We'll now go back to talk about the Shevuat HaPikadon (the swear of a deposit) that we spoke about in Perek (chapter) Heh. We learn there that if a Shomer, somebody who was watching the possessions of another person, swore falsely about an item given to him that he was supposed to watch, and later admitted that he lied, he has to give back the item, pay an extra fifth as a penalty, and bring a Korban Asham (guilt offering). It’s not only if he says that he never received the item in the first place, or falsely claims that he already returned it. We say that even if he claimed that he lost it and said he wasn’t responsible because of the situation, he would also have this punishment if he lied about that. We’ll get into the different cases in this Perek about the Shomer who swears that he’s not responsible to pay that penalty, and then we find out that he was lying. He has to bring that Korban Asham and pay that extra fifth, and we’ll talk about cases where he’s not obligated.
We also learned in the fifth Perek of this Masechet (tractate) that a person is obligated to bring that Korban (offering) for the lie about the Shevuat HaPikadon only if that lie, that swear he took, saved him from having to pay a claim. If he swore falsely about what happened and, because of his swear, wouldn’t have to pay anything, that’s the situation where he would have to bring a Korban as a penalty. But if he swore and there was no real nafka mina, there was no different outcome because of his swear, he wasn’t obligated to pay anyway. In that case, the swear didn’t make any practical difference for him, so he would not be obligated to bring a Korban Asham or pay that extra fifth.
In order to figure out who would be obligated to bring this Korban and pay the extra fifth, you have to sort of know what types of losses each Shomer would be responsible for before you can say if he’s obligated to bring a Korban. Therefore, this Perek is going to start with a list of the Shomerim and what they’re responsible for. The Mishnah says there are four different types of Shomerim, of watchers, of guards, of people who watch after items: Shomer Chinam (the unpaid watchman), an unpaid Shomer; Veha-sho'el (a borrower), a borrower who’s borrowing the item and not paying for it; Nose Sachar (a Shomer who's paid), a Shomer who’s paid; and Veha-socher, a person who’s renting an item. He’s using an item and paying for it.
All the Shomerim we mentioned here have to pay the owner for the item if it’s damaged or lost because of their own negligence. The Torah, though, mentions two other situations of loss and damage where some Shomerim pay and others do not. One is a loss that wasn’t caused by negligence, but the Shomer had the ability to prevent the problem if he took better care of the item. Or number two, an ones, a loss that happened because something was out of his control to stop it. It was unavoidable, and the Shomer didn’t have the ability to prevent the damage. So the Mishnah is going to tell us what types of losses each type of Shomer has to pay for.
We’ll first talk about the Shomer Chinam, the unpaid watchman. He’s watching something for somebody, but they’re not paying him a fee for it. He would have to swear about all the cases mentioned above, but once he swears, he would free himself from any obligation. He would free himself totally. The only thing the Shomer Chinam would be responsible for is negligence. So he swears that he wasn’t negligent with the item, and he also swears that the item is no longer in his possession. Once he does that, he’s scot-free. He doesn’t have to pay anything.
The borrower pays for all types of losses, even those that were ones, even those that he really couldn’t prevent. No matter what, he has to pay for all types of losses, except if the object he was using either died or was damaged during the normal work that the item usually does. The owner obviously allowed the sho'el to use it in the normal way, so the sho'el would not be responsible in that case.
The Shomer who is paid and the renter both swear about an animal in their care that was broken. We mean that it was killed by a wild animal, captured by robbers, or died a natural death. In those cases, they would free themselves from having to pay. They would not have to pay if any of those things happened to the animal. And we would say, obviously any other unavoidable loss. They couldn’t have prevented anything here. They swear that it happened, and then they would be free. They swear that it happened, and they also swear that the animal is no longer in their possession. But they have to pay in the case of a loss or a theft. Even though we just mentioned shevuyah—that if robbers came and captured the animal, they wouldn’t have to pay—there are certain types of theft losses that they could have avoided by taking extra care of the animal.
Just to contextualize everything, all these laws become important because a person who swears falsely and would be obligated to pay the one-fifth penalty and bring the Korban Asham is only responsible for that if their swear saved them from a loss, if they prevented a loss with that swear. So now we have all the understanding of when somebody would lose money and when they would save themselves from losing money if they swore, and we can apply that going forward in the Perek.