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457 THE JEWISH ENCYCLOPEDIA

457 and

lender, the result must also have been in their contemplation. In like manner, if a man borrows an ax for cutting down trees, and it breaks in the act of striking a tree, the borrower is not responsible. But if a man borrows a spade to dig up a certain garden, and he uses it upon another garden, he is responsible for the breakage. Where the article is put in worse shape while in the hands of the borrower, the difference in value is assessed and must be paid. This applies to a beast also: If the borrower fails to feed it properly, and by reason thereof it is returned to its owner in worse condition than when it was received, he must answer for the depreciation (Maimonides, " Yad," She'elah u-Pikadon, i. 1-9). Where, by the death of the borrower, a borrowed beast or article passes into the hands of his heirs, the Talmudic sages are divided on the question, whether the heirs are liable even to the extent of other estate falling to them for the destruction of Maithe thing by "force" (Ket. 34* B. K. 112a). monides in his code (She'elah i. 5) says they are while R. Joseph Caro, in his comments on that code, wonders at this, and claims that the weight of Talmudic authority lies the other way. Where the presence or services of the owner are obtained, the borrower does not answer even for An agent of the result of negligence ("peshi'ut"). the owner does not satisfy the rule his slave does. wife is supposed to be present at all times hence he who borrows an article from his wife is not re sponsible for accidents (She'elah, ii. 1, 5, 7). Where the article is sent by the lender to the borrower, the latter's liability for unavoidable accident begins only when it reaches the house or grounds of the borrower, even though the lender should have chosen an agent or son of the borrower as his mesBut if the borrower chooses the messenger, senger. he is answerable for whatever happens after the



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thing comes to such messenger's hands (ib. iii. 1). When an unmarried woman borrows an article and marries, and the husband takes possession, not knowing that it is borrowed, he is not responsible even for negligence but if he knows that it is borrowed, he becomes answerable in her place (ib. ii. 11). 2. The Gratuitous Keeper ("Shomer ]Jinpreliminary question may arise as to nam"): money, whether it becomes a special deposit or a loan. When money, whether sealed or loose, is handed to

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a private person for safe-keeping, it is presumed that he will not use it in his business, but Gratuitous will put it in a safe place. If he does the latter, he will be excused for loss Keeper. But if like other gratuitous keepers. money is handed to a banker ("shulhani") otherwise than in a sealed or privately knotted bag, it is

presumed to be for use in his business, and he becomes liable for it as a debtor. The better opinion applies the same rule to shopkeepers as to bankers CVIislmah B. M. iii. 10, 11). When the owner calls whole, for his deposit, and it is missing in part or in the depositary is put to an oath, by which he has to affirm (1) "I have not put my hand upon it" (in the words of Scripture, Ex. xxii. 7, Hebr.); (2) "I have not been faithless about

it "

(lo-fasha'ti) (B. K!. 107*)

possession." The second of "It is not in " I have kept the thing in the these avowals means,

(3)

my

Bailments

manner of keepers. " What

is meant by " the manner of keepers " depends on the nature of the deposit. Some things, such as planks or stones, are kept in an open yard heavy skeins of flax and the like may be laid down in an inner court; a garment or shawl

kept in the house; more valuable things e.g., and silver vessels are locked up in a box or turret. When the keeper puts the deposit in some place which is not for a thing of its nature, even if he puts it alongside his own similar goods, and it is lost or stolen, ho is answerable, as is the case when the deposit at the improper place is met by vis major, such as a fire or the colThis is upon the Place lapse of the house. of Deposit, principle that whore faithlessness is is

—

silks or gold

the earliest cause of the loss or decoming in afterward is no excuse. On like grounds it was held that where the depositary hid coins entrusted to him in a hut made of struction, force

reeds

—a

safe

enough hiding-place against

thieves,

—

but unsafe against fire he "began with faithlessness, " and he was held liable, though the coins did not perish by fire, but were stolen (B. M. 42n She'elah,

iv. 2, 3).

In Talmudic and even in much later times (B. M. followed by Maimonides and other codifiers), it was thought that burial in the ground or inside of a brick wall was the only fit means for the safe-keeping of gold or silver coins. According to some auI.e.,

would apply also to silver in bars, and certainly to gold bars, precious stones, and like articles of great value with small bulk and weight. When one receives money to carry from place to

thorities, this

own home

place, or to his

for safe-keeping there, he

must carry it well tied up, and belted in front of his body (She'elah, iv. 6). A man who is chosen by his neighbor to safeguard his goods has no right to entrust them to another; if he does, he is responsible, unless this other person can prove that he has kept them well. But it is always supposed that a gratuitous keeper takes his wife and other adult members of his family (such as his mother living with him) and his servants into and where he in good faith bids one his confidence of these to put the deposit in a safe place, he will not be held answerable for accidents, except such as occurred by their mistakes {ib. 8). Where one has been entrusted with grain or like produce, he should not mix with his own what is thus deposited but should he do so, and there be a diminution in the whole amount— as generally happens in course of time— a certain ratio is allowed thus 4i kabs in the kor (180 for yearly shrinkage kabs) on wheat and shelled rice 9 kabs on barley









18 kabs on spelt, linseed, or unshelled On wine the outage is one-sixth on oil 3 per rice. cent one-half for absorption in earthen vessels, and one-half for lees; if the vessels are old, only li per or millet;





cent

(ib.

v. 5).

of the article must never use it even be a scroll of the Law, he should only unroll it once a year to air it, and similarly with other books. He must not lend the article to another to do so is a "putting forth of his hand," which makes the keeper responsible for loss from any cause (ib. vii. If the keeper of a barrel of wine lifts or moves 4).

The keeper



if it