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Sechirut - Chapter 1, Sechirut - Chapter 2, Sechirut - Chapter 3

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Sechirut - Chapter 1

"I will thankfully acknowledge You with an upright heart, as I study Your righteous judgments" (Psalms 119:7).

The Thirteenth Book

SEFER MISHPATIM

The Book of Judgments

It consists of five halachot. They are, in order:

Hilchot Sechirut - The Laws of Rentals and Employer-Employee Relations; Hilchot She'ilah UFikadon - The Laws Governing Borrowing and Governing Entrusted Objects;

Hilchot Malveh V'Loveh - The Laws Pertaining to Lenders and Borrowers; Hilchot To'en VNit'an - The Laws Governing Disputes between Plaintiffs and Defendants; and Hilchot Nachalot - The Laws Pertaining to Inheritances

In the name of the Lord, the God of the world.
I shall thank You with an upright heart when I learn the judgments of Your righteousness.

The thirteenth book which is The Book of Judgments

It contains five sets of Halachot and this is their order:

The Laws of Sechirut
The Laws of She'ilah UFikadon
The Laws of Malveh V'Loveh
The Laws of To'en VNit'an
The Laws of Nachalot

Introduction to Hilchos Sechirut

They contain seven mitzvot: three positive mitzvot and four negative mitzvot. They are:

1) The laws governing a hired worker and a paid watchman;
2) To pay a worker his wages when due;
3) Not to delay payment of a worker's wage after it falls due;
4) For a worker to be allowed to eat from the produce with which he is working;
5) That a worker not eat from the produce at the time he should be working;
6) That a worker not take more than what he eats;
7) Not to muzzle an ox while it is threshing.

These mitzvot are explained in the chapters that follow.

1

The Torah mentions four types of watchmen, who are governed by three different rules. The four types of watchmen are an unpaid watchman, a borrower, a paid watchman and a renter.

2

These are the three rules that govern cases involving these watchmen: When an entrusted article is stolen from or lost by an unpaid watchman and - needless to say, when the entrusted article is destroyed by forces beyond the watchman's control - e.g., it was an animal and it died or was taken captive -the watchman must take an oath that he guarded the article in a manner appropriate for a watchman, and then he is freed of liability, as Exodus 22:6-7 states: "And it was stolen from the man's home... and the homeowner shall approach the judges."

A borrower must make restitution in all instances, whether the borrowed object was lost, stolen, or destroyed by factors beyond his control - e.g., a borrowed animal died, was injured or taken captive. For with regard to a borrower, ibid.:13 states: "If it becomes injured or dies - when its owner is not with it - he must certainly make restitution."

A paid watchman and a renter are governed by the same laws. If the article that was rented or was entrusted for a fee was lost or stolen, they must make restitution. If the article is lost by forces beyond the watchman's control - e.g., an animal died, was injured, was taken captive or was attacked by a wild animal - the watchman is required to take an oath, and then he is freed of liability, as ibid.:9-10 states: "If it died, was injured or taken captive, and there are no witnesses, an oath of God shall be between them." And ibid.:11 states: "If it is stolen from him, he shall make restitution to its owner."

Thus, an unpaid watchman takes an oath in all instances. A borrower makes restitution in all instances except when an animal dies performing the labor for which it was borrowed, as will be explained. And a paid watchman and a renter make restitution when the article is lost or stolen, and take an oath when it is destroyed by forces beyond their control - e.g., it was injured, taken captive, died, attacked by beasts, lost in a ship that sank at sea, seized by armed thieves - or lost in any other major matter over which the watchman has no control.

3

The following rules apply when a person entrusts an article to a colleague for safekeeping, whether he offers payment or not or lends an article or hires it out. If the watchman also asks the owner of the article to work for him or hires him together with the article, the watchman is never held liable at all. Even if the watchman is negligent in his care of the article he was watching, and it was lost because of his negligence, he is not liable, as Exodus 22:14 states: "If his owner is with him, he need not make restitution. If he is a hired worker, it comes with his wages."

When does the above apply? When the watchman asked or hired the owner to work at the time he took the article, even if the owner was not with him at the time the article was stolen, lost or destroyed by forces beyond his control. If, by contrast, he took the article and became responsible as a watchman at the outset, and afterwards asked or hired the owner to work, he is not absolved of responsibility. Even if the owner was standing nearby at the time the entrusted article was destroyed by forces beyond the watchman's control, the watchman is liable to pay, as implied by ibid.: 13: "If the owner is not with him, he must certainly make restitution."

