Here we’ll continue to talk about the responsibilities of a watchman, a shomer (watchman). If a shomer has an item deposited with him and it is destroyed in an unavoidable accident, he would not be liable to pay for it. But if he used the item for his own benefit in any way, it is considered that he took possession of it as a thief, and he would be responsible for anything, including unavoidable accidents. Here we’ll talk about a case where the shomer uses an item and then puts it back in a safe place. Is he still responsible in those situations?
The Mishnah says: HaMafkid chavit etzel chaveiro velo yichdu lah ba'alim makom. Let’s say somebody deposited a barrel of wine or oil with his friend, and the owner did not designate a place in the shomer’s property where he wanted the barrel to be kept. He didn’t specify exactly where he wanted it to be. He basically gave the shomer permission to put it anywhere that would be safe. What happens? Ve'tiltelah ve'nishberah. The shomer was transporting the barrel, and it broke. It broke in an unavoidable way. So if it broke while it was still in his hands, before he put it down in a safe place, and he was moving the barrel for his own needs—for example, if he wanted to use it as a step stool and step on top of it to reach something—he, the shomer, would be obligated to pay for the breakage. He used it without permission, so he is considered a thief. Once it broke, he would be liable to pay for that type of accident. It didn’t break because he stepped on it; it broke in another unavoidable way. But he used it, and therefore he gained hana'ah benefit from it. So he would be liable for the barrel when it broke.
But if he was moving it for its needs—for example, the barrel was in the sun and he wanted to move it to a safe place—he would be exempt from payment. He never used it for his own needs, so he never took possession of the item as a thief. So it was always the owner’s property. He was just a shomer, and therefore he would not be liable for any unavoidable accident.
Now we’ll talk about the case where the barrel broke after the thief put it back in a safe place. Bein letzorko. Bein letzorkah patur. It doesn’t matter if he originally picked it up for his own needs or for the needs of the actual barrel. He would be patur. He would be exempt from payment in both cases. Even though he became a thief when he temporarily took possession of the item and used it for his own benefit, once he puts the item in a safe place, he has relinquished responsibility for it. In a way, he returns the item to the owner. He becomes a shomer again, and therefore he would not be responsible for any unavoidable accidents once more.
This is the opinion of Rabbi Yishmael. Rabbi Yishmael says that once an item is put in a safe place, the shomer relinquishes his status as a thief, in a certain sense. It goes back into the ownership of the real owner, and the thief returns to his previous state as a shomer. This is different from a regular case. In a normal case of theft, the thief is still liable and responsible not only until he returns the item, but until he informs the owner that he originally stole it and put it back. Rabbi Yishmael would say our case is different. The shomer would not have to inform the actual owner because he is the person responsible for taking care of it. So as long as the shomer himself knows that the item was returned to a safe place, he now relinquishes responsibility. There’s no need for him to tell the actual owner.
Rabbi Akiva is going to differ. Rabbi Akiva says that until the shomer tells the actual owner, he is fully responsible. Until he tells the owner that he used the item irresponsibly, without permission, he would remain on the hook if something happened to the item. Rabbi Akiva says that once the owner would have known that he, the shomer, used the item without permission, he probably would have taken back his permission for that person to be the shomer. He would not trust him anymore and would not want him to be the shomer anymore. So once the shomer puts it in a safe place, that doesn’t mean he goes back to being the shomer and watching it. He would have to tell the actual owner, and the owner would have to give him permission to continue watching it.
We’ll see how Rabbi Akiva’s opinion plays out in the next case of the Mishnah. The Mishnah says that if the owner designated a place for the barrel—we’ll take note momentarily why we frame the case where the owner designated a specific spot for that barrel—and the shomer moved the barrel out of that spot, it broke in an unavoidable accident. It doesn’t matter whether it was still in his hands before he put it back in that same designated spot or after he put it back there. What actually matters is whether he moved the barrel for his own needs and used it for himself; he would be obligated to pay. According to Rabbi Akiva, once he uses the barrel, he is considered a thief. Rabbi Akiva would say that the shomer continues to be a thief and remains responsible for this item until he goes back to the original owner and informs him that he returned the item to that spot. He has to tell him and be open with him. So if it broke even after he put it back in that designated spot, exactly where the owner wanted it, he would still be obligated to pay. This is why we frame the case that way: the owner wanted it in a certain place, and the shomer used it and then put it back in that same exact spot. It still doesn’t matter. He would be chayav (obligated).
This is in direct contradiction to what Rabbi Yishmael held. Rabbi Yishmael said that even if the owner did not designate a spot, as long as the shomer put it back in a safe place, the shomer would be off the hook and would not be responsible, even without informing the original owner. In our case, again, to repeat, a spot was designated and he put it right back in that same exact spot. He would still be chayav, according to Rabbi Akiva, because he takes responsibility for it once he uses it for his own needs. Even if it broke after he put it exactly where it was supposed to be, and it broke in an unavoidable way, he’s still obligated to pay for it. But if he moved the barrel for its own needs, to protect the barrel, he would be exactly exempt from payment when it broke, because he never became a thief; he was only doing it to help the barrel.