She'elah uFikkadon - Chapter 8

Serving as an unpaid watchman.

In which instance the watchman is not liable, provided he takes the oaths mentioned in Chapter 6, Halachah 1.

In his Commentary on the Mishnah (Bava Metzia 3:1), the Rambam emphasizes that the watchman’s statement must be made in court. Any statement made out of court is of no significance.

Implied is that even if the watchman does not actually pay, as long as he promises to do so, he acquires the right to certain profits that come because of the article.
Rabbenu Asher differs and maintains that to acquire the right to these profits, the watchman must actually take the required oaths. His opinion is quoted by his son, the Tur (Choshen Mishpat 295) and supported by Seifer Me’irat Einayim 295:6. The Beit Yosef and the Siftei Cohen 295:3 support the Rambam’s view.
See also the Siftei Cohen 295:4, which explains that even if a watchman actually paid, if he did not do so until he was compelled to by the court, he does not acquire the rights to the profit. See Halachah 3.

Because of the severity of the prohibition against taking a false oath. Frequently, a watchman would prefer to make restitution for the article rather than take an oath that he was not negligent although he had in fact cared dutifully for the article.

See Exodus 22:6, Hilchot Genevah 1:6.

I.e., if he stole a sheep or an ox as explained in Exodus 21:37, Hilchot Genevah 1:4,6.

Bava Metzia 33b asks: Through what legal process does the watchman attain the right to the article? It explains that implicit in the agreement made between the owner and the watchman at the time the article is transferred is that if the article is stolen and the watchman desires to pay, he acquires the right to the double payment. Thus, the original transfer of the article formalizes this agreement as well.
Note Rashi, who explains that the owner is willing to part with the possibility of receiving the double payment in return for the security of knowing that his principal will be preserved.

I.e., even if he has not paid for the article, as long as he made the commitment to do so, he is granted certain rights with regard to the article.

This includes an increase in the value of the article as stated in Halachah 3.

Hilchot Genevah 1:11.
The Maggid Mishneh states that from the Rambam’s wording, it appears that even shearings and offspring that originated in the domain of the thief - e.g., the animal was not pregnant beforehand and became impregnated in the thief’s domain - must be returned to the owner. He states that other Rishonim differ with the Rambam regarding this point, and explains that this difference of opinion depends on the interpretation of Bava Metzia, loc. cit. There are two versions of an opinion stated by Ravva. The Rambam follows one version and the other authorities, the other.

By armed thieves or the like.

Even if he did not say that he would pay, by saying he was negligent, he obligated himself to do so.

And taken an oath to that effect.

I.e., he actually pays; it is not sufficient to promise. Since the entire benefit from the use of the article is the borrower's, he does not acquire the rights to the double payment until he actually pays (Maggid Mishneh).

And not when he is required to do so by the court.

The Ra’avad states that this law applies only to an increase in value that occurred after the watchman paid or at least agreed to pay. The Maggid Mishneh states that the watchman receives the increase in value from the time the article was stolen, and perhaps even from the time it was entrusted. He draws support from the Rambam’s ruling in Hilchot Genevah 1:14. The Siftei Cohen 295:7, however, reconciles the Ra’avad’s interpretation with the Rambam’s wording.

The Maggid Mishneh cites Hilchot Malveh V’Loveh 22:16, which states that a debtor may redeem landed property expropriated from him by the court. Implied is that movable property cannot be redeemed, and the person who had it expropriated may maintain possession if he desires. Accordingly, there are authorities who maintain that the law stated by the Rambam applies only when the entrusted article was - unbeknownst to him - in the watchman’s domain the entire time. Hence, his property was expropriated in error, and therefore it should be returned to him.
If, however, the entrusted object was lost or stolen, the expropriation was performed according to law. Hence, even if the entrusted article was discovered, movable property that was expropriated need not be returned. The Ramban - and the Maggid Mishneh states that this is also the opinion of the Rambam - differs and maintains that in this instance, other rules apply and any property that is expropriated from the watchman - whether landed property or movable property - should be returned to him.

E. g., an unpaid watchman took an oath that the article was stolen, and not as a result of his negligence.

I.e., he went beyond the measure of the law.

For his later commitment is binding.

If the commitment to pay was made outside the court, the watchman has the right to retract. The doubt arises if he made the commitment in court. Although his retraction is of no consequence, since the owner may have to take the matter to court to enforce this, it is questionable whether the watchman retains the right to the double payment.

His heirs.

We are not certain whether in fact they are refusing to pay - in which case, they would give up their rights to the double payment - or they are merely procrastinating and trying to postpone having to make restitution.

