Translation:Shulchan Aruch/Choshen Mishpat/292

Paragraph 1- A watchman is not permitted to lay a hand on the deposit. If he did lay a hand, it is now in his possession, even if he did not intend to steal it, but just to use it. He would be liable for any accident, even if he did not use it yet, because laying a hand does not require a deficiency in the item. He just needs to lift it for use of an activity that would create a deficiency, and he would then be liable as if he caused the deficiency. If he lifted it to use it in a way that would not create a deficiency, however, he would not be liable from the time he lifted it, but from the time he used it. He would not be liable as someone who laid a hand, because he has not laid a hand since he did not cause a deficiency. Rather, he would be liable because one who borrows without consent is a thief. ''If the watchman returned the item to the place he took it from, he reverts to being a watchman because he originally was considered a mere borrower of the item. In such a case involving money, he would be liable for any accident.''

Paragraph 2- If the watchman tilted the barrel and took a reviis, and the barrel broke, the watchman is only liable for a reviis since he did not lift it. If he lifted the barrel to take a reviis, however, he would be liable, even if he did not take it. If he lifted a wallet to take a dinar from it, however, or any similar case where the items are not one thing, it is uncertain if he is liable for the entire wallet or just the dinar.

Paragraph 3- Similarly, if the watchman tilted and took a reviis and the wine soured, he would be liable for all of it because the wine soured due to him making the wine deficient. When is this true? With respect to a barrel of wine which typically sours when it is lacking. With respect to other fruits that he laid a hand on a portion of them but did not lift them, however, he would only be liable for that which he took.

Paragraph 4- If the watchman said he intends to lay a hand on the deposit, he is not liable, even if he said it in front of witnesses.

Paragraph 5- If one lays a hand on a deposit with his own hand or via his agent, he is a thief and is liable for all accidents. The stolen item enters his possession and he must pay the same way a thief pays, as is discussed in the Laws of Theft.

Paragraph 6- If one deposits a barrel with another, regardless of whether or not the watchman designated an area for the owner or not, if the watchman moved it for his own benefit and the barrel broke, he would be required to pay, whether it broke before he returned it to its place or after he returned it to its place. If he moved the barrel for its own sake, he would be exempt, regardless of whether it broke in his hands or after he placed it in another location. ''If the watchman moved the barrel because he needed the area, he would be liable for negligence and exempt in a case of an unavoidable accident. If the accident occurred because of the change in location and the watchman had designated a place, he would be liable even if it broke after he placed it down. If he did not designate a place for him, he would be exempt if it broke after he placed it down.''

Paragraph 7- If the watchman was a moneychanger or storekeeper, and the owner deposited money with him that was not sealed or uniquely tied, he may use the money, even if they are piled. Thus, he becomes a paid watchman and would be liable if the item was stolen or misplaced, even before he used it. If he used the money, he would also be liable for an unavoidable accident, even if he returned it to its place, until he returns the money to its owner. If the money was piled and sealed or tied with a unique knot, the watchman many not use it. Thus, if the money was misplaced or stolen, the watchman would not be responsible. If the money was deposited by a homeowner, he may not use it, even if the money was untied. Thus, if the money was misplaced or stolen he would not be responsible, so long as he hid them in the ground, as was discussed in 291:15. If most of the homeowner’s investments were in interest, he has the status of a moneychanger because he always needs money. ''This is only true with actual money. With respect to a silver bar, however, this would not be so. Everything depends on the context, however. If the watchman profited with the money, he does not have to give the owner a share, whether he had permission to use it or not. If the owner comes and tells the watchman to give him the deposit so he could profit for himself and the watchman held on to it, however, he would be required to give him the profit going forward. If the watchman tells the owner he spent the money on an investment and if he wants he can accept the rights to the investment, whether it turns a profit or loss, however, the watchman is in the right. If the watchman invested the money for the sake of the owner, the profit would belong to the owner. If the watchman revealed his intention to invest on behalf of the owner or in a case where he is prohibited from using the money, where we presume he invested on behalf of the owner, the watchman is not believed to say he invested for himself, unless he said so in front of witnesses.''

Paragraph 8- If one deposits money or high-end vessels with another, and thieves came to the watchman and the watchman gave the deposit to save himself, and the watchman was known as a wealthy individual, the watchman would be liable because we presume the thieves came because of him, which means he used another’s money to rescue himself. If he is not known as wealthy, the presumption is they came because of the deposit.

