She'elah uFikkadon - Chapter 7

Compare to Hilchot Gezelah Va’Avedah 13:16, which states that when caring for a lost article, different rules apply and the produce should be sold.

See Chapter 5, Halachah 5, which mentions the norms for the loss of produce due to spoilage and being eaten by rodents.
The Ramban states that it is not necessary to wait an entire year to see how much produce is being lost due to spoilage. Instead, one should check the produce in the midst of the year, and if it has already lost as much produce as would normally be lost within a year, it should be sold. The Maggid Mishneh explains that the Rambam’s words can also be interpreted in this manner.

Our translation follows the interpretation of the Ramban. The Tur (Choshen Mishpat 292) states: “One may sell the produce.”

In this way, the amount of produce the watchman sold will be recorded, and it will be affirmed that he received an appropriate price for it.

He is saving the owner’s property, for otherwise a significant amount of the produce would spoil or be eaten by rodents. It is as if that produce was lost and he is returning its value to its owner.

The Ra’avad clarifies that in the present era, in the lands where the laws of terumah are not observed, the entrusted produce may be sold to anyone.
The Maggid Mishneh states that this law applies only when the person who entrusted the produce is not in the city. If he is present, he should be notified that his produce is spoiling; it should not be sold without his consent. Both these concepts are reflected in the statement of the law in the Shulchan Aruch (Choshen Mishpat 292:15).
In the present era, when the concept of a global village is a functional reality, it is ease of communication and not geographic distance that is significant.

Terumah refers to the heave offering, which must be separated from produce and given to the priests. There are several restrictions regarding its consumption, including the requirement that it may be eaten only in a state of ritual purity. For this reason, and because it may be consumed only by priests, it is less desired than ordinary produce, and hence commands a lower price.

The portion from the tithe given to the Levites that must be separated and given to the priests, and treated with all the strictures that govern terumah.

We suspect that on his journey, the owner of the produce decided to declare the produce that he entrusted as Terumah (or Terumat Ma’aser) for other produce that he owned. Since the entrusted produce was not readily available to him, he decided to derive some benefit from it by designating it as Terumah rather than produce that he and/or his family were using.

E. g., all the produce spoiled; alternatively, the loss was contained and no more would spoil.

Because of the rancid produce. Thus, it is still to the owner’s benefit that the produce be sold.

I.e., at the beginning of the fifth hour, ten o’clock on a day when sunrise and sunset are at 6:00 AM and PM respectively.

For after that time, eleven o’clock, it is forbidden for the owner to benefit from the leaven, and it would be of no value to him whatsoever.

For if it applies to leaven that unquestionably will become forbidden, it certainly applies to other entrusted objects when the loss is not a clear-cut matter.

I.e., sell them. As the Rambam states in the following halachot, a watchman may touch an article while caring for it.

The intent is that the watchman should not sell the entrusted article in advance. If, however, the time of the loss is directly imminent, the object should be sold, for this is a favor for the owner (Sefer Me'irat Einayim 292:40).

To air it out, so that it does not become moldy. The commentaries note that in Hilchot Gezelah Va’Avedah 13:13, the Rambam writes that a person who finds scrolls should roll them once every 30 days. The Tur and the Siftei Cohen 292:34 maintain that the same law applies with regard to a scroll that is entrusted.
The Siftei Cohen also explains the rationale for the difference in the Rambam’s rulings. Since the owner entrusted the article to the watchman without specifying how he must care for it, we assume that airing it out once a year is sufficient. With regard to a lost article, by contrast, we should care for the article in the best way possible.

Despite the fact that it is a mitzvah to study the Torah, the watchman is not allowed to make use of another person’s scroll for that purpose.
The Hagahot Maimoniot state that the Rambam’s ruling applies only when the watchman is an unlearned person, incapable of studying. If, however, the watchman is capable of studying the entrusted text, he is allowed to study from it and may even copy it. In his Beit Yosef (Choshen Mishpat 292), Rav Yosef Karo explains the rationale for this view: Since the owner knew that watchman was a Torah scholar, implicit in giving it to him to watch was the permission to study from it. In his Shulchan Aruch (Choshen Mishpat 292:20), however, he merely quotes the Rambam’s ruling. The Ramah cites the decision of the Hagahot Maimoniot.

