Shomer – Bava Metzia 42


            Money Matters

The Gemora begins by stating that a custodian should keep deposited money on his body, and then later quotes Shmuel’s statement that money must be buried. The Rambam (She’eila u’Pikadon 4:6) explains that when the money is deposited with the custodian at home, he must bury it, while if the deposit was to transport the money somewhere, he must keep it on his body.


Shmuel states that a custodian must guard money entrusted to him by burying it, and anything short of that is negligence.


The Rosh quotes Ri Barceloni that says that Shmuel is only discussing a situation where burglary is common. However, if it is not common, a custodian need only guard the money as he guards his own. The Gemora implies this in its follow up discussion of different ways of storing the money, which the Gemora explicitly ties to the prevailing form of burglars at the time.


The Rambam (She’eila u’Pikadon) seems to imply that Shmuel’s statement is not subject to variation in different times and situations.


The Shulchan Aruch (HM 291:18) rules like the Rosh. See the Gra (HM 291:28) for a discussion of how this debate depends on differing texts in our Gemora.


The Sma (C”M 291:24) says that now that our houses are much more solid than in the Gemora’s time, and therefore a custodian may store the money in a locked house.


Shmuel is also implicitly stating that if the custodian did bury the money, and it was stolen, he is not liable.


The Rishonim debate what the rule for a paid custodian is. Unlike an unpaid custodian, a paid custodian is fundamentally liable for theft, but he is also not liable for unavoidable loss of the deposited item.


The Gemora states a number of times that a paid custodian is not liable for an item that is taken through armed robbery, since that is unavoidable. When a paid custodian buries money, but it is still stolen, he may be liable, since it is theft, but he may not be liable, since it seems like an unavoidable loss.


Rabbi Akiva Eiger (HM 303:2) lists three positions of the Rishonim on this question:

  1. Tosfos (BK 57a K’gon) and the Rosh (BM 3:21) say that a paid custodian is liable, even if he buried the money, since that is included in the liability for theft. Every theft is akin to an unavoidable loss, so a theft that is more unavoidable is still a theft. Only in the case of an armed robber, where the paid custodian was present and powerless to stop the theft is considered truly unavoidable.
  2. The Ramban says that a paid custodian must keep the money in his presence. Therefore, theft of buried money is not considered unavoidable, and a paid custodian is liable. However, if something unavoidable occurred to the paid custodian, making it impossible to keep the money with him (e.g., a sudden severe sickness), he is not liable.
  3. Tosfos (BM 42a Amar Shmuel) says that a custodian is not liable for unavoidable theft, which includes buried money, as well as an unavoidable event which prevented his guarding.


The Rambam (She’eila uPikadon 4:4) applies Shmuel’s statement to any item that has two things in common with money:

  1. Valuable enough that burglars look for it
  2. Not ruined by being underground

Therefore, blocks of precious metals and stones also must be buried when being guarded.


Rav Yitzchak says that one should split his assets in three, with one third going to land. The Maharshsa offers two explanations for this:

  1. Buried underground, as Shmuel requires of the custodian
  2. Invested in real estate

            Unobserved Blessings

The Gemora says that blessing only occurs to items that are not measured and observed.


The Meiri explains that the Gemora is referring to the blessing of successful returns on investments.


Rabbeinu Manoach says that the Gemora means that the blessing will be that the ultimate measure will be larger than the original estimate, in a miraculous fashion.


The Sfas Emes echoes this position, by explaining that Hashem does not make miracles that openly subvert nature, and therefore this blessing only occurs before the produce is measured.


The Ritva quotes the Ramban who says that one makes a brachah on this occurrence only when measuring produce for the purpose of separating tithes, since Hashem promised us a blessing for fulfilling this mitzvah. When otherwise measuring, one is not certain a blessing will occur, so he may not make a brachah.

            Household Custodians

The Gemora states that a custodian may entrust his deposited item with members of his household.


The Rishonim debate what the rule is if the ones entrusted were negligent.


Rabbeinu Tam (42b kol) says that the custodian is ultimately liable for the negligence of members of his household, while the Ramban, Rashba (BM 36a) and Rambam (She’eila u’Pikadon 4:9) say that the member entrusted with the item is liable.

            The Ox who couldn’t Eat

Rami bar Chama debates how to judge the case of an estate administrator who gave an ox without teeth to a herdsman, where it died. The Gemora explained that the orphans had already voided the sale, so the potential litigant is the seller.


Tosfos (42b Hacha) explains that Rami bar Chama is assuming that we rule like Rabbi Yosi (35b), who says that an owner of an item can directly deal with a custodian appointed by his custodian. Within Rabbi Yossi’s position, Rami bar Chama was unsure whether the seller can address the herdsman via his appointment by the orphans, or whether the orphans are removed from the transaction, since the sale was retroactively voided. Rami bar Chama’s conclusion is that the orphans are considered unpaid custodians, and the seller does have legal standing vis a vis the herdsman.


Rami bar Chama says that the herdsman must pay the seller the value of the ox, when sold for discounted meat.


Rashi explains that this is a compromise. Technically, the herdsman is not truly at fault and not liable, but he does compensate the herdsman minimally for his loss.


Rabbeinu Tam (42b Demai) says that this rule was a bona fide legal obligation. The herdsman should have notified the seller of the ox’s lack of teeth, and therefore is liable for its death. However, since an ox without teeth must be sold for meat, and may not even wait until the day of the market, it would have only been worth the price of discounted meat.