The unresolved question is whether the sons’ payment is sufficient to acquire the rights to the double payment on their behalf.

Here, as in the previous note, the question is whether the sons’ payment is sufficient to acquire the rights. Their position is strengthened by the fact that the original owner died.

He agreed to pay only half the sum. The question is whether he acquires the right to half the double payment.

This situation reflects the same logic as the previous instance, with one further benefit on behalf of the watchman. For in this instance, he paid for an entire cow. Hence, one might think that he deserves the double payment for that cow.

This also reflects a similar question: Since the watchman paid the entire portion owed to that partner, does he acquire that partner’s share of the double payment or not?

Since he paid his entire share, one might think that he has acquired the right to his portion of the double payment.

The Maggid Mishneh quotes Tosafot, Bava Metzia 34b, as explaining that this and the following instance refer to a situation where the woman lent - or borrowed - an article before she married.

Since the husband has the right to make use of his wife’s property, he is an involved party. Nevertheless, there is a question of whether the woman would be willing to grant the watchman the right to the double payment if he pays her husband and not her herself (Maggid Mishneh).

The question is whether the husband’s right to use his wife’s property is sufficient for him to acquire the rights to the double payment when he makes restitution on her behalf.

The double payment.

But rather in the possession of the thief. If the money were in the hands of either of the claimants, we would follow the principle: When a person desires to expropriate property from a colleague, the burden of proof is on him.
The Rambam’s ruling is based on that of Rabbenu Yitzchak Alfasi. Rabbenu Asher takes a different approach and maintains that the entrusted article is always considered as being in the possession of its owner. Hence, unless the watchman can prove that this principle should not be followed, he is entitled to the double payment.

Even though he had no right to seize possession of the article, once he has done so, we follow the principle: When a person desires to expropriate property from a colleague, the burden of proof is on him. Since the other claimant cannot prove that the money belongs to him - because there is an unresolved doubt regarding the matter - it is allowed to remain in the possession of the person who seized it.

The double payment is a k’nas, a fine, and laws involving fines are not adjudicated in the diaspora. Nevertheless, if either of the claimants seizes the double payment from the thief, it is not expropriated from his possession. (The commentaries have noted that the term “even if’ is somewhat out of context. For the question in this instance does not involve the dispute between the owner and the watchman, but between either of them and the thief.)

We are speaking about an armed thief. Hence, this is considered to be a matter beyond the watchman’s control. Nevertheless, this thief breaks into the owner’s domain in concealment rather than challenging him in open confrontation. Hence, he is considered a ganav, a thief, and liable for double payment, rather than a gazlan, robber, who is required to pay only an extra fifth. See Hilchot Genevah 4:4.

I.e., it is the watchman's obligation to take the matter to court and sue the thief so that the article or its value is returned to its owner. This is part of the responsibility that he undertook as a watchman.
Rashi (Bava Kama 108b) states that the watchman must pay the owner himself and then be reimbursed by suing the thief. His position is accepted by the Tur, but the Shulchan Aruch (Choshen Mishpat 294:5) quotes the Rambam’ s words. The difference is that according to Rashi, if the watchman cannot expropriate the value of the article from the thief, he must bear the loss himself (Seifer Me’irat Einayim 294:7).

Once the thief’s identity is discovered, there is no point in the watchman taking an oath.

Since he has taken the oath, he is no longer responsible to the owner, and the owner must undertake the legal process necessary to secure the return of his article.

The commentaries question why the watchman would want to undertake the difficulty of suing the thief. He will gain no profit from this endeavor, nor is he obligated to do so. Among the answers given is that he is concerned with the benefit of the owner, and as a mitzvah, he is willing to undergo some difficulty to help him retrieve his money (Bayit Chadash, Choshen Mishpat 294).

He must initiate and carry on with the legal process necessary to make sure that the entrusted article is returned to its owner. Since he received wages for his efforts and - at the present time - it is possible to retrieve the article for its owner, he is obligated to do so.

Since the question is left unresolved by our Sages (Bava Kama 108b), we follow the principle: “When a person desires to expropriate property from a colleague, the burden of proof is on him.” Since the plaintiff (the owner) cannot prove that the halachah follows his position, the article is not expropriated from the defendant (the watchman). If, however, the owner seizes possession of the animal’s carcass or its worth, it is the watchman who must prove that he has a right to the article.
The Tur does not accept this perspective and states that once the matter is brought to court and the watchman released from the obligation to pay, if the owner seizes the value of the article from him, he must make restitution.