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Bava Metzia, 42

1) PROPER PROTECTION OF MONEY

OPINIONS: Shmuel rules that the only proper way to protect money is buy burying it in the ground. Is this indeed what is required of a Shomer in order to properly guard money that was entrusted with him?

(a) Most of the Rishonim (see RAMBAN, RASHBA, NIMUKEI YOSEF) maintain that the appropriate form of protection of money depends on the time and the place. Shmuel was speaking only to those generations and places where thieves were very common. In our time, it suffices to lock the money in a secure place, which is the manner of a normal person to do with his own money. This is an appropriate form of protection of money.

The Rishonim adduce proof to this from the Yerushalmi, which states that if a Shomer puts the money in a place -- which is well protected -- where a person would normally put his own money, he is exempt if anything happens to the money. However, the RASH of VIDASH (cited by the Shitah Mekubetzes) -- although he agrees to the logic of this view -- refutes the proof from the Yerushalmi, saying that perhaps the Yerushalmi is referring to other object, and not to money. RABEINU YEHONASAN also suggests that the Yerushalmi is not a proof for the same reason. Rabeinu Yehonasan adds that, logically, if the Shomer himself is someone who does not bury his own money in order to protect it, then when the owner of the money gives his money to the Shomer to guard it, we can assume that he does so with knowledge that the Shomer will not bury it, and it is as if he expressly stipulates that the Shomer does not need to bury it.

(b) The TALMID HA'RASHBA maintains that Shmuel's ruling applies in *all* places, at *all* times: the only proper form of protection of money is burial. So writes the BEIS YOSEF (Choshen Mishpat 291) when explaining the view of the RAMBAM who does not differentiate between different times and places.

This also seems to be the view of the HAGAHOS ASHIRI in the name of the OR ZARU'A. He adds that even though the Shomer places his own money into a secure chest for protection, he does not have the right to do that with the money of others, but rather he must bury it in the ground, and if he does not bury it he is Chayav if anything happens to it.

HALACHAH: RAV MOSHE FEINSTEIN zt'l in IGROS MOSHE (Choshen Mishpat II:53) writes that in our times, in countries that have banks into which money can be deposited and withdrawn with no expense or bother, and there is no risk of capital loss, a Shomer who is entrusted with money to guard is obligated to put the money in a bank, for that is the most ideal form of Shemirah, even better than burying it in the ground. (I. Alsheich)

42b

QUESTION: The Gemara relates an incident in which an Apotropos, who was appointed to manage the property of orphans, purchased an ox for the orphans and deposited it with a shepherd to watch. Shortly afterwards, the ox died of starvation, since it had no teeth and was unable to eat. Rami bar Chama asked how are the judges supposed to judge such a case. If they obligate the Apotropos to compensate the orphans, he will say that he did nothing wrong -- he gave the animal to the shepherd to watch and it was the shepherd's responsibility to make sure that the ox was eating.

How can the Apotropos exempt himself by saying that he gave the ox to the shepherd to watch? He nevertheless acted negligently when he bought the ox without looking into its mouth to make sure that it had teeth! (Rishonim).

ANSWERS:

(a) The RAMBAN answers that when the Apotropos bought the ox, he did not act negligently, because it was not apparent that the ox could not eat. Only afterwards (when the ox died) did it become apparent that the ox could not eat.

(b) The Ramban answers further that perhaps the ability to discern whether an animal can eat or not is a matter that requires expertise, and most people are not veterinary experts. Therefore, there was no negligence on the part of the Apotropos, since it was not possible for him to know, at the time of the purchase, that the animal could not eat.

(c) The Ramban cites others who answer that the Apotropos was not responsible to check that the animal had teeth, since it is very uncommon for an animal to have no teeth (it is a "Milsa d'Lo Shechicha"). His failure to check for teeth, therefore, is not negligence. The shepherd, however, should have noticed that the animal was not eating.

The RASHBA adds that this is why the Apotropos said that he gave the animal to the shepherd. He was saying that he relied on the shepherd to check that the animal has teeth. (I. Alsheich)