Rambam - 3 Chapters a Day

The following rules apply when an unpaid watchman says, "I desire to pay and not to take an oath: If the entrusted article is of a uniform type and it is possible to purchase such articles in the marketplace - e.g., produce, reams of wool and flax that are entirely uniform, beams on which images have not been carved, or the like - he may pay the value of the article and be excused from taking an oath.

If, however, the entrusted article was an animal, a decorated garment, a utensil that had been fixed, or an article that is not easily available to purchase in the marketplace, we suspect that the watchman coveted it for himself. We therefore require him to take an oath as instituted by our Sages, while holding a sacred article, that the entrusted object is no longer in his possession. Afterwards, he must make restitution.

The same law applies to other watchmen - e.g., a borrower who says that an entrusted animal died or was stolen, or a paid watchman, or a renter who says that an entrusted article was stolen or lost. Even though they are obligated to pay, they are required to take an oath that the article is no longer in their possession. Afterwards, they must make financial restitution for the entrusted animal or article. The rationale is that we suspect that the watchman coveted it for himself.

If the owner claims that the entrusted article was worth more than the watchman admits, he must also include in his oath that it was worth only such and such. Thus, every watchman who takes the oath required of watchmen must include three matters in the oath:

a) that he cared for the article in a manner appropriate for a watchman;

b) that this and this happened to the article and it is no longer in his domain; and

c) that he did not use the article for his own purposes before the event that absolves him of responsibility took place.

If he desires to make financial restitution, he must take an oath that the article is no longer in his domain and include in his oath that it is worth such and such.

When accepting articles for safekeeping, a watchman may stipulate that he will not guard the articles in a manner appropriate for a watchman; instead: "Money that is entrusted to me, I will keep in the corner of my house," or the like.

The following rule applies if the watchman claims that he made such a stipulation and the owner agreed, and the owner claims that such a stipulation was never made. The watchman's claim is accepted. This applies even if the owner entrusted it to him in the presence of witnesses. The rationale is that since he could have claimed: "I guarded it in a manner appropriate for a watchman, but it was destroyed by forces beyond my control," we accept his claim that he made such a stipulation. Therefore, he must take an oath that he did not use the article for his own purposes, that it is not in his possession, and that he had made such a stipulation.

When an unpaid watchman brings proof that he was not negligent, he is not required to take an oath. We do not suspect that he used the article for his own purposes before it was lost.

If the owner of the entrusted article brings proof that the watchman was negligent, the watchman must make restitution. If he claims that the owner had agreed to his stipulation that he not be required to guard the article in the manner required by witnesses, his claim is not accepted. The rationale is that there are witnesses who testify that he was negligent.

When a person entrusts an article to a colleague in the presence of witnesses, there is a disagreement between the owner and the watchman, and the witnesses testify that the article that we see is the article that was entrusted in their presence, the watchman cannot claim: "Afterwards, I purchased it from him," or "He gave it to me as a present."

Therefore, if the watchman dies, the entrusted article may be expropriated from the orphans without an oath. Moreover, should a person come and tell an heir: "I entrusted this and this article with your father," and give very explicit signs to identify the article, if the entrusted article is found as he described it, and the judge knows that the deceased was not likely to have such an article, the judge may award the article to the person who identified it with the signs.

This law applies provided the person who claims that the article is his would not frequently visit the deceased. If, however, he would frequently visit him we do not award him the article. We suspect that perhaps it belongs to another person, and the claimant merely became familiar with its identifying characteristics.

If witnesses come and testify that the deceased is not likely to have owned the article, we do not expropriate the article from the orphans because of their testimony. For their estimation of the deceased's financial capacity is not necessarily that of the judge, and the judge should follow only information that he feels that he can rely on, as will be explained in Hilchot Sanhedrin.

An incident occurred concerning a person who entrusted sesame seeds to a colleague in the presence of witnesses and later came to claim them. The watchman replied: "I returned them."

The owner answered: "They were of this and this measure and they are now held in your jug."