Paragraph 9- If one was a watchman on money collected for ransoming captives, and thieves came to him, and he gave them the money to save himself and he had no other accessible money to save himself with, he would be exempt because there is no greater ransoming of captives than this. This is only where it was a general collection for ransoming captives. If it was collected for the ransom of specific captives, however, he would be liable.

Paragraph 10- If one deposits fruit with another, the watchman may not combine them with his fruits. If he did combine them, he should calculate the volume of the deposit, how much everything depreciated, and return a proportionate amount of the deposit after he swears. ''Similarly, if one gave money to the watchman to bring, with a guarantee provided by the owner, and the watchman put the money with his money and some of the money was misplaced, the loss would be the proportionate amount of money. This is only applies to money or anything similar which is undefined. If the owner gave him gold rings or something similar, however, and the watchman combined them with his own, and one was misplaced, the party with possession has the ability to tell the party without possession that his was misplaced. If two owners deposit with one watchman, and one of the items was misplaced or stolen, we follow the majority, and when something has left its place, we assume the separated part to be from the majority. If the items were fixed in their place, it has the status of 50/50.''

Paragraph 11- If the watchman was fed by the produce but does not know how much he took, he would assume a deprecation of 4.5 kav per kur for wheat and rice, nine kav per kur of barley and millet, three seah per kur for spelt, flaxseed in its stalks and unshelled rice. This calculation is for each year of the deposit.

Paragraph 12- When is this true? Where the owner measured for the watchman in the threshing season and the watchman returned it in the threshing season. If the owner measured for the watchman in the threshing season and he returned it in the rainy season, however, the watchman would not deduct for deficiencies because the produce actually increases.

Paragraph 13- Similarly, the watchman would deduct 1/6 for wine, and three lug for 100 lug of oil; 1.5 lug for the sediments and 1.5 lug for the amount absorbed. If the oil was refined, he would not deduct for sediments. If the jugs were old, he would not deduct for absorption.

Paragraph 14- If one deposited fruits that were not measured, and the watchman combined them without measuring, the watchman is negligent. If the owner says the amount of fruits was such and such amount and the watchman says he doesn’t know, the watchman would pay without an oath because he obligated himself to pay back and he doesn’t know how much. Thus, he is required to swear an oath he cannot take.

Paragraph 15- If the watchman did not combine the deposit with his fruits, even if the deposit is continually depreciating, he should not touch them. When is this true? Where it depreciated an appropriate amount each year. If it depreciates more than its appropriate amount, however, and the owner is in the city, he should inform him. If the owner is not in the city, the watchman should sell them in court.

Paragraph 16- If one deposited fruits with another, and they rotted, he deposited honey, which was ruined or he deposited wine which soured, he would help the owner of the item if he was not in the city and sell it in court. Although they are already ruined and it is not spreading, the baskets and jugs are creating a greater loss.

Paragraph 17- If one deposits chametz with another and Pesach arrives, the watchman should not touch it until the fifth hour of 14 Nissan. Once that time arrives, the watchman goes out and sells it in the market for its permitted time, because of the principle of returning a lost item to its owners.

Paragraph 18- The same applies to other deposited items, and the watchman should not touch them even though he knows with certainty the value will decrease at a certain time or that the king will take possession of it, because the owners may come before that time and take it from him.

Paragraph 19- In any case where one sells a deposit in court, he can sell to other people but not to himself so as not to arouse suspicion. The money will be placed in the watchman’s possession and he has permission to use it. Thus, he has the status of a paid watchman, even if he did not yet use the money.

Paragraph 20- If one deposits a Torah scroll with another, he must roll it once every 12 months. If while rolling it he opens and reads it, that is permitted. He cannot, however, open it for himself and read it. The same applies other sefarim. If he did open and read for himself, he has laid a hand on the deposit and would be liable for accidents. ''Just as he is prohibited from reading from the scroll, so too can he not copy a letter from it. This is only true with respect an ignoramus. With respect to a Torah scholar who has no scroll like this, however, he is permitted to read and copy from it because the owner certainly deposited it with this in mind. In a situation where sefarim are not available and there is a concern of bitul torah, the court can force the owner to lend out his sefarim so people can learn from them, so long as they pay him for the damages to the sefarim.''

Paragraph 21- If one had a garment deposited with him, he would shake it out in the manner discussed in Siman 267.

Paragraph 22- When is this true? With respect to a deposit whose owners went overseas. If the owners were with the watchman in the same area, however, the watchman should not touch it, even if the item will be lost.