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458 Bailments Baja

THE JEWISH ENCYCLOPEDIA

and takes out a part for himself, he becomes responsible for the whole (Hoshen Mishpat, 292, 2).

it,

when called upon to return the deposit, he can not tell where it is, he can be made to pay the value at once (She'elah, iv. 7). If the goods in his hands (such as grain) are deteriorating or shrinking in the ordinary way. it is no ground for interference if, through dry-rot, mice, or like causes, they are lessening or spoiling more rapidly, the depositary should have them sold by order of court, let a stranger buy them, and safely keep the proceeds of the sale for If,



owner (ib. vii. 1, 2). When, on demand, the depositary can not produce the deposit, he may, instead of making the threefold oath given above, offer payment of the value but the



this can be

done only when the deposit

of money, or of articles like grain, fruits, or other produce which can be bought in the open market. When the article is an animal or implement that may have a special worth to the bailee or to the owner, the latter

may compel him

within (ib.

my

to swear, "

The

is

article is

possession," before accepting

not

payment

vi. 1).

3.

Talmudic as well as

in Biblical times, he

was

In gener:

A very high degree of diligence was

ally a shepherd.

exacted upon the precedent of "our father Jacob," who could truthfully say, when he kept Laban's flock for reward " In the day the drought consumed me, and the frost by night " (Gen. Keeper xxxi. 40 see B. M. 93J). Not every or Receiver wild animal is held to be a superior force for Hire, one wolf is not two wolves







are two dogs are not. A robber, at an armed one, is held to be such, even if the shepherd be armed for he need not risk his life. A lion, a bear, a leopard, a panther (7ra.pSa7.ifj, or a serpent is a force that excuses, but only when the animal comes of itself; when the shepherd takes his flock toward the lair of the noxious beast or of robbers, he is not excused (Sekirut, iii. 4). To hold the keeper thus liable for stock torn by a wild beast iu any case seems to be against the plain words of Ex.

least



" If it

be torn in pieces, let liira bring it for witness : he shall not make good that which is torn. " But in accordance with the adopted interpretation of the verse in the oral law, the Targum renders the -italicized words as "let him bring V. 13)



witnesses of the tearing " indicating that though the ox or lamb has certainly been torn by wild beasts, there is a question of fact, to be answered

by witnesses, how it came to be torn (see B. K. 106 Loss by shipwreck is ascribed to irresistet seq.). ible force, and always falls on the owner (Sekirut, i.

to make compensation, and has eventually to take the same oath (ib. ii. 3). When a hired keeper (or a hirer) lends the thing to another, who as borrower is bound for destruction by superior force, he may collect compensation from the latter, but only for the benefit of the owner (ib.

bound

i.

6).

The Hirer ("Soker"): The

4.

hirer is liable

which the hired keeper is, unless, like the borrower, as shown above, he is discharged from liability by the presence or constructive presence of tlft owner (ib. i. 2). III. While it is often said that stipulations running counter to the Mosaic law are void, and though in all cases in

among

R

Mei'r sought to apply this where nothing but the payment of money was involved, such stipulations are held good as to

the early sages

rule even

contracts involving money only when they precede the act by which the contract takes effect. Hence a gratuitous keeper can exempt himself by contract from the oath of exoneration, the borrower from payment in all or in any cases, the hirer or receiver of hire from oath and payment or any keeper may stipulate for a less than the customary degree of care. Under an institution of the early ages a bailment, like a sale (see Alienation), becomes effectual only when the thing entrusted, loaned, or hired comes to the bailee's hand: thus the word limiting the bailee's duties can be spoken or written before the bailment takes effect (Mishnah B. M. vii. 10, 11,

The Receiver of Hire ("Nose" sakar ")

xxii. 12 (A.

458

2).

When the beast entrusted to the keeper dies a natural death, he is excused; but not when he has by insufficient food or ill-treatment caused its death. Where the beast has climbed to the top of a cliff and falls down, its death is held unavoidable, but not so if the shepherd has led it up, and it then falls down {ib. iii. 9). By the plain words of Scripture, the hired keeper is liable for a beast that is stolen or strayed, and, by analogy, for articles that are He is, of course, stolen, mislaid, or lost sight of. liable in all cases in which a gratuitous keeper is

and Geinara on same,

Where a man

94a).

money, not for the purpose for the owner, but to apply it to a charity or to distribute it among the poor the speof keeping

receives

it

—

—

objects of the bounty not being named the Biblical law on Bailments does not apply in express terms, nor does the rabbinic interpreExceptions tation which requires a certain degree to Bailee's of care. Nor do the above rules apply Responsi- to a bailment of slaves, or to one of bility. deeds or bonds; or to the goods of the sanctuary or to those of Gentiles cial

(Hoshen Mishpat,

301,

1).

Disputes often arise on other questions than the cause of the loss, and these are settled by the ordinary presumptions and rules of evidence. Thus the Mishnah (B. M. viii. 2) already puts the case of A letting B have one cow for hire, and lending him another cow gratis. One cow dies. A says it was the loaned cow; B sa3r s he does not know which it

was; or vice versa. The Mishnah says that in all such cases the party making the certain statement wins which position is controverted in the Gemara on general grounds reaching beyond the law of Bailments (B. M. 97a et seq.). When the delivery of a thing as a deposit is proved by witnesses, the depositary can not by his unsupported word claim the thing as having been subsequently bought by him or received as a gift. Hence the owner can without oath reclaim the thing from

the depositary's heirs. And further, even without witnesses the owner may recover from such heirs if he can give a striking description, can show that he was not a frequent visitor at the depositary's house, and that the latter was not reputed to be the owner of the thing in question (Ket. 85S; She'elah,

vi. 4).