The watchman responded: "I returned yours, and these are others."

The Sages ruled that the sesame seeds should not be expropriated from his possession, for perhaps these sesame seeds belonged to the watchman. Instead, the watchman is required to take an oath while holding a sacred object that he returned the entrusted object, as we have explained.

The following rules apply when the owner of an entrusted object asks for the return of that object and the watchman gives it to him, but a difference of opinion arises between them. For example, the owner claims: "This is not the article I entrusted, but a different one," "My article was whole, and you broke it," "It was new and you used it," or "I entrusted 100 se'ah to you, and there are only 50 here." The watchman responds to these claims, saying: "This is the article you personally deposited. You will be taking what you gave me."

In all such instances, the watchman is required merely to take a sh'vuat hesset, as is required of others who must take oaths in response to such claims. For a watchman is not obligated to take the oath required of watchmen mentioned in the Torah unless he admits accepting responsibility for the very article that the owner claims, but asserts that it was stolen, it died, or it was captured.

The general principle is: When a watchman makes a claim that absolves him from payment, he is required to take the oath required of watchmen. If, however, he says, "This is the article that you lent me," "... hired to me," or "... paid me for watching," and the owner claims that the article he seeks to return is not the one given or that it was changed from its original state, the renter is required to take merely a sh'vuat hesset, or a Scriptural oath if he admits a portion of the plaintiff's claim.

What is implied? If the owner claims: "I entrusted 100 se'ah to you," and the watchman claims: "You only entrusted 50," he is required to take a Scriptural oath, because he admitted a portion of the claim, not because it is the oath required of a watchman. If the owner claims: "I entrusted 100 se'ah of wheat to you," and the watchman claims: "You entrusted only 100 se'ah of barley," he is merely required to take a sh'vuat hesset, as others who would have to take an oath with regard to this claim.

When a person entrusts produce to a colleague, the watchman should not touch it even though its quantity is dwindling and diminishing.

When does the above apply? When it is diminishing at the ordinary rate that could be expected each year. If, however, the amount is diminishing beyond the ordinary norms, the watchman should sell the produce in the presence of a court. It is as if he were returning a lost object to the owner.

When he sells the produce, he should sell it to priests at the price at which terumah is sold, for perhaps the owner designated it as terumah or terumat ma'aser for other produce.

When a person entrusts produce to a colleague and it spoils, honey that becomes ruined, or wine that sours, the watchman should perform a service to the owner and sell the entrusted object in the presence of a court.

This law applies even though the loss reached its limit and the produce would not spoil further, for the containers and the baskets would continue to spoil.

When a person entrusts leaven to a colleague and the Pesach holiday arrives, the watchman should not touch the produce until the fifth hour on the morning of the fourteenth of Nisan. After that, he should sell it in the market place at that hour, for it is like he is returning a lost object to the owner.

The same law applies to other entrusted objects. A watchman should not touch them even though he certainly knows that their value will diminish at this and this time, or they will be seized by the king, lest the owner come beforehand and take his property.

When a person entrusts a Torah scroll to a colleague, the watchman should roll the scroll once every twelve months. It is permitted for him to open it and read it while rolling it. He should not, however, open it for his own purposes and read. The same law applies with regard to other scrolls. If the watchman opened the scroll, read it and rolled it for his own purposes, he is considered to have misappropriated the entrusted article and is liable if it is destroyed by forces beyond his control.

If the owner entrusted a woolen garment to a colleague, he should shake it out once every 30 days. The same principles that apply with regard to lost objects apply to entrusted objects. He should care for other entrusted objects in a similar way; this is an obligation incumbent upon him, like the return of a lost article to its owner.

When does the above apply? With regard to an entrusted object whose owner has traveled overseas. If, however, the owner was together with the watchman in that same land, the watchman should not touch the entrusted object even though it is being ruined.

