Understanding Free Guardians

Shekalim (2:1) | Yisrael Bankier | 14 years ago

The second perek begins dealing with the burden of responsibility regarding machatzit ha’shekel collections that were sent from a city with a messenger and were lost or stolen in transit. The Mishnah differentiates between two scenarios: before and after trumat ha’lishcha – the time where some of the stored funds are transferred to the coin boxes as active funds. At this time these funds are separated on behalf of all stored, collected and to be collected funds such that the communal sacrifices purchased can be truly considered as being purchased for the entire nation. Consequently, after trumat ha’lishcha, even the money in transit is considered hekdesh and property of the Beit Ha’Mikdash.

With the above explanation in mind the Mishnah explains that if the money was lost after trumat ha’lishcha then the messenger is answerable to the treasurer of the Beit Ha’Mikdash, since it is already hekdesh. If he swears that he was not negligent in his task, then he is exempt from any repayment. Finally, as this money was already considered the property of the Beit Ha’Mikdash, the citizens are also exempt from contributing machatzit ha’shekel again to replace the lost funds.

If however the money was lost prior to trumat ha’lishcha then the messenger is answerable to the citizens who sent him. Similarly if he swears that he was not negligent in his task, then he is exempt from any repayment. The citizens however, would be required to contribute once again as the coins were never considered the property of the Beit Ha’Mikdash.

The Yerushalmi deals with the status of this messenger – is he a paid or unpaid guardian? The first assumption is that we are dealing with an unpaid guardian, since a paid guardian is responsible for a lost or stolen object whether or not he was negligent. Rav Adda however explains that the Mishnah could also be referring to a paid guardian, yet discusses extreme cases of loss or theft where even a paid guardian would not be held responsible, e.g. he was apprehended by armed bandits or the ship carrying the money sunk. (See also Bava Metzia 57-58)

Most Rishonim therefore conclude that whether the messenger was a paid or unpaid guardian and he swore that he was not negligent in his duty, the citizen would only be required to replace the lost funds if e.g. the ship sunk, prior to trumat ha’lishcha.

The Rambam (Hilchot Shekalim 3:8-9) however rules that if the messenger was an unpaid guardian, then the citizens would always be required to replace the lost funds irrespective of when the funds were lost. If after trumat ha’lishcha it is already considered the property of the Beit Ha’Mikdash why should they be required to give machatzit ha’shekel again?

In his commentary to the Mishnah the Rambam explains:

“If they sent their coins with an unpaid guardian they are obligated to repay in all cases as they were negligent in sending it with him.”

How do we understand this statement? If an unpaid guardian is a halachically qualified guardian, why are the citizens considered negligent? One would expect that since coins are considered the property of the Beit Ha’Mikdash as long as the guardian was not negligent in his duty, then the citizens should not be considered negligent in trusting him.

One could suggest a novel explanation based on an insight by HaRav Lichtenstein shlita regarding the difference between an unpaid guardian and any other guardian (See Shiurei HaRav Lichtenstien – Bava Metzia HaShoel 1). He explains that, for example, a paid guardian’s responsibility of repayment in the case of loss or theft stems from expectations and requirements placed on guardians. He continues that a free guardian does belong under this banner explaining why he is exempt in the case of theft or loss. He is only obligated if he was negligent in guarding the item. This he explains, is not because he breached the laws pertaining to guardians in general, but rather because in his negligence he has committed an act which is similar (but not necessarily equivalent) to damaging. (See also Rambam Schirut 2:3)

Based on this, one could suggest that a free guardian is not a guardian in the formal sense. Furthermore, at the time they gave the money to the messenger, they were effectively free guardians for the Beit Ha’Mikdash. Handing the money to a free guardian would then be tantamount to handing it to no guardian at all – a clearly negligent act.

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