Q&A: Response to an article you wrote on the issue of the four bailees, part b
Response to an article you wrote on the issue of the four bailees, part b
Question
In the article you wrote, you raised the question why the Talmud counts four bailees if the Talmud says there are four bailees but their laws are three. If the situation is what determines it, then it should also have counted a finder of lost property, a craftsman, etc. And if the law is what determines it, then it should have counted only three bailees, without a renter.
And perhaps it can be explained this way; I would be glad to hear the Rabbi’s opinion on the matter.
The Mishnah wrote out all the possible cases.
First case — someone guarding an object without using it, for free = an unpaid bailee.
Second case — someone guarding an object without using it, for pay = a paid bailee.
Third case — someone guarding an object while using it, for free = a borrower.
Fourth case — someone guarding an object while using it, for pay = a renter.
And a finder of lost property is not a new case, but rather the same case as either A or B. The tanna’im disagreed as to which Torah category it resembles. But it is not a “new type,” because he is guarding an object without using it, and the only question is whether this counts as receiving payment and is therefore like the second Torah case, or whether he is not receiving payment and is therefore like the first.
But a “renter” is a new case and type of bailee. The only question is what its law is.
I would be glad for the Rabbi’s response,
and I very much enjoyed reading your article on this issue — it made me much wiser!!
Answer
Definitely possible. More power to you.
Discussion on Answer
He receives payment for using the object? I didn’t understand. If he receives payment for the guarding, he is a paid bailee, and if he can also use it then all the more so he is a paid bailee.
He receives payment for the fact that he is guarding it. He is willing to guard it in exchange for permission to use it plus wages; that seems to me a pretty realistic scenario. Legally it is clear that he is liable for unavoidable accidents like a borrower, but perhaps he is even more stringent and the exemption of “its owner is with him” would not apply to him? But in any case, it still needs explaining in terms of the cases why this is not a fifth case. In the cases David suggested, the terms “for pay” / “for free” switch meaning between receiving payment and paying payment, so there is room for a fifth case.
Because he is a borrower. The fact that he gets extra money changes nothing. True, if there were a difference regarding “its owner is with him,” maybe one should see this as an additional case. Apparently there really is no difference.
I understand. But still, if there is some possibility that it would have a different law from a borrower, then it is indeed a fifth case, so even if in practice the law is like a borrower, according to the “case” approach there are five bailees and their laws are three.
The issue was peeking through between the lines here, but because of my lack of knowledge in simple matters I’m asking explicitly — and the bashful person does not learn, etc.
Seemingly every borrower is just a regular paid bailee, since he undertakes to guard and receives compensation for it. In the case of a paid bailee the compensation is payment, and in the case of a borrower the compensation is permission to use. Likewise every borrower is a renter, since he “pays” with his guarding and is permitted to use. A renter pays rent and pays with guarding and receives permission to use, while a borrower pays with guarding and receives permission to use.
In other words, a paid bailee and a renter and a borrower are all really one and the same, since here there is benefit to the bailee and benefit to the owner of the object, who receives guarding and responsibility for his object. And certainly the owner of the object benefits when he suddenly gets insurance against theft and loss, and maybe even against unavoidable accidents.
Is the criterion the intention of the parties? That if the purpose is the use (and the owner is fine with the object remaining in his possession anyway), then he is a borrower and the duty of guarding branches off from that; whereas if the purpose is the guarding and the permission to use is the compensation (the owner is looking for where to leave the object), then he is a paid bailee. And if they want otherwise, they can stipulate whatever they like.
To illustrate: if I deposit a jug with so-and-so, and as payment for his guarding I give him permission to use a barrel that I have, then he is a paid bailee regarding the jug and exempt from unavoidable accidents. And regarding the barrel, presumably he is a renter, since he uses the barrel and pays me with his guarding of the jug, and if so regarding the barrel too he is exempt from unavoidable accidents. But if I deposit a jug with so-and-so and as payment for his guarding I give him permission to use the jug itself (or: I give him permission to use the jug and he accepts responsibility to guard it), then suddenly liability for unavoidable accidents grows out of that regarding the jug — that seems, at first glance, quite astonishing.
Indeed. I think I wrote that there. It is like acquisition by money: how do you determine what is the merchandise and what is the money (after all, something worth money is like money)? According to the intention of the parties. The merchandise that they want is the merchandise, and the consideration (that is, what is given not because they specifically want that item but as equivalent value) is the money. The same with a borrower versus a paid bailee — it is a similar difference: with a borrower the goal is the use, and it is done for free, while the duty of guarding is only a byproduct and therefore should not be seen as payment. With a paid bailee the goal is the guarding, and the wages are given in return for that.
With money and something worth money, does it go according to the intention of the parties in that specific transaction?
Of course.
See my series of columns on what money is.
Thanks
Seemingly there is an additional case: guarding the object while using it, not paying wages, and also receiving wages.
That is, a borrower who receives payment for watching, or a paid bailee who is allowed to use it. What is the law in such a case?
True, in practice it is likely that his law is that of a borrower (though perhaps the exemption of “its owner is with him” would not apply?), but seemingly in terms of the cases this is an additional case. (If the Talmud means that the division of the above cases is exhaustive, then perhaps one can infer that a borrower who gets both benefits — permission to use and payment — remains a borrower in every respect.)