Bailments:

By: Marcus Jastrow , Lewis N. Dembitz

Delivery of personal property for the purpose of a trust. A bailment arises when one person (the bailee) is lawfully put in the possession of goods belonging to another (the bailor) with the understanding that he will return them. The law of Bailments deals mainly with the duty of the bailee to return the things held in bailment and the grounds for not returning them in good condition.

Classes of Bailees.

I. The Scriptural law of Bailments is given in Ex. xxii. 6-14 (A. V. 7-15); and there is also a reference to deposits in Lev. v. 20-26 (A. V. vi. 1-7). In the former text the first paragraph (verses 6-8 [A.V. 7-9]) speaks of entrusting money or implements to the care of a neighbor; and as such deposits are usually accepted without reward, this passage is understood as referring to the "gratuitous keeper" ("shomer ḥinnam"). The next paragraph (9-12) speaks of putting animals into the care of another; and as animals are placed every day in the care of a shepherd working for hire, this paragraph is understood to refer to a paid keeper or "receiver of hire" ("shomer sakar" or "nosé sakar"). Verses 13, 14 (A. V. 14, 15) speak of one who "borrows" some specific thing, known in Hebrew as "sho'el," while he who borrows money is known as "loweh." The sages, however, recognize a fourth kind of bailee: one who rents or hires an article ("soker"), and they place him in a more favored position than the borrower, in analogy to the greater favor that is shown to the gratuitous keeper as compared with the receiver of hire. Thus the Mishnah (B. M. vii. 8; Shebuot viii. 1) enumerates four bailees ("shomerim"): (1) the borrower; (2) the gratuitous keeper; (3) the receiver of hire; and (4) the hirer. These classes are well known to the Roman jurisprudence and to the common law of England; but the special liability of common carriers, who are in our own time the most important of all bailees, is unknown to Bible and Talmud.

The same degree of care and extent of liability are placed upon the hirer as upon the receiver of hire: thus there are indeed four bailees; but, as the Talmud puts it, only three rules govern their liability (B. M. 93 a ). The "higher care," spoken of in the Talmud as resting upon the paid keeper as compared with the gratuitous one, bears in its counterpart some analogy to the Levis culpa and lata culpa of the Romans; and while the main distinction (in the Scripture the only distinction) lies between "compulsion" ("ones")—that is, overpowering force, the Roman vis major —on the one side, and "theft or loss," the result of the keeper's negligence, on the other, the Talmud speaks of a "greater force," which is irresistible (like the "act of God," or of the king's enemies in the English law of common carriers), and of a "minor force," which a thoroughly faithful keeper might meet and overcome (Maimonides, "Yad," Sekirut, i. 2).

Another distinction, found in the very words of the Bible (Ex. xxii. 14), applies to borrower and hirer alike: "If the owner thereof be with it [the hired or borrowed article], if he be a hired man and has come for his hire, he [the borrower or hirer] need not pay." This is construed to mean: If the owner of the article, generally a draft-animal, is engaged at or before the time at which the article is borrowed or hired; if he is thus engaged, whether for hire or without it, the hirer or borrower is free from liability except for misappropriation (B. M. viii. 1, and discussion in Gemara 94 b et seq. ).

It may be here remarked that when A borrows an article from B, without any hire or compensation, and nothing is said about the length of time for which he may keep it, he must restore it on demand; but if B lends the article for a fixed time, or for doing some named task, A may keep it for the whole time, or during the performance of the task, though he has given no consideration. For here is a gift of the use with delivery of possession; and such a gift is as irrevocable as a like gift of the thing itself (Maimonides, She'elah, i. 5).

The word peshi'ut (lit. "unfaithfulness") answers to the Latin culpa , or fault, and to the "negligence" of the English-American law.

General Rules.

II. The Mishnah, in the two places indicated above, states the general rules thus: "The gratuitous keeper swears about everything [clears himself by his oath in all cases, according to Ex. xxii. 7 (A. V. 8)]; the borrower pays in all cases; the receiver of hire and the hirer swear about the crippled or captured or dead beast, but pay for what is stolen or what is lost." The exceptions to these rules will be stated later in this article.

