Is that considered negligence? TB Baba Kama 11

Daf TB Baba Kama 10 goes off on tangents unrelated to damages caused by a person’s property because it strings together disparate statements said by Ulla in the name of Rabbi Elazar. Remember that the Gemara was transmitted orally. To facilitate memorization, the editors connected statements made by the same rabbis even though they were off-topic.

To better understand this little sugiya, we need some background information about guardianship. Therefore types of guardians or bailees. This order of the guardians is in increasing responsibility for the item. The first guardian is the guardian who watches an item for free, שומר חנם. The second is the guardian who is paid to watch an item, שומר שכר. The third guardian is one who actually rents the object, שומר שכיר. The last guardian is a borrower, שואל. The disagreement between Ulla and Rava revolves around the issue of negligence. Is it negligence when guardian transfers the object he is watching to another guardian? Ulla says no and Rava says yes.

“And Ulla says that Rabbi Elazar says: In the case of a bailee who conveyed a deposit that was entrusted to him to another bailee, the first bailee is exempt for any occurrence for which he would have been exempt had he kept the deposit with him. The Gemara adds: And it is not necessary to state this in the case of an unpaid bailee (שומר חנם) who conveyed a deposit to a paid bailee (שומר שכר), thereby increasing the level of its safeguarding, since the paid bailee has a greater level of accountability than an unpaid bailee. Rather, this is the halakha even in a case of a paid bailee (שומר שכר) who conveyed a deposit to an unpaid bailee (שומר חנם), thereby decreasing the level of its safeguarding. In this case, the first bailee is exempt for any occurrence for which he would have been exempt had he kept the deposit with him, because he conveyed it to a mentally competent person and thereby fulfilled his responsibility to ensure the deposit is safeguarded.” (Sefaria.org translation) The novelty of this approach is that the transfer of responsibility from one guardian to another is not considered within the parameters of negligence. Consequently, the original guardian is only liable for restitution at his original level of responsibility.

“Rava said: With regard to a bailee who conveyed a deposit to another bailee, the first bailee becomes liable to pay for any loss to the item, even for mishaps for which he would not have been liable had he kept the deposit with him. The Gemara adds: And it is not necessary to state this in a case of a paid bailee who conveyed a deposit to an unpaid bailee, thereby decreasing the level of its safeguarding. Rather, this is the halakha even in the case of an unpaid bailee who conveyed a deposit to a paid bailee, thereby increasing the level of its safeguarding; he is liable.

“The reason he is liable is that the owner of the deposit can say to him: You are credible to me with regard to taking an oath, but this other bailee, to whom you conveyed my item, is not credible to me with regard to taking an oath. If an occurrence for which a bailee does not carry liability occurs, damaging the deposit, in order to release himself from an obligation to pay the bailee must take an oath to the item’s owner that none of the types of occurrences for which he bears liability occurred. Rava rules that the owner is required to accept an oath only from the bailee with whom he entrusted his item, but not from anyone else. Accordingly, since the first bailee was not present when the event occurred, he is unable to attest to what happened, and even if the second bailee takes an oath to that effect, the owner is not expected to accept his oath. Consequently, the first bailee bears full liability for any loss.” (Sefaria.org translation) Another possible reason the original guardian is liable for all losses and damages is that the owner can say that he did not want his object entrusted to anybody else but him.

There is a second reason that buttresses the end result. The original guardian is still liable for everything even when the second guardian is more believable than the original guardian. Alternately, there are two witnesses available who will testify; consequently, an oath is not necessary. The owner of the object still can claim that he doesn’t want anybody but the original guardian to watch it. Transferring the object to another guardian is an act of negligence on the part of the original guardian.

Both Rambam and the Shulkhan Arukh poskin according Rava.