According to the Oral Tradition, these verses were interpreted to mean: If the owner was with the borrower at the time the article or animal was borrowed, he is not liable, even if he was not with him at the time it was stolen or died. If, however, he was not with the borrower at the time the article or animal was borrowed, he is liable, even if he was with him at the time it was stolen or died. The same laws apply to other watchmen. If the owners are "with them", they are all free of liability. Even if they are negligent, if the owners are "with them", they are all free of liability.

4

Whenever a watchman is negligent when he begins caring for the article, even though the article is ultimately destroyed by forces beyond his control, he is liable, as will be explained.

A borrower is not allowed to lend the entrusted article to another person. Even if he borrows a Torah scroll - in which instance, anyone who reads it performs a mitzvah - he may not lend it to someone else. Similarly, a renter is not permitted to rent the entrusted article to another person. Even if a Torah scroll was rented to him, he may not rent it to someone else. The rationale is that the owner will tell the watchman: "I do not want my article to be in someone else's hands."

The following rules apply if the watchman transgressed and entrusted the article to another watchman. If there are witnesses who testify that the second watchman guarded the article in an appropriate manner, and the article was destroyed by forces beyond his control, the first watchman is not liable. For there are witnesses that the article was destroyed by forces beyond his control.

If there are no witnesses to give such testimony, the first watchman is liable to pay the owners, for he entrusted the article to another watchman. Afterwards, he should enter into litigation with the second watchman. Even if the first watchman was not paid for his services and he entrusted the article to a paid watchman, he is liable. For the owner of the article will tell him: "Although you are an unpaid watchman, you are trustworthy in my eyes, and I am willing to believe your oath. I don't consider the other person trustworthy."

For this reason, if the owner of the article would frequently entrust articles of this nature to the second watchman, the first watchman is not required to make restitution. For he could tell the owner: "Yesterday, you were willing to entrust the article that you entrusted to me to this person."

In the above instance, the watchman is freed of liability only when he does not reduce the level of responsibility for watching the article. What is meant by reducing the level of responsibility for watching the article? For example, the article was entrusted to the first watchman for a fee, and he entrusted it to the second watchman without charge, or the first watchman was a borrower, and he entrusted it to a paid watchman. In such instances, since the watchman reduced the level of responsibility for watching the article, he is considered to be negligent and is required to pay.

[The above applies even if when the article was originally entrusted, the owner was working for or hired by the first watchman. For that watchman removed the entrusted article from his domain and entrusted it to another watchman.

5

If the second watchman was able to bring proof that would free the first watchman from responsibility for guarding the article, he is not liable.

What is implied? A paid watchman entrusted an animal that was entrusted to him to an unpaid watchman. If the second watchman brought witnesses who testify that the animal died in a natural manner, the first watchman is not liable. The same principles apply in all analogous situations.

6

When a watchman entrusted an animal entrusted to him to another watchman and increased the responsibility of the watchman and the animal died, the owner receives the benefit.

What is implied? A person rents a cow from a colleague and then lends it to another person. Afterwards, the cow dies in an ordinary manner in the possession of the borrower. Since the borrower is required to make full restitution, he should return the worth of the cow to its owners. For the renter is not carrying out business with his colleague's cow. Similar principles apply in all analogous situations.

The following rules apply when a person was in possession of an entrusted object belonging to a colleague and gave it to another person to bring to its owner. Since the first watchman is responsible for the article until it reaches its owner's domain, if he desires to retrieve the article from the second watchman, he may. If it is established that the first watchman has denied that property was entrusted to him, he cannot retrieve the article from the second watchman although he remains responsible for the entrusted article.

Sechirut - Chapter 2

1

The three laws that the Torah states with regard to the four watchmen apply only with regard to movable property that is not consecrated and which belongs to a Jew.

This is derived from Exodus 22:6,9, which mentions: "money or articles and any animal." This excludes landed property and slaves, for they are equated with landed property. And it excludes promissory notes, for they themselves are not money.

And consecrated property is excluded, for ibid.:6 states: "When a person will give to his colleague." And this also excludes property owned by gentiles. Accordingly, our Sages stated: An unpaid watchman need not take an oath with regard to claims involving slaves, promissory notes, landed property and consecrated property. Similarly, a paid watchman or a renter need not pay if they are destroyed. If the watchman performed a kinyan confirming his responsibility for such articles, he is responsible for them.

2

Our Sages ordained that the oaths required of watchmen should be taken with regard to consecrated property in the same manner as required by the Torah with regard to other property so that people should not deal lightly with consecrated property.

3

It appears to me that a watchman who was negligent with regard to the care of slaves and the like is obligated to make restitution. For he is freed of responsibility with regard to slaves, landed property and promissory notes -only for the obligations stemming from theft, loss, death and the like. For if he was an unpaid watchman for movable property, and it was stolen or lost, he would be required to take an oath; but for slaves, landed property and promissory notes, he is not required to take an oath. Similarly, if he was a paid watchman, he would be required to make restitution for movable property that was stolen or lost, but for these he is freed of liability. If, however, he was negligent, he is required to make restitution. For everyone who is negligent is considered to be one who damages property, and there is no difference between the laws applying to a person who damages landed property and one who damages movable property.

This is a true judgment, as those who understand will see, and this is the appropriate way to rule. Similarly, my teachers issued the following rulings with regard to a person who entrusts his vine to a sharecropper or to a watchman and stipulates that he dig, prune or dust it from his own resources. If the watchman is negligent and does not perform the required task, he is liable as if he destroyed it with his hands. Similarly, he is liable in all instances where he causes a loss through his actions.

4

When a person entrusts produce that is growing on land - even grapes that are ready to be harvested - to a colleague to watch, they are considered to be landed property with regard to the laws of watchman.

5

The following principle applies if a person entrusts consecrated property to a watchman and then redeems it, and so it is no longer consecrated at the time the owner takes it from the watchman, or he lends it to a person when it was not consecrated and then consecrates it while it is in the borrower's possession, or a gentile entrusts property and then converts. In all these situations, the laws of watchmen do not apply, unless the article was not consecrated property and belonged to a Jew from the beginning of the time the article was entrusted until the conclusion of that period.

6

The laws applying to borrowers apply equally to men and to women. This applies if the woman is the owner of the entrusted article, or an article was entrusted to her care.

7

When a minor entrusts an article to an adult or lends it to him, the adult must take the oaths required of a watchman to the minor. My teachers ruled that the adult is not taking the oath because of the claim of the minor in which instance, the oath would not be required. For an oath is never taken with regard to a claim made by a minor. The rationale is that all the oaths taken by watchmen are taken because of an indefinite claim.

8

Just as our Sages ordained that a purchaser must finalize his acquisition of an article through meshichah; so, too, they ordained that a watchman's responsibility for an article is established through meshichah.

When a person tells a colleague: "Watch an article for me," and he tells him: "Place it down in front of me," he is an unpaid watchman. If he tells him: "Place it down before yourself," or "Place it down" without saying anything else, or tells him: "My house is before you," he is neither a paid watchman nor is an unpaid watchman, nor is he obligated to take an oath at all. The owner of the article may, however, have a ban of ostracism issued applying to anyone who took his article and did not return it to its owner. Similar principles apply in all analogous situations.

Whenever a person entrusts, lends or rents an article to a colleague, the same laws apply whether or not the transfer was observed by witnesses. When the watchman himself admits that he served as a watchman, or he borrowed the article, he is required to take the oath required of watchmen. We do not employ the principle of miggo to absolve a person of the responsibility for an oath, but only to free him of the responsibility to make restitution.

Even if the article that was borrowed, entrusted or rented was worth only a p'rutah, the watchman is required to take an oath concerning it. None of the watchmen are required to admit to a portion of the plaintiff's claim before being required to take the oath.

9

An unpaid watchman may make a stipulation to be freed of the responsibility to take an oath, and a borrower may make a stipulation to be freed of the responsibility to make restitution. Similarly, the owner of the entrusted object may make a stipulation that an unpaid watchman, a paid watchman or a borrower will be liable in all situations as a borrower is. This is acceptable, for any stipulation regarding money or an oath that involves money that is agreed upon by both principals is binding. Neither a kinyan to affirm it nor witnesses are required.

10

When the owner claims that there was a stipulation made requiring the watchman to undertake more responsibility, and the watchman denies that such a stipulation was made, the watchman must take the oath required of a watchman, and on the basis of the principle of gilgul sh'vuah he must includein his oath that there was no stipulation involved.

11

If the owner of an object claims that he entrusted it to a watchman, and the watchman answers that he said merely: "Place the article down before yourself," and thus never became obligated as a watchman, the defendant is required to take a sh'vuat hesseft that this was the manner in which he received the article. He should include in his oath that he did not use it for his own purposes, destroy it with his own hands or cause it to be destroyed in a manner that would obligate him to make restitution.

12

If the owner of an object claims: "I lent it to you," "I rented it to you," or "I entrusted it to you," and the defendant responds: "This never took place," or "That is true, but I returned it to you, and my responsibility was concluded. There is no obligation between us at all," the defendant must take a sh'vuat hesset. He is then freed of responsibility.

When does this apply? When the watchman's responsibility is not recorded in a legal document. If, however, a legal document recorded that the article was entrusted, rented or lent, and the watchman claims that he returned the article, he must affirm his statement with an oath taken while holding a sacred article. The rationale for this ruling is that since an unpaid watchman could claim that the article was stolen or lost, and a borrower could claim that it died because he was working with it, his word is accepted when he says he returned it. But just as if he claimed that it was destroyed by forces beyond his control, he would have been required to take a Scriptural oath while holding a sacred article; so, too, when he claims to have returned it, he is required to take an oath resembling a Scriptural oath. The rationale is that the plaintiff has a legal document recording that the article was entrusted.

When does the above apply? When the watchman could have claimed that the article was destroyed by forces beyond his control without having to bring proof of his claim. If, however, he would have to bring proof of his claim, as will be explained, his word is not accepted if he claims that he returned the article. Instead, the plaintiff in possession of the legal document should take an oath while holding a sacred article that the watchman did not return anything to him. The watchman is then required to make restitution.

There is no other instance where a defendant is obligated to take an oath while holding a sacred article because he could have used another argument, except a watchman against whom a legal document serves as evidence. Whenever any other defendant is obligated an opportunity to take an oath, because he could have used another argument, all that is involved is a sh'vuat hesset.

Sechirut - Chapter 3

1

The following rules apply when a watchman claims that the entrusted article was destroyed by a major factor over which he had no control - e.g., it was broken or it died. If the loss occurred in a place where witnesses are ordinarily present, we require him to bring proof to support his claim that it was destroyed by factors beyond his control. He is then freed of liability, even for a watchman's oath. If he does not bring proof, he is required to make restitution, as Exodus 22:9-10 states: "If there are none who see, the oath of God will be between the two of them." This implies that in a place where it is possible to bring proof, he cannot free himself of responsibility by taking an oath. Either he brings proof or he makes restitution.

If, however, the watchman claims that the article was destroyed in a place where witnesses are not ordinarily present, we do not require him to prove his claim. Instead, he must take an oath that it was destroyed by factors beyond his control, and then he is freed of responsibility. If he brings witnesses who testify that he was not negligent in his care for the article, he is not liable; he is not even required to take an oath.

An incident occurred with regard to a person who was hired to transfer a jug of wine and it broke in the market place of Mechuzah. The matter was brought before the Sages and they said that people are ordinarily present in the market place where the watchman claimed that the jug was broken. Hence they required him to either bring proof that he was not negligent, but instead stumbled and fell or make restitution. Similar principles apply in all analogous situations.

2

When a person is hired to transfer a jug from place to place for a wage, and the jug is broken, according to Scriptural Law, he should be required to pay. For this is not a major factor that is beyond the porter's control; breaking an article is equivalent to its being stolen or lost, for which he is liable.

Nevertheless, our Sages ordained that the porter should be liable merely to take an oath that he was not negligent in caring for it. For if he were required to make financial restitution, no person would ever carry a jug for a colleague. Therefore, the Sages ordained that the breaking of a jug is equivalent to the death or the injury of an animal.

With regard to this matter, our Sages also ordained that if two people were carrying a jug with shafts, and it was broken, they should pay half the damages. For since this burden is very great for one person, but light for two people, it can be considered both similar and dissimilar to a loss due to factors beyond one's control. Therefore, if there are witnesses who testify that they were not negligent, they should pay half the damages.

If the jug was broken in a place where witnesses are not ordinarily present, the porters must take an oath that they did not break it through negligence. Afterwards, they are required to pay half the damages. For each one of should not have attempted to transport anything more than a burden that he could transport on his own. From this, one can derive thaht when a person transports a large jug that a porter would not ordinarily transport, he is considered to be negligent. If it breaks in his hands, he must make full restitution.

3

The following rules apply when a porter breaks a jug of wine belonging to a merchant and was obligated to make restitution, and the jug was worth four zuzim on a market day, and three zuzim on other days. If he makes restitution on a market day, he must give him either a jug of wine or four zuzim This applies if the merchant does not possess other wine to sell on the market day. If the merchant possesses other wine, the porter is required to pay only three. If the porter makes restitution on another day, he is required to return only three.

Whenever the porter makes restitution, a deduction is made for the effort the merchant would have to undertake in selling the jug, the damage the hole causes in the jug, and other similar matters.

4

The following rules apply when wolves come and attack herds being watched by a shepherd and seize some of them. If there is only one wolf, it is not considered to be a loss due to factors beyond his control. This applies even when there is an outbreak of wolves. If there are two wolves, it is considered to be a loss beyond his control." Two dogs are not considered to be a loss beyond his control, even if they come from two directions. If there are more than two, it is considered to be a loss beyond his control.

Armed thieves are considered to be a loss beyond his control. This applies even if the shepherd was armed and only one armed thief opposed him; it is considered to be a loss beyond his control. For a shepherd will not risk his life as a thief will.

A lion, a bear, a leopard, a cheetah or a snake are considered to be losses beyond his control.

When does this apply? When they come on their own initiative. If, however, the shepherd brings his herd to a place of wild beasts or thieves, losses incurred because of them are not considered to be losses beyond his control, and the shepherd is liable to make restitution.

5

When a shepherd encounters a thief and begins to boast to him, trying to show him that he is not concerned with him, saying: "We are in this and this place. We have these and these many shepherds, and these and these types of weapons," and the thief comes and overcomes him and seizes the animals, the shepherd is liable. For there is no difference between bringing the animal(s) to a place of beasts and thieves, or boasting and thus bringing the thieves to the place of the animal(s).

6

If a shepherd had the opportunity of saving an animal that was preyed upon or taken captive by calling to other shepherds or bringing staves, and he did not call to other shepherds or bring staves to save the animal, he is liable. This applies to both an unpaid watchman and a paid watchman. The difference is that an unpaid watchman should call to other watchman and bring staves without charge. If he cannot find any available for free, he is not liable. A paid watchman, by contrast, is obligated to hire other shepherds and staves until the value of the animal(s) in order to save them. Afterwards, he should collect their hire from the owner. If he does not do so and had the opportunity to hire others and did not avail himself of it, he is considered to be negligent and is liable to make restitution.

7

When a shepherd claims that he hired other shepherds to save a herd from danger, he is required to take an oath. He may then collect the amount that he claims. The rationale is that he cannot claim more than the value of the herd and he could have claimed that the herd was preyed upon. He is required to take an oath while holding a sacred object, as required of all those who take oaths and expropriate property.

8

The following laws apply when a shepherd abandoned his herd and came to the city - whether at the time the shepherds usually come to the city or at a time when this is not their practice - and wolves came and preyed upon the herd, or lions came and attacked them. We do not postulate that if he had been there, he definitely could have saved the animals. Instead, we assess the situation. If he could have saved them - even by hiring other shepherds and staves - he is liable. If not, he is not liable. If it is impossible to make such an assessment, he is liable.

9

If an animal dies in an ordinary manner, this is considered to be a loss beyond the shepherd's control, and he is not liable. If he oppressed it and it died, it is not considered a loss beyond his control. If it overcame the shepherd and ascended to a high cliff, and it overcame him and fell, it is considered to be a loss beyond his control. If he led it up a steep cliff or it ascended on its own accord, but he could have prevented it from doing so and failed to do so, even though it overcame him and fell and died or was injured, he is liable. For whenever there is negligence at the outset, but ultimately the actual loss happens because of factors beyond the watchman's control, he is liable.

Similarly, when a shepherd leads animals across a bridge, and one pushes another and it falls into the current of the river, the shepherd is liable. The rationale is that he should have brought them over one by one. Indeed, the reason a shepherd receives a wage is to watch the animals in a effective manner. Since he was negligent at the outset, by causing them to cross together, even though when the animal fell, the loss was beyond his control, he is liable.

10

If the shepherd was negligent and the animal went out to a swamp and died in an ordinary manner, he is not liable. For the animal's going there did not cause it to be lost due to forces beyond the shepherd's control. Since it died in an ordinary manner, what difference is it whether it diedin the watchman's house or in the swamp?

If, by contrast, a thief stole it from the swamp, and it died in an ordinary manner in the thief's house, the watchman is liable, even if he is an unpaid watchman. For even if it had not died, it would have been lost to its owner in the possession of the thief, and its going out to the swamp allowed it to be stolen. Similar laws apply in all analogous situations.

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The Mishneh Torah was the Rambam's (Rabbi Moses ben Maimon) magnum opus, a work spanning hundreds of chapters and describing all of the laws mentioned in the Torah. To this day it is the only work that details all of Jewish observance, including those laws which are only applicable when the Holy Temple is in place. Participating in the one of the annual study cycles of these laws (3 chapters/day, 1 chapter/day, or Sefer Hamitzvot) is a way we can play a small but essential part in rebuilding the final Temple.
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