1. The Borrower ("Sho'el"):

The borrower of beasts, implements, or other movables, when the presence of the owner is not stipulated for, pays not only for loss or theft arising from his neglect, but even for the result of irresistible force—in the words of the text, "for if it die, or be hurt, or driven away" (Ex. xxii. 9 [A. V. 10]). For the death of animals, however, the borrower is excused, if it results from the very kind of work for which the beast was borrowed, provided the borrower does not task the beast beyond its strength. (Maimonides, for reasons unexplained, has in his code changed the words of the Talmud [B. M. 96 b , and frequently] "died by reason of the work," , into "died at the time of the work," .) The reason of the exception is this: As the work done which caused the death was in the contemplation of both borrowerand lender, the result must also have been in their contemplation. In like manner, if a man borrows an ax for cutting down trees, and it breaks in the act of striking a tree, the borrower is not responsible. But if a man borrows a spade to dig up a certain garden, and he uses it upon another garden, he is responsible for the breakage. Where the article is put in worse shape while in the hands of the borrower, the difference in value is assessed and must be paid. This applies to a beast also: If the borrower fails to feed it properly, and by reason thereof it is returned to its owner in worse condition than when it was received, he must answer for the depreciation (Maimonides, "Yad," She'elah u-Piḳadon, i. 1-9).

Where, by the death of the borrower, a borrowed beast or article passes into the hands of his heirs, the Talmudic sages are divided on the question, whether the heirs are liable even to the extent of other estate falling to them for the destruction of the thing by "force" (Ket. 34 b ; B. Ḳ. 112 a ). Maimonides in his code (She'elah i. 5) says they are; while R. Joseph Caro, in his comments on that code, wonders at this, and claims that the weight of Talmudic authority lies the other way.

Where the presence or services of the owner are obtained, the borrower does not answer even for the result of negligence ("peshi'ut"). An agent of the owner does not satisfy the rule; his slave does. A wife is supposed to be present at all times; hence he who borrows an article from his wife is not responsible for accidents (She'elah, ii. 1, 5, 7).

Where the article is sent by the lender to the borrower, the latter's liability for unavoidable accident begins only when it reaches the house or grounds of the borrower, even though the lender should have chosen an agent or son of the borrower as his messenger. But if the borrower chooses the messenger, he is answerable for whatever happens after the thing comes to such messenger's hands ( ib. iii. 1).

When an unmarried woman borrows an article and marries, and the husband takes possession, not knowing that it is borrowed, he is not responsible even for negligence; but if he knows that it is borrowed, he becomes answerable in her place ( ib. ii. 11).

2. The Gratuitous Keeper ("Shomer Ḥinnam"): Gratuitous Keeper

A preliminary question may arise as to money, whether it becomes a special deposit or a loan. When money, whether sealed or loose, is handed to a private person for safe-keeping, it is presumed that he will not use it in his business, but will put it in a safe place. If he does the latter, he will be excused for loss like other gratuitous keepers. But if money is handed to a banker ("shulḥani") otherwise than in a sealed or privately knotted bag, it is presumed to be for use in his business, and he becomes liable for it as a debtor. The better opinion applies the same rule to shopkeepers as to bankers (Mishnah B. M. iii. 10, 11). When the owner calls for his deposit and it is missing in part or in whole, the depositary is put to an oath, by which he has to affirm (1) "I have not put my hand upon it" (in the words of Scripture, Ex. xxii. 7, Hebr.); (2) "I have not been faithless about it" (lo-fasha'ti) (B. Ḳ. 107 b ); (3) "It is not in my possession." The second of these avowals means, "I have kept the thing in the manner of keepers." What is meant by "the manner of keepers" depends on the nature of the deposit. Some things, such as planks or stones, are kept in an open yard; heavy skeins of flax and the like may be laid down in an inner court; a garment or shawl is kept in the house; more valuable things— e.g. , silks or gold and silver vessels—are locked up in a box or turret.

Place of Deposit.

When the keeper puts the deposit in some place which is not for a thing of its nature, even if he puts it alongside his own similar goods, and it is lost or stolen, he is answerable, as is the case when the deposit at the improper place is met by vis major , such as a fire or the collapse of the house. This is upon the principle that where faithlessness is the earliest cause of the loss or destruction, force coming in afterward is no excuse. On like grounds it was held that where the depositary hid coins entrusted to him in a hut made of reeds—a safe enough hiding-place against thieves, but unsafe against fire—he "began with faithlessness," and he was held liable, though the coins did not perish by fire, but were stolen (B. M. 42 a ; She'elah, iv. 2, 3).

In Talmudic and even in much later times (B. M. l.c. , followed by Maimonides and other codifiers), it was thought that burial in the ground or inside of a brick wall was the only fit means for the safe-keeping of gold or silver coins. According to some authorities, this would apply also to silver in bars, and certainly to gold bars, precious stones, and like articles of great value with small bulk and weight.

