Vayetze - One shomer (gaurdian) who hands over his responsbility to a second shomer

In this week's parshah the pessukim discuss the laws of shomrim - a guardian who is entrusted with something to take care of.

What is the halachah in the case of שומר שמסר לשומר, where the first shomer entrusted the object given to him for safekeeping to a second shomer?

The gemara paskens in this case that if the object is damaged or lost, the first shomer is chayav to pay even if he would not have been chayav if the same thing had happened when the object was under his jurisdiction (בבא מציעא דף ל״ו עמוד ב'):

אמר רבא הלכתא שומר שמסר לשומר חייב … מאי טעמא? דאמר ליה את מהימנת לי בשבועה האיך לא מהימן לי בשבועה

“Rava says, if one shomer hands over the object to a second shomer then the first shomer is chayav. Why is this so? Because the owner says to the first shomer, I believe you to make a shevuoh that it was not your fault but I do not believe the second shomer.”

According to the Rambam, not only does the first shomer have to pay if the object incurred damage, he also has to pay if an animal that he handed to a second shomer causes damage. The Rambam says (הלכות נזקי ממון פרק ד׳ הלכה י״א):

מסר השומר לשומר אחר--השומר הראשון, חייב לשלם לניזק: שהשומר שמסר לשומר חייב

“If the first shomer hands it over to a second shomer [and then the animal did some damage], the first shomer has to pay the damage because שומר שמסר לשומר חייב.”

Reb Chaim Brisker (שיערי רבינו חיים הלוי ב״מ דף ל״ו עמוד א׳) asks that the reason for שומר שמסר לשומר חייב does not apply here? The reason that the first shomer has to pay is that the owner does not believe the second shomer to make a shevuah and say that an accident occurred. However here where the animal caused damage there is no shevuoh, so the second shomer should have to pay?

Reb Chaim answers as follows:
The Rambam in ( הלכות שכירות פרק א׳ הל׳ ח׳) says that the reason that שומר שמסר לשומר is חייב is because:

יש לבעל החפץ לומר לו, אתה נאמן אצלי להישבע, וזה אינו נאמן

“The owner can say to the shomer – as far as I am concerned, you are believed with a shevuoh and the other shomer is not believed.”

However, in ( הלכות שאלה (פרק ד׳ הל׳ ח׳ the Rambam says that the reason the first shomer is chayav is because the first shomer was poshea in his shemirah by handing the object to the second shomer:

…אם מסרן לאחר--הרי זה פושע, וחייב לשלם

“If he entrusted them to someone else this is negligence and he has to pay.”

Why does the Rambam say two different reasons?

Rb Chaim explains as follows:

There are two ways we can explain why the first shomer should be patur if he handed over the object to a second shomer:

1. The first shomer has made the second shomer into the shomer on the object. The first shomer is no longer the shomer and he has totally handed over his responsibility to the second shomer.
2. Even if the first shomer is still the shomer, he might still be able to fulfill his obligation to gaurd the object by having the second shomer guard it on his behalf.

 When the Rambam says:

…אם מסרן לאחר--הרי זה פושע, וחייב לשלם

“The first shomer has been careless by handing the object to the second shomer”

He means that the first shomer has not handed over his responsibility to the second shomer because it was careless of him to give it to the second shomer and therefore this cannot be a transfer of his responsibility. He is excluding the first reason to pater the first shomer.

Subsequently, we now have 2 shomrim: The first shomer, whom the owner made into a shomer, and the second shomer, who the first shomer made into a shomer. The halacha is that if the owner appoints two shomrim, each of them has to make a shevuoh and one does not become patur with the shevuoh of the other (בבא קמא דף ק"ח עמוד א׳). Therefore in this case, if something happens to the object, the first shomer will be chayav as long as he has not made a shevuoh.

When the Rambam says:

יש לבעל החפץ לומר לו, אתה נאמן אצלי להישבע, וזה אינו נאמן

"The owner can say to the shomer – I believe your shevuoh but not the shevuoh of the second shomer.”

He means that since the first shomer is still the shomer on the object, he needs a shevuoh to prove that the loss of the object was not his fault. However, it is impossible for the first shomer to make a shevuoh because he doesn’t know what happened. The shevuoh of the second shomer does not help him, just as in any case where you have 2 shomrim and each one needs to make his own shevuoh.

The Rambam does not mean that the owner does not believe the second shomer, he means that the shevuoh of the second shomer does not help the first shomer as he has to make his own shevuoh. He cannot absolve himself with the shevuoh of the second shomer.

Therefore we have excluded the second reason that could have made the first shomer patur.

With this, Reb Chaim answers his first question: How can the Rambam say that if an animal caused damage the second shomer is chayav because שומר שמסר לשומר חייב , this is because the owner does not believe the shevuoh of the second shomer and here there is no shevuoh?

The answer is that according to the Rambam, the primary reason that the first shomer is chayav is because he remains a shomer even after he has handed the object over to the second shomer, not because of the shevuoh. Therefore in a case where the animal does damage, the one who incurred the damage claims the money from the first shomer because he is still the shomer. As the Rambam says:

השומר הראשון, חייב לשלם לניזק: שהשומר שמסר לשומר חייב; והרי הניזק אומר לו למה לא שמרת אתה בעצמך ומסרת לאחר

“The first shomer has to pay because שהשומר שמסר לשומר חייב and the one who incurred the damage says to him, why did you not guard the animal yourself and instead handed it to someone else.”

In other words, you are still the shomer and thefore are the address for claims relating to damage incurred by the animal.