Whenever a person sells an entrusted object under the supervision of a court, he must sell it to others and may not purchase it himself, lest suspicion arise. The money should be kept in his possession, and he has the right to make use of it. Therefore, he is considered to be a paid watchman with regard to these funds even though he did not make use of them.

The following rules apply when a person entrusts money to a storekeeper or a moneychanger. If the money was bound in a bag and sealed or tied with an unordinary knot, the storekeeper or the moneychanger should not use it. Therefore, if it became lost or was stolen, he is not responsible for it.

If the money was neither sealed nor tied in an unordinary manner, even though it is bound in a bag, the storekeeper or the moneychanger has the right to use the money. Therefore, he is considered to be a paid watchman, and if it is lost or stolen, he is responsible for it. If it is lost due to forces beyond his control - e.g., they were taken by armed thieves - he is not liable.

When does the above apply? Before the storekeeper or the moneychanger used them. If, however, he does use the money, he is responsible for it until he returns it to the owner, as for any other loan in the world.

When a person entrusts money to a householder, whether it is bound or not, the watchman may not use it. Therefore, if it became lost or was stolen, he is not responsible for it, provided he buries it in the ground, as has been explained.

The following rules apply when a person entrusts a jug to a colleague regardless of whether or not the owner of the jug designated a specific place where he could put the jug down. If the watchman moved the jug for his own purposes, he is liable, whether the jug was broken in his hand or after he returned it to the place designated for it. If he moved it for the sake of the jug, he is not liable - whether the jug was broken in his hand or whether it was broken after it was put down in a different place.

One should not accept entrusted articles from married women, from servants or from children. If a person accepted an entrusted object from a woman, he should return it to her. If she dies, he should return it to her husband. If he accepts an entrusted object from a servant, he should return it to him. If he dies, he should return it to his master. If he accepts an entrusted object from a child, he should buy a Torah scroll for him or a date palm so that he can eat its fruits.

With regard to all the above individuals, the following principles should be adhered to if, at the time of their death, they said, "The entrusted article belongs to so and so." If the watchman would accept their word, he should act upon their instructions. If not, he should return the entrusted article to their heirs.

One may demand the return of an entrusted object or an object that was lost and discovered only in the original place.

What is implied? If he entrusted the article to him in Jerusalem, he cannot demand its return in Nov. If the watchman returns it to him in Nov, he must accept it.

If a person entrusted an article to a colleague in a settled community, and that colleague brought the entrusted article with him to the desert, the owner is not required to accept it from him. Instead, the owner may tell the watchman: "You are responsible for it until you return it to me as settled land, just like I entrusted it to you in a settled land.

A question arose when a person entrusts an article to a colleague and then journeys overseas, and afterwards, the watchman also desires to travel overseas or depart in a caravan. There is an authority who ruled that if the watchman brings the entrusted article to the Jewish court, he is absolved of his responsibility.

These are well-reasoned words. For we do not imprison the watchman in this city because of the object entrusted to him by the person who departed overseas. The watchman cannot take the entrusted article with him, lest it be destroyed by factors beyond his control. The court should then entrust the article to a faithful person. This is like returning a lost object to its owner.

The following rules apply when a person entrusts an animal or articles to a colleague, and they were lost or stolen. If the watchman says, "I will pay," because he does not desire to take an oath, he acquires the rights to certain profits that come because of the article.

If the thief is discovered, he must pay twice the value of the article. If he slaughtered it or sold it, he should pay four or five times the value of the stolen animal. To whom should restitution be made? To the person who has the rights to the article i.e., the watchman, for he said that he would make restitution.

If the animal itself is returned, it should be returned to the owner - it, its shearings and its offspring. For the watchman does not acquire the profits that come from its body, but only the profits that come because of outside factors. We have already explained that the thief is required to return only the shearings and the offspring that preceded the owner's despair of the recovery of his property.

If the watchman took the oath because he did not desire to pay, and afterwards the thief is discovered, the thief must pay twice the value of the article. If he slaughtered it or sold it, he should pay four or five times the value of the stolen animal. To whom should restitution be made? To the owner of the entrusted article.