When one receives money to carry from place to place, or to his own home for safe-keeping there, he must carry it well tied up, and belted in front of his body (She'elah, iv. 6).

A man who is chosen by his neighbor to safeguard his goods has no right to entrust them to another; if he does, he is responsible, unless this other person can prove that he has kept them well. But it is always supposed that a gratuitous keeper takes his wife and other adult members of his family (such as his mother living with him) and his servants into his confidence; and where he in good faith bids one of these to put the deposit in a safe place, he will not be held answerable for accidents, except such as occurred by their mistakes ( ib. 8).

Where one has been entrusted with grain or like produce, he should not mix with his own what is thus deposited; but should he do so, and there be a diminution in the whole amount—as generally happens in course of time—a certain ratio is allowed for yearly shrinkage; thus: 4½ kabs in the kor (180 kabs) on wheat and shelled rice; 9 kabs on barley or millet; 18 kabs on spelt, linseed, or unshelled rice. On wine the outage is one-sixth; on oil 3 per cent: one-half for absorption in earthen vessels, and one-half for lees; if the vessels are old, only 1½ per cent ( ib. v. 5).

The keeper of the article must never use it; even if it be a scroll of the Law, he should only unroll it once a year to air it, and similarly with other books. He must not lend the article to another; to do so is a "putting forth of his hand," which makes the keeper responsible for loss from any cause ( ib. vii. 4). If the keeper of a barrel of wine lifts or movesit, and takes out a part for himself, he becomes responsible for the whole (Ḥoshen Mishpaṭ, 292, 2). If, when called upon to return the deposit, he can not tell where it is, he can be made to pay the value at once (She'elah, iv. 7). If the goods in his hands (such as grain) are deteriorating or shrinking in the ordinary way it is no ground for interference; if, through dry-rot, mice, or like causes, they are lessening or spoiling more rapidly, the depositary should have them sold by order of court, let a stranger buy them, and safely keep the proceeds of the sale for the owner ( ib. vii. 1, 2).

When, on demand, the depositary can not produce the deposit, he may, instead of making the threefold oath given above, offer payment of the value; but this can be done only when the deposit is of money, or of articles like grain, fruits, or other produce which can be bought in the open market. When the article is an animal or implement that may have a special worth to the bailee or to the owner, the latter may compel him to swear, "The article is not within my possession," before accepting payment ( ib. vi. 1).

3. The Receiver of Hire ("Nosé sakar"): Keeper or Receivre for Hire

In Talmudic as well as in Biblical times, he was generally a shepherd. A very high degree of diligence was exacted upon the precedent of "our father Jacob," who could truthfully say, when he kept Laban's flock for reward: "In the day the drought consumed me, and the frost by night" (Gen. xxxi. 40; see B. M. 93 b ). Not every wild animal is held to be a superior force: one wolf is not; two wolves are; two dogs are not. A robber, at least an armed one, is held to be such, even if the shepherd be armed; for he need not risk his life. A lion, a bear, a leopard, a panther (πάρδαλις), or a serpent is a force that excuses, but only when the animal comes of itself; when the shepherd takes his flock toward the lair of the noxious beast or of robbers, he is not excused (Sekirut, iii. 4). To hold the keeper thus liable for stock torn by a wild beast in any case seems to be against the plain words of Ex. xxii. 12 (A. V. 13): "If it be torn in pieces, let him bring it for witness: he shall not make good that which is torn." But in accordance with the adopted interpretation of the verse in the oral law, the Targum renders the italicized words as "let him bring witnesses of the tearing"; indicating that though the ox or lamb has certainly been torn by wild beasts, there is a question of fact, to be answered by witnesses, how it came to be torn (see B. Ḳ. 10 b et seq. ). Loss by shipwreck is ascribed to irresistible force, and always falls on the owner (Sekirut, i. 2).

When the beast entrusted to the keeper dies a natural death, he is excused; but not when he has by insufficient food or ill-treatment caused its death. Where the beast has climbed to the top of a cliff and falls down, its death is held unavoidable, but not so if the shepherd has led it up, and it then falls down ( ib. iii. 9). By the plain words of Scripture, the hired keeper is liable for a beast that is stolen or strayed, and, by analogy, for articles that are stolen, mislaid, or lost sight of. He is, of course, liable in all cases in which a gratuitous keeper is bound to make compensation, and has eventually to take the same oath ( ib. ii. 3).

