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456 THE JEWISH ENCYCLOPEDIA

Bailments moderation and

justice,

Bailly's sympathies

went

the alien and the oppressed. He was one of that group of liberal-minded men who emancipated the Jews; obtaining the passage of the decree of Liept. 27, 1791 (confirmed Nov. 30 of the same year), which declared the latter to be French citizens, with all rights and privileges. This decree repealed the special taxes that had been imposed on the Jews, as well as all the ordinances existing against them. Neither threats nor ridicule could deter Bailly in this matter, as was to be expected from his unswerving adherence, at great personal risk, to what he considered to he the duties of a just and upright magis«>ut to

trate.

On

the occasion of the arrest of Louis XVI. Bailly to disperse by force of arms the crowds t.iat gathered at the Champ de Mars to demand the deposition of the king (July 17, 1791). This act cost Bailly his popularity. Resigning his office, he. fled but, being recognized, he was brought to trial before the Revolutionary tribunal, and guillotined. ,

was obliged



Bibliography M. Schwab, Htstoire cles Israelites, 2d ed., p. 286 Leon Kahn, Les Juifs de Paris Pendant laRevolution



Francaise,

p. 59,

note

3.

M.

G.

BAILMENTS:

S.

Delivery of personal property for the purpose of a trust. A bailment arises when one person (the bailee) is lawfully put in the possession of goods belonging to another (the bailor) with the understanding that he will return them. The law of Bailments deals mainly with the duty of the bailee to return the things held in bailment and the grounds for not returning them in good condition. I. The Scriptural law of Bailments is given in Ex. xxii. 6-14 (A. V. 7-15) and there is also a reference to deposits in Lev. v. 20-26 (A. V. vi. 1-7). In the former text the first paragraph (verses 6-8 [A. V. 7-9]) speaks of entrusting money or implements to the care of a neighbor and as such deposits are Classes usually accepted without reward, this of Bailees, passage is understood as referring to the " gratuitous keeper" ("shomer hinnam "). The next paragraph (9-12) speaks of putting animals into the care of another; and as animals are placed every day in the care of a shepherd working for hire, this paragraph is understood to refer to a paid keeper or " receiver of hire " (" shomer sakar " or Verses 13, 14 (A.V. 14, 15) speak of "nose* sakar "). one who " borrows " some specific thing, known in Hebrew as " sho'el, " while he who borrows money is known as " loweh. " The sages, however, recognize a fourth kind of bailee: one who rents or hires an article ("soker"), and they place him in a more favored position than the borrower, in analogy to the greater favor that is shown to the gratuitous keeper as compared with the receiver of hire. Thus the Mishnah (B. M. vii. 8; Shebuot viii. 1) enumerates four bailees (" shomerim ") (1) the borrower; (2) the gratuitous keeper; (3) the receiver of hire; and (4) the hirer. These classes are well known to the Roman jurisprudence and to the common law of England; but the special liability of common carriers, who are in our own time the most important of all bailees, is unknown to Bible and Talmud. The same degree of care and extent of liability are placed upon the hirer as upon the receiver of

456

thus there are indeed four bailees but, as the it, only three rules govern their liabilThe " higher care, " spoken of in the ity (B. M. 93«)Talmud as resting upon the paid keeper as compared with the gratuitous one, bears in its counterpart some analogy to the levis culpa and lata culpa of the Romans; and while the main distinction (in the Scripture the only distinction) lies between "compulsion" ("ones") that is, overpowering force, the Roman vis major on the one sicle, and "theft or loss," the result of the keeper's negligence, on the other, the Talmud speaks of a " greater force, " which is irresistible (like the "act of God," or of the king's enemies in the English law of common carriers), and of a "minor force," which a thoroughly faithful keeper might meet and overcome (Maimonides, hire





Talmud puts

— —

"Yad," Sekirut, i. 2). Another distinction, found

in the very words of the Bible (Ex. xxii. 14), applies to borrower and hirer alike " If the owner thereof be with it [the hired or borrowed article], if he be a hired man and has come for his hire, he [the borrower or hirer] need not pay." This is construed to mean If the owner of the article, generally a draft-animal, is engaged at or before the time at which the article is borrowed or hired



he is thus engaged, whether for hire or without it, the hirer or borrower is free from liability except for misappropriation (B. M. viii. 1, and discussion in Gemara 946 et seq.). It may be bere remarked that wben A borrows an article from B, without any hire or compensation, and nothing is said about the length of time for which he may keep it, he must restore it on demand but if B lends the article for a fixed time, or for doing some named task, A may keep it for the whole

if



time, or during the performance of the task, though he has given no consideration. For here is a gift of the use with delivery of possession ; and such a gift is as irrevocable as a like gift of the thingitself (Maimonides, She'elah, i. 5). The word peshi'ut (lit. "unfaithfulness") answers to the Latin culpa, or fault, and to the "negligence " of the English-

American law.





>

The Mishnah, in the two places indicated above, " The gratuitous keeper swears about everything [clears himself by his oath II.

states the general rules thus



in all cases, according to Ex. xxii. 7 (A. V. 8)] the borrower pays in all cases the receiver General of hire and the hirer swear about the Rules. crippled or captured or dead beast, but pay for what is stolen or what is lost."



The exceptions

to these rules will be stated later in

this article.

The Borrower ("

Sho'el"): The borrower of implements, or other movables, when the presence of the owner is not stipulated for, pays not only for loss or theft arising from his neglect, but even for the result of irresistible force in the words of the text, "for if it die, or be hurt, or driven away " (Ex. xxii. 9 [A. V. 10]). For the death of animals, however, the borrower is excused, if it results from the very kind of work for which the beast was borrowed, provided the borrower does not task the (Maimonides, for reasons beast beyond its strength. unexplained, has in his code changed the words of the Talmud [B. M. 96*, and frequently] "died by reason of the work," n3KS>D DDnO, into "died at the 1.

beasts,

—

time of the work, " rDxSo nj?KO- ) The reason of the exception is this: As the work done which caused the death was in the contemplation of both borrower