I.e., the watchman must do whatever he can to prevent the object from being ruined. By mentioning this general principle, the Rambam implies that the Jaws stated in Hilchot Gezeilah Va’Avedah, Chapter 13, will apply in these circumstances as well.

And cannot tend to the entrusted object himself.

Seifer Me’irat Einayim 292:46 notes that the Tur (Choshen Mishpat 292) uses the term medinah, which in the Talmud and in works of halachah has the meaning “city.” Seifer Me’irat Einayim questions how much trouble the watchman must undertake to notify the owner. Today, however, with the communications revolution, it does not matter whether the owner is in the same city or overseas - the question is: Is there a way of notifying him of the difficulty with his entrusted object?

Instead, he should notify the owner of the difficulty.

The rationale is that since the person is capable of tending to his article himself and fails to do so, the watchman is not obligated to extend himself to do so.

I.e., people might think that the watchman is not paying the true worth of the article.

This license is not explicitly mentioned in the Talmud. Nevertheless, the Rambam derives this from the law cited in the following halachah (Maggid Mishneh).

If, however, he does make use of them, he is liable even if they are lost because of factors beyond his control, as indicated by Halachah 7.
The Maggid Mishneh notes that in Hilchot Gezelah Va’Avedah 13:17, the Rambam rules that a person who sells a lost object is considered to be a borrower with regard to the money, and is liable when it is lost by factors beyond his control, even if he did not actually use that money. The Maggid Mishneh explains that a person who takes care of a lost article is considered to be a paid watchman. Therefore, when the article is sold, his responsibilities increase by one more level. In our halachah, however, we are speaking about an unpaid watchman. Because the article is sold, his responsibilities are increased one level, making him a paid watchman.

For the fact that the bag was sealed or tied in an unordinary manner indicates that the owner did not desire that the money be used.

Since he has no benefit from the use of the money, he is considered like any other unpaid watchman.

As long as the bag is not bound in a special manner, closing the bag is no indication that the person does not desire that the money be used. Most people carry their purses closed.

Entrusting money to such people without closing the bag in a manner that indicates that one does not desire it opened is tantamount to giving them explicit permission to use the article. For it is well known that these individuals are in frequent need of cash.

The right to use the money - even before he actually uses it - causes him to be placed in this category.

Even if the money was destroyed by forces beyond the borrower’s control.

For a housekeeper does not necessarily have an immediate need of money, and entrusting money to him is not considered to be granting him permission to use it. When quoting this law, the Shulchan Aruch (Choshen Mishpat 292:7), adds that if the householder supports himself by lending money at interest, he is considered like a storekeeper, and he may use money entrusted to him.

Chapter 4, Halachah 4.

Seifer Me’irat Einayim 294:11 states that this law applies even when the watchman moves the jug in order to take a ladder that is stored behind it. Since he is moving the jug for his own purposes, he becomes responsible for it.

Since he moved the jug for his own purposes, he is considered as having misappropriated it (shole'ach yad). Hence, he is liable even if the jug was destroyed by forces beyond his control.

Since he is considered to have misappropriated the article, he is liable until he informs the owner that he has returned it. Putting it back in its place is not sufficient. This is the opinion of Rabbi Akiva (Bava Metzia 41a).

The Tur and the Ramah (Choshen Mishpat 292:6, as interpreted by the Siftei Cohen) state that if the article is destroyed due to negligence, the watchman is liable. Similarly, if the article is destroyed because the watchman moved the article from the place that the owner designated and placed it in a different place, the watchman is liable.

We fear that the article was taken from the husband without his knowledge, and we do not desire to assist the perpetrators of iniquity. If no one will accept the article for safekeeping, there is a greater probability that it will be returned to its owner (Maggid Mishneh).

For we fear that the article was taken from the master or parent without their knowledge.
The Maggid Mishneh defines a child as below the age of six.

Note Hilchot Ishut 22:32, where the Rambam uses the expression: “If he transgressed and accepted an entrusted article from a woman.”

Our translation follows the opinion of the Ri MiGash (the Rambam’s teacher), who maintains that the article should be returned to the woman and not to her husband. The Rashba, however, differs and maintains that the intent is that the watchman may return the article either to the woman or to her husband.