Similarly, when a person rents a cow from a colleague and it is stolen, if he says, "I am willing to pay and I will not take an oath," if the thief is discovered afterwards, he should pay double or four or five times to the renter. For had the renter desired, he could have taken an oath that the cow was stolen in a manner in which he could not control, and he would be released from liability.

When an unpaid watchman says, "I was negligent," he acquires the right to the double payment because he obligated himself to make restitution. For had he said, "It was stolen," or "It was lost," he would not have been liable. Similarly, when a paid watchman or renter says, "It was stolen," he acquires the right to the double payment because he obligated himself to make restitution. For had he said, "It died," he would not have been liable.

A borrower, by contrast, does not acquire the right to the double payment until he makes restitution on his own initiative. If afterwards the thief is discovered, he makes the payment of four or five times the animal's value to the borrower.

Whenever a watchman acquires the rights to the double payment, he also acquires the rights to any profit that comes as a matter of course.

What is implied? A person entrusts four se'ah, worth a sela, to his colleague. They were stolen or lost. The watchman says, "I will pay a sela; I do not desire to take the oath." If they were later discovered and at that time were worth four sela'im, they are granted to the watchman. He, however, is required to pay only a sela.

When does the above apply? When the watchman did not trouble the owner to undertake legal process to recover his money. Different rules apply, however, if the watchman admits that he was negligent and the court required him to pay, but he did not do so willingly and had to be compelled by the court, and it had to expropriate the money from him. If, afterwards, the thief is found or the entrusted article is discovered, it should be returned to the owner in its present condition. The money that was expropriated from the watchman should be returned to him. If the court expropriated utensils or land from the watchman after evaluating them, the watchman's utensils or land should be returned to him.

When the owner demanded the return of the entrusted article from a watchman, the watchman took an oath to free himself of responsibility, but made restitution regardless, if the thief was discovered afterwards, since the watchman made restitution willingly, he acquires the right to the double payment.

This applies despite the fact that at the outset, he troubled the owner to take him to court until he took an oath. Similarly, if at first the watchman said, "I will not pay," and then he said, "I will pay," he acquires the right to the double payment.

All the following situations represent questions left unresolved by the Talmud: The watchman said, "I will pay" and then said, "I refuse to pay";

the watchman said, "I will pay" and then died, and his children said, "We refuse to pay";

the owner was not able to demand payment from the watchman before the watchman died; he demanded payment of his sons and they paid;

the sons of the watchman paid the sons of the owner;

the watchman paid half the sum;

he borrowed two cows and paid for one of them;

he borrowed from partners and paid one of them;

partners borrowed and one of them paid;

he borrowed from a woman and paid her husband;

a woman borrowed and her husband paid.

There is unresolved doubt with regard to all the above instances. The ownership of the money is in doubt, and it is not in the hands of either of them. Therefore, the double payment or the increase in the value of the entrusted article is divided between the owner and the watchman. If, however, one of them took the initiative and seized the entire amount, it should not be expropriated from his possession. This applies even in the diaspora.

When the entrusted article was stolen in a manner beyond the watchman's control, and afterwards the thief was discovered, both an unpaid watchman and a paid watchman must lodge a legal claim against the thief. The watchman is not required to take an oath.

The following rules apply when the watchman hurried and took the oath before the thief was discovered, and then the thief was discovered. If he is an unpaid watchman, he may remain content with his oath if he desires. If he desires, he may lodge a legal claim against the thief. If he is a paid watchman, he must lodge a legal claim against him.

There is a question when an animal that was deposited as an entrusted article is stolen in a manner beyond the watchman's control and then returned by the thief to the watchman's house, and it dies there because of the watchman's negligence. There is an unresolved question whether his responsibility as a watchman was concluded when the article was stolen, and hence he is absolved of liability or his responsibility did not conclude. Hence, the watchman is not required to make restitution. If the owner seizes the animal's worth, it is not expropriated from his possession.

Blessed be God who grants assistance.