Q&A: Negligence by Guardians
Negligence by Guardians
Question
Hello and blessings!
As is well known, Maimonides’ view is that liability for negligence is because one is a damager, and the later authorities dispute whether this liability is under the law of indirect causation with direct liability (as Nachmanides writes in Bava Metzia 57 and the Avnei Nezer in several places), or whether it comes from the passage dealing with guardians and is not a case of “an actual damager,” but is derived logically (as the Shakh writes in Choshen Mishpat 386). Seemingly, according to all these approaches, it is very difficult to understand how the Talmud (Bava Metzia 95a) says that liability for negligence in the case of a paid guardian and a borrower is derived by a kal va-chomer from an unpaid guardian. For if the source is logic or the law of indirect causation with direct liability (the passage of a person who causes damage), there is no room to distinguish between the different kinds of guardians. If so, why is a kal va-chomer needed in order to obligate a borrower or a paid guardian?
Answer
I always understood that even according to Maimonides there is no way to detach the laws of a guardian’s negligence from the laws of guardians. Because of the guardianship contract, he is considered negligent; were it not for the contract, the negligence would be at most indirect causation, like one who breaks a fence in front of another person’s animal. However, one can discuss whether the contract is only the circumstance that makes it possible—meaning that because the guardian accepted responsibility upon himself, his negligence is considered like direct damage by his own hands (or that he is considered like an owner whose property caused damage)—or perhaps the contract itself obligates him to guard so that the animal will not cause damage, and when he was negligent he is considered an actual damager, but all this is within the framework of the contract. The practical difference is whether the guardian’s liability is toward the injured party or toward the owner (to reimburse him for what he will pay the injured party). And with this one might perhaps explain Maimonides’ well-known and puzzling position regarding the owner’s liability where there is a guardian, but this is not the place to elaborate.
At least according to the second approach, it seems to me that your question is not really a question. The derivation concerns what is included in the guardianship contract, and the negligent party’s liability as a damager is by virtue of the contract. Think it through carefully.
Discussion on Answer
I didn’t understand the comment. The logic says that in such a contract there is damager-liability for negligence. And if that is so for an unpaid guardian, then all the more so for a paid guardian.
The source is not the unpaid guardian. The logic teaches this about all guardians in parallel, and if so, the source for obligating negligence in a paid guardian is the logic itself, not a kal va-chomer from an unpaid guardian.
The claim is that there is such a logic even for an unpaid guardian, and then all the more so for a paid guardian. I don’t see a difficulty with such a move, even if one could have stated the logic directly regarding a paid guardian. Especially since in all guardian liabilities this is how they proceed, so they framed this logic in the same way as well. Of course, here I am assuming what I wrote above: that although he is considered a damager, it is still a liability that stems from the contract.
All this is correct, but only if the liability is written explicitly regarding an unpaid guardian. My question is according to the Shakh, that this is derived logically, and according to Nachmanides, that it is under the law of indirect causation with direct liability.