QUESTION: The Gemara states that when a person rents a plow for use on
mountainous terrain, and he uses it for that purpose and it breaks, the
blame is placed on the workers and not on the renter, and he is exempt from
liability. From this statement, TOSFOS infers that if the renter misuses the
plow (for example, he rented it for use in the valley, and he used it for
plowing on mountainous terrain), then the renter is to blame and the workers
are exempt from liability. The reason why the workers are exempt is because
they can claim that they accepted responsibility only if the plow was not
being misused.
The RAMBAM (HIlchos Sechirus 4:1), however, rules that even in a case of
misuse, in which the renter is obligated to pay for the damages, the renter
in turn may claim restitution from the workers.
According to the Rambam, why does the Gemara discuss the liability of the
workers only in a case where the plow was used properly, for the purpose for
which it was rented? According to the Rambam, the same liability (of the
workers) applies in a case where the plow was misused!
ANSWER: The NESIVOS HA'MISHPAT (309:5) explains that even according to the
Rambam, the workers are liable in a case of misuse only when the item broke
as a result of a Peshi'ah, an act of negligence. The workers have the status
of a Shomer Chinam because they are not paid in a case of misuse. In
contrast, in the Gemara's case where the plow was used properly for the
purpose for which it was rented, the workers have the status of a Shomer
Sachar and are liable even for Aveidah. Therefore, the Gemara discusses a
case in which the plow was used properly in order to give a case in which
the workers will be liable even for Aveidah. (Y. Marcus)
QUESTION: The Gemara teaches that a craftsman (Uman) is considered to be a
Shomer Sachar because he receives benefit from holding the object upon which
he worked -- the object serves as a security (Mashkon) for receiving his
payment.
According to this reason, in every case of a loan with collateral, the
lender should have the status of a Shomer Sachar, since he is holding the
collateral and thus has a security for the repayment of the loan! The Gemara
later (82a), however, gives different reasons for why a lender is considered
to be a Shomer Sachar when he is holding an item of collateral. Why does the
Gemara not give this reason?
ANSWER: TOSFOS answers that an ordinary lender is not considered to be a
Shomer Sachar because he stands to gain nothing from the loan. Although by
holding the collateral he is guaranteed to receive his money in return, he
is not gaining anything as a result; he is not gaining any more than had he
not loaned any money in the first place. Hence, he is not considered a
Shomer Sachar for the Mashkon. In contrast, the craftsman has much to
gain -- the profits of his work -- and thus he is considered to be a Shomer
Sachar for the Mashkon.
However, we find a Halachah stated in the RITVA (cited by the NIMUKEI YOSEF
in Bava Kama, 39a of the pages of the Rif) that seems to contradict the
answer of Tosfos. The Ritva says that one who inherits from his father a
Mashkon that his father was holding for a loan that he had given is
considered to be a Shomer Sachar for the Mashkon. Why is he considered to be
a Shomer Sachar, if he is not gaining anything from having the Mashkon, and
he would have been just as well off had his father not loaned any money? The
MAHARSHAL (in Yam Shel Shlomo to Bava Kama 10:4) indeed writes that the
Ritva is arguing with Tosfos.
The SHACH (CM 72:36), however, reconciles the ruling of the Ritva with the
words of Tosfos. The Shach explains that there is a difference in this
regard between a Mashkon taken at the time that the loan was given, and a
Mashkon taken after the loan was given. When Tosfos says that the lender
gains nothing by having a Mashkon, he is referring only to a Mashkon that
was taken at the time of the loan. Tosfos agrees that a Mashkon taken later
is considered a profit for the lender; since the loan has been given
already, the taking of the Mashkon by the lender constitutes a clear benefit
for him.
The Ritva, on the other hand, is discussing a case of a Mashkon that was
taken after the loan was given. Therefore, he compares it to the Mashkon in
the hands of a craftsman, and thus the lender is considered to be a Shomer
Sachar.
The Shach adds that the son who inherits the Mashkon did not give a loan
himself. Consequently, as far as he is concerned, the Mashkon that he
receives is pure profit (even if his father had received the Mashkon at the
time the loan was given). (Y. Marcus)