^[12] On the whole, Mendelssohn admired Rashbam’s exegetical creativity. But in his introduction to Exodus 21, he quotes Rashbam’s introduction to Parashat Mishpatim, where Rashbam lays out his intention to read the laws according the peshat—and then he critiques this approach.^[13] Mendelssohn accuses Rashbam of forgetting the difference בין הסותר והמתחלף, literally “between a contradiction and an alternative.” Mendelssohn means that it is a salutary activity to offer “alternative” interpretations that are not identical to what the classical rabbis said, but that offering explanations incompatible with rabbinic law shows insufficient commitment to traditional Judaism.^[14]

Yet Rashbam was a pious Jew who clearly accepted rabbinic authority in halakhic areas.^[15] He never tells us how he solves the conflicts between peshat and how the rabbis interpret the Torah, but it is unlikely that he would have approved of Shadal’s modern-sounding view of the rabbis as legislators rather than scholars who preserved ancient traditions.

At the same time, Rashbam, the learned Talmudist, had the gumption to apply his interpretive acumen to hallowed texts, explaining them in new ways even when his interpretations contradicted halakhah.^[16] Perhaps we can learn from him how to combine loyalty to Jewish tradition with a willingness to re-examine our assumptions and read old texts in new ways.