When a hired keeper (or a hirer) lends the thing to another, who as borrower is bound for destruction by superior force, he may collect compensation from the latter, but only for the benefit of the owner ( ib. i. 6).

4. The Hirer ("Soker"):

The hirer is liable in all cases in which the hired keeper is, unless, like the borrower, as shown above, he is discharged from liability by the presence or constructive presence of the owner ( ib. i. 2).

III. While it is often said that stipulations running counter to the Mosaic law are void, and though among the early sages R. Meïr sought to apply this rule even where nothing but the payment of money was involved, such stipulations are held good as to contracts involving money only when they precede the act by which the contract takes effect. Hence a gratuitous keeper can exempt himself by contract from the oath of exoneration, the borrower from payment in all or in any cases, the hirer or receiver of hire from oath and payment; or any keeper may stipulate for a less than the customary degree of care. Under an institution of the early ages a bailment, like a sale ( see Alienation ), becomes effectual only when the thing entrusted, loaned, or hired comes to the bailee's hand: thus the word limiting the bailee's duties can be spoken or written before the bailment takes effect (Mishnah B. M. vii. 10, 11, and Gemara on same, 94 a ).

Exceptions to Bailee's Responsibility.

Where a man receives money, not for the purpose of keeping it for the owner, but to apply it to a charity or to distribute it among the poor—the special objects of the bounty not being named—the Biblical law on Bailments does not apply in express terms, nor does the rabbinic interpretation which requires a certain degree of care. Nor do the above rules apply to a bailment of slaves, or to one of deeds or bonds; or to the goods of the sanctuary or to those of Gentiles (Ḥoshen Mishpaṭ, 301, 1).

Disputes often arise on other questions than the cause of the loss, and these are settled by the ordinary presumptions and rules of evidence. Thus the Mishnah (B. M. viii. 2) already puts the case of A letting B have one cow for hire, and lending him another cow gratis. One cow dies. A says it was the loaned cow; B says he does not know which it was; or vice versa. The Mishnah says that in all such cases the party making the certain statement wins; which position is controverted in the Gemara on general grounds reaching beyond the law of Bailments (B. M. 97 a et seq. ).

When the delivery of a thing as a deposit is proved by witnesses, the depositary can not by his unsupported word claim the thing as having been subsequently bought by him or received as a gift. Hence the owner can without oath reclaim the thing from the depositary's heirs. And further, even without witnesses the owner may recover from such heirs if he can give a striking description, can show that he was not a frequent visitor at the depositary's house, and that the latter was not reputed to be the owner of the thing in question (Ket. 85 b ; She'elah, vi. 4).

In speaking of the gratuitous keeper, the text says: "If the thief be found, he shall pay twofold" (Ex. xxii. 6 [A. V. 7]). Whom must he pay? Ordinarily he must pay the owner; but if such keeper or any other bailee has already for any reason satisfied the owner, the right in the stolen thing enures to such bailee, and the thief must give him—the bailee, not the owner—the double compensation (B. M. iii. 1; Maimonides, "Yad," Genebah, iv. 8).

The provisions for a guilt-offering and for the restitution of one-fifth in addition to the value by a faithless but repentant bailee, in Lev. v. 21-26 (A. V. vi. 1-7), are also discussed in the Mishnah and Talmud. For this phase of the subject see Embezzlement .

Distinction Between Compensation and Penalty.

IV. What has been said in Assault and Battery as to the qualification of the judges applies with even greater force to the trial of causes arising out of the loss or destruction of property left in the hand of bailees. For thrice in the verses of Ex. xxii. (7, 8, bis), which refer to a deposit, the title of "Elohim" —God or gods—is given to the judges; they must therefore be ordained judges who have received their "semikah" (ordination) in the Holy Land from an unbroken line of ordained elders. Nevertheless, in the Babylonian Talmud (B. M. 96 b and elsewhere) reports of cases are given in which one or the other of the chief rabbis at Sura or Mata Maḥasia of the Babylonian academies decide cases of bailment; but in no case does the judge award a double compensation: none but an ordained judge would have attempted to impose such a penalty ("ḳenas"). The Ḥoshen Mishpaṭ also, while it only deals with the law as actually practised at a much later period, discusses (291-305 and 340-347) the responsibilities of the four kinds of bailees without referring to double compensation or to the penalty of one-fifth which, under the ordinance in Leviticus, the repentant bailee was to add to the principal.

J. Sr. L. N. D.