004 HaMafkid - Shomer SheMasar LaShomer 36a

It was stated that there is an amoraic dispute with regard to a guardian who conveyed to another guardian the deposit with which he was entrusted. Rav says: He is exempt from payment in the same cases in which he is exempt when the deposit is in his possession. And Rabbi Yoḥanan said: He is liable to pay even in cases of damage due to circumstances beyond his control.

Abaye says: According to Rav’s line of reasoning, it is not necessary to state his ruling in a case where he was initially an unpaid guardian who conveyed the deposit for safeguarding to a paid guardian, as in that case the unpaid guardian enhanced the level of his safeguarding, since a paid guardian is liable to pay in instances where an unpaid guardian is exempt. But even in the case of a paid guardian who conveyed the deposit for safeguarding to an unpaid guardian, where the paid guardian diminished the level of his safeguarding, he is exempt. What is the reason? He is exempt because he conveyed the deposit to a mentally competent person, thereby effectively safeguarded the deposit.

According to Rabbi Yoḥanan’s line of reasoning, it is not necessary to state his ruling in a case where he was initially a paid guardian who conveyed the deposit for safeguarding to an unpaid guardian, as the paid guardian diminished the level of his safeguarding, since an unpaid guardian is exempt in instances where a paid guardian is liable to pay. But even in the case of an unpaid guardian who conveyed the deposit for safeguarding to a paid guardian, where the unpaid guardian enhanced the level of his safeguarding, he is liable to pay. What is the reason? He is liable because the owner of the deposit said to him: It is not my desire that my deposit be in the possession of another guardian.

Rav Ḥisda said: This statement that is attributed to Rav was not stated explicitly. Rather, it was inferred from another statement of his, as it is related: There were these gardeners who each day would deposit their spades with a certain old woman. One day they deposited their spades with one of gardeners. He heard noise from a wedding hall and set out and went there. He deposited the spades with that old woman. In the time that he went and came back from the wedding, their spades were stolen.

The case came before Rav, and Rav exempted the gardener who deposited the spades with the old woman. One who observed Rav’s ruling thought that Rav issued that ruling due to the fact that a guardianwho conveyed a deposit to another guardian is exempt. But that is not so. There, in the case of the spades, it is different, as the gardeners themselves would deposit their spades with that old woman. Since the gardeners cannot claim that it is not their desire for their deposit to be in the possession of this old woman, the gardener who did so is exempt.

The Gemara relates: Rabbi Ami sat and stated this halakha. Rabbi Abba bar Memel raised an objection to Rabbi Ami from the mishna: In the case of one who rents a cow from another, and this renter lends it to another person, and the cow dies in its typical manner in the possession of the borrower, the halakha is that the renter takes an oath to the owner of the cow that the cow died in its typical manner, and the borrower pays the renter for the cow that he borrowed. And if the statement of Rabbi Yoḥanan is so, let the owner say to the renter: It is not my desire that my deposit be in the possession of another guardian, and the renter should be liable to pay because he violated the owner’s wishes. Rabbi Ami said to him: With what are we dealing here? It is a case where the owner gave the renter permission to lend the deposit to another.

The Gemara asks: If so, the borrower should be required to pay the owners, as the owner sanctioned the borrowing. Rabbi Abba bar Memel answers: The case in the mishna is one where the owner said to the renter: Lend this deposit to another at your discretion. Therefore, it is not considered as if the owner lent it to the borrower.

Rami bar Ḥama raises an objection from a mishna (42a): In the case of one who deposited coins with another, and that guardian bound it in a cloth and slung it behind him, or conveyed them to his minor son or daughter for safeguarding, or locked the door before the coins in an inappropriate, i.e., insufficient, manner to secure them, the guardian is liable to pay for the coins, as he did not safeguard the coins in the manner typical of guardians.

The Gemara infers: The reason he is liable to pay is that he conveyed the coins to his minor children, but if he conveyed them to his adult son or daughter he is exempt. Why? Let the owner say to him as Rabbi Yoḥanan said: It is not my desire that my deposit be in the possession of another guardian, and therefore even if the children are adults the guardian should be liable to pay.

Rava said: No proof can be cited, as it is clear that in the case of anyone who deposits an item with another,

it is with the awareness that at times the guardian's wife and his children will safeguard the item that he deposits it, as the guardian cannot be with the deposit at all times.

The Sages of Neharde’a say: The language of the mishna is also precise, as it teaches: Or if he conveyed the coins to his minor son or daughter for safeguarding, he is liable to pay. But if he conveyed them to his adult son and daughter, he is exempt. By inference, one can conclude that with regard to others, it is no different if they are adults and it is no different if they are minors. Either way, the guardian is liable to pay, as, if there were a difference, let the tanna teach: If he conveyed the coins to minors, without qualification. The Gemara concludes: Since the tanna specifically addressed the case of one’s minor children, learn from the wording of the mishna that the difference between minors and adults exists only with regard to one’s children.

Rava says: The halakha is: A guardian who conveyed a deposit to another guardian is liable to pay. It is not necessary to say that this is the halakha if he was a paid guardian who conveyed the deposit to an unpaid guardian, as in that case the first guardian diminished the level of his safeguarding, as an unpaid guardian is exempt from paying in instances where a paid guardian is obligated to do so. But even if it was initially an unpaid guardian who conveyed the deposit for safeguarding to a paid guardian, the first guardian is liable to pay. What is the reason that he is liable in that case? He is liable, as the owner of the deposit can say to him: You are trustworthy to me when you take an oath that the item was stolen or lost. That person is not trustworthy to me when he takes an oath.