Sho'el Be'Ba'alim

Bava Metzia (7:8) | Yehuda Gottlieb | 12 years ago

There are four types of shomrim (guards) the shomer chinam (free), sho’el (borrower), nosei sechar (hired) and socher (renter)…..the sho’el pays for everything.

Bava Metzia 7:8

This Mishnah comes to give us an introduction and background to the cases that can occur when transferring other people’s movable property. A person who has someone else’s moveable property in his possession must fall under one of the above four categories.

A sho’el is someone who borrows an object from his friend. The Mishnah states that a sho’el is responsible if he loses the object or if it was stolen. In fact, the Torah obligates him to pay even for accidents (ones) because it is under his full responsibility having borrowed it at no cost. The Sefer HaChinnuch (60) writes that he is like a person who borrows money, where, if it was taken from him by force, he cannot get out of the loan by claiming an accident.

However, there is a specific case where the Torah tells us that a borrower can be patur from onsim. This is a case where he borrows something and the owner worked with him (see Shmot ). In fact the owner does not even have to be there at the time of the accident or breakage. As long as he was with him at the time of she’eilah – the borrower is patur.

The Gemara (Bava Metzia 96a) asks why the exemption of the owner being there depends upon the owner being with the sho’el at the time of she’eilah. Perhaps it should depend upon him being with the sho’el at the time of the accident, because it is at that moment when the sho’el would normally become obligated to pay for the ones. For example, if one borrowed an animal and the owner worked with him at the time of the borrowing, perhaps one should only be patur if the owner was there at the time of death. The Gemara concludes that the time of she’eilah is more important, because it is at that time that the sho’el becomes obligated to feed the animal.

The Chinuch writes that the reason the borrower is patur is since the owner is there while the borrower begins using the object, he should watch his own property. However since the Torah did not want to detail how long constitutes the owner actually being there – they say that as long as the owner was there at the start of the transaction, the borrower is patur.

The Ohr Ha’Chaim (Shmot ) asks a very interesting question involving the law mentioned above. What will happen when Hashem, the “owner”, asks us to return the object that we have ‘borrowed’ – i.e. the soul. Our souls are able to be broken (by not fulfilling certain mitzvot), and stolen (by following impure sources). At the end of our lives, the “owner” will ask us to return His object in the same state as he had lent it out – a whole and pure soul.

We all know that Hashem is with us at all times. He nurtures, feeds and protects us throughout our lives. He is in fact watching over our souls at all times. Therefore, the Ohr Ha’Chaim wonders whether this din of “the owner being with the object” applies even in Olam Haba. Are we able to now claim that we would be patur from damages to the soul because the owner was with us the whole time?

The Ohr Ha’Chaim explains why this claim is false. There is a concept that any tenai (condition) that is made in a monetary case is upheld. The Gemara in Bava Metzia (94a) states that the owner of collateral can stipulate that the holder of the collateral can be held liable as a shoel (chayav for onsin) rather than the usual shomer chinam. Any stipulation or condition that is agreed to by both parties will be upheld in a monetary case. That is the case we are dealing with here. Hakodesh Baruch Hu lends us ours souls under the condition that we follow in His ways, and accept responsibility if we do not. We agreed to those conditions before we accepted the neshama; therefore we cannot turn around in olam haba and make a claim that we should be patur because the owner was with us at all times.

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