שומר שמסר לשומר

By Raphael Grunfeld

Before leaving for an extended vacation, you entrust your gold colored, convertible Porsche to your best friend, Bailee One—a car enthusiast like yourself—to take care of it until your return. To ensure that the engine is in working order when you get back, you instruct Bailee One to take the car out for a run each day but you do not pay him for his trouble.

Two weeks later—while you are sunbathing at Club Med—Bailee One decides to go on vacation himself for two days. So he drives your Porsche to Bailee Two who owns a parking garage, and pays him $50. While pulling her car out of Bailee Two’s parking lot, Jane—a customer of Bailee Two—hits your Porsche causing it extensive damage.

When you get back from your vacation, Bailee One returns your damaged car and though embarrassed, he feels no obligation to pay for the damage. “After all,” he explains, “I did not abandon your car. I handed it over to Bailee Two—a professional parking garage owner—and I even paid him. I am afraid you will have to take it up with the garage owner.”

When you confront Bailee Two, he maintains that the damage was an accident beyond his control because Jane had no right to drive the car in the parking garage and should have waited for Bailee Two to drive it out for her. So you take Bailee One to beit din, a Jewish court of law. You ask the dayan, the judge, to figure it out.

Bailee One has the status of a שומר חנם—shomer chinam, an unpaid bailee who has agreed to guard a deposited item free of charge. As such, he is not legally responsible for accidental damage caused without any negligence on his part.

Bailee Two has the status of a שמר שכר—shomer sachar, a paid bailee who receives compensation for guarding the item. As such, he has a greater duty of care to look after the deposited item because he is being paid for his trouble. Accordingly, he is responsible for accidental damage caused even if he was not guilty of negligence.

“But what do you want from me?” argues Bailee One. “I acted responsibly. I gave the Porsche to a shomer sachar who has an even greater duty of care towards you than I do.”

In this situation, the dayan will rule against Bailee One. This is because, unless you explicitly permitted Bailee One to entrust the car to Bailee Two or unless such permission can be implied from your past behavior, Bailee One has no right to do what he did. You can say, אין רצוני שיהא פקדוני ביד אחר, ein retzoni she’yeheh pikdoni beyad acher, “I placed my trust in Bailee One because I know him, but I do not know Bailee Two.”

One cannot be required—after the fact—to trust somebody one does not know, even if that person has a higher standard of care with respect to the deposited item. If Bailee One wants to be made whole after paying you for the damage, he will have to sue Bailee Two. Depending on the circumstances of the case, Bailee Two may be held liable if the court finds that he did not guard the vehicle in keeping with the higher standard of care of a shomer sachar, or he may be exonerated if the court finds that he did discharge his standard of care and that the damage was caused by an accident beyond his control.

There are, however, two qualifications to the rule of ein retzoni she’yeheh pikdoni beyad acher.

If in the past, you entrusted your car to Bailee Two, then Bailee One has the right to do so too. This is so even if you did not explicitly authorize Bailee One to do so. Bailee One may infer this permission from your own past conduct.

The same is true if Bailee One entrusted the car to an adult member of his family. When you entrust your car to your friend, there is an implied understanding that your friend may delegate the responsibility to adult members of his family.

What if the damage was not accidental, but was caused by the negligence—פשיעה, peshiyah—of Bailee Two or Bailee One’s adult family member? They rammed their car into yours at 70 miles per hour. All bailees—even a shomer chinam with the lowest standard of care—are responsible for damage caused by negligence.

Does Bailee One remain on the hook for the negligence of Bailee Two or for the negligence of his adult family member as if he were negligent himself? Or, can he claim that by handing over the deposited item to a person that the owner trusts, he is not responsible for that person’s negligence? According to the Rosh, Bailee One always remains liable to the owner for the negligence of Bailee Two or for the negligence of Bailee One’s adult family members.

According to the Rambam, Bailee One remains liable to the owner for the negligence of Bailee Two, but not for the negligence of his adult family members. As explained by the Lechem Mishna, this is because it is natural for a person to rely on the help of his adult family members and the owner is deemed to imply consent to the transfer of all responsibility to Bailee One’s family member.

It is not that natural, however, for Bailee One to entrust the deposit to Bailee Two, even when the owner—in the past—did so himself. Accordingly, Bailee One will always remain on the hook for the negligence of Bailee Two.

Raphael Grunfeld, a partner at the Wall Street law firm of Carter Ledyard & Milburn LLP, received Semichah in Yoreh Yoreh from Mesivtha Tifereth Jerusalem of America and in Yadin Yadin from Harav Hagaon Dovid Feinstein, zt”l. This article is an extract from Raphael’s book, “Ner Eyal: A Guide to Seder Nashim, Nezikin, Kodashim, Taharot and Zeraim,” available for purchase at www.amazon.com/dp/057816731X or by emailing Raphael at [email protected].