Although everything that a woman acquires belongs to her husband, it is possible that someone else entrusted an article to her for safekeeping, and she is required to return it to him (Maggid Mishneh). Alternatively, it was possible that she was given an article on the condition that it not be given to her husband, but rather she be allowed to do what she wants with it.
The Rivash (Responsum 50) states that even if the watchman knows that the entrusted article belongs to the woman’s husband, he should return it to the woman, because he received it from her. The Tashbetz (Vol. I, Responsum 59) differs and maintains that the article should be returned to the husband. Both views try to support their arguments based on the Rambam’s ruling in Hilchot Malveh V’Loveh 2:8.

Because even if it was not his at the outset, he inherits her property. If it was an article entrusted to her by others, they should demand it from her husband.

Because, as in the case of a married woman, it is possible that the article was entrusted to the servant for safekeeping or given to him as a present on the condition that it not become his master’s property.

Because we assume that it was property taken from his master. As long as the servant is alive, we assume that the master must take whatever steps necessary to retrieve his property from his servant. Once the servant dies, however, rather than consider the entrusted object to be the property of a convert who passes away without heirs (see Hilchot Zechiyah UMatanah 2:1), we assume that it was stolen from the master and require that it be returned to him.

We do not return the object to the child himself, for we fear that he will lose the object or cause it to be destroyed. Instead, we purchase objects of significant and lasting worth.

I.e., if the watchman believes that they are telling the truth and not merely trying to avoid the property's passing into the domain of the heir.
The Tur (Even HaEzer 86) states that this reservation applies only at the time of the person’s death, for if the watchman returned it to that person, he or she would not necessarily be able to give it to the person he desired. If that person is healthy, the watchman should heed his instructions regardless. For he is otherwise required to give it to that person, and that person can just as easily give it to the person he desires.

I.e., if he believes that the person is merely attempting to perpetrate deception and prevent the article from being given to the heirs, he should not allow such fraud and should give the article to the heirs.

The rationale for this ruling is straightforward. Any time a person must transport an article from place to place, he is exposing the article to the danger of being broken or stolen in transit. Therefore, the watchman is not required to bring the article to the owner in another place, lest it be destroyed during the journey. This is not the case with regard to a loan. If the lender knows the borrower has money with him, he can require him to pay the loan. A watchman, by contrast, is not required to reimburse the owner for an entrusted object even if he has money at his disposal (Seifer Me’irat Einayim, Siftei Cohen 293:1).

I.e., even if the owner of the article and the watchman are in Nov, the owner cannot require the watchman to return his article to him there.

The owner cannot tell the watchman: “I gave it to you in Jerusalem, you must return it to me there.” The Shulchan Aruch (Choshen Mishpat 293:1) states that even if the watchman compels the owner to accept the article, he is freed of his responsibility.
In his commentary on this halachah, the Maggid Mishneh adds two points:
a) the place where the watchman desires to return the article must be secure. He cannot demand that the owner accept it in a dangerous place.
b) If the owner had stipulated that the watchman take care of the article for a specific amount of time, the watchman must maintain possession throughout the duration of that period.
Both of these points are accepted as binding law by the Shulchan Aruch (Choshen Mishpat 293:1-2).

A desert is a dangerous place where the article may be stolen or destroyed. Since the watchman was the one who brought the article there, he must accept responsibility for it until it is brought to a settled land.

This ruling was ordained as a measure of protection for the owner. Hence, if the owner desires that the entrusted object be returned to him in the desert, the watchman is required to do so (Rambam’s Commentary on the Mishnah, Bava Kama 10:7).

The watchman’s responsibility for his own interests takes precedence over his responsibility for the entrusted article, and he is allowed to undertake the journey.

The Ramah (Choshen Mishpat 293:3) quotes a view that states that if the owner has no way of entrusting the article to someone for safekeeping and takes it with him on his journey, he is not liable if it destroyed or stolen.

The first watchman should not entrust the object to another person himself, because the person he chooses may not be acceptable to the owner of the article.

I.e., by entrusting it to another person, the court is taking precautions that the article will not be lost or stolen. Taking these precautions is tantamount to returning a lost article, for otherwise the entrusted